B-151072, MAY 14, 1963

B-151072: May 14, 1963

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WHICH DISALLOWED YOUR CLAIM FOR RECREDIT OF THE PERIODS OF SICK AND ANNUAL LEAVE CHARGED FOR THE PERIOD DURING WHICH YOU WERE REMOVED FROM ACTIVE DUTY PENDING ACTION BY THE UNITED STATES CIVIL SERVICE COMMISSION ON THE APPLICATION OF YOUR EMPLOYING AGENCY. THE RECORD SHOWS THAT YOU WERE EMPLOYED AS A GUARD AT THE RED RIVER ARSENAL (NOW DESIGNATED THE RED RIVER ARMY DEPOT). IT WAS DETERMINED THAT YOU DID NOT FULLY MEET THE PHYSICAL STANDARDS FOR YOUR POSITION. YOU WERE OFFICIALLY NOTIFIED BY THE SECURITY OFFICE. THAT YOU WOULD BE PLACED ON SICK LEAVE COMMENCING AT THE CLOSE OF BUSINESS THAT DATE AND CONTINUING UNTIL A DECISION WAS REACHED ON THE AGENCY APPLICATION FOR YOUR DISABILITY RETIREMENT.

B-151072, MAY 14, 1963

TO MR. J. L. DAVIDSON:

ON MARCH 1, 1963, YOU REQUESTED RECONSIDERATION OF OUR SETTLEMENT OF JANUARY 25, 1963, WHICH DISALLOWED YOUR CLAIM FOR RECREDIT OF THE PERIODS OF SICK AND ANNUAL LEAVE CHARGED FOR THE PERIOD DURING WHICH YOU WERE REMOVED FROM ACTIVE DUTY PENDING ACTION BY THE UNITED STATES CIVIL SERVICE COMMISSION ON THE APPLICATION OF YOUR EMPLOYING AGENCY-- THE DEPARTMENT OF THE ARMY--- FOR YOUR DISABILITY RETIREMENT, AS WELL AS THE DISALLOWANCE OF COMPENSATION FOR A PERIOD OF SUSPENSION WITHOUT PAY FOLLOWING THE EXPIRATION OF YOUR ACCRUED LEAVE.

THE RECORD SHOWS THAT YOU WERE EMPLOYED AS A GUARD AT THE RED RIVER ARSENAL (NOW DESIGNATED THE RED RIVER ARMY DEPOT), TEXARKANA, TEXAS, WHEN, UPON THE BASIS OF AN EXAMINATION BY THE INSTALLATION'S MEDICAL OFFICER ON APRIL 5, 1961, IT WAS DETERMINED THAT YOU DID NOT FULLY MEET THE PHYSICAL STANDARDS FOR YOUR POSITION. ON APRIL 13, 1961, YOU WERE OFFICIALLY NOTIFIED BY THE SECURITY OFFICE, PROVOST MARSHAL DIVISION, THAT YOU WOULD BE PLACED ON SICK LEAVE COMMENCING AT THE CLOSE OF BUSINESS THAT DATE AND CONTINUING UNTIL A DECISION WAS REACHED ON THE AGENCY APPLICATION FOR YOUR DISABILITY RETIREMENT.

THE AGENCY APPLICATION SUBMITTED ON MAY 1, 1961, TO THE CIVIL SERVICE COMMISSION WAS REJECTED ON JUNE 5, 1961, BY THE COMMISSION'S BUREAU OF RETIREMENT AND INSURANCE; HOWEVER, AS A RESULT OF THE AGENCY'S APPEAL IN CONNECTION WITH WHICH ADDITIONAL EVIDENCE WAS SUBMITTED, THAT BUREAU APPROVED THE APPLICATION ON AUGUST 7, 1961. IN TURN, YOU APPEALED THAT DECISION. YOU WERE NOTIFIED ON JANUARY 3, 1962, BY THE BUREAU OF RETIREMENT AND INSURANCE THAT NO CHANGE IN THE PREVIOUS ACTION WAS WARRANTED BUT THAT YOUR APPEAL WAS BEING REFERRED TO THE BOARD OF APPEALS AND REVIEW FOR FURTHER CONSIDERATION. THAT BOARD DECIDED ON MARCH 12, 1962, THAT THE MEDICAL INFORMATION DID NOT SUPPORT A CONCLUSION THAT YOU WERE TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE AS GUARD, WHEREUPON, YOU WERE RETURNED TO ACTIVE DUTY EFFECTIVE MARCH 19, 1962. THE MEANTIME, YOU HAD BEEN CARRIED ON SICK LEAVE UNTIL THE EXPIRATION OF YOUR ACCRUAL AND THEN ON ANNUAL LEAVE. EFFECTIVE MONDAY, JANUARY 8, 1962, YOU WERE SUSPENDED WITHOUT PAY UP TO MARCH 19, 1962, WHEN YOU WERE RESTORED TO ACTIVE DUTY AS A RESULT OF THE FINAL REJECTION OF THE RETIREMENT APPLICATION BY THE BOARD OF APPEALS AND REVIEW.

IN EFFECT, YOUR CLAIM IS FOR COMPENSATION, WITHOUT ANY CHARGE AGAINST YOUR LEAVE ACCRUAL, FOR THE PERIOD DURING WHICH YOU WERE INVOLUNTARILY CARRIED ON SICK AND ANNUAL LEAVE WITH PAY (APRIL 14, 1961, THROUGH JANUARY 7, 1962), AND FOR A PERIOD OF SUSPENSION WITHOUT PAY (JANUARY 8 THROUGH MARCH 18, 1962). IN ORDER TO BE ENTITLED TO COMPENSATION (BACK PAY) ON THE BASIS THUS CLAIMED, THE CASE MUST FALL WITHIN THE TERMS OF PARAGRAPH (1) OR (2) OF SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 355, 5 U.S.C. 652 (B) (1), (2), WHICH PROVIDE FOR COMPENSATION FOR PERIODS OF REMOVAL OR SUSPENSION WITHOUT PAY FOR CAUSE UNDER SECTION 6 (A) OF THE ACT, OR SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 863, AS THE CASE MAY BE, WHEN UPON APPEAL TO PROPER AUTHORITY THE EMPLOYEE IS RESTORED TO DUTY ON THE GROUND THAT THE REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED. CONSISTENTLY HAVE HELD THAT THE PLACING OF AN EMPLOYEE ON INVOLUNTARY SICK OR ANNUAL LEAVE PENDING THE DECISION OF THE CIVIL SERVICE COMMISSION ON AN AGENCY DISABILITY RETIREMENT APPLICATION DOES NOT CONSTITUTE AN UNJUSTIFIED OR UNWARRANTED SUSPENSION WHEN ADMINISTRATIVE OFFICERS DETERMINE, NOT ARBITRARILY OR CAPRICIOUSLY BUT UPON THE BASIS OF COMPETENT MEDICAL FINDINGS, THAT THE EMPLOYEE IS INCAPACITATED FOR THE PERFORMANCE OF HIS ASSIGNED DUTIES. ON THE OTHER HAND, WE HAVE HELD THAT WHEN THE CIVIL SERVICE COMMISSION INITIALLY REJECTS THE RETIREMENT APPLICATION ON THE GROUND THAT THE EMPLOYEE IS NOT TOTALLY DISABLED AND THE AGENCY APPEALS, IT IS INCUMBENT UPON THE AGENCY TO RESTORE THE EMPLOYEE TO ACTIVE DUTY PENDING THE COMMISSION'S ACTION ON THE APPEAL; AND THAT THE FAILURE TO SO RESTORE THE EMPLOYEE CONSTITUTES AN UNWARRANTED OR UNJUSTIFIED SUSPENSION FOR PURPOSES OF THE BACK PAY STATUTE.

THE ABOVE PRINCIPLES WERE APPLIED IN OUR SETTLEMENT OF JANUARY 25, 1963. THAT IS TO SAY, YOU WERE ALLOWED COMPENSATION UNDER THE BACK PAY STATUTE-- - AS REFLECTED BY THE AUTHORIZATION FOR RECREDIT OF LEAVE PREVIOUSLY CHARGED AND THE ALLOWANCE OF OVERTIME COMPENSATION AND NIGHT DIFFERENTIAL YOU WOULD HAVE EARNED IN AN ACTIVE DUTY STATUS--- FOR THE PERIOD BETWEEN THE DATE (JUNE 5, 1961) THE COMMISSION INITIALLY DISAPPROVED THE RETIREMENT APPLICATION AND THE DATE (AUGUST 7, 1961) THE COMMISSION APPROVED IT. HOWEVER, COMPENSATION WAS DISALLOWED UNDER THE BACK PAY STATUTE (AND, HENCE, THE DENIAL OF THE CLAIM FOR RECREDIT OF LEAVE) FOR THE PERIODS APRIL 14 THROUGH JUNE 4, 1961, AND AUGUST 7, 1961, THROUGH JANUARY 5, 1962, ON THE GROUND THAT ENFORCED LEAVE FOR THOSE TWO PERIODS DID NOT CONSTITUTE UNJUSTIFIED OR UNWARRANTED SUSPENSION UNDER THE CIRCUMSTANCES.

AS PREVIOUSLY INDICATED, THE SETTLEMENT APPLIED OUR CONSTRUCTION OF PERTINENT LAW AS TO THE PERIOD APRIL 14, 1961, THROUGH JANUARY 7, 1962, AND, THEREFORE, IT IS SUSTAINED SO FAR AS IT PERTAINS TO THAT PERIOD.

CONCERNING THE PERIOD BETWEEN JANUARY 7 AND MARCH 19, 1962, DURING WHICH YOU WERE SUSPENDED WITHOUT PAY, THE SETTLEMENT DISALLOWED YOUR CLAIM FOR THAT PERIOD ON THE GROUND THAT YOU WERE PROPERLY SUSPENDED. HOWEVER, YOU NOW HAVE FURNISHED US A COPY OF THE DECISION OF THE CIVIL SERVICE COMMISSION'S DALLAS REGIONAL OFFICE IN MARCH 1963 HOLDING THAT THE AGENCY'S SUSPENSION ACTIONS WERE PROCEDURALLY DEFECTIVE UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT AND RECOMMENDING THAT THE AGENCY RECORDS BE CHANGED TO SHOW THAT YOU WERE IN AN ACTIVE DUTY STATUS DURING THE PERIOD OF SUSPENSION. YOU ALSO FURNISHED US COPIES OF THE AGENCY PERSONNEL ACTIONS CANCELING THE SUSPENSIONS. WE ASSUME THAT THE AGENCY HAS TAKEN OR WILL TAKE APPROPRIATE ACTION CONCERNING ANY FURTHER CLAIM FOR COMPENSATION FOR THE ABOVE-MENTIONED PERIOD.