B-166387, APR. 28, 1969

B-166387: Apr 28, 1969

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WHICH CONCERNS SOME OF THE STATEMENTS THAT WERE MADE IN OUR SETTLEMENT CERTIFICATE DATED FEBRUARY 14. WAS NOT A VOLUNTARY RESIGNATION. ALSO IT DOES NOT APPEAR THAT YOUR RESIGNATION WAS ERRONEOUSLY ACCEPTED BY THE AGENCY. THE COPIES OF OTHER CORRESPONDENCE ENCLOSED WITH YOUR ABOVE LETTER OF FEBRUARY 24 IN LARGE PART CONCERN FACTS WHICH HAVE NO MATERIAL BEARING UPON YOUR CLAIM OF BACK PAY. REGARDING YOUR SUGGESTION THAT THE ORIGINALS OF SUCH COPIES WERE UNLAWFULLY REMOVED OR OMITTED FROM YOUR OFFICIAL PERSONNEL FOLDER BY THE AGENCY WHEN THE FOLDER WAS FORWARDED TO THE FEDERAL RECORDS CENTER. YOU ARE ADVISED THAT THE RETENTION OF SUBSTANTIVE PERSONNEL RECORDS PURSUANT TO THE PROVISIONS OF 5 U.S.C. 633 (2) .

B-166387, APR. 28, 1969

TO MRS. DOROTHY M. CRACKENBERGER:

WE REFER TO YOUR LETTER OF FEBRUARY 24, 1969, WITH ENCLOSURES, WHICH CONCERNS SOME OF THE STATEMENTS THAT WERE MADE IN OUR SETTLEMENT CERTIFICATE DATED FEBRUARY 14, 1969, WHICH DISALLOWED YOUR CLAIM OF BACK PAY INCIDENT TO THE TERMINATION OF YOUR SERVICE EFFECTIVE NOVEMBER 29, 1958, AS AN EMPLOYEE OF THE FARMERS HOME ADMINISTRATION, DEPARTMENT OF AGRICULTURE.

THE SERIES OF LETTERS FROM YOU TO US DATED OCTOBER 28 AND DECEMBER 4, 1968, FEBRUARY 7 AND 24, 1969, LARGELY CONCERN FACTS AND CIRCUMSTANCES WHICH DO NOT SHOW, AS YOU SUGGEST, THAT YOUR RESIGNATION PROFFERED BY YOU ON NOVEMBER 3, 1958, WAS NOT A VOLUNTARY RESIGNATION. ALSO IT DOES NOT APPEAR THAT YOUR RESIGNATION WAS ERRONEOUSLY ACCEPTED BY THE AGENCY. WITH YOUR MEMORANDUM OF NOVEMBER 3, 1958, YOU MADE SOME COMMENTS ABOUT PRIOR CIRCUMSTANCES OF YOUR SERVICE AND HEALTH. IN OUR VIEW, THE ADMINISTRATIVE SUGGESTION IN LETTER DATED OCTOBER 31, 1958, CONTEMPLATED ACCEPTANCE OF THE PROPOSAL MADE BY YOU ON NOVEMBER 3 THAT YOUR RESIGNATION BE MADE EFFECTIVE ON NOVEMBER 29, 1958.

THE COPIES OF OTHER CORRESPONDENCE ENCLOSED WITH YOUR ABOVE LETTER OF FEBRUARY 24 IN LARGE PART CONCERN FACTS WHICH HAVE NO MATERIAL BEARING UPON YOUR CLAIM OF BACK PAY. REGARDING YOUR SUGGESTION THAT THE ORIGINALS OF SUCH COPIES WERE UNLAWFULLY REMOVED OR OMITTED FROM YOUR OFFICIAL PERSONNEL FOLDER BY THE AGENCY WHEN THE FOLDER WAS FORWARDED TO THE FEDERAL RECORDS CENTER, YOU ARE ADVISED THAT THE RETENTION OF SUBSTANTIVE PERSONNEL RECORDS PURSUANT TO THE PROVISIONS OF 5 U.S.C. 633 (2) , (1964 ED.) IS REGULATED BY THE CIVIL SERVICE COMMISSION. THEREUNDER THE COMMISSION'S REGULATION 5 CFR 293.209 IS AS FOLLOWS: "SEC. 293.209 REMOVAL OF TEMPORARY RECORDS FROM FOLDER.

"THE EMPLOYING AGENCY HAVING POSSESSION OF AN OFFICIAL PERSONNEL FOLDER SHALL REMOVE RECORDS OF TEMPORARY VALUE FROM THE FOLDER AND DISPOSE OF THEM IN ACCORDANCE WITH GENERAL SCHEDULE 1 PROMULGATED BY THE GENERAL SERVICES ADMINISTRATION BEFORE THE FOLDER IS TRANSFERRED TO ANOTHER AGENCY OR TO THE FEDERAL RECORDS CENTER.'

AS TO YOUR PHYSICAL AND MENTAL CONDITION AT THE TIMES MENTIONED BY YOU, WE POINT OUT THAT SECTION 16 (C) OF THE CIVIL SERVICE RETIREMENT ACT OF 1956, 5 U.S.C. 2266 (C), PROVIDES THAT THE COMMISSION'S DECISIONS WITH RESPECT TO QUESTIONS OF DISABILITY ARISING UNDER THAT ACT SHALL BE FINAL AND CONCLUSIVE AND SHALL NOT BE SUBJECT TO REVIEW. THEREFORE, WE CAN OFFER NO COMMENT ABOUT THE APPROVAL OF YOUR APPLICATION FOR DISABILITY RETIREMENT BY THE CIVIL SERVICE COMMISSION.

THE MATTERS DISCUSSED BY YOU CONCERNING CERTAIN COUNTY COURT CASES IN THE STATE OF SOUTH DAKOTA WOULD APPEAR TO HAVE NO MATERIAL BEARING EITHER UPON THE VALIDITY OF THE AGENCY'S ACCEPTANCE OF YOUR RESIGNATION OR UPON THE MATTER OF BACK PAY UNDER THE PROVISIONS OF 5 U.S.C. 652 (1964 ED.). FURTHERMORE, THE BILLS PENDING IN THE SOUTH DAKOTA LEGISLATURE, WHICH YOU MENTION, WOULD HAVE NO EFFECT ON A FEDERAL AGENCY'S ACTION UNDER THE ABOVE -CITED BACK PAY LAW WHICH AUTHORIZES SUCH A PAYMENT ONLY IN A SITUATION WHERE AN EMPLOYEE IS RESTORED TO DUTY UPON THE GROUND THAT A SUSPENSION OR REMOVAL WAS UNJUSTIFIED AND UNWARRANTED.

REGARDING YOUR SUGGESTION THAT YOUR CLAIM BE CONSIDERED AS FOR "HAZARDOUS PAY" IN LIEU OF BACK PAY, PRESUMABLY YOU ARE REFERRING TO THE PROVISIONS OF PUBLIC LAW 89-512, APPROVED JULY 19, 1966, NOW CODIFIED UNDER 5 U.S.C. 5545 (D), 1964 ED., SUPP. III. THAT AUTHORIZATION OF ADDITIONAL PAY FOR INTERMITTENT PERFORMANCE OF HAZARDOUS DUTY DOES NOT APPLY TO SERVICES RENDERED PRIOR TO THE EFFECTIVE DATE SPECIFIED IN SECTION 2 OF PUBLIC LAW 89-512. HENCE, THAT LAW HAS NO APPLICATION TO YOUR SERVICE WHICH WAS TERMINATED ON NOVEMBER 29, 1958.

IN THE CIRCUMSTANCES OF YOUR CASE, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.