B-129794, DEC. 6, 1956

B-129794: Dec 6, 1956

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THE DISALLOWANCE WAS FOR THE REASON THAT THE SELECTIVE SERVICE ACT VESTS IN THE UNITED STATES CIVIL SERVICE COMMISSION AUTHORITY TO DETERMINE THE AMOUNT OF LOSS WHICH YOU SUFFERED AS A RESULT OF THE DEPARTMENT'S FAILURE TO MAKE TIMELY RESTORATION TO A PAY STATUS BUT NO SUCH FINDING HAD BEEN REPORTED TO THIS OFFICE. LYNCH WAS RESTORED TO THE ROLLS OF THE MILTON-FREEWATER POST OFFICE MARCH 1. WASHINGTON POST OFFICE WHICH WAS EFFECTED JUNE 3. "RESTORATION RIGHTS UNDER THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT AND THE CIVIL SERVICE REGULATIONS WERE COMPLIED WITH IN THIS INSTANCE. "AS YOU ARE NO DOUBT AWARE. SUBSTITUTE EMPLOYEES HAVE NO DUTIES OR HOURS AND HAVE NO GUARANTEE OF ACTUAL EMPLOYMENT.

B-129794, DEC. 6, 1956

TO MR. DONALD J. LYNCH:

YOUR LETTER OF OCTOBER 30, 1956, REQUESTS REVIEW OF THE SETTLEMENT OF MARCH 9, 1956, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION ALLEGED TO BE DUE BY REASON OF THE DELAY IN REEMPLOYMENT UPON YOUR SEPARATION FROM THE ARMED FORCES ON FEBRUARY 11, 1955. THE DISALLOWANCE WAS FOR THE REASON THAT THE SELECTIVE SERVICE ACT VESTS IN THE UNITED STATES CIVIL SERVICE COMMISSION AUTHORITY TO DETERMINE THE AMOUNT OF LOSS WHICH YOU SUFFERED AS A RESULT OF THE DEPARTMENT'S FAILURE TO MAKE TIMELY RESTORATION TO A PAY STATUS BUT NO SUCH FINDING HAD BEEN REPORTED TO THIS OFFICE. YOUR PRESENT LETTER ASSERTS A CLAIM FOR FULL TIME SERVICE FROM MARCH 16, 1955, THROUGH JUNE 2, 1955.

THE ADMINISTRATIVE REPORT DATED AUGUST 31, 1955 STATES AS FOLLOWS:

"MR. LYNCH WAS RESTORED TO THE ROLLS OF THE MILTON-FREEWATER POST OFFICE MARCH 1, 1955 AS AN INDEFINITE SUBSTITUTE CLERK, CONVERTED TO CAREER SUBSTITUTE CLERK AT THE MILTON-FREEWATER, OREGON POST OFFICE ON MAY 16, 1955 FOR THE EXPRESS PURPOSE OF SUBSEQUENT TRANSFER TO A VACANCY AT THE WALLA WALLA, WASHINGTON POST OFFICE WHICH WAS EFFECTED JUNE 3, 1955.

"RESTORATION RIGHTS UNDER THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT AND THE CIVIL SERVICE REGULATIONS WERE COMPLIED WITH IN THIS INSTANCE.

"AS YOU ARE NO DOUBT AWARE, SUBSTITUTE EMPLOYEES HAVE NO DUTIES OR HOURS AND HAVE NO GUARANTEE OF ACTUAL EMPLOYMENT. MR. LYNCH WAS INFORMED OF THIS FACT AND ADVISED THAT SINCE AVAILABLE SUBSTITUTE HOURS WERE LIMITED, IT WAS DOUBTFUL IF THE POSTMASTER COULD USE HIS SERVICES. THE NUMBER OF AUXILIARY SUBSTITUTE HOURS AVAILABLE AT THIS TIME WERE CONSIDERABLY LESS THAN THAT AVAILABLE AT THE TIME OF MR. LYNCH'S SEPARATION FOR INDUCTION. THIS REDUCTION IN HOURS WAS BROUGHT ABOUT BY A SURVEY WHICH REVEALED THAT THE FORMER POSTMASTER USED CONSIDERABLY MORE AUXILIARY HOURS THAN NECESSARY. ALTHOUGH MR. LYNCH WAS AVAILABLE FOR DUTY, THE POSTMASTER HAD NO WORK TO WHICH HE COULD ASSIGN MR. LYNCH AND THEREFORE DID NOT REQUEST HIM TO REPORT FOR WORK.

"SINCE MR. LYNCH WAS NOT AT ANY TIME IN THE PERIOD OF MARCH 16, 1955 TO JUNE 22, 1955 REQUESTED ON OFFICIAL ORDERS TO REPORT FOR DUTY AT THE MILTON-FREEWATER POST OFFICE, HIS CLAIM DOES NOT APPEAR TO BE WARRANTED.'

THE SELECTIVE SERVICE ACT OF JUNE 24, 1948, 62 STAT. 604, RENAMED THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT BY SECTION 1 (A) OF THE ACT OF JUNE 19, 1951, PROVIDES FOR REEMPLOYMENT RIGHTS UPON APPLICATION FOR REEMPLOYMENT BEING MADE BY THE INDIVIDUAL WITHIN NINETY DAYS AFTER HE IS RELIEVED FROM MILITARY SERVICE. THE UNITED STATES CIVIL SERVICE REGULATIONS ISSUED PURSUANT TO THE STATUTE REQUIRE THE RESTORATION TO BE MADE NOT LATER THAN THIRTY (30) DAYS AFTER THE EMPLOYEE'S APPLICATION IS RECEIVED IN THE AGENCY. FURTHER SECTION 9 (E) OF THE STATUTE 62 STAT. 617, PROVIDES AS FOLLOWS:

"* * * THE COMMISSION IS AUTHORIZED AND DIRECTED WHENEVER IT FINDS, UPON APPEAL OF THE PERSON CONCERNED, THAT ANY AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA HAS FAILED OR REFUSES TO COMPLY WITH THE PROVISIONS OF THIS SECTION, TO ISSUE AN ORDER SPECIFICALLY REQUIRING SUCH AGENCY OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA TO COMPLY WITH SUCH PROVISIONS AND TO COMPENSATE SUCH PERSON FOR ANY LOSS OF SALARY OR WAGES SUFFERED BY REASON OF FAILURE TO COMPLY WITH SUCH PROVISIONS, LESS ANY AMOUNTS RECEIVED BY HIM THROUGH OTHER EMPLOYMENT, UNEMPLOYMENT COMPENSATION, OR READJUSTMENT ALLOWANCES. * *

THE RECORD DOES NOT DISCLOSE ANY APPEAL BY YOU TO THE UNITED STATES CIVIL SERVICE COMMISSION OR A FINDING BY THE COMMISSION THAT (1) THE POST OFFICE DEPARTMENT FAILED TO PROPERLY RESTORE YOU TO DUTY OR (2) THAT YOU SUFFERED A LOSS OF SALARY BY REASON OF A FAILURE OF THE AGENCY TO COMPLY WITH THE RESTORATION PROVISIONS OF THE STATUTE.

ACCORDINGLY, OUR OFFICE IS WITHOUT JURISDICTION TO MAKE ANY ALLOWANCE UPON YOUR CLAIM AT THIS TIME. ANY FURTHER PROCEEDING IN THIS CASE SHOULD BE BY AN APPEAL TO THE UNITED STATES CIVIL SERVICE COMMISSION SHOWING THE FACTS OF THE CASE AND THE REASONS FOR THE DELAYED APPEAL. UPON REVIEW THE SETTLEMENT IS SUSTAINED.