B-160200, APR. 6, 1967

B-160200: Apr 6, 1967

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DURING WHICH PERIOD YOU WERE SUSPENDED FROM YOUR POSITION WITH THE DEPARTMENT OF THE ARMY. THE DOCUMENTS SUBMITTED WITH YOUR LETTER SHOW THAT YOU WERE SUSPENDED FROM DUTY FOR FAILURE TO FOLLOW THE WRITTEN AND VERBAL INSTRUCTIONS OF YOUR SUPERVISORS. ARE FOUND TO HAVE UNDERGONE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTIONS WHICH HAVE RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR ANY PART OF THE PAY. THE DEPARTMENT MAY NOT * * * (2) INCLUDE ANY PERIOD DURING WHICH THE EMPLOYEE WAS UNAVAILABLE FOR THE PERFORMANCE OF HIS JOB AND HIS UNAVAILABILITY WAS NOT RELATED TO. IT IS BELIEVED THAT PAYMENT UNDER THE BACK PAY ACT OF 1966 FOR THE PERIOD OF ERRONEOUS SUSPENSION IS UNWARRANTED. * * * THERE IS NO EVIDENCE TO SUPPORT A FINDING THAT MR.

B-160200, APR. 6, 1967

TO MR. RICHARD W. CONNOLLY:

THIS REFERS TO YOUR UNDATED LETTER AND ENCLOSURES RECEIVED HERE ON JANUARY 31, 1967, BY WHICH YOU ASSERT A CLAIM FOR BACK PAY FOR THE PERIOD OCTOBER 10 THROUGH 14, 1966, DURING WHICH PERIOD YOU WERE SUSPENDED FROM YOUR POSITION WITH THE DEPARTMENT OF THE ARMY, PICATINNY ARSENAL.

THE DOCUMENTS SUBMITTED WITH YOUR LETTER SHOW THAT YOU WERE SUSPENDED FROM DUTY FOR FAILURE TO FOLLOW THE WRITTEN AND VERBAL INSTRUCTIONS OF YOUR SUPERVISORS. YOU APPEALED THE SUSPENSION ACTION TO THE UNITED STATES CIVIL SERVICE COMMISSION, NEW YORK REGION. BY DECISION DATED DECEMBER 7, 1966, THE COMMISSION RULED THAT YOUR SUSPENSION HAD BEEN PROCEDURALLY DEFECTIVE AND INSTRUCTED YOUR ADMINISTRATIVE OFFICE TO RESTORE YOU TO AN ACTIVE DUTY STATUS EFFECTIVE OCTOBER 10, 1966. BY NOTIFICATION OF PERSONNEL ACTION DATED JANUARY 16, 1967, YOUR ADMINISTRATIVE OFFICE COMPLIED WITH THE COMMISSION'S DECISION.

SECTION 3 OF THE BACK PAY ACT OF 1966, PUBLIC LAW 89-380, APPROVED MARCH 30, 1966, AUTHORIZES BACK PAY, LEAVE BENEFITS, ETC., FOR EMPLOYEES WHO, UPON ADMINISTRATIVE DETERMINATION OR TIMELY APPEAL, ARE FOUND TO HAVE UNDERGONE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTIONS WHICH HAVE RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR ANY PART OF THE PAY, ALLOWANCES OR DIFFERENTIALS OF SUCH EMPLOYEES.

SECTION 4 OF THE ACT AUTHORIZES THE UNITED STATES CIVIL SERVICE COMMISSION TO PRESCRIBE REGULATIONS TO CARRY OUT THE PROVISIONS OF THE ACT. PURSUANT TO SUCH AUTHORITY, THE COMMISSION HAS PUBLISHED REGULATIONS WHICH APPEAR IN FEDERAL PERSONNEL MANUAL LETTER NO. 550-17 DATED AUGUST 26, 1966. SECTION 550.804 (D) OF THE REGULATIONS PROVIDES, IN PART, AS FOLLOWS:

"IN COMPUTING THE AMOUNT OF BACK PAY UNDER THIS SECTION AND SECTION 3 OF THE ACT, THE DEPARTMENT MAY NOT * * * (2) INCLUDE ANY PERIOD DURING WHICH THE EMPLOYEE WAS UNAVAILABLE FOR THE PERFORMANCE OF HIS JOB AND HIS UNAVAILABILITY WAS NOT RELATED TO, OR CAUSED BY, THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION.'

WITH RESPECT TO YOUR CLAIM FOR BACK PAY, THE DEPARTMENT OF THE ARMY REPORTS AS FOLLOWS:

"AS INDICATED IN MY EARLIER LETTER OF 18 NOVEMBER 1966, MR. CONNOLLY HAS BEEN CONTINUOUSLY ABSENT WITHOUT LEAVE SINCE 27 SEPTEMBER 1966, EXCEPT FOR THE PERIOD OF ERRONEOUS SUSPENSION BETWEEN 10 AND 14 OCTOBER 1966. DUE TO HIS SELF-IMPOSED NONPAY STATUS IMMEDIATELY PRIOR TO AND IMMEDIATELY FOLLOWING THE PERIOD OF ERRONEOUS SUSPENSION, IT IS BELIEVED THAT PAYMENT UNDER THE BACK PAY ACT OF 1966 FOR THE PERIOD OF ERRONEOUS SUSPENSION IS UNWARRANTED. * * * THERE IS NO EVIDENCE TO SUPPORT A FINDING THAT MR. CONNOLLY WOULD HAVE REPORTED FOR DUTY DURING THE PERIOD 10 THROUGH 14 OCTOBER 1966 HAD THE ERRONEOUS SUSPENSION ACTION NOT BEEN TAKEN.

"IN VIEW OF THE FOREGOING, PAYMENT FOR THE PERIOD OF ERRONEOUS SUSPENSION IS NOT CONTEMPLATED.'

UNDER SECTION 550.804 (D), ABOVE, THE ADMINISTRATIVE OFFICE HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING WHETHER OR NOT THE EMPLOYEE WAS AVAILABLE FOR THE PERFORMANCE OF HIS JOB DURING THE PERIOD UNDER CONSIDERATION. IN VIEW OF THE FACT THAT YOU WERE ABSENT WITHOUT LEAVE IMMEDIATELY BEFORE AND IMMEDIATELY AFTER THE PERIOD OF YOUR SUSPENSION, IT IS REASONABLE TO PRESUME THAT YOU WOULD NOT HAVE BEEN AVAILABLE FOR THE PERFORMANCE OF YOUR JOB DURING THE SUSPENSION PERIOD. THE RECORD CONTAINS NO EVIDENCE TO REBUT SUCH PRESUMPTION AND WE, THEREFORE, HAVE NO BASIS TO SUBSTITUTE OUR JUDGMENT FOR THAT OF YOUR ADMINISTRATIVE OFFICE.

THEREFORE, ON THE BASIS OF THE PRESENT RECORD, IT IS OUR OPINION THAT YOU ARE NOT ENTITLED TO RECEIVE BACK PAY FOR THE PERIOD OCTOBER 10 THROUGH 14, 1966.