B-128865, SEP. 25, 1956

B-128865: Sep 25, 1956

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JACKSON: FURTHER REFERENCE IS MADE TO YOUR LETTER RELATIVE TO YOUR CLAIM FOR COMPENSATION WHILE YOU WERE ON LEAVE WITHOUT PAY FROM YOUR POSITION AS A SECURITY GUARD DURING THE PERIOD JUNE 28 THROUGH AUGUST 27. THE RECORDS SHOW THAT AS A RESULT OF A PHYSICAL EXAMINATION YOU WERE FOUND TO BE PHYSICALLY UNABLE TO PERFORM THE DUTIES OF THE POSITION TO WHICH YOU WERE ASSIGNED. YOU WERE PLACED ON SICK AND ANNUAL LEAVE FROM JUNE 28 THROUGH JULY 12. WHEN YOUR LEAVE WITH PAY WAS EXHAUSTED. YOU WERE CARRIED ON THE ROLLS IN A LEAVE WITHOUT PAY STATUS FOR THE PERIOD JULY 13 THROUGH AUGUST 23. YOU WERE ALLOWED AND PAID FOR SIXTEEN HOURS ANNUAL LEAVE AND EIGHT HOURS SICK LEAVE WHICH HAD ACCRUED TO YOUR CREDIT.

B-128865, SEP. 25, 1956

TO MR. DEWEL A. JACKSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER RELATIVE TO YOUR CLAIM FOR COMPENSATION WHILE YOU WERE ON LEAVE WITHOUT PAY FROM YOUR POSITION AS A SECURITY GUARD DURING THE PERIOD JUNE 28 THROUGH AUGUST 27, 1955, AS AN EMPLOYEE OF THE THEODORE TERMINAL, THEODORE, ALABAMA.

THE RECORDS SHOW THAT AS A RESULT OF A PHYSICAL EXAMINATION YOU WERE FOUND TO BE PHYSICALLY UNABLE TO PERFORM THE DUTIES OF THE POSITION TO WHICH YOU WERE ASSIGNED. AS A CONSEQUENCE, YOU WERE PLACED ON SICK AND ANNUAL LEAVE FROM JUNE 28 THROUGH JULY 12, 1955, WHEN YOUR LEAVE WITH PAY WAS EXHAUSTED. THEREAFTER, YOU WERE CARRIED ON THE ROLLS IN A LEAVE WITHOUT PAY STATUS FOR THE PERIOD JULY 13 THROUGH AUGUST 23, 1955, OR A TOTAL OF 225 HOURS. FOR THE PERIOD AUGUST 24 THROUGH AUGUST 26, 1955, YOU WERE ALLOWED AND PAID FOR SIXTEEN HOURS ANNUAL LEAVE AND EIGHT HOURS SICK LEAVE WHICH HAD ACCRUED TO YOUR CREDIT. ON AUGUST 27, 1955, YOU WERE RETURNED TO DUTY AS A CONSEQUENCE OF A FURTHER MEDICAL EXAMINATION WHICH DISCLOSED THAT YOUR ILLNESS HAD BEEN ALLEVIATED TO THE EXTENT THAT YOU COULD AGAIN RESUME THE DUTIES OF YOUR POSITION.

IT APPEARS FROM YOUR LETTER THAT YOU ARE CLAIMING COMPENSATION ONLY FOR THE PERIOD WHEN YOU WERE CARRIED IN A LEAVE WITHOUT PAY STATUS PENDING THE DETERMINATION OF YOUR PHYSICAL FITNESS TO PERFORM THE DUTIES OF THE POSITION TO WHICH APPOINTED.

THE ONLY STATUTORY AUTHORITY FOR PAYMENT OF BACK-PAY OF WHICH WE ARE AWARE IS CONTAINED IN THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, 62 STAT. 355, WHICH PROVIDES FOR THE PAYMENT OF BACK SALARY TO EMPLOYEES UPON RESTORATION TO DUTY FOR PERIODS OF "UNJUSTIFIED OR UNWARRANTED" REMOVALS, SUSPENSIONS, OR FURLOUGHS WITHOUT PAY FROM THE FEDERAL SERVICE. THE STATUTE DOES NOT APPLY TO CASES SUCH AS YOURS WHERE AN EMPLOYEE THROUGH ILLNESS IS PREVENTED FROM WORKING. IN A CASE SOMEWHAT ANALOGOUS TO YOURS, INVOLVING AN APPEAL UNDER SECTION 6 (A) OF PUBLIC LAW 623, IT WAS HELD (30 COMP. GEN. 342) THAT THE INVOLUNTARY PLACING OF AN EMPLOYEE ON LEAVE WITHOUT PAY PENDING ACTION UPON A DISABILITY RETIREMENT APPLICATION WAS NOT A "SUSPENSION FROM THE SERVICE" WITHIN THE MEANING OF THE BACK-PAY PROVISIONS OF PUBLIC LAW 623, SO AS TO ENTITLE THE EMPLOYEE, UPON RESTORATION TO DUTY, TO COMPENSATION FOR THE LEAVE WITHOUT PAY PERIOD.

ACCORDINGLY, AS PLACING YOU ON LEAVE WITHOUT PAY PENDING TREATMENT AND A FURTHER DETERMINATION AS TO YOUR PHYSICAL FITNESS TO PERFORM THE DUTIES ASSIGNED TO YOU DID NOT CONSTITUTE AN UNJUSTIFIED OR UNWARRANTED DISCHARGE, SUSPENSION OR FURLOUGH WITHIN THE PURVIEW OF PUBLIC LAW 623, WE ARE NOT AUTHORIZED TO ALLOW THE COMPENSATION CLAIMED. THE CONCLUSION REACHED IN OUR SETTLEMENT OF JULY 12, 1956, THEREFORE, IS CORRECT AND MUST BE SUSTAINED.