B-163142, FEB. 28, 1968

B-163142: Feb 28, 1968

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COMPENSATION - BACK PAY - OVERTIME DECISION TO AIR FORCE DISBURSING OFFICER ALLOWING CLAIM FOR PREMIUM PAY FOR PERIOD EMPLOYEE WAS IMPROPERLY SEPARATED FROM SERVICE. ALTHOUGH WHAT IS PREMIUM PAY NORMALLY EARNED DURING IMPROPER REMOVAL FROM SERVICE UNDER 5 U.S.C. 5596 (B) (1) IS NOT SUBJECT TO GENERAL RULE OR SPECIFIC FORMULA WHERE FORMULA IS BASED ON AVERAGE PREMIUM TIME WORKED BY EMPLOYEES OF SAME UNIT AS RESTORED EMPLOYEE SUCH METHOD IS FAIR AND EQUITABLE AND PAYMENT MAY BE MADE ON SUCH BASIS. COVERING THE ESTIMATED PREMIUM COMPENSATION WHICH NORMALLY WOULD HAVE BEEN EARNED BY HIM DURING A PERIOD OF SEPARATION FROM THE SERVICE AS AUTHORIZED BY THE BACK PAY ACT OF 1966. YOUR LETTER ADVISES THAT HE WAS SEPARATED FROM THE SERVICE BY REMOVAL FROM THE ROLLS OF THE AIR FORCE ON AUGUST 10.

B-163142, FEB. 28, 1968

COMPENSATION - BACK PAY - OVERTIME DECISION TO AIR FORCE DISBURSING OFFICER ALLOWING CLAIM FOR PREMIUM PAY FOR PERIOD EMPLOYEE WAS IMPROPERLY SEPARATED FROM SERVICE. ALTHOUGH WHAT IS PREMIUM PAY NORMALLY EARNED DURING IMPROPER REMOVAL FROM SERVICE UNDER 5 U.S.C. 5596 (B) (1) IS NOT SUBJECT TO GENERAL RULE OR SPECIFIC FORMULA WHERE FORMULA IS BASED ON AVERAGE PREMIUM TIME WORKED BY EMPLOYEES OF SAME UNIT AS RESTORED EMPLOYEE SUCH METHOD IS FAIR AND EQUITABLE AND PAYMENT MAY BE MADE ON SUCH BASIS.

TO MR. WILLIAM H. WHITNEY:

YOUR LETTER OF DECEMBER 18, 1967, REFERENCE SACA: JACOB J. REUS, WITH ENCLOSED VOUCHER FOR $242.58 IN FAVOR OF MR. REUS, A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, COVERING THE ESTIMATED PREMIUM COMPENSATION WHICH NORMALLY WOULD HAVE BEEN EARNED BY HIM DURING A PERIOD OF SEPARATION FROM THE SERVICE AS AUTHORIZED BY THE BACK PAY ACT OF 1966, NOW 5 U.S.C. 5596, REQUESTS OUR DECISION WHETHER THE VOUCHER MAY BE PAID.

CONCERNING THE FACTS IN THE CASE OF MR. REUS, YOUR LETTER ADVISES THAT HE WAS SEPARATED FROM THE SERVICE BY REMOVAL FROM THE ROLLS OF THE AIR FORCE ON AUGUST 10, 1966. BASED ON A SUCCESSFUL APPEAL HE WAS REINSTATED EFFECTIVE AUGUST 11, 1966, AND CARRIED IN A SUSPENSION WITHOUT PAY STATUS FOR THE PERIOD AUGUST 11 THROUGH AUGUST 20, 1966. HE WAS RESTORED TO DUTY ON NOVEMBER 9, 1967, AND UNDER 5 U.S.C. 5596 HE HAS BEEN PAID BACK PAY FOR THE PERIOD AUGUST 21, 1966, THROUGH NOVEMBER 8, 1967, AT THE DAY-SHIFT RATE TO WHICH SHIFT MR. REUS HAD BEEN ASSIGNED PRIOR TO HIS REMOVAL ON AUGUST 10, 1966.

MR. REUS NOW CLAIMS PREMIUM PAY (OVERTIME, SHIFT DIFFERENTIAL, SUNDAY AND HOLIDAY COMPENSATION) WHICH HE NORMALLY WOULD HAVE EARNED HAD HE NOT BEEN SEPARATED FROM THE ROLLS.

PARAGRAPH 3 OF YOUR LETTER PRESENTS CERTAIN QUESTIONS DESIGNED TO ELICIT GUIDE LINES OF GENERAL APPLICATION IN THIS TYPE OF CASE. RESPONSIVE TO THOSE QUESTIONS WE MUST ADVISE THAT WE ARE AWARE OF NO GENERAL RULE OR SPECIFIC FORMULA WHICH WOULD BE FOR UNIVERSAL USE. THE TERM "NORMALLY" APPEARING IN 5 U.S.C. 5596 (B) (1), SO FAR AS IT RELATES TO PREMIUM PAY, SUGGESTS AT LEAST AN ADMINISTRATIVE FINDING IN EACH CASE THAT THE FACTS SUPPORT A REASONABLE PROBABILITY THAT AN EMPLOYEE WOULD HAVE PERFORMED DUTY FOR WHICH PREMIUM COMPENSATION IS PAYABLE HAD HE NOT BEEN SEPARATED FROM THE ROLLS.

IN PARAGRAPH 4 OF YOUR LETTER YOU SAY:

"THE ATTACHED VOUCHER AND RESUME OF OUR COMPUTATIONS, PRESENTED TO THE LOCAL ACCOUNTING AND FINANCE OFFICER FOR PAYMENT, IS BASED ON THE AVERAGE PREMIUM TIME WORKED BY THE EMPLOYEES IN THE SAME UNIT HAVING THE SAME DUTY ASSIGNMENT, CLASSIFICATION SERIES, GRADE, AND TYPE OF APPOINTMENT AS MR. REUS.'

THE FORMULA EMBODIED IN THE ABOVE-QUOTED PARAGRAPH HAS RECEIVED THE CONSIDERATION OF THE DEPARTMENT OF THE AIR FORCE AND OF OUR OFFICE AND EACH IS OF THE VIEW THAT AS APPLIED TO THE CASE OF MR. REUS, IT APPEARS TO BE A FAIR AND EQUITABLE METHOD OF DETERMINING HIS PREMIUM PAY ENTITLEMENT.

THEREFORE, THE VOUCHER TRANSMITTED WITH YOUR LETTER IS RETURNED HEREWITH AND IF IT IS CORRECT IN OTHER RESPECTS IT MAY BE PAID BY THE DISBURSING OFFICER CONCERNED.