B-163493, MAR. 29, 1968

B-163493: Mar 29, 1968

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A FINAL NOTICE WAS ISSUED ON OCTOBER 15. WHICH WAS CHARGED TO AVOID A FORFEITURE THEREOF. YOU WERE CARRIED IN A SICK LEAVE STATUS FROM OCTOBER 25. YOU WERE SEPARATED FROM THE SERVICE ON OCTOBER 12. AS FOLLOWS: "* * * THE BOARD HAS OBTAINED A MEDICAL OPINION FROM THE COMMISSION'S MEDICAL OFFICER WHO HAS ADVISED THAT THE MEDICAL EVIDENCE APPEARING IN THE FILE IS NOT INDICATIVE OF A DISABLING CONDITION WHICH PRECLUDES MR. JORDAN'S PERFORMANCE OF LEADINGMAN RIGGER DUTIES IS INSUFFICIENT BASIS FOR TAKING ADVERSE ACTION. JORDAN IS DISABLED FOR THE FULL DUTIES OF LEADINGMAN RIGGER IS NOT SUBSTANTIATED BY THE MEDICAL EVIDENCE OF RECORD. THEREFORE THE SEPARATION ACTION CANNOT BE SUSTAINED AS BEING FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE.

B-163493, MAR. 29, 1968

TO MR. BYRON B. JORDAN:

BY LETTER DATED JANUARY 25, 1968, YOUR REPRESENTATIVE, MR. A. M. HEISIG, REQUESTED REVIEW OF THAT PORTION OF OUR OFFICE SETTLEMENT DATED JANUARY 18, 1968, WHICH DISALLOWED YOUR CLAIM FOR RESTORATION OF SICK AND ANNUAL LEAVE FOLLOWING YOUR IMPROPER REMOVAL FROM YOUR POSITION WITH THE CHARLESTON NAVAL SHIPYARD, DEPARTMENT OF THE NAVY.

THE EVIDENCE OF RECORD SHOWS THAT YOU SUFFERED A CORONARY THROMBOSIS ON MARCH 7, 1964, AND REMAINED ON SICK LEAVE UNTIL MAY 18, 1964. UPON YOUR RETURN TO DUTY THE MEDICAL OFFICER OF THE CHARLESTON NAVAL SHIPYARD PLACED CERTAIN TEMPORARY RESTRICTIONS ON THE DUTIES TO BE PERFORMED BY YOU. MARCH 25, 1965, THE MEDICAL OFFICER REMOVED THE TEMPORARY RESTRICTIONS AND INSTEAD PLACED PERMANENT RESTRICTIONS ON YOUR WORK.

PRIMARILY AS A RESULT OF SUCH WORK LIMITATIONS, YOUR ADMINISTRATIVE OFFICE ISSUED AN ADVANCE NOTICE DATED AUGUST 30, 1965, PROPOSING TO SEPARATE YOU FROM THE SERVICE FOR DISABILITY UNDER PART 752 OF THE CIVIL SERVICE COMMISSION'S REGULATIONS. FOLLOWING A HEARING ON THE MATTER, A FINAL NOTICE WAS ISSUED ON OCTOBER 15, 1965, ADVISING YOU THAT YOUR SEPARATION WOULD BE EFFECTIVE UPON THE EXPIRATION OF YOUR SICK LEAVE. EXCEPT FOR 276 HOURS OF ANNUAL LEAVE, WHICH WAS CHARGED TO AVOID A FORFEITURE THEREOF, YOU WERE CARRIED IN A SICK LEAVE STATUS FROM OCTOBER 25, 1965, THROUGH 7 HOURS ON OCTOBER 12, 1966. YOU WERE SEPARATED FROM THE SERVICE ON OCTOBER 12, 1966, AND AT THAT TIME RECEIVED A LUMP-SUM PAYMENT FOR 240 HOURS OF ANNUAL LEAVE.

FOLLOWING AN UNSUCCESSFUL APPEAL TO THE CIVIL SERVICE COMMISSION'S ATLANTA REGION, YOU APPEALED THE SEPARATION ACTION TO THE CIVIL SERVICE COMMISSION'S BOARD OF APPEALS AND REVIEW. BY DECISION DATED FEBRUARY 7, 1967, THE BOARD REVERSED THE DECISION OF THE ATLANTA REGION HOLDING, IN PERTINENT PART, AS FOLLOWS:

"* * * THE BOARD HAS OBTAINED A MEDICAL OPINION FROM THE COMMISSION'S MEDICAL OFFICER WHO HAS ADVISED THAT THE MEDICAL EVIDENCE APPEARING IN THE FILE IS NOT INDICATIVE OF A DISABLING CONDITION WHICH PRECLUDES MR. JORDAN FROM PERFORMING THE DUTIES OF A LEADINGMAN RIGGER. IN THE LATTER CONNECTION, THE BOARD WISHES TO POINT OUT THAT THE FACT THAT THE SHIPYARD FELT THAT IT SHOULD RESTRICT MR. JORDAN'S PERFORMANCE OF LEADINGMAN RIGGER DUTIES IS INSUFFICIENT BASIS FOR TAKING ADVERSE ACTION.

"UNDER THE CIRCUMSTANCES IN THIS CASE AND AS A RESULT OF ITS REVIEW, THE BOARD FINDS THAT THE SHIPYARD ALLEGATION THAT MR. JORDAN IS DISABLED FOR THE FULL DUTIES OF LEADINGMAN RIGGER IS NOT SUBSTANTIATED BY THE MEDICAL EVIDENCE OF RECORD, AND THEREFORE THE SEPARATION ACTION CANNOT BE SUSTAINED AS BEING FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE. ACCORDINGLY, THE DECISION OF THE ATLANTA REGION, U.S. CIVIL SERVICE COMMISSION, ISSUED NOVEMBER 29, 1966, IS REVERSED AND IT IS RECOMMENDED THAT THE CHARLESTON, SOUTH CAROLINA NAVAL SHIPYARD RETROACTIVELY RESTORE MR. JORDAN TO HIS FORMER POSITION OF LEADINGMAN RIGGER BY CANCELLATION OF THE PERSONNEL ACTION EFFECTING HIS SEPARATION ON OCTOBER 12, 1966.'

IN ACCORDANCE WITH THAT DECISION YOUR ADMINISTRATIVE OFFICE RESTORED YOU TO DUTY ON FEBRUARY 20, 1967, RETROACTIVE TO OCTOBER 12, 1966, AND AWARDED YOU BACK PAY FOR THE PERIOD OCTOBER 12, 1966 TO FEBRUARY 20, 1967 (THE DATE YOU ACTUALLY RETURNED TO DUTY) UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652 (B) (1) (1964 ED.).

SINCE YOU WERE RESTORED TO DUTY ON THE GROUND THAT YOUR SEPARATION FOR DISABILITY WAS IMPROPER YOU BELIEVE THAT YOU ARE ENTITLED TO RESTORATION OF THE SICK LEAVE (1,683 HOURS) AND ANNUAL LEAVE (276 HOURS) WHICH YOU WERE FORCED TO TAKE DURING THE PERIOD OCTOBER 25, 1965-OCTOBER 12, 1966.

INITIALLY, WE POINT OUT THAT THE ACT OF AUGUST 24, 1912, AS AMENDED, CITED ABOVE, WAS REPEALED BY SECTION 5 OF THE BACK PAY ACT OF 1966, PUBLIC LAW 89-380, APPROVED MARCH 30, 1966. SECTION 3 OF PUBLIC LAW 89-380, PROVIDES 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 TAKEN PRIOR TO, ON, OR AFTER THE DATE OF ENACTMENT OF THIS ACT, WHICH HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF SUCH OFFICER OR EMPLOYEE-

"/1) SHALL BE ENTITLED, UPON CORRECTION OF SUCH PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH SUCH PERSONNEL ACTION WAS IN EFFECT AN AMOUNT COMMENSURATE WITH THE AMOUNT OF ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, WHICH SUCH OFFICER OR EMPLOYEE NORMALLY WOULD HAVE EARNED DURING SUCH PERIOD IF SUCH PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD; AND

" 2 FOR ALL PURPOSES, SHALL BE HELD AND CONSIDERED TO HAVE RENDERED SERVICE FOR SUCH AGENCY DURING SUCH PERIOD, EXCEPT THAT SUCH OFFICER OR EMPLOYEE SHALL NOT BE CREDITED, BY REASONS OF THE ENACTMENT OF THIS ACT, LEAVE IN AN AMOUNT WHICH WOULD CAUSE ANY AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED ANY MAXIMUM AMOUNT OF SUCH LEAVE AUTHORIZED FOR SUCH OFFICER OR EMPLOYEE BY LAW OR REGULATION.'

SINCE YOUR RESTORATION TO DUTY WAS BASED ON A DECISION RENDERED AFTER THE EFFECTIVE DATE OF PUBLIC LAW 89-380 (MARCH 30, 1966) IT IS CLEAR THAT THE PROVISIONS QUOTED ABOVE, AND NOT THOSE OF THE ACT OF AUGUST 24, 1912, AS AMENDED, ARE APPLICABLE TO YOUR CASE.

THE ACTIONS TAKEN BY YOUR ADMINISTRATIVE OFFICE WERE BASED UPON A DETERMINATION THAT YOUR PHYSICAL CONDITION PRECLUDED YOU FROM PERFORMING THE FULL DUTIES OF YOUR POSITION. HOWEVER, AS NOTED ABOVE, THE BOARD OF APPEALS AND REVIEW FOUND THAT THE MEDICAL EVIDENCE OF RECORD DID NOT SUPPORT SUCH A DETERMINATION. IN VIEW THEREOF, THE ACTION OF PLACING YOU ON SICK LEAVE WITHOUT YOUR CONSENT PROPERLY MAY BE REGARDED AS AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WITHIN THE MEANING OF SECTION 3 OF PUBLIC LAW 89-380. SEE ALSO, SECTION 550.803 (E) OF THE CIVIL SERVICE COMMISSION REGULATIONS CONTAINED IN BOOK III OF FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-1. IN SUCH CIRCUMSTANCES, THE SALARY WHICH YOU RECEIVED FOR SICK LEAVE MAY BE REGARDED AS COMPENSATION ALLOWABLE UNDER SECTION 3 OF PUBLIC LAW 89 380, ABOVE, AND THE SICK LEAVE SO CHARGED MAY BE RESTORED TO YOUR ACCOUNT.

AS TO THE 276 HOURS ANNUAL LEAVE CHARGED DURING THE PERIOD OCTOBER 25, 1965-OCTOBER 12, 1966, IT APPEARS THAT SUCH LEAVE MAY NOT NOW BE RECREDITED TO YOUR ACCOUNT. THIS IS SO BECAUSE WHEN THE AGENCY DEDUCTED THE AMOUNT OF THE LUMP-SUM PAYMENT PREVIOUSLY MADE TO YOU FROM THE BACK PAY ALLOWED TO YOU IN 1967, YOU WERE CREDITED WITH THE ANNUAL LEAVE REPRESENTED THEREBY OR 240 HOURS. APPARENTLY, THE 240 HOURS WAS THE MAXIMUM AMOUNT OF ANNUAL LEAVE THAT COULD BE CARRIED OVER BY YOU FROM YEAR TO YEAR. THEREFORE, WHEN YOU WERE RESTORED TO DUTY IN FEBRUARY 1967, THE RECREDIT OF THE 276 HOURS WAS PRECLUDED BY SECTION 3 (2) OF PUBLIC LAW 89- 380, PREVIOUSLY QUOTED, AND 5 U.S.C. 6304 (A).

IN ADDITION TO THE ABOVE, IT APPEARS THAT YOUR ACCOUNT MAY BE CREDITED WITH THE SICK LEAVE WHICH YOU WOULD HAVE EARNED DURING THE PERIOD OF YOUR REMOVAL (OCTOBER 12, 1966-FEBRUARY 20, 1967). SEE SECTION 550.804 OF THE CIVIL SERVICE COMMISSION'S REGULATIONS. THE ANNUAL LEAVE WHICH YOU WOULD HAVE EARNED DURING THE PERIOD OCTOBER 12 DECEMBER 31, 1966, MAY NOT BE CREDITED TO YOUR ACCOUNT DUE TO THE SAME LIMITATIONS ON ANNUAL LEAVE ACCUMULATION REFERRED TO ABOVE. HOWEVER, WHETHER OR NOT YOU NOW MAY BE CREDITED WITH THE AMOUNT OF ANNUAL LEAVE YOU WOULD HAVE EARNED DURING THE PERIOD JANUARY 1-FEBRUARY 20, 1967, IS FOR DETERMINATION BY YOUR ADMINISTRATIVE OFFICE SINCE WE HAVE NO INFORMATION AS TO THE AMOUNT OF ANNUAL LEAVE CARRIED OVER BY YOU AT THE END OF THE 1967 LEAVE YEAR.

A COPY OF THIS DECISION IS BEING SENT TO YOUR ADMINISTRATIVE OFFICE SO THAT THE APPROPRIATE CORRECTIVE ACTION MAY BE TAKEN IN ACCORDANCE THEREWITH.