B-130201, FEB. 7, 1957

B-130201: Feb 7, 1957

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WHEN YOU WERE SEPARATED FROM EMPLOYMENT BY A REDUCTION IN FORCE. THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED NOVEMBER 7. FOR THE REASON THAT THE REQUIREMENTS OF THE FOREGOING ACT WERE NOT MET. YOU SAY THE REQUEST IS MADE IN THE BELIEF THAT YOUR "201 FILE AS EXAMINED BY FINANCE CENTER. WAS NOT COMPLETE IN DETAIL" AS TO YOUR SEPARATION FROM THE SERVICE. AN ENLISTED MAN WAS ASSIGNED FOR TRAINING BY YOU. THAT AS A RESULT OF SUCH LATTER APPEAL YOU WERE REEMPLOYED IN THE SAME POSITION FROM WHICH SEPARATED. ALL WITHIN THE PERIOD OF NINE WORKING DAYS AND AS A RESULT THE CIVIL SERVICE COMMISSION DID NOT HAVE TIME TO ACT UPON YOUR APPEAL. THAT NO POSITION WAS CREATED BY THE AGENCY FOR YOU. THE RECORD BEFORE OUR OFFICE WHEN YOUR CLAIM WAS SETTLED.

B-130201, FEB. 7, 1957

TO MR. BARTON KIRK:

YOUR LETTER OF NOVEMBER 24, 1956, REQUESTS FURTHER CONSIDERATION OF YOUR CLAIM FOR BACK PAY UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1948, 62 STAT. 354, FOR THE PERIOD NOVEMBER 22 TO DECEMBER 6, 1953, WHEN YOU WERE SEPARATED FROM EMPLOYMENT BY A REDUCTION IN FORCE. THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED NOVEMBER 7, 1956, FOR THE REASON THAT THE REQUIREMENTS OF THE FOREGOING ACT WERE NOT MET. YOU SAY THE REQUEST IS MADE IN THE BELIEF THAT YOUR "201 FILE AS EXAMINED BY FINANCE CENTER, U.S. ARMY, WAS NOT COMPLETE IN DETAIL" AS TO YOUR SEPARATION FROM THE SERVICE.

YOU SAY THAT FROM 1943 TO THE DATE OF YOUR SEPARATION YOU HELD THE POSITION OF BRANCH CHIEF OF THE AGENCY (ARMY AUDIT) SERVING FORT WORTH AND THE SURROUNDING AREA; THAT IN JANUARY 1953, AN ENLISTED MAN WAS ASSIGNED FOR TRAINING BY YOU; AND THAT DURING OCTOBER 1953, YOU AVAILED YOURSELF OF VACATION LEAVE FROM WHICH YOU HAD TO RETURN TO DUTY UPON BEING INFORMALLY ADVISED THAT A REDUCTION IN FORCE LETTER HAD BEEN FORWARDED TO YOU SO THAT YOU COULD FILE AN APPEAL THEREON WITH THE CIVIL SERVICE COMMISSION. YOU ALSO SAY YOU MADE AN APPEAL TO THE PRESIDENT OF THE UNITED STATES; THAT AS A RESULT OF SUCH LATTER APPEAL YOU WERE REEMPLOYED IN THE SAME POSITION FROM WHICH SEPARATED, ALL WITHIN THE PERIOD OF NINE WORKING DAYS AND AS A RESULT THE CIVIL SERVICE COMMISSION DID NOT HAVE TIME TO ACT UPON YOUR APPEAL; AND THAT NO POSITION WAS CREATED BY THE AGENCY FOR YOU.

THE RECORD BEFORE OUR OFFICE WHEN YOUR CLAIM WAS SETTLED, WHICH RECORD INCLUDED YOUR STATEMENTS, SHOWS THAT ON NOVEMBER 21, 1953, YOU WERE SEPARATED BECAUSE OF A REDUCTION IN FORCE FROM THE POSITION OF AUDITOR, GRADE GS-9, ARMY AUDIT AGENCY, SAN ANTONIO REGIONAL OFFICE, FORT SAM HOUSTON, TEXAS, FORT WORTH AUDIT RESIDENCY, FORT WORTH, TEXAS. DECEMBER 7, 1953, YOU WERE REEMPLOYED AS A MILITARY PROPERTY AUDITOR, GRADE GS-9, ARMY AUDIT AGENCY, SAN ANTONIO REGIONAL OFFICE, FORT SAM HOUSTON, TEXAS, DALLAS BRANCH OFFICE, DALLAS, TEXAS.

THE REDUCTION IN FORCE LETTER FURNISHED YOU POINTS OUT THAT DUE TO A REORGANIZATION OF THE ARMY AUDIT AGENCY CERTAIN AUDITING POSITIONS, INCLUDING YOURS, WERE DECLARED SURPLUS TO THE NEEDS OF THE AGENCY; THAT EFFORTS WOULD BE MADE TO SECURE A SUITABLE ASSIGNMENT FOR YOU WITHIN THE AREA BEFORE YOUR SEPARATION; AND THAT YOUR NAME WOULD BE PLACED ON THE REEMPLOYMENT PRIORITY LIST FOR CONSIDERATION FOR ANY FUTURE VACANCIES FOR WHICH QUALIFIED.

THE ADMINISTRATIVE REPORT FURNISHED OUR OFFICE POINTS OUT THAT YOU WERE PROPERLY SEPARATED BY REDUCTION IN FORCE ACTION; THAT YOUR REEMPLOYMENT NINE DAYS LATER FROM THE REEMPLOYMENT PRIORITY LIST WAS ALSO PROPER; THAT IT WAS "MERE COINCIDENCE THAT MR. KIRK WAS RE EMPLOYED FROM OUR RE- EMPLOYMENT LIST AT THAT TIME; " AND THAT YOUR REEMPLOYMENT WAS NOT EFFECTED AS A RESULT OF AN ADMINISTRATIVE ERROR, OR DUE TO YOUR APPEAL, OR BECAUSE OF A REQUIREMENT OR DIRECTION THAT YOU BE REEMPLOYED. FURTHER, THE REPORT SAYS SUCH REEMPLOYMENT WAS MADE BECAUSE OF THE ESTABLISHMENT OF A POSITION DURING THE PERIOD OF YOUR SEPARATION FOR WHICH YOU WERE FOUND QUALIFIED. MOREOVER, NO INFORMATION IS OF RECORD SHOWING A DETERMINATION BY THE CIVIL SERVICE COMMISSION THAT YOUR SEPARATION OF NOVEMBER 21, WAS UNJUSTIFIED OR UNWARRANTED.

IT IS THE ESTABLISHED RULE OF OUR OFFICE TO ACCEPT THE REPORT OF THE ADMINISTRATIVE OFFICE WHERE THE INFORMATION FURNISHED BY THE CLAIMANT AND THE ADMINISTRATIVE OFFICE CONFLICTS, IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE ADMINISTRATIVE REPORT. 16 COMP. GEN. 1105, 1106, 31 ID. 288.

IN VIEW OF THE FOREGOING NO BASIS EXISTS, UPON THE PRESENT RECORD, FOR ALLOWANCE OF YOUR CLAIM AND ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 7, 1956, DISALLOWING YOUR CLAIM, MUST BE, AND IS, SUSTAINED.