B-163184, APR. 9, 1968

B-163184: Apr 9, 1968

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YOU ASK THAT IF IT IS HELD THAT THE BACK PAY PAYMENT WAS NOT PROPER YOU BE ADVISED WHETHER MR. VESPUCCI WILL BE REQUIRED TO REFUND THE BACK PAY PAYMENT AND WHAT ADJUSTMENT SHOULD BE MADE TO HIS LEAVE ACCOUNT. VESPUCCI WAS SEPARATED BY RESIGNATION EFFECTIVE OCTOBER 15. THAT THE RETIREMENT WAS NOT ALLOWED BECAUSE OF LACK OF SERVICE. IS FOUND ON OR AFTER THE DATE OF ENACTMENT OF THIS ACT. BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION * * *.'. WAS CANCELLED ON MARCH 9. THE OFFICIAL ACTION IN HIS CASE WAS COMPLETED PRIOR TO THE ENACTMENT OF PUBLIC LAW 89-380. IT IS EVIDENT THAT SAID LAW DOES NOT APPLY TO MR. VESPUCCI'S CASE AND THAT THE ADMINISTRATIVE PAYMENT OF BACK PAY THEREUNDER WAS ERRONEOUS.

B-163184, APR. 9, 1968

TO MR. F. KLEINMAN:

IN YOUR LETTER DATED NOVEMBER 22, 1967, TO THE CLAIMS DIVISION OF OUR OFFICE, REFERENCE 328: GG: CK LL/VESPUCCI, YOU POINTED OUT THAT OUR NEW YORK REGIONAL OFFICE, IN THE COURSE OF A CIVILIAN PAYROLL AUDIT, QUESTIONED THE LEGALITY OF THE ADMINISTRATIVE PAYMENT OF BACK PAY UNDER PUBLIC LAW 89-380, THE BACK PAY ACT OF 1966, APPROVED MARCH 30, 1966, 80 STAT. 94, TO AMERIGO VESPUCCI FOR THE PERIOD OCTOBER 15, 1965, TO JANUARY 13, 1966. YOU REQUEST THAT WE RENDER A DECISION ON THE LEGALITY OF THE PAYMENT. YOU ASK THAT IF IT IS HELD THAT THE BACK PAY PAYMENT WAS NOT PROPER YOU BE ADVISED WHETHER MR. VESPUCCI WILL BE REQUIRED TO REFUND THE BACK PAY PAYMENT AND WHAT ADJUSTMENT SHOULD BE MADE TO HIS LEAVE ACCOUNT.

THE RECORD SHOWS THAT MR. VESPUCCI WAS SEPARATED BY RESIGNATION EFFECTIVE OCTOBER 15, 1965, TO APPLY FOR DISCONTINUED SERVICE ANNUITY AFTER RECEIPT OF A GENERAL REDUCTION-IN-FORCE NOTICE; THAT THE RETIREMENT WAS NOT ALLOWED BECAUSE OF LACK OF SERVICE; AND THAT HE AS REEMPLOYED UNDER A TEMPORARY APPOINTMENT EFFECTIVE JANUARY 13, 1966, NOT TO EXCEED JUNE 30, 1966. THEREAFTER, ON THE BASIS OF THE CANCELLATION OF THE SEPARATION ACTION OF OCTOBER 15, 1965, THE EMPLOYEE RECEIVED BACK PAY (GROSS $1,646.72, NET $743.73) FOR THE PERIOD BETWEEN OCTOBER 15, 1965 AND JANUARY 13, 1966.

SECTION 3 OF THE FOREGOING ACT, READS, IN PART, AS FOLLOWS:

"EACH CIVILIAN OFFICER OR EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND ON OR AFTER THE DATE OF ENACTMENT OF THIS ACT, BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION * * *.'

SINCE MR. VESPUCCI'S SEPARATION OF OCTOBER 15, 1965, WAS CANCELLED ON MARCH 9, 1966, THE OFFICIAL ACTION IN HIS CASE WAS COMPLETED PRIOR TO THE ENACTMENT OF PUBLIC LAW 89-380, I.E., MARCH 30, 1966. THEREFORE, IT IS EVIDENT THAT SAID LAW DOES NOT APPLY TO MR. VESPUCCI'S CASE AND THAT THE ADMINISTRATIVE PAYMENT OF BACK PAY THEREUNDER WAS ERRONEOUS.

IN ADDITION SINCE THE RECORD SHOWS THAT MR. VESPUCCI VOLUNTARILY RESIGNED HIS SEPARATION IS NOT COVERED BY 5 U.S.C. 652 (1964 ED.), IN FORCE AND EFFECT AT THAT TIME. 45 COMP. GEN. 722 (B-159133, MAY 23, 1966, COPY ENCLOSED).

ACCORDINGLY THE EMPLOYEE SHOULD BE REQUIRED TO REFUND THE AMOUNT HE RECEIVED AS BACK PAY DURING THE PERIOD IN QUESTION.

THE FILE INDICATES THAT ORIGINALLY MR. VESPUCCI'S SEPARATION OF OCTOBER 15, 1965, AS WELL AS THE TEMPORARY APPOINTMENT ACTION OF JANUARY 13, 1966, WERE CANCELLED FOR THE PURPOSE OF PERMITTING HIM TO BE CARRIED ON THE ROLLS FROM OCTOBER 15, AND THUS COMPLETE SERVICE CREDIT FOR RETIREMENT PURPOSES. ALSO IT APPEARS THAT THE ANNUAL LEAVE FOR WHICH MR. VESPUCCI RECEIVED A LUMP-SUM PAYMENT (171 HOURS) MAY HAVE BEEN CHARGED (RETROACTIVELY) FOR PART OF THE PERIOD OCTOBER 15, 1965, TO JANUARY 13, 1966, IN ACCORDANCE WITH HIS REQUEST OF MARCH 10, 1966. SINCE THE BACK PAY ALLOWED TO MR. VESPUCCI IS NOW HELD TO BE ERRONEOUS THE RECORD SHOULD BE ADJUSTED TO SHOW THE CHARGE OF ANNUAL LEAVE IN THE MANNER SET FORTH IN THE PREVIOUS SENTENCE. ANY TIME NOT COVERED BY SUCH ANNUAL LEAVE FOR THAT PERIOD SHOULD BE SHOWN AS LEAVE WITHOUT PAY. IF THE FOREGOING WAS PREVIOUSLY DONE, AS REQUESTED BY HIM ON MARCH 10, 1966, WE ASSUME THE EMPLOYEE WAS GIVEN CREDIT FOR ANNUAL LEAVE (GRANTED IN KIND). HOWEVER, IF THIS WAS NOT DONE IT SHOULD BE DONE NOW AND AN ADDITIONAL PAYMENT WOULD BE DUE FOR APPROXIMATELY 2 DAYS ANNUAL LEAVE WHICH SHOULD BE APPLIED IN REDUCTION OF THE ERRONEOUS PAYMENT. FURTHER, THE LEAVE (ANNUAL AND SICK) CREDITED TO THE EMPLOYEE AS LEAVE EARNED FOR THE PERIOD OCTOBER 15, 1965, TO JANUARY 13, 1966, AND INCLUDED IN THE LEAVE TRANSFERRED TO THE U.S. NAVAL HOSPITAL, ST. ALBANS, NEW YORK, WHICH WAS IMPROPER SHOULD BE ADJUSTED.