B-145820, AUG. 22, 1961

B-145820: Aug 22, 1961

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LEE SHANNON: WE HAVE FURTHER CONSIDERED YOUR CLAIM FOR PER DIEM IN LIEU OF SUBSISTENCE. OVERTIME WHICH WAS DISALLOWED BY OUR SETTLEMENT OF FEBRUARY 17. WE NOW HAVE BEEN FURNISHED WITH COPIES OF CERTAIN DOCUMENTS CONCERNING YOUR TRANSFER TO DALLAS. AMONG THE PAPERS NOW OF RECORD IS A COPY OF A NOTIFICATION OF PERSONNEL ACTION EFFECTING YOUR REASSIGNMENT AND CHANGE OF HEADQUARTERS FROM WASHINGTON. SINCE THE RECORD ESTABLISHES THAT DALLAS WAS IN FACT YOUR OFFICIAL STATION YOU WOULD NOT BE ENTITLED TO PER DIEM WHILE PERFORMING DUTY IN THAT CITY. IS A MATTER SOLELY WITHIN ADMINISTRATIVE JURISDICTION AND IT MAY NOT BE QUESTIONED BY US. IT APPARENTLY WAS NOT OFFICIALLY AUTHORIZED OR APPROVED AND THEREFORE WE MAY NOT UNDER LAW DIRECT PAYMENT OF THE CLAIMED REIMBURSEMENT.

B-145820, AUG. 22, 1961

TO MR. LEE SHANNON:

WE HAVE FURTHER CONSIDERED YOUR CLAIM FOR PER DIEM IN LIEU OF SUBSISTENCE, TRAVEL EXPENSES, BACK PAY, AND OVERTIME WHICH WAS DISALLOWED BY OUR SETTLEMENT OF FEBRUARY 17, 1961.

IN OUR INFORMAL CONFERENCE WITH YOU ON MAY 29, 1961, CONCERNING THE ITEMS CLAIMED WE INFORMED YOU THAT SETTLEMENTS OF THE GENERAL ACCOUNTING OFFICE MUST BE BASED UPON THE WRITTEN RECORD. ALSO, WE SAID THAT WE ENDEAVOR TO OBTAIN SUBSTANTIATING DOCUMENTS REGARDING YOUR CLAIM FROM YOUR EMPLOYING AGENCY. WE NOW HAVE BEEN FURNISHED WITH COPIES OF CERTAIN DOCUMENTS CONCERNING YOUR TRANSFER TO DALLAS, YOUR SEPARATION FROM THE SERVICE AND SUBSEQUENT REINSTATEMENT.

AMONG THE PAPERS NOW OF RECORD IS A COPY OF A NOTIFICATION OF PERSONNEL ACTION EFFECTING YOUR REASSIGNMENT AND CHANGE OF HEADQUARTERS FROM WASHINGTON, D.C., TO DALLAS, TEXAS, TO MEET THE NEEDS OF THE GOVERNMENT, AND A TRAVEL ORDER ISSUED AT THE SAME TIME AUTHORIZING YOUR TRAVEL AND THE TRANSPORATION OF YOUR IMMEDIATE FAMILY AND HOUSEHOLD GOODS. ACCORDING TO YOUR LETTER TO THE GENERAL ACCOUNTING OFFICE, DATED OCTOBER 18, 1960, THE CHANGE OF OFFICIAL STATION TOOK EFFECT ON OR ABOUT OCTOBER 20, 1955, AND YOU CLAIM PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIOD BETWEEN THAT DATE AND MARCH 10, 1956.

SINCE THE RECORD ESTABLISHES THAT DALLAS WAS IN FACT YOUR OFFICIAL STATION YOU WOULD NOT BE ENTITLED TO PER DIEM WHILE PERFORMING DUTY IN THAT CITY. THE DETERMINATION BY YOUR AGENCY TO CHANGE YOUR OFFICIAL STATION FROM WASHINGTON, D.C., IS A MATTER SOLELY WITHIN ADMINISTRATIVE JURISDICTION AND IT MAY NOT BE QUESTIONED BY US.

ALSO, YOU CLAIM REIMBURSEMENT FOR TRAVEL EXPENSE--- AIR TRANSPORTATION--- BETWEEN DALLAS AND WASHINGTON INCIDENT TO YOUR RETURN TO WASHINGTON. DOES NOT APPEAR FROM THE RECORD WHEN YOU PERFORMED THIS TRAVEL. HOWEVER, IT APPARENTLY WAS NOT OFFICIALLY AUTHORIZED OR APPROVED AND THEREFORE WE MAY NOT UNDER LAW DIRECT PAYMENT OF THE CLAIMED REIMBURSEMENT.

CONCERNING YOUR CLAIM FOR BACK PAY COVERING THE PERIOD MARCH, 1956 TO APRIL 22, 1957, THERE IS OF RECORD A COPY OF A LETTER DATED DECEMBER 28, 1956, FROM THE BOARD OF APPEALS AND REVIEW, U.S. CIVIL SERVICE COMMISSION TO YOU. FROM THAT LETTER IT APPEARS THAT YOU APPEALED THE ACTION OF YOUR AGENCY IN SEPARATING YOU FOR DISABILITY TO THE EIGHTH REGION, CIVIL SERVICE COMMISSION. THE EIGHTH REGION FOUND NO PROCEDURAL ERROR BY YOUR AGENCY IN EFFECTING YOUR SEPARATION. THE REGIONAL FINDING WAS AFFIRMED BY THE BOARD OF APPEALS AND REVIEW. THE CIVIL SERVICE COMMISSION IS THE AGENCY CHARGED BY LAW TO CONSIDER APPEALS OF EMPLOYEES WHO DEEM THEMSELVES TO HAVE BEEN ERRONEOUSLY SUSPENDED OR SEPARATED. IF UPON APPEAL, THE COMMISSION FINDS THAT THE SUSPENSION OR REMOVAL WAS UNJUSTIFIED OR UNWARRANTED OR INVOLVED PROCEDURAL ERROR, IT MAY DIRECT RESTORATION IN WHICH EVENT THE EMPLOYEE BECOMES ENTITLED TO BACK PAY FOR THE PERIOD OF SUSPENSION OR SEPARATION. SEE 5 U.S.C. 652.

OUR OFFICE IS NOT AUTHORIZED TO QUESTION THE FINDINGS OF THE COMMISSION WHEN IT IS ACTING WITHIN THE SCOPE OF THE STATUTE. SINCE IN YOUR CASE THE COMMISSION FAILED TO FIND ERROR IN YOUR SEPARATION OR DIRECT YOUR RESTORATION, WE ARE WITHOUT AUTHORITY TO DIRECT THE ALLOWANCE TO THE BACK PAY CLAIMED. YOUR SUBSEQUENT REINSTATEMENT APPARENTLY WAS EFFECTED ADMINISTRATIVELY BECAUSE OF THE SUBMISSION OF SATISFACTORY MEDICAL EVIDENCE OF RECOVERY FROM THE PHYSICAL DISABILITY LEADING TO YOUR SEPARATION.

REFERRING TO YOUR CLAIM FOR OVERTIME COMPENSATION, THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 926, PROVIDES FOR THE ALLOWANCE OF PREMIUM COMPENSATION ON AN ANNUAL BASIS--- NOT IN EXCESS OF 15 PERCENT OF THE BASIC COMPENSATION WHICH DOES NOT EXCEED THE MINIMUM RATE OF GRADE GS- 9--- WHEN THE HOURS OF DUTY ARE NOT ADMINISTRATIVELY CONTROLLABLE. THIS PERCENTAGE ALLOWANCE IS IN LIEU OF OTHER PREMIUM COMPENSATION FOR HOLIDAY, NIGHT OR OTHER UNSCHEDULED OVERTIME WORK. WE ARE INFORMED THAT YOU RECEIVED THE PERCENTAGE PREMIUM COMPENSATION AND THEREFORE YOU ARE NOT ENTITLED TO ADDITIONAL OVERTIME COMPENSATION.

IN OTHER RESPECTS, BECAUSE OF THE REASONS SET FORTH ABOVE, WE FIND THAT THE SETTLEMENT OF FEBRUARY 17, 1961, IS CORRECT AND THAT IT MUST BE SUSTAINED.