B-155324, OCT. 26, 1964

B-155324: Oct 26, 1964

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

YOU WERE SEPARATED FROM THE SERVICE BECAUSE OF DISABILITY UPON THE RECOMMENDATION OF THE POST SURGEON. THE AUTHORITY TO GRANT BACK PAY IS PROVIDED BY THE ACT OF AUGUST 24. SECTION 6 (B) (2) OF THAT ACT PROVIDES AS FOLLOWS: "ANY PERSON WHO IS DISCHARGED. IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH DISCHARGE. OR FURLOUGH WAS UNJUSTIFIED OR UNWARRANTED. OR FURLOUGH FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS DISCHARGED. SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD.'. UNLESS THE EMPLOYEE HAS BEEN RESTORED TO DUTY UPON A FINDING THAT HIS SEPARATION WAS UNJUSTIFIED.

B-155324, OCT. 26, 1964

TO MRS. RITA E. HARTMAN:

THIS REFERS TO YOUR LETTERS DATED SEPTEMBER 27, OCTOBER 9, 10 AND 15, 1964, REQUESTING REVIEW OF OUR OFFICE SETTLEMENT DATED SEPTEMBER 18, 1964, WHICH DISALLOWED YOUR CLAIM FOR BACK PAY FOR THE PERIOD JUNE 22, 1956, TO SEPTEMBER 28, 1959, WHILE SEPARATED FROM YOUR POSITION AS A CIVILIAN EMPLOYEE AT THE BENICIA ARSENAL, DEPARTMENT OF THE ARMY.

THE RECORD SHOWS THAT EFFECTIVE JUNE 22, 1956, YOU WERE SEPARATED FROM THE SERVICE BECAUSE OF DISABILITY UPON THE RECOMMENDATION OF THE POST SURGEON. AS AN EMPLOYEE WITH VETERANS PREFERENCE, YOU HAD THE RIGHT TO APPEAL THE ADVERSE ACTION TO THE U.S. CIVIL SERVICE COMMISSION UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944. YOU APPEALED TO THE TWELFTH CIVIL SERVICE REGION WHICH UPHELD THE SEPARATION ACTION. UPON FURTHER APPEAL, THE CIVIL SERVICE COMMISSION'S BOARD OF APPEALS AND REVIEW AFFIRMED THE DECISION OF THE REGIONAL OFFICE.

THE AUTHORITY TO GRANT BACK PAY IS PROVIDED BY THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 354. SECTION 6 (B) (2) OF THAT ACT PROVIDES AS FOLLOWS:

"ANY PERSON WHO IS DISCHARGED, SUSPENDED, OR FURLOUGHED WITHOUT PAY, UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, WHO, AFTER ANSWERING THE REASONS ADVANCED FOR SUCH DISCHARGE, SUSPENSION, OR FURLOUGH OR AFTER AN APPEAL TO THE CIVIL SERVICE COMMISSION, AS PROVIDED UNDER SUCH SECTION, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH DISCHARGE, SUSPENSION, OR FURLOUGH WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH DISCHARGE, SUSPENSION, OR FURLOUGH FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS DISCHARGED, SUSPENDED, OR FURLOUGHED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD.'

UNLESS THE EMPLOYEE HAS BEEN RESTORED TO DUTY UPON A FINDING THAT HIS SEPARATION WAS UNJUSTIFIED, OUR OFFICE HAS NO AUTHORITY TO GRANT BACK PAY.

THE DECISION OF THE BOARD OF APPEALS AND REVIEW DID NOT DIRECT YOUR RESTORATION TO DUTY BUT, ON THE CONTRARY, FOUND THAT YOUR REMOVAL WAS WARRANTED UNDER THE CIRCUMSTANCES. IN VIEW OF THAT DECISION, WHICH IS FINAL AND CONCLUSIVE UPON OUR OFFICE, THERE EXISTS NO LEGAL BASIS TO ALLOW YOUR CLAIM FOR RETROACTIVE COMPENSATION. THEREFORE, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

IN YOUR LETTER OF OCTOBER 10, 1964, YOU REQUESTED OUR OFFICE TO REMIT YOUR FILES TO THE BOARD OF APPEALS AND REVIEW, IF WE COULD NOT REVERSE THE BOARD'S PRIOR DECISION.

SECTION 22.503, PART 22, FEDERAL PERSONNEL MANUAL (PAGES Z1-306) PROVIDES, IN PART, AS FOLLOWS:

"THE DECISION ON AN APPEAL TO THE BOARD SHALL BE FINAL. THERE IS NO FURTHER RIGHT TO APPEAL. * * *"

SECTION 22.504 PROVIDES:

"THE COMMISSIONERS MAY, IN THEIR DISCRETION, WHEN, IN THEIR JUDGMENT, SUCH ACTION APPEARS WARRANTED BY THE CIRCUMSTANCES, REOPEN AND RECONSIDER ANY PREVIOUS DECISION.'

SINCE FURTHER CONSIDERATION OF YOUR CASE IS COMPLETELY WITHIN THE DISCRETION OF THE CIVIL SERVICE COMMISSION, WE SUGGEST THAT YOU PERSONALLY PETITION THE COMMISSION IF YOU DESIRE FURTHER REVIEW OF YOUR CASE.