B-148343, MAY 7, 1963

B-148343: May 7, 1963

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WHICH WAS DISALLOWED BY OFFICE SETTLEMENT DATED MAY 8. YOU WERE GIVEN A MEDICAL EXAMINATION BY THE ARSENAL MEDICAL OFFICER AND WERE FOUND TO BE INCAPACITATED FOR THE PERFORMANCE OF GUARD DUTIES. NO OTHER POSITION SUITABLE TO YOUR QUALIFICATIONS AND PHYSICAL CONDITION WAS AVAILABLE TO WHICH YOU COULD BE REASSIGNED. THE COMMISSION DISALLOWED THE DISABILITY RETIREMENT APPLICATION ON THE GROUND THAT MEDICAL INFORMATION DID NOT SUPPORT THE CONCLUSION THAT YOU WERE TOTALLY DISABLED FOR GUARD DUTIES. UPON THE COMMISSION'S DETERMINATION THAT YOU WERE NOT TOTALLY DISABLED TO PERFORM THE DUTIES OF YOUR POSITION. THE ARSENAL SHOULD HAVE AFFORDED YOU THE OPPORTUNITY TO PERFORM ACTIVE DUTY PENDING THE OUTCOME OF ITS APPEAL TO THE COMMISSION OR INITIATED APPROPRIATE STEPS TO SEPARATE YOU ON GROUNDS OF DISABILITY.

B-148343, MAY 7, 1963

TO MR. ALFRED DERRICK:

YOUR LETTER OF MARCH 30, 1963, WITH ENCLOSURES, REQUESTS RECONSIDERATION OF THAT PART OF YOUR CLAIM FOR BACK PAY, INCLUDING OVERTIME AND NIGHT DIFFERENTIAL, UNIFORM ALLOWANCE AND RECREDIT OF SICK AND ANNUAL LEAVE CHARGED TO YOU AS A CIVILIAN GUARD EMPLOYED BY THE DEPARTMENT OF THE ARMY, RED RIVER ARSENAL, TEXAS, FOR THE PERIOD APRIL 18, 1961, THROUGH SEPTEMBER 20, 1961, WHICH WAS DISALLOWED BY OFFICE SETTLEMENT DATED MAY 8, 1962.

ON APRIL 14, 1961, YOU WERE GIVEN A MEDICAL EXAMINATION BY THE ARSENAL MEDICAL OFFICER AND WERE FOUND TO BE INCAPACITATED FOR THE PERFORMANCE OF GUARD DUTIES. NO OTHER POSITION SUITABLE TO YOUR QUALIFICATIONS AND PHYSICAL CONDITION WAS AVAILABLE TO WHICH YOU COULD BE REASSIGNED. THE ARSENAL, THEREFORE, SUBMITTED AN APPLICATION FOR YOUR INVOLUNTARY DISABILITY RETIREMENT AND, EFFECTIVE APRIL 18, 1961, PLACED YOU ON SICK LEAVE AND ANNUAL LEAVE WITHOUT YOUR CONSENT PENDING DECISION BY THE CIVIL SERVICE COMMISSION ON THE APPLICATION. ON JULY 14, 1961, THE COMMISSION DISALLOWED THE DISABILITY RETIREMENT APPLICATION ON THE GROUND THAT MEDICAL INFORMATION DID NOT SUPPORT THE CONCLUSION THAT YOU WERE TOTALLY DISABLED FOR GUARD DUTIES. THE ARSENAL APPEALED THE RULING. BY LETTER OF SEPTEMBER 13, 1961, THE COMMISSION AFFIRMED THEIR PRIOR DECISION.

THE MEDICAL DETERMINATION MADE BY YOUR AGENCY REGARDING YOUR PHYSICAL CONDITION MUST BE REGARDED AS CONTROLLING CONCERNING YOUR INCAPACITY UNTIL THE CIVIL SERVICE COMMISSION REACHED A CONTRARY CONCLUSION. THEREFORE, THE AGENCY'S ACTION IN PLACING YOU ON LEAVE ON THE BASIS OF THAT DETERMINATION MAY NOT BE CONSIDERED TO BE AN ADVERSE ACTION WHICH WOULD ENTITLE YOU TO RECREDIT OF LEAVE OR ADJUSTMENT IN COMPENSATION FOR THE PERIOD PRIOR TO THE DATE OF THE CIVIL SERVICE COMMISSION'S DISALLOWANCE OF THE DISABILITY RETIREMENT APPLICATION. HOWEVER, UPON THE COMMISSION'S DETERMINATION THAT YOU WERE NOT TOTALLY DISABLED TO PERFORM THE DUTIES OF YOUR POSITION, THE ARSENAL SHOULD HAVE AFFORDED YOU THE OPPORTUNITY TO PERFORM ACTIVE DUTY PENDING THE OUTCOME OF ITS APPEAL TO THE COMMISSION OR INITIATED APPROPRIATE STEPS TO SEPARATE YOU ON GROUNDS OF DISABILITY. WAS NOT, THEREAFTER, WARRANTED IN CONTINUING YOU IN AN INVOLUNTARY LEAVE STATUS. THEREFORE, OUR SETTLEMENT DISALLOWING YOUR CLAIM FOR BACK PAY, INCLUDING PREMIUM PAY AND FOR A RECREDIT OF LEAVE FOR THE PERIOD PRIOR TO JULY 14, 1961, IS CORRECT AND IS SUSTAINED.

THE AMOUNT CLAIMED FOR UNIFORM ALLOWANCE ($22) WAS ALLOWED BY A SEPARATE SETTLEMENT FOR THE QUARTER FOR WHICH CLAIM WAS MADE SINCE YOU RETURNED TO DUTY DURING THAT QUARTER. WE ASSUME YOU HAVE RECEIVED PAYMENT FOR THIS ITEM IN ADDITION TO THE $114 MENTIONED IN YOUR LETTER WHICH WAS ALLOWED BY OUR OFFICE SETTLEMENT OF MAY 8, 1962.