B-163640, JUL. 11, 1969

B-163640: Jul 11, 1969

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SINCE EMPLOYEE WAS NOT RESTORED ON BASIS THAT REMOVAL WAS UNJUSTIFIED OR UNWARRANTED. 5 U.S.C. 5596 (A) IS NOT APPLICABLE. SINCE THE PERTINENT FACTS OF YOUR CASE WERE SET FORTH IN THE SETTLEMENT OF JANUARY 31. YOUR CLAIM PRIMARILY IS BASED UPON YOUR BELIEF THAT THE GOVERNMENT VIOLATED YOUR REEMPLOYMENT RIGHTS BY NOT APPOINTING YOU TO A POSITION IN THE FEDERAL SERVICE UNTIL 6-1/2 MONTHS AFTER YOUR SEPARATION FROM THE DEPARTMENT OF THE ARMY. WHETHER OR NOT SUCH A VIOLATION DID OCCUR IS NOT A MATTER FOR DETERMINATION BY THIS OFFICE. OUR RESPONSIBILITY IN YOUR CASE IS LIMITED TO DETERMINING WHETHER. YOU ARE ENTITLED TO RECEIVE COMPENSATION FOR THE PERIOD IN QUESTION. IT IS A WELL-ESTABLISHED RULE 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 A LEAVE-WITH PAY STATUS.

B-163640, JUL. 11, 1969

CIVIL PAY - BACK PAY DECISION TO FORMER DEPARTMENT OF ARMY EMPLOYEE SUSTAINING DISALLOWANCE OF CLAIM FOR COMPENSATION FOR PERIOD FROM DATE OF SEPARATION DUE TO REDUCTION -IN-FORCE AND REINSTATEMENT. SINCE EMPLOYEE WAS NOT RESTORED ON BASIS THAT REMOVAL WAS UNJUSTIFIED OR UNWARRANTED, BACK PAY ACT, 5 U.S.C. 5596 (A) IS NOT APPLICABLE.

TO MR. FREDERICK J. SCHEIFELE:

YOUR LETTER OF MAY 15, 1969, WITH ENCLOSURES, REQUESTS REVIEW OF OUR OFFICE SETTLEMENT OF JANUARY 31, 1968, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF COMPENSATION FOR THE PERIOD BETWEEN THE DATE OF YOUR SEPARATION FROM THE DEPARTMENT OF THE ARMY DUE TO A REDUCTION IN FORCE (JUNE 30, 1965) AND THE DATE OF YOUR REINSTATEMENT IN THE DEPARTMENT OF THE ARMY (JANUARY 17, 1966).

SINCE THE PERTINENT FACTS OF YOUR CASE WERE SET FORTH IN THE SETTLEMENT OF JANUARY 31, 1968, WE SHALL NOT REPEAT THEM HERE.

YOUR CLAIM PRIMARILY IS BASED UPON YOUR BELIEF THAT THE GOVERNMENT VIOLATED YOUR REEMPLOYMENT RIGHTS BY NOT APPOINTING YOU TO A POSITION IN THE FEDERAL SERVICE UNTIL 6-1/2 MONTHS AFTER YOUR SEPARATION FROM THE DEPARTMENT OF THE ARMY. WHETHER OR NOT SUCH A VIOLATION DID OCCUR IS NOT A MATTER FOR DETERMINATION BY THIS OFFICE. RATHER, OUR RESPONSIBILITY IN YOUR CASE IS LIMITED TO DETERMINING WHETHER, UNDER THE LAW, YOU ARE ENTITLED TO RECEIVE COMPENSATION FOR THE PERIOD IN QUESTION.

IT IS A WELL-ESTABLISHED RULE 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 A LEAVE-WITH PAY STATUS, UNLESS SUCH COMPENSATION OTHERWISE IS SPECIFICALLY AUTHORIZED BY LAW. IN THAT REGARD THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652 (1964 ED.), IN EFFECT ON JUNE 30, 1965, AUTHORIZED BACK PAY IN CERTAIN CASES OF REMOVAL OR SUSPENSION FROM THE SERVICE. HOWEVER, THE STATUE LIMITED THE PAYMENT OF COMPENSATION TO THOSE CASES IN WHICH THE EMPLOYEE HAD BEEN RESTORED TO THE POSITION FROM WHICH REMOVED ON THE BASIS THAT THE REMOVAL WAS UNJUSTIFIED OR UNWARRANTED. SINCE YOU WERE NOT RESTORED TO YOUR POSITION ON THE BASIS THAT YOUR REMOVAL WAS UNJUSTIFIED OR UNWARRANTED, IT FOLLOWS THAT THE ABOVE-CITED STATUTE IS INAPPLICABLE TO YOUR CLAIM.

SECTION 9 (C) OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, 79 STAT. 1119 (NOW 5 U.S.C. 5595), PROVIDES AS FOLLOWS:

"AN OFFICER OR EMPLOYEE TO WHOM THIS SECTION APPLIES WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE, ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY, SHALL, UNDER RULES AND REGULATIONS PRESCRIBED BY THE PRESIDENT OR SUCH OFFICER OR AGENCY AS HE MAY DESIGNATE, BE PAID SEVERANCE PAY IN REGULAR PAY PERIODS BY THE DEPARTMENT, INDEPENDENT ESTABLISHMENT, CORPORATION, OR OTHER GOVERNMENTAL UNIT, FROM WHICH SEPARATED.'

THE ABOVE-QUOTED SECTION WAS EFFECTIVE ON OCTOBER 29, 1965. THEREFORE, IN ACCORDANCE WITH THE LANGUAGE UNDERSCORED ABOVE, YOU ARE NOT ENTITLED TO SEVERANCE PAY SINCE YOUR SEPARATION OCCURRED PRIOR TO THE EFFECTIVE DATE OF THAT SECTION.

SINCE YOU HAVE NO ENTITLEMENT TO BACK PAY OR SEVERANCE PAY UNDER THE STATUTES DISCUSSED ABOVE, THERE EXISTS NO LEGAL BASIS UPON WHICH YOUR CLAIM FOR PAYMENT OF COMPENSATION FOR THE PERIOD IN QUESTION MAY BE ALLOWED.

IN YOUR LETTER OF MAY 15 YOU POINT OUT THAT YOU HAD APPROXIMATELY 6 MONTHS OF ANNUAL LEAVE AND A SUBSTANTIAL AMOUNT OF SICK LEAVE TO YOUR CREDIT ON THE DATE OF YOUR SEPARATION FROM THE SERVICE. YOU CONTEND THAT YOUR AGENCY SHOULD HAVE CARRIED YOU ON THE ROLLS IN A PAID LEAVE STATUS WHILE YOU SOUGHT OTHER EMPLOYMENT IN LIEU OF SEPARATING YOU ON JUNE 30, 1965. IN THAT REGARD WE HAVE HELD THAT THE ADMINISTRATIVE AUTHORITY TO GRANT AN EMPLOYEE TERMINAL ANNUAL LEAVE IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE WHEN IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED IS LIMITED TO CASES WHERE THE EXIGENCIES OF THE SERVICE REQUIRE SUCH ACTION. 34 COMP. GEN. 61. EVIDENTLY THERE EXISTED NO OFFICIAL NECESSITY TO RETAIN YOU ON THE ROLLS IN A LEAVE STATUS SUBSEQUENT TO JUNE 30, 1965. THEREFORE, IT WAS PROPER FOR YOUR AGENCY TO SEPARATE YOU AS OF THAT DATE.

FOR THE REASONS DISCUSSED ABOVE, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.