B-149628, SEP. 11, 1962

B-149628: Sep 11, 1962

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GIBBONS WAS ASSIGNED TO YOUR ANCHORAGE. GIBBONS WAS PAID A 25 PERCENT COST-OF-LIVING ALLOWANCE AS WELL AS 15 PERCENT PREMIUM COMPENSATION UNTIL MAY 28. ON WHICH DATE HE WAS ADMINISTRATIVELY SUSPENDED AND PLACED ON LEAVE WITHOUT PAY EXTENDING THROUGH JUNE 15. GIBBONS WAS INSTRUCTED TO ADVISE HIS SUPERIOR IF HE PLANNED TO LEAVE ALASKA. HE WAS LOCATED ON JUNE 16. GIBBONS WAS CONTACTED ON JUNE 20. HE WAS INFORMED THAT HIS FAILURE TO REPORT FOR DUTY AT ANCHORAGE AT THE BEGINNING OF BUSINESS JUNE 18. RESULTED IN HIS BEING ABSENT WITHOUT LEAVE AND HE WAS INSTRUCTED TO ADVISE IF HE INTENDED TO RETURN TO ANCHORAGE AND RESUME HIS OFFICIAL DUTIES. GIBBONS NOTIFIED HIS OFFICE THAT HE HAD AN EMOTIONAL PROBLEM AND FELT HE WAS UNFIT TO RETURN TO DUTY AT THAT TIME.

B-149628, SEP. 11, 1962

TO MR. JOHN P. MOHR, AUTHORIZED CERTIFYING OFFICER, FEDERAL BUREAU OF INVESTIGATION:

YOUR LETTER OF AUGUST 3, 1962, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER FOR $260.48 THEREWITH TRANSMITTED IN FAVOR OF MR. NELSON H. GIBBONS, AN EMPLOYEE OF THE FEDERAL BUREAU OF INVESTIGATION COVERING COST-OF-LIVING ALLOWANCE AND PREMIUM DIFFERENTIAL FOR THE PERIOD JUNE 21, 1962, TO JULY 21, 1962.

YOU SAY THAT MR. GIBBONS WAS ASSIGNED TO YOUR ANCHORAGE, ALASKA, OFFICE ON DECEMBER 14, 1961. IN ADDITION TO HIS BASIC COMPENSATION, MR. GIBBONS WAS PAID A 25 PERCENT COST-OF-LIVING ALLOWANCE AS WELL AS 15 PERCENT PREMIUM COMPENSATION UNTIL MAY 28, 1962, ON WHICH DATE HE WAS ADMINISTRATIVELY SUSPENDED AND PLACED ON LEAVE WITHOUT PAY EXTENDING THROUGH JUNE 15, 1962. MR. GIBBONS WAS INSTRUCTED TO ADVISE HIS SUPERIOR IF HE PLANNED TO LEAVE ALASKA; HOWEVER, DURING THE PERIOD OF THE SUSPENSION MR. GIBBONS DEPARTED WITHOUT GIVING ANY NOTICE. HE WAS LOCATED ON JUNE 16, 1962, AT MARQUETTE, MICHIGAN, IN AN AREA WHERE HE HAD FORMERLY BEEN ASSIGNED. MR. GIBBONS INFORMED AN EMPLOYEE OF THE BUREAU THAT HE HAD NO INTENTION OF GOING BACK TO ALASKA AND DID NOT REPORT AT ANCHORAGE ON JUNE 18, 1962, THE FIRST WORKDAY FOLLOWING THE TERMINATION OF HIS SUSPENSION.

MR. GIBBONS WAS CONTACTED ON JUNE 20, 1962, CONCERNING HIS INTENTIONS WITH RESPECT TO HIS RETURNING TO HIS POST OF ASSIGNMENT. HE WAS INFORMED THAT HIS FAILURE TO REPORT FOR DUTY AT ANCHORAGE AT THE BEGINNING OF BUSINESS JUNE 18, 1962, RESULTED IN HIS BEING ABSENT WITHOUT LEAVE AND HE WAS INSTRUCTED TO ADVISE IF HE INTENDED TO RETURN TO ANCHORAGE AND RESUME HIS OFFICIAL DUTIES. ON JUNE 20, 1962, MR. GIBBONS NOTIFIED HIS OFFICE THAT HE HAD AN EMOTIONAL PROBLEM AND FELT HE WAS UNFIT TO RETURN TO DUTY AT THAT TIME. ON JUNE 27 AND 28, 1962, MR. GIBBONS WAS AFFORDED A PHYSICAL EXAMINATION, INCLUDING A PSYCHIATRIC EVALUATION. AS A RESULT OF THE PSYCHIATRIC CONSULTATION, MR. GIBBONS WAS NOT CERTIFIED TO PARTICIPATE IN DANGEROUS ASSIGNMENTS WHICH MIGHT ENTAIL THE USE OF FIREARMS. SUCH ASSIGNMENTS ARE FUNDAMENTAL AND VITAL TO THE POSITION HELD BY MR. GIBBONS AND ON THE BASIS OF THE PSYCHIATRIC REPORT HE WAS PLACED ON SICK LEAVE EFFECTIVE JUNE 21, 1962.

BY LETTER DATED JULY 6, 1962, MR. GIBBONS WAS NOTIFIED THAT ON THE BASIS OF MEDICAL EVIDENCE OF A NERVOUS CONDITION HE WAS CONSIDERED TO BE DISABLED AND WARRANTED DISABILITY RETIREMENT. IT WAS SUGGESTED TO MR. GIBBONS THAT HE MAKE APPLICATION FOR RETIREMENT AND HE WAS ADVISED THAT IF HIS APPLICATION WAS NOT RECEIVED BY JULY 20, 1962, THE BUREAU WOULD SUBMIT THE APPLICATION TO THE CIVIL SERVICE COMMISSION IN HIS BEHALF. MR. GIBBONS DID NOT APPLY FOR DISABILITY RETIREMENT. UNDER DATE OF JULY 23, 1962, AN APPLICATION FOR DISABILITY RETIREMENT PREPARED BY THE BUREAU WAS SENT TO THE CIVIL SERVICE COMMISSION.

YOU SAY THAT THE PAYMENT BEGINNING JUNE 21, 1962, OF A 25 PERCENT COST-OF -LIVING ALLOWANCE TO MR. GIBBONS IS QUESTIONABLE INASMUCH AS HE LEFT THE STATE OF ALASKA FOR MICHIGAN DURING THE PERIOD OF HIS SUSPENSION. FURTHERMORE, FOLLOWING THE TERMINATION OF HIS SUSPENSION MR. GIBBONS WAS ABSENT WITHOUT LEAVE FROM JUNE 18, THROUGH JUNE 20, 1962, AND HAS BEEN ON SICK LEAVE SINCE JUNE 21, 1962, PENDING APPROVAL OF HIS APPLICATION FOR DISABILITY RETIREMENT. YOU SUBMIT THE FOLLOWING QUESTIONS:

"/A) IS MR. GIBBONS ENTITLED TO PAYMENT OF ANY COST-OF-LIVING ALLOWANCE AT THIS TIME FOR THE PERIOD BEGINNING JUNE 21, 1962?

"/B) IF THE CIVIL SERVICE COMMISSION APPROVES DISABILITY RETIREMENT FOR MR. GIBBONS, WILL HE BE ENTITLED TO PAYMENT OF A COST-OF-LIVING ALLOWANCE FOR ANY PERIOD FROM JUNE 21, 1962, THROUGH THE DATE OF HIS RETIREMENT? WILL HE BE ENTITLED TO PAYMENT OF SUCH ALLOWANCE ON HIS TERMINAL LEAVE?

"/C) IF DISABILITY RETIREMENT IS NOT APPROVED FOR MR. GIBBONS AND HE DOES NOT RETURN TO ANCHORAGE OR A POST OF DUTY REQUIRING PAYMENT OF COST-OF- LIVING ALLOWANCE, WILL HE BE ENTITLED TO ANY PAYMENT OF SUCH ALLOWANCE FOR ANY PERIOD FROM JUNE 21, 1962?

"/D) IF DISABILITY RETIREMENT IS NOT APPROVED FOR MR. GIBBONS AND HE RETURNS TO ANCHORAGE OR OTHER POST OF DUTY REQUIRING PAYMENT OF COST-OF- LIVING ALLOWANCE, WILL HE BE RETROACTIVELY ENTITLED TO PAYMENT OF SUCH ALLOWANCE FOR ANY PERIOD FROM JUNE 21, 1962, UNTIL SUCH TIME AS HE RETURNS TO SUCH POST OF DUTY?

"IS MR. GIBBONS ENTITLED TO PAYMENT FOR ANY 15 PERCENT PREMIUM COMPENSATION UNDER SECTION 401 (2), THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, FOR ANY PERIOD SINCE JUNE 21, 1962?

SECTION 3 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 876, PROVIDES THAT AUTHORIZED CERTIFYING OFFICERS "SHALL HAVE THE RIGHT TO APPLY FOR AND OBTAIN A DECISION BY THE COMPTROLLER GENERAL ON ANY QUESTION OF LAW INVOLVED IN A PAYMENT ON ANY VOUCHER PRESENTED TO THEM FOR CERTIFICATION.' ACCORDINGLY, OUR OFFICE IS WITHOUT JURISDICTION TO RENDER A DECISION TO YOU AS AN AUTHORIZED CERTIFYING OFFICER UPON GENERAL QUESTIONS NOT INVOLVED IN THE CERTIFICATION OF THE VOUCHER ACCOMPANYING YOUR REQUEST FOR A DECISION. SEE 38 COMP. GEN. 5, 26 ID. 797, AND 24 ID. 546. THE VOUCHER FORWARDED BY YOU WILL BE CONSIDERED AND A DECISION RENDERED WITH RESPECT TO THE QUESTIONS OF LAW INVOLVED IN THE CERTIFICATION THEREOF.

YOU SAY THAT MR. GIBBONS HAD BEEN AUTHORIZED A 25 PERCENT COST-OF LIVING ALLOWANCE IN ACCORDANCE WITH CIVIL SERVICE COMMISSION REGULATIONS IMPLEMENTING THE PROVISIONS OF EXECUTIVE ORDER NO. 10000, SEPTEMBER 16, 1948, AS AMENDED.

AT THE TIME MR. GIBBONS LEFT ALASKA HE WAS IN A NONPAY (SUSPENDED) STATUS AND WAS NOT ENTITLED TO ANY COMPENSATION, EITHER BASIC OR THE ADDITIONAL COMPENSATION KNOWN AS THE COST-OF-LIVING ALLOWANCE. MOREOVER, YOUR LETTER INDICATES THAT HE MAY HAVE ABANDONED HIS POSITION IN ALASKA--- WE REFER TO HIS FAILURE TO REPORT AT HIS DUTY STATION IN ALASKA AFTER HIS SUSPENSION AND TO HIS EXPLANATION MADE TO A SPECIAL AGENT THAT "HE HAD NO INTENTION OF GOING BACK TO ALASKA.' WHILE AN ABANDONMENT OF HIS POSITION IN ALASKA MIGHT NULLIFY ENTITLEMENT TO ANY COST-OF-LIVING ALLOWANCE THEREAFTER, IT IS NOT NECESSARY TO DECIDE THAT QUESTION AT THIS TIME BECAUSE EVEN IF NO ABANDONMENT OCCURRED THERE STILL WOULD BE NO BASIS UNDER WHICH WE COULD AUTHORIZE PAYMENT OF THE COST-OF-LIVING ALLOWANCE COVERING THE PERIOD STATED ON THE VOUCHER. WE SAY THIS BECAUSE THE CLAIMANT WAS CARRIED IN A SICK LEAVE STATUS DURING THE PERIOD FOR WHICH THE COST-OF-LIVING ALLOWANCE IS CLAIMED ON THE VOUCHER, AND UNDER THE APPLICABLE REGULATIONS, FEDERAL PERSONNEL MANUAL, FPM Z1-454, SECTION 350.6 (B) (2) AN EMPLOYEE IN A LEAVE STATUS AWAY FROM A COST-OF-LIVING ALLOWANCE POST IS NOT ENTITLED TO THE COST-OF-LIVING ALLOWANCE DURING ANY PART OF SUCH PERIOD OF ABSENCE UNLESS HE RETURNS TO DUTY AT SUCH POST. HENCE, THE COST-OF LIVING ALLOWANCE WOULD NOT BE PAYABLE TO THE CLAIMANT FOR THE PERIOD SET FORTH ON THE VOUCHER. IN THE EVENT CLAIMANT DOES RETURN TO HIS POST OF DUTY IN ALASKA THE QUESTION SHOULD BE RESUBMITTED HERE.

CONCERNING THE PAYMENT OF PREMIUM PAY THE RECORD INDICATES THAT MR. GIBBONS HAD BEEN AUTHORIZED TO RECEIVE PREMIUM PAY OF 15 PERCENT. UNTIL SUCH TIME AS THE DEPARTMENT MAY REMOVE THE CLAIMANT FROM THE CLASS OF EMPLOYEES ENTITLED TO THE 15 PERCENT PREMIUM COMPENSATION HE WOULD CONTINUE TO BE ENTITLED TO THAT RATE EVEN WHILE IN A SICK LEAVE STATUS. ACCORDINGLY, MR. GIBBONS WOULD BE ENTITLED TO PREMIUM PAY FOR THE PERIOD JUNE 21, 1962, TO JULY 21, 1962, WHILE IN A SICK LEAVE STATUS SINCE YOU HAVE NOT INDICATED THAT HE HAS BEEN REMOVED FROM THE 15 PERCENT PREMIUM PAY CATEGORY.

ACTION ON THE VOUCHER RETURNED HEREWITH SHOULD BE TAKEN IN ACCORDANCE WITH THE FOREGOING.