B-152820, NOV. 19, 1963

B-152820: Nov 19, 1963

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YESSNE: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 16. THE RECORD DISCLOSES THAT YOU WERE EMPLOYED AT THE CENTER FROM FEBRUARY 17. ONE WEEK AFTER YOU RECEIVED THIS NOTICE AND WHILE THE SEPARATION ACTION WAS STILL PENDING. YOU WERE ENTITLED TO YOUR SALARY DURING THE NOTICE PERIOD REGARDLESS OF WHETHER YOU ACTUALLY PERFORMED SERVICES. WAS INVALID AND OF NO EFFECT NOT ONLY BECAUSE IT WAS OBTAINED BY DURESS BUT ALSO BECAUSE IT WAS SUBMITTED SUBSEQUENT TO YOUR "DISCHARGE.'. WE HAVE NO CORROBORATING EVIDENCE THAT YOUR RESIGNATION WAS OBTAINED THROUGH FRAUD OR DURESS OR OTHERWISE WAS SUBMITTED INVOLUNTARILY. YOU STATE THAT YOU WERE GIVEN A TWO-WEEK ADVANCE NOTICE OF SEPARATION. IT IS THE NORMAL PROCEDURE FOR EMPLOYEES TO REMAIN IN AN ACTIVE DUTY STATUS DURING THE NOTICE PERIOD.

B-152820, NOV. 19, 1963

TO MR. HYMAN S. YESSNE:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 16, 1963, PROTESTING OUR OFFICE SETTLEMENT DATED SEPTEMBER 30, 1963, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION AS AN EMPLOYEE OF THE U.S. NAVAL AIR DEVELOPMENT CENTER, JOHNSVILLE, PENNSYLVANIA.

THE RECORD DISCLOSES THAT YOU WERE EMPLOYED AT THE CENTER FROM FEBRUARY 17, 1954, TO APRIL 15, 1954. APPROXIMATELY ONE WEEK PRIOR TO YOUR SEPARATION FROM THE SERVICE, YOU RECEIVED A TWO-WEEK ADVANCE NOTICE OF "DISCHARGE.' ONE WEEK AFTER YOU RECEIVED THIS NOTICE AND WHILE THE SEPARATION ACTION WAS STILL PENDING, YOU SUBMITTED A SIGNED RESIGNATION FORM AND DISCONTINUED YOUR EMPLOYMENT AT THE CENTER ON APRIL 15, 1954.

YOU CONTEND THAT YOUR SUBJECTION TO SUCH ABUSE AT THE CENTER COMPELLED YOU TO RESIGN ONE WEEK AFTER RECEIPT OF THE NOTICE OF SEPARATION AND THEREBY DEPRIVED YOU OF YOUR RIGHT TO REMAIN IN AN ACTIVE DUTY STATUS DURING THE ENTIRE TWO-WEEK NOTICE PERIOD. YOU ALSO CONTEND THAT IN ACCORDANCE WITH THE DEPARTMENT OF NAVY REGULATIONS, YOU WERE ENTITLED TO YOUR SALARY DURING THE NOTICE PERIOD REGARDLESS OF WHETHER YOU ACTUALLY PERFORMED SERVICES. FINALLY, YOU ARGUE THAT YOUR RESIGNATION, ALTHOUGH ADMITTEDLY SIGNED AND SUBMITTED BY YOU, WAS INVALID AND OF NO EFFECT NOT ONLY BECAUSE IT WAS OBTAINED BY DURESS BUT ALSO BECAUSE IT WAS SUBMITTED SUBSEQUENT TO YOUR "DISCHARGE.'

YOUR CLAIM HAS BEEN THOROUGHLY REVIEWED BOTH BY THIS OFFICE AND BY OFFICIALS OF THE NAVY DEPARTMENT. ASIDE FROM THE STATEMENTS CONTAINED IN YOUR LETTERS, WE HAVE NO CORROBORATING EVIDENCE THAT YOUR RESIGNATION WAS OBTAINED THROUGH FRAUD OR DURESS OR OTHERWISE WAS SUBMITTED INVOLUNTARILY.

YOU STATE THAT YOU WERE GIVEN A TWO-WEEK ADVANCE NOTICE OF SEPARATION. ACCORDING TO PARAGRAPHS 45.5-1 THROUGH 45.5-4 OF THE NAVY CIVILIAN PERSONNEL INSTRUCTIONS (1 DECEMBER 1952), IT IS THE NORMAL PROCEDURE FOR EMPLOYEES TO REMAIN IN AN ACTIVE DUTY STATUS DURING THE NOTICE PERIOD. DURING THIS PERIOD YOU HAD A RIGHT TO ANSWER THE CHARGES BROUGHT AGAINST YOU AND REQUEST A HEARING. YOU ALSO HAD THE RIGHT TO SUBMIT YOUR RESIGNATION SINCE THE REMOVAL ACTION WAS NOT TO BE EFFECTED UNTIL THE END OF THE ADVANCE NOTICE PERIOD (FEDERAL PERSONNEL MANUAL, S-1-15) PARAGRAPH 210.5-2B OF THE NAVY CIVILIAN PERSONNEL INSTRUCTIONS (22 JUNE 1953) PROVIDES:

"A RESIGNATION IS A VOLUNTARY ACTION ON THE PART OF THE EMPLOYEE TO EFFECT HIS OWN SEPARATION, AND NO EMPLOYEE WILL BE REQUESTED OR ADVISED TO SUBMIT A RESIGNATION. NEITHER MAY HE BE DENIED THE RIGHT TO RESIGN ALTHOUGH ACTION MAY BE PENDING TO SEPARATE HIM FOR ANY REASON.'

WE POINT OUT THAT IF YOU BELIEVED AT THAT TIME THAT YOU HAD BEEN FORCED TO RESIGN, YOU SHOULD HAVE IMMEDIATELY PURSUED YOUR ADMINISTRATIVE REMEDIES EITHER BY APPEALING TO THE APPROPRIATE DEPARTMENT OF THE NAVY OFFICIALS OR TO THE CIVIL SERVICE COMMISSION. SEE KITTIBELL G. MAJESTIC V. UNITED STATES, 137 CT.CL. 188.

IN THE ABSENCE OF EVIDENCE TO THE CONTRARY WE MUST ASSUME THAT YOUR RESIGNATION WAS A VOLUNTARY ACT. THE LEGAL CONSEQUENCES OF A TENDER OF RESIGNATION BY AN EMPLOYEE AND ITS ACCEPTANCE BY COMPETENT AUTHORITY IS TO SEPARATE THE EMPLOYEE FROM THE SERVICE. SUCH RESIGNATION HAVING SEPARATED YOU FROM THE DEPARTMENT OF THE NAVY, THERE EXISTS NO BASIS TO ALLOW YOUR CLAIM FOR COMPENSATION FOR A PERIOD DURING WHICH YOU WERE NOT AN EMPLOYEE AND DID NOT PERFORM SERVICES.

FOR THE REASONS EXPRESSED ABOVE OUR SETTLEMENT OF SEPTEMBER 30, 1963,IS SUSTAINED.