B-140893, OCT. 30, 1959

B-140893: Oct 30, 1959

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FORWARDED THE ENCLOSED FILE IN CONNECTION WITH YOUR REQUEST THAT WE RECONSIDER YOUR CLAIM WHICH WAS DISALLOWED FOR THE REASONS STATED IN OUR OFFICE SETTLEMENT OF MARCH 20. ESSENTIALLY IS FOR "LOSS OF PAY" AND THE ANNUAL LEAVE YOU USED INCIDENT TO THE ADMINISTRATIVE ACTION CHANGING YOUR GRADE FROM GS-12 TO GS-11 (JUNE 15 TO OCTOBER 18. IS PAYABLE ADMINISTRATIVELY FROM REGULAR APPROPRIATIONS ONLY WHEN A DETERMINATION HAS BEEN MADE WITHIN THE PURVIEW OF SECTION 14 OF THE VETERANS PREFERENCE ACT. SHALL BE REDUCED IN RANK OR COMPENSATION EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE AND FOR REASONS GIVEN IN WRITING. WAS NOT ACCEPTED BY THE COMMISSION'S APPEALS EXAMINING OFFICE FOR THE REASON THAT YOU HAD NOT MADE A TIMELY APPEAL OF THAT ACTION.

B-140893, OCT. 30, 1959

TO MR. REUBEN R. FLEISCHBEIN:

YOUR LETTER OF SEPTEMBER 18, 1959, FORWARDED THE ENCLOSED FILE IN CONNECTION WITH YOUR REQUEST THAT WE RECONSIDER YOUR CLAIM WHICH WAS DISALLOWED FOR THE REASONS STATED IN OUR OFFICE SETTLEMENT OF MARCH 20, 1959.

YOUR CLAIM DATED JANUARY 8, 1959, ESSENTIALLY IS FOR "LOSS OF PAY" AND THE ANNUAL LEAVE YOU USED INCIDENT TO THE ADMINISTRATIVE ACTION CHANGING YOUR GRADE FROM GS-12 TO GS-11 (JUNE 15 TO OCTOBER 18, 1958), PLUS CERTAIN EXPENSES AND PROPERTY LOSSES ALLEGEDLY INCURRED BY YOU INCIDENT THERETO AND IN CONNECTION WITH YOUR RETURN TO THE UNITED STATES AS AN OVERSEAS EMPLOYEE OF THE U.S. ARMY, CORPS OF ENGINEERS. THE SETTLEMENT ADVISED YOU IN DETAIL WHY THE INDIVIDUAL ITEMS OF YOUR CLAIM MAY NOT BE ALLOWED. HOWEVER, OUR CLAIMS DIVISION'S LETTER DATED JUNE 9, 1959, ADVISED YOU THAT OUR DECISIONS MUST BE MADE UPON THE BASIS OF THE WRITTEN RECORD ALONE AND THAT ANYTHING PRESENTED BY YOU ORALLY WOULD BE CONSIDERED IF REDUCED TO WRITING ACCOMPANIED BY SUCH DOCUMENTARY PROOF AS YOU DESIRE TO SUBMIT.

LOSS OF PAY FOR REDUCTION IN RANK OR COMPENSATION, SUCH AS YOU CLAIM AS A VETERANS PREFERENCE ELIGIBLE, IS PAYABLE ADMINISTRATIVELY FROM REGULAR APPROPRIATIONS ONLY WHEN A DETERMINATION HAS BEEN MADE WITHIN THE PURVIEW OF SECTION 14 OF THE VETERANS PREFERENCE ACT, AS AMENDED, 5 U.S.C. 863. THAT SECTION PROVIDES, IN PERTINENT PART, THAT NO PERMANENT OR INDEFINITE PREFERENCE ELIGIBLE, WHO HAS COMPLETED PROBATIONARY OR TRIAL PERIOD, SHALL BE REDUCED IN RANK OR COMPENSATION EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE AND FOR REASONS GIVEN IN WRITING. THAT SECTION ALSO OUTLINES THE PROCEDURE FOR ADMINISTRATIVE APPEAL AND FOR APPEAL TO THE CIVIL SERVICE COMMISSION WHICH,"AFTER INVESTIGATION AND CONSIDERATION OF THE EVIDENCE SUBMITTED" SHALL SUBMIT ITS FINDINGS AND RECOMMENDATIONS TO THE PROPER ADMINISTRATIVE OFFICER, AND COPIES THEREOF TO THE APPELLANT. SUCH FINAL RECOMMENDATION OF CORRECTIVE ACTION BY THE COMMISSION UNDER THE ACT WOULD BE MANDATORY UPON THE AGENCY; HOWEVER, THE RECORD SHOWS THAT YOUR APPEAL DATED AUGUST 7, 1958, OF THE OVERSEAS CLASSIFICATION ACTION OF JUNE 15, 1958, WHICH REDUCED YOUR GRADE FROM GS- 12 TO GS-11, WAS NOT ACCEPTED BY THE COMMISSION'S APPEALS EXAMINING OFFICE FOR THE REASON THAT YOU HAD NOT MADE A TIMELY APPEAL OF THAT ACTION, AS WAS EXPLAINED IN THEIR LETTER OF AUGUST 21, 1958, TO YOU.

THE ONLY OTHER STATUTE WHICH MIGHT BE FOR CONSIDERATION IN YOUR CASE IS THE ACT OF JUNE 10, 1948, 5 U.S.C. 652. HOWEVER, AS THE PROPOSED OVERSEAS ACTION FOR YOUR REMOVAL FROM SERVICE WAS NOT CONSUMMATED THERE IS NO PROPER BASIS FOR APPLICATION OF THE 1948 ACT'S PROVISIONS TO YOUR CASE. THE RECORD SHOWS THAT BY PERSONNEL ACTION DATED OCTOBER 17, 1958, EFFECTIVE OCTOBER 19, 1958, YOU WERE TRANSFERRED AND PROMOTED FROM YOUR THEN EXISTING OVERSEAS POSITION AS MATERIAL ENGINEER, GS-806-11, LEGHORN, ITALY, TO CONSTRUCTION MANAGEMENT ENGINEER, GS-811-12, WITH DUTY STATION AT WASHINGTON, D. C. HENCE, WE FIND NO BASIS UNDER EITHER OF THE STATUTES, 5 U.S.C. 652 OR 863, FOR ALLOWANCE OF THE LOSS OF PAY YOU CLAIM, OR FOR RECREDIT OF THE ANNUAL LEAVE YOU USED IN CONNECTION WITH YOUR CASE.

REGARDING THE ITEMS OF EXPENSES YOU CLAIM, IT SUFFICES TO SAY THAT IN THE ABSENCE OF A DETERMINATION IN YOUR FAVOR UNDER ONE OF THE CITED STATUTES, AND IN THE ABSENCE OF A TRAVEL ORDER AUTHORIZING YOU TO INCUR SUCH EXPENSES IN AN OFFICIAL CAPACITY, WE FIND NO BASIS FOR ALLOWANCE OF YOUR ITEMS 3 TO 8, DESCRIBED AS TRAVEL COSTS, PER DIEM, ANNUAL LEAVE USED, SECRETARIAL EXPENSE, PERSONAL TIME USED AFTER WORK HOURS, AND OTHER ITEMIZED EXPENSES INCURRED INCIDENT TO THE OVERSEAS ACTIONS IN YOUR CASE. ALSO, WE KNOW OF NO AUTHORITY FOR PAYMENT FOR YOUR ITEMS 2 AND 9, NAMELY, EXPENSE OF SHIPMENT OF YOUR PRIVATE AUTOMOBILE AND DEPRECIATION IN VALUE OF YOUR ,FURNITURE AND FIXTURES" AT VICENZA, ITALY. THE RECORD SHOWS THAT YOUR RETURN TRAVEL WHICH WAS AUTHORIZED ORIGINALLY TO YOUR POINT OF HIRE (SACRAMENTO, CALIFORNIA) PROVIDED FOR A TEN-DAY DELAY ENROUTE IN WASHINGTON, D.C., AS YOU REQUESTED. HOWEVER, SUCH AUTHORIZED DELAY ENROUTE WAS PERSONAL, RATHER THAN OFFICIAL, AND THE EXPENSES THEREOF PROPERLY ARE NOT CHARGEABLE TO GOVERNMENT FUNDS. THEREFORE, YOUR CLAIM OF ADDITIONAL EXPENSES (ITEM 10) INCURRED DURING SUCH TEN DAYS IS NOT ALLOWABLE UPON THE PRESENT RECORD.

IN THE CIRCUMSTANCES, THE SETTLEMENT OF MARCH 20, 1959, MUST BE AND IS SUSTAINED.

WHILE THERE IS NO RIGHT OF APPEAL FROM THIS DECISION, YOU ARE FREE TO PURSUE YOUR REMEDIES IN AN ACTION IN THE COURT OF CLAIMS IN A DE NOVO PROCEEDING.

THE FILE SUBMITTED WITH YOUR LETTER OF SEPTEMBER 18 IS RETURNED HEREWITH.