B-125993, JAN. 31, 1956

B-125993: Jan 31, 1956

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DAC: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18. DURING WHICH YOU WERE CARRIED ON THE ROLLS OF THE DEPARTMENT OF THE AIR FORCE IN A LEAVE WITHOUT-PAY STATUS. YOUR CLAIM WAS DISALLOWED UPON THE GROUNDS THAT PLACING YOU IN A LEAVE STATUS EITHER WITH OR WITHOUT PAY PRIMARILY IS A MATTER FOR THE EXERCISE OF ADMINISTRATIVE DISCRETION AND IS NOT ONE IN WHICH WE HAVE JURISDICTION. TO AN EMPLOYEE WHO WAS THE SUBJECT OF AN ERRONEOUS REDUCTION-IN-FORCE ACTION. PARAGRAPH 7 (A) (2) PROVIDES THAT UNLESS THE EMPLOYEE REQUESTS LEAVE HE WILL BE CARRIED IN A WORK STATUS DURING THE ENTIRE NOTICE PERIOD WHENEVER POSSIBLE. WHERE THE WORK STATUS PERIOD IS REDUCED BECAUSE OF AN EMERGENCY AND THE EMPLOYEE HAS INSUFFICIENT ANNUAL LEAVE TO CARRY HIM IN A PAY STATUS FOR THE REMAINDER OF THE NOTICE PERIOD.

B-125993, JAN. 31, 1956

TO MR. VIRGIL T. FISHER, DAC:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18, 1955, REQUESTING REVIEW OF THAT PART OF THE GENERAL ACCOUNTING OFFICE SETTLEMENT OF AUGUST 24, 1954, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION FOR THE PERIOD FEBRUARY 3 THROUGH FEBRUARY 19, 1954, DURING WHICH YOU WERE CARRIED ON THE ROLLS OF THE DEPARTMENT OF THE AIR FORCE IN A LEAVE WITHOUT-PAY STATUS.

YOUR CLAIM WAS DISALLOWED UPON THE GROUNDS THAT PLACING YOU IN A LEAVE STATUS EITHER WITH OR WITHOUT PAY PRIMARILY IS A MATTER FOR THE EXERCISE OF ADMINISTRATIVE DISCRETION AND IS NOT ONE IN WHICH WE HAVE JURISDICTION.

IN YOUR REQUEST FOR REVIEW YOU CALL ATTENTION TO PARAGRAPH 3, CHAPTER AF L1.2, AIR FORCE MANUAL 40-1, WHICH PROVIDES THAT AN EMPLOYEE MAY NOT BE REQUIRED TO TAKE LEAVE WITHOUT PAY WITHOUT HIS CONSENT. AS A FURTHER BASIS FOR YOUR REQUEST FOR REVIEW YOU RELY UPON OUR DECISION OF APRIL 15, 1953, B-113831, 32 COMP. GEN. 449, WHICH AUTHORIZED THE ALLOWANCE OF BACK PAY UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, TO AN EMPLOYEE WHO WAS THE SUBJECT OF AN ERRONEOUS REDUCTION-IN-FORCE ACTION.

REGARDING YOUR LEAVE STATUS AFTER RECEIPT BY YOU ON JANUARY 25, 1954, OF YOUR REDUCTION-IN-FORCE NOTICE, THE REGULATIONS PROMULGATED UNDER PARAGRAPH 7, AF R3.4, AIR FORCE MANUAL 40-1, WOULD APPEAR TO BE CONTROLLING. PARAGRAPH 7 (A) (2) PROVIDES THAT UNLESS THE EMPLOYEE REQUESTS LEAVE HE WILL BE CARRIED IN A WORK STATUS DURING THE ENTIRE NOTICE PERIOD WHENEVER POSSIBLE. THE PARAGRAPH FURTHER PROVIDES THAT IN AN EMERGENCY THE PERIOD IN A WORK STATUS MAY BE REDUCED TO NOT LESS THAN TEN DAYS, EXCEPT AS PROVIDED IN PARAGRAPH 7 (A) (5). WHERE THE WORK STATUS PERIOD IS REDUCED BECAUSE OF AN EMERGENCY AND THE EMPLOYEE HAS INSUFFICIENT ANNUAL LEAVE TO CARRY HIM IN A PAY STATUS FOR THE REMAINDER OF THE NOTICE PERIOD, HE WILL BE PLACED IN A NONPAY LEAVE STATUS FOR THE REMAINDER OF THE NONWORK PERIOD. THE EXCEPTION PROVIDED BY PARAGRAPH 7 (A) (5) APPLIES TO SITUATIONS WHERE THE EMPLOYEE IS ABSENT ON AUTHORIZED EXTENDED LEAVE OR TEMPORARY DUTY AND IT WOULD BE IMPRACTICABLE TO REQUIRE HIM TO RETURN FOR THE PURPOSE OF PLACING HIM IN A WORK STATUS. IN THOSE SITUATIONS THE TEN-DAY TIME IN WORK STATUS REQUIREMENT MAY BE WAIVED BY THE COMMANDER OF THE AIR COMMAND UNDER WHICH THE EMPLOYEE IS SERVING.

THE MINIMUM TIME IN WORK STATUS REQUIREMENT WAS WAIVED IN YOUR CASE BY THE COMMANDER, FAR EAST AIR FORCE, IN APPROVING YOUR REDUCTION-IN FORCE NOTICE AND AS YOU HAD INSUFFICIENT ANNUAL LEAVE TO CARRY YOU IN A PAY STATUS DURING THE 30-DAY NOTICE PERIOD THE REGULATIONS REQUIRE BY NECESSARY IMPLICATION THAT YOU BE CARRIED IN A NONPAY LEAVE STATUS AFTER THE EXPIRATION OF YOUR ANNUAL LEAVE. IN THAT REGARD AN EMPLOYEE IN A NONWORK STATUS MAY BE COMPENSATED ONLY WHEN HE IS IN A STATUTORY LEAVE WITH PAY STATUS, THAT IS, ON ANNUAL, SICK, COURT OR MILITARY LEAVE; WHEN HE IS EXCUSED FROM DUTY UNDER SECTION 3, AF L1, AIR FORCE MANUAL 40-1, OR- -- SO FAR AS HERE PERTINENT--- WHEN HE IS TRAVELING TO OR FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. (AF L1.6, AIR FORCE MANUAL 40-1.) WE CONCUR IN YOUR VIEW THAT UNDER THE REGULATIONS YOU COULD NOT PROPERLY HAVE BEEN PLACED IN A LEAVE-WITHOUT-PAY STATUS WITHOUT YOUR CONSENT. HOWEVER, AS IN NEITHER EVENT WOULD YOU BE ENTITLED TO COMPENSATION FOR THE PERIOD BETWEEN THE EXPIRATION OF YOUR ANNUAL LEAVE AND YOUR REENTRY UPON ACTIVE DUTY, WE ARE REQUIRED TO CONCLUDE THAT IF THE DEPARTMENT OF THE AIR FORCE ERRED IN DESIGNATING YOUR PRECISE LEAVE STATUS, SUCH ACTION COULD NOT MATERIALLY EFFECT YOUR RIGHT TO COMPENSATION.

THE CASE DECIDED IN B-113831, 32 COMP. GEN. 449, IS DISTINGUISHABLE FROM YOURS IN THAT THE REDUCTION-IN-FORCE ACTION THERE CONSIDERED WAS FOUND BY PROPER AUTHORITY TO HAVE BEEN ERRONEOUS. IN YOUR CASE THE CONTEMPLATED REDUCTION IN FORCE OF WHICH YOU WERE NOTIFIED ON JANUARY 25, 1954, WAS NEVER CONSUMMATED SINCE YOU REENTERED ON ACTIVE DUTY IN YOUR POSITION PRIOR TO THE EXPIRATION OF THE NOTICE PERIOD. ACCORDINGLY, THAT DECISION WOULD NOT AFFORD A PRECEDENT FOR ALLOWANCE OF COMPENSATION IN YOUR CASE.

WE WOULD LIKE TO ASSURE YOU THAT WE HAVE EXPLORED AVENUES OTHER THAN THE FOREGOING IN AN EFFORT TO FIND A LAWFUL BASIS FOR THE ALLOWANCE OF YOUR CLAIM. HOWEVER, THE COMBINATION OF CIRCUMSTANCES WHICH RESULTED IN THE LOSS OF COMPENSATION TO YOU IS SO UNUSUAL THAT NEITHER STATUTORY NOR REGULATORY AUTHORITY HAS BEEN FOUND THAT WOULD AUTHORIZE PAYMENT OF THE AMOUNT IN QUESTION.

ACCORDINGLY, WE MUST INFORM YOU THAT THE CONCLUSION REACHED IN GENERAL ACCOUNTING OFFICE SETTLEMENT OF AUGUST 24, 1954, IS CORRECT AND UPON REVIEW IT MUST BE AND IS SUSTAINED.