B-164599, JUL. 22, 1968

B-164599, JUL. 22, 1968

TO MRS. DOLLY C. DAIUTOLO:

THIS IS IN REPLY TO YOUR LETTER DATED JUNE 5, 1968, APPEALING FROM OUR OFFICE SETTLEMENT OF MAY 29, 1968, DENYING YOUR CLAIM FOR BACK PAY AND BENEFITS ALLEGED TO BE DUE FOR THE PERIOD DECEMBER 2, 1957, TO AUGUST 28, 1959, AS AN EMPLOYEE OF THE MILITARY CLOTHING AND TEXTILE SUPPLY AGENCY (NOW THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC), A COMPONENT OF THE DEFENSE SUPPLY AGENCY (DSA) (.

IT IS YOUR POSITION THAT YOU MADE A "TIMELY APPEAL" ON NOVEMBER 12, 1957, FROM THE NOTICE OF PROPOSED SEPARATION DATED OCTOBER 29, 1957, WITHIN THE MEANING OF THE BACK PAY ACT OF 1966, PUBLIC LAW 89-380, APPROVED MARCH 30, 1966, 80 STAT. 94 (NOW 5 U.S.C. 5596) SO AS TO ENTITLE YOU TO BACK PAY UNDER ITS PROVISIONS.

THE RECORD SHOWS THAT YOU WERE REINSTATED AS AN EMPLOYEE OF THE MILITARY CLOTHING AND TEXTILE SUPPLY AGENCY IN PHILADELPHIA, PENNSYLVANIA, ON OCTOBER 21, 1957, ON THE BASIS OF PREVIOUS SERVICE BELIEVED TO BE IN EXCESS OF 3 YEARS. YOU MADE NO CLAIM OF VETERAN'S PREFERENCE AT THAT TIME. ON OCTOBER 29, 1957, THE DPSC DETERMINED THAT YOUR REEMPLOYMENT WAS IMPROPER AND ADVISED YOU THAT SINCE (1) YOU DID NOT HAVE 3 YEARS CONTINUOUS SERVICE, (2) YOU WERE NOT ELIGIBLE FOR VETERAN'S PREFERENCE, AND (3) YOUR LAST SERVICE HAD BEEN MORE THAN 3 YEARS PREVIOUSLY YOU COULD NOT BE RETAINED IN THE SERVICE. THE AGENCY DID NOT RECEIVE ANY REPLY TO THE FOREGOING AND ACTION WAS TAKEN TO SEPARATE YOU ON DECEMBER 2, 1957.

ON APRIL 30, 1959, YOU WERE INFORMED BY THE PHILADELPHIA REGIONAL OFFICE OF THE CIVIL SERVICE COMMISSION THAT YOU WERE ENTITLED TO A VETERAN'S PREFERENCE BASED ON YOUR HUSBAND'S DISCHARGE FROM THE ARMY ON JUNE 30, 1953, AS 60 PERCENT DISABLED. AS A RESULT THEREOF YOU OBTAINED ANOTHER APPOINTMENT BY REINSTATEMENT ON AUGUST 28, 1959.

ON JUNE 3, 1966, YOU REQUESTED BACK PAY UNDER THE BACK PAY ACT OF 1966 FROM DPSC FOR THE PERIOD IN QUESTION ON THE BASIS OF A WRONGFUL SEPARATION ON DECEMBER 2, 1957, ALLEGING THAT YOU WERE UNEMPLOYED FROM THAT TIME UNTIL AUGUST 28, 1959. AFTER SEVERAL REVIEWS THIS CLAIM WAS DENIED BY THE DEFENSE SUPPLY AGENCY ON THE GROUND THAT VETERAN'S PREFERENCE HAD BEEN GRANTED PRIOR TO THE ENACTMENT OF THE BACK PAY ACT OF 1966 AND THAT YOUR APPEAL IN 1966 OF THE SEPARATION ACTION TAKEN IN 1957 WAS NOT TIMELY. THE PHILADELPHIA REGION OF THE CIVIL SERVICE COMMISSION ON DECEMBER 12, 1967, FOUND THAT YOU HAD NOT PRESENTED THE REQUIRED SUBSTANTIATION OF YOUR CLAIM FOR VETERAN'S PREFERENCE AT THE TIME AND THAT YOU HAD NOT APPEALED FROM YOUR SEPARATION; ALSO, THAT THE ACTION TAKEN WAS NOT UNWARRANTED OR UNJUSTIFIED.

IN SUPPORT OF YOUR CONTENTION THAT YOU WERE SEPARATED IMPROPERLY EVEN THOUGH POSSESSING A VETERAN'S PREFERENCE YOU SUBMITTED AN EXTRACT FROM THE ARMY SERVICE RECORD OF YOUR HUSBAND, MAJOR CARMEN E. DIAUTOLO, DATED JUNE 10, 1953, STATING THAT HE HAD BEEN FOUND TO BE PERMANENTLY UNFIT FOR DUTY BY REASON OF PHYSICAL DISABILITY AND THAT HE WOULD BE RETIRED AS OF JUNE 30, 1953. IN AN AFFIDAVIT ACCOMPANYING THE EXTRACT YOU DEPOSED THAT ON NOVEMBER 12, 1957, WHILE YOUR SEPARATION WAS STILL PENDING YOU PRESENTED THE CLAIM FOR VETERAN'S PREFERENCE TO A REPRESENTATIVE OF THE INDUSTRIAL RELATIONS OFFICE, A MR. MCCONNELL, WHO REFUSED TO ACCEPT THE DOCUMENT. UPON BEING CONTACTED MR. MCCONNELL, WHO HAS SINCE RETIRED, HAD NO RECOLLECTION OF THE INCIDENT.

WITH RESPECT TO ENTITLEMENT TO BACK PAY, PUBLIC LAW 89-380, 89TH CONGRESS, APPROVED MARCH 30, 1966, 80 STAT. 94, PROVIDES AS FOLLOWS:

"SEC. 3. 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

"SEC. 4. THE UNITED STATES CIVIL SERVICE COMMISSION SHALL PRESCRIBE REGULATIONS TO CARRY OUT THE PROVISIONS OF THIS ACT. * * *"

IN IMPLEMENTING THE FOREGOING THE CIVIL SERVICE COMMISSION ISSUED THE FOLLOWING REGULATIONS:

"SEC. 550.803 DETERMINING ENTITLEMENT.

"/A)THE REQUIREMENT FOR AN ADMINISTRATIVE DETERMINATION REFERRED TO IN THE PHRASE -ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL- IN SECTION 3 OF THE ACT IS MET WHEN AN APPROPRIATE AUTHORITY IN A DEPARTMENT MAKES A DECISION ON ITS OWN INITIATIVE IN A CASE INVOLVING AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. THE DECISION MAY BE ORAL BUT SHALL BE CONFIRMED IN WRITING.

"/B) THE REQUIREMENT FOR A TIMELY APPEAL REFERRED TO IN THE PHRASE -ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL- IN SECTION 3 OF THE ACT IS MET WHEN AN EMPLOYEE OR HIS AUTHORIZED REPRESENTATIVE INITIATES AN APPEAL UNDER AN APPEALS SYSTEM OR PROCEDURE ESTABLISHED BY LAW, EXECUTIVE ORDER, OR REGULATION AND THAT APPEAL IS ACCEPTED AS TIMELY FILED BY THE GOVERNMENT AUTHORITY ADMINISTERING THE APPEALS SYSTEM OR PROCEDURE CONCERNED.

"/C) THE APPROPRIATE AUTHORITY REFERRED TO IN SECTION 3 OF THE ACT AND THIS SUBPART IS THE DEPARTMENT, OFFICE OR OFFICIAL IN A DEPARTMENT, OR COURT AUTHORIZED UNDER APPLICABLE LAW OR REGULATION TO CORRECT, OR TO DIRECT THE CORRECTION OF, THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION.

"/D) TO BE UNJUSTIFIED OR UNWARRANTED, A PERSONNEL ACTION MUST BE DETERMINED TO BE IMPROPER OR ERRONEOUS ON THE BASIS OF EITHER SUBSTANTIVE OR PROCEDURAL DEFECTS AFTER CONSIDERATION OF THE EQUITABLE, LEGAL, AND PROCEDURAL ELEMENTS INVOLVED IN THE PERSONNEL ACTION.'

IN ORDER TO SUPPORT A CLAIM FOR BACK PAY UNDER THE FOREGOING STATUTE AND REGULATIONS THERE MUST BE A FINDING BY THE DEFENSE SUPPLY AGENCY AS THE AGENCY TAKING THE INITIAL ACTION OR THE CIVIL SERVICE COMMISSION AS THE ULTIMATE REVIEWING AUTHORITY ON THE BASIS OF A TIMELY APPEAL OR AN ADMINISTRATIVE DETERMINATION THAT THE PERSONNEL ACTION BY WHICH YOU WERE REMOVED IN DECEMBER 1957 WAS IMPROPER OR UNWARRANTED. THE DEFENSE SUPPLY AGENCY HAS MADE NO FINDING THAT THE PERSONNEL ACTION EFFECTING YOUR SEPARATION IN DECEMBER 1957 WAS UNJUSTIFIED OR UNWARRANTED. AND THE CIVIL SERVICE COMMISSION HAS STATED THAT YOUR SEPARATION WAS NOT UNWARRANTED OR UNJUSTIFIED.

IN THE ABSENCE OF A FINDING BY APPROPRIATE AUTHORITY THAT YOUR SEPARATION WAS UNJUSTIFIED OR UNWARRANTED THE CASE DOES NOT COME WITHIN THE PURVIEW OF THE BACK PAY ACT. SEE B-122257, SEPTEMBER 20, 1967 (COPY ENCLOSED). MOREOVER, FOR THE SAME REASON YOU WOULD NOT BE ELIGIBLE FOR BACK PAY UNDER THE AUTHORITY OF 5 U.S.C. 652 (1964 ED.) WHICH WAS IN EFFECT PRIOR TO THE BACK PAY ACT OF 1966, AND WHICH CONTAINED SIMILAR PROVISIONS. ACCORDINGLY, OUR PRIOR OFFICE SETTLEMENT DENYING YOUR CLAIM IS SUSTAINED.