B-163517, APR. 11, 1968

B-163517: Apr 11, 1968

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WERE SET FORTH IN THE SETTLEMENT OF AUGUST 31 AND NEED NOT BE REPEATED HERE. THE RECORD SHOWS THAT SUCH ACTION WAS TAKEN IN ACCORDANCE WITH CHAPTER S1 OF THE CIVIL SERVICE COMMISSION'S FEDERAL PERSONNEL MANUAL WHICH. WERE REMOVED ON GROUNDS OF INEFFICIENCY AND UNAUTHORIZED ABSENCE FROM DUTY. THE REMOVAL ACTION WAS SUSTAINED BY THE CIVIL SERVICE COMMISSION (TWELFTH REGION) ON THE BASIS OF YOUR UNAUTHORIZED ABSENCE FROM DUTY DURING THE PERIOD MAY 10 TO AUGUST 17. THE DECISION OF THE TWELFTH REGION WAS SUSTAINED BY THE COMMISSION'S BOARD OF APPEALS AND REVIEW. AS FOLLOWS: "WE AGREE WITH THE BOARD'S FINDING THAT THERE WAS A PERIOD OF UNAUTHORIZED ABSENCE. THIS PROTEST WAS TREATED AS A REQUEST FOR RESTORATION UNDER THE REGULATIONS.

B-163517, APR. 11, 1968

TO MR. WILLARD C. BOND:

WE REFER TO YOUR LETTER OF JANUARY 23, 1968, REQUESTING REVIEW OF OUR OFFICE SETTLEMENT DATED AUGUST 31, 1960, WHICH DISALLOWED YOUR CLAIM FOR BACK PAY FOR THE PERIOD OF YOUR SEPARATION FROM THE SERVICE DUE TO ABANDONMENT OF POSITION.

YOUR ORIGINAL CLAIM COVERED THE PERIOD MARCH 15 TO AUGUST 17, 1959. HOWEVER, YOU NOW CLAIM COMPENSATION ONLY FOR THE PERIOD JUNE 10 TO AUGUST 17, 1959.

THE PERTINENT FACTS AND CIRCUMSTANCES WHICH LEAD TO YOUR SEPARATION FROM THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, EFFECTIVE MAY 10, 1959, WERE SET FORTH IN THE SETTLEMENT OF AUGUST 31 AND NEED NOT BE REPEATED HERE. THE RECORD SHOWS THAT SUCH ACTION WAS TAKEN IN ACCORDANCE WITH CHAPTER S1 OF THE CIVIL SERVICE COMMISSION'S FEDERAL PERSONNEL MANUAL WHICH, ON PAGE S1-13, PROVIDES AS FOLLOWS:

"AN AGENCY MAY, AT ITS OPTION, FOLLOW (A) THE REGULAR REMOVAL PROCEDURES UNDER PART 9 OR PART 22 OF THE COMMISSION'S REGULATIONS, AS APPLICABLE, OR (B) THE PROCEDURES INDICATED IN TABLE 2 UNDER SEPARATION--- ABANDONMENT OF POSITION- WHEN IT DESIRES TO REMOVE FROM ITS ROLLS AN EMPLOYEE WHO HAS:

"/1) ABANDONED HIS POST OF DUTY WITHOUT AUTHORIZATION OR APPROVAL, OR

"/2) FAILED TO RETURN TO DUTY AT THE EXPIRATION OF AN AUTHORIZED PERIOD OF LEAVE, OR

"/3)FAILED TO RETURN FROM FURLOUGH WHEN CALLED (OTHER THAN FURLOUGH FOR REDUCTION IN FORCE).'

IN ACCORDANCE WITH THE ABOVE PROVISIONS, YOUR AGENCY ELECTED TO FOLLOW THE PROCEDURES OUTLINED IN TABLE 2 ON PAGE S1-16 OF THE MANUAL, AS FOLLOWS:

"1. MARK THE RECORD -SEPARATION--- ABANDONMENT OF POSITION,- GIVING THE EFFECTIVE DATE.

"2. SEND A NOTICE TO THE EMPLOYEE THAT HE HAS BEEN SEPARATED FOR ABANDONMENT OF POSITION.

"3. IF THE EMPLOYEE INFORMS THE AGENCY THAT HE DID NOT ABANDON HIS POSITION AND THAT HE WISHES TO RETURN TO IT, THE AGENCY SHOULD RESTORE HIM TO THE POSITION HE LEFT AND THEN DECIDE WHETHER THE CIRCUMSTANCES JUSTIFY REMOVAL ACTION. IF SO, THE APPLICABLE REMOVAL PROCEDURES MUST BE APPLIED IN EFFECTING THE REMOVAL.'

ON JULY 3, 1959, YOUR AGENCY RECEIVED A LETTER FROM YOU INDICATING YOUR WILLINGNESS TO REPORT BACK TO WORK. IN ACCORDANCE WITH STEP 3, ABOVE, YOUR AGENCY ADDRESSED A LETTER TO YOU DATED JULY 22, 1959, REQUESTING YOU TO REPORT BACK TO WORK ON AUGUST 17, 1959, AND ALSO INFORMING YOU THAT ACTION WOULD BE INITIATED, IMMEDIATELY UPON YOUR RETURN, TO REMOVE YOU FROM THE SERVICE.

YOU RETURNED TO DUTY ON AUGUST 17, 1959, AND WERE REMOVED ON GROUNDS OF INEFFICIENCY AND UNAUTHORIZED ABSENCE FROM DUTY, EFFECTIVE SEPTEMBER 21, 1959. THE REMOVAL ACTION WAS SUSTAINED BY THE CIVIL SERVICE COMMISSION (TWELFTH REGION) ON THE BASIS OF YOUR UNAUTHORIZED ABSENCE FROM DUTY DURING THE PERIOD MAY 10 TO AUGUST 17, 1959 (DECISION DATED DECEMBER 29, 1959). THE DECISION OF THE TWELFTH REGION WAS SUSTAINED BY THE COMMISSION'S BOARD OF APPEALS AND REVIEW.

THEREAFTER YOU BROUGHT AN ACTION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TO OBTAIN REINSTATEMENT TO YOUR POSITION. YOU RECEIVED AN UNFAVORABLE JUDGEMENT AND APPEALED TO THE UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT. IN DECISION RENDERED ON JANUARY 9, 1964 (BOND V VANCE ET AL., 327 F.2D 901) THE COURT OF APPEALS HELD, IN PART, AS FOLLOWS:

"WE AGREE WITH THE BOARD'S FINDING THAT THERE WAS A PERIOD OF UNAUTHORIZED ABSENCE, BUT UNDER THE EVIDENCE WE WOULD LIMIT THAT PERIOD FROM MAY 10 TO JUNE 10. ON JUNE 10 APPELLANT WROTE THE COMMISSION PROTESTING HIS EMPLOYER'S ACTION AND STATING HE DID NOT ABANDON HIS JOB. THIS PROTEST WAS TREATED AS A REQUEST FOR RESTORATION UNDER THE REGULATIONS, AND APPELLANT WAS ADVISED BY HIS SUPERIOR TO REPORT BACK TO WORK ON AUGUST 17. THUS, FROM JUNE 10 TO AUGUST 17 APPELLANT WAS OFF DUTY WITH THE CONSENT OF HIS EMPLOYER AND, CONSEQUENTLY, THIS PERIOD CANNOT SERVE AS A BASIS FOR HIS DISCHARGE.'

THE COURT DID NOT CONCLUDE THAT YOUR REMOVAL ON SEPTEMBER 21, 1959, WAS UNJUSTIFIED BUT DID REMAND THE CASE TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS. UPON RECONSIDERATION BY THE DEPARTMENT OF THE ARMY, THE CIVIL SERVICE COMMISSION AND THE COURTS, YOUR REMOVAL WAS SUSTAINED.

HOWEVER, IN VIEW OF THE ABOVE-QUOTED FINDING, YOU BELIEVE THAT YOU ARE ENTITLED TO BE PAID COMPENSATION FOR THE PERIOD JUNE 10 TO AUGUST 17, 1959.

THE RULE IS WELL ESTABLISHED THAT EMPLOYEES OF THE GOVERNMENT ARE ENTITLED TO THE COMPENSATION OF THEIR POSITIONS ONLY FOR THE PERIOD THAT SERVICES ARE RENDERED OR FOR THE PERIODS THEY ARE IN LEAVE-WITH PAY STATUS, UNLESS SUCH COMPENSATION IS OTHERWISE AUTHORIZED BY LAW. THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652 (1958 ED.) AUTHORIZED "BACK PAY" IN CERTAIN CASES WHERE THE EMPLOYEE HAD BEEN REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT HIS REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED.

WE POINT OUT THAT YOUR AGENCY DID NOT "REMOVE" YOU FROM THE SERVICE UNDER THE PROCEDURES PRESCRIBED IN PART 9 OR PART 22 OF THE CIVIL SERVICE COMMISSION'S REGULATIONS. RATHER, YOUR AGENCY ELECTED TO SEPARATE YOU FOR ABANDONMENT OF POSITION UNDER THE ALTERNATE PROCEDURES SET FORTH IN TABLE 2 OF CHAPTER S1, QUOTED ABOVE. SUCH A SEPARATION DOES NOT APPEAR TO CONSTITUTE A ,SUSPENSION" OR "REMOVAL" WITHIN THE PURVIEW OF THE BACK PAY STATUTE, 5 U.S.C. 652.

MOREOVER, EVEN IF THE PROVISIONS OF 5 U.S.C. 652 (1958 ED.) WERE APPLICABLE IN YOUR CASE YOUR RESTORATION TO DUTY ON AUGUST 17, 1959, WAS NOT BASED UPON A FINDING THAT YOUR SEPARATION FOR ABANDONMENT OF POSITION, EFFECTIVE MAY 10, 1959, WAS UNJUSTIFIED OR UNWARRANTED. HAVING ELECTED TO SEPARATE YOU FOR ABANDONMENT OF POSITION UNDER THE PROCEDURES SET FORTH IN TABLE 2 OF CHAPTER S1, YOUR AGENCY WAS OBLIGED TO RESTORE YOU TO DUTY AT YOUR REQUEST. THE REASONS UNDERLYING YOUR SEPARATION ON MAY 10, 1959, SUBSEQUENTLY FORMED THE BASIS FOR YOUR REMOVAL ON SEPTEMBER 21, 1959. THAT REMOVAL ACTION HAS BEEN SUSTAINED BY THE CIVIL SERVICE COMMISSION AND THE COURTS.

IN THE OPINION OF JANUARY 9, 1964, CITED ABOVE, THE COURT OF APPEALS DID NOT FIND THAT YOUR SEPARATION DURING THE PERIOD MAY 10 TO AUGUST 17, 1959, WAS UNJUSTIFIED OR UNWARRANTED. THE COURT MERELY HELD THAT THE PERIOD JUNE 10 TO AUGUST 17, 1959, COULD NOT BE REGARDED AS A PERIOD OF UNAUTHORIZED ABSENCE AND, THEREFORE, COULD NOT PROPERLY SERVE AS A BASIS FOR YOUR REMOVAL ON SEPTEMBER 21, 1959.

IN THE LIGHT OF THE FOREGOING OUR SETTLEMENT OF AUGUST 31, 1960, DENYING YOUR CLAIM (WHICH INCLUDED THE PERIOD JUNE 10 TO AUGUST 17, 1959) MUST BE SUSTAINED.