B-170757, OCT 16, 1970, 50 COMP GEN 300

B-170757, OCT 16, 1970, 50 COMP GEN 300

OFFICERS AND EMPLOYEES - SEVERANCE PAY - ELIGIBILITY - EMPLOYEE ON MILITARY DUTY THE FACT THAT A CIVILIAN AIR FORCE TECHNICIAN WAS ON REQUIRED ACTIVE MILITARY DUTY IN THE AIR FORCE RESERVE WHEN HIS INSTALLATION WAS TRANSFERRED DOES NOT DISQUALIFY HIM FOR SEVERENCE PAY, AS THE EMPLOYEE HAS RESTORATION RIGHTS TO HIS CIVILIAN POSITION AT THE PLACE WHERE HIS OFFICE HAS BEEN RELOCATED, OR HE MAY DECLINE A TRANSFER AND BECOME ELIGIBLE FOR SEVERANCE PAY ON THE BASIS OF BEING INVOLUNTARILY SEPARATED FROM THE CIVIL SERVICE. THE EMPLOYEE DECLINING A TRANSFER SHOULD BE GIVEN A PAPER RESTORATION TO ESTABLISH HIS PAY SCALE AND HIS INVOLUNTARY SEPARATION MADE OF RECORD, THE DATE OF RESTORATION TO BE THE DATE THE EMPLOYEE APPLIED FOR RESTORATION, AND THE INVOLUNTARY SEPARATION DATE, THE DATE HE INFORMED THE AGENCY HE WOULD NOT ACCEPT REASSIGNMENT.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 16, 1970:

WE REFER TO YOUR LETTER OF SEPTEMBER 1, 1970, WITH ENCLOSURES, CONCERNING THE ENTITLEMENT TO SEVERANCE PAY OF AN INDIVIDUAL WHO WAS ON ACTIVE MILITARY DUTY WHEN THE EVENT OCCURRED WHICH WOULD HAVE ENTITLED HIM TO SEVERANCE PAY HAD HE BEEN IN A CIVILIAN STATUS AT THE TIME.

THE INDIVIDUAL WAS AN AIR RESERVE TECHNICIAN, REQUIRED TO BE A MEMBER OF THE AIR FORCE RESERVE IN ORDER TO HOLD HIS CIVILIAN POSITION AT STEWART AIR FORCE BASE IN NEW YORK. THE MILITARY AIRLIFT GROUP TO WHICH HE WAS ASSIGNED WAS CALLED TO ACTIVE DUTY. WHILE HE WAS ON ACTIVE DUTY, STEWART AIR FORCE BASE WAS CLOSED AND THE GROUP TRANSFERRED TO HAMILTON AIR FORCE BASE IN CALIFORNIA. HE HAS SINCE BEEN HONORABLY SEPARATED FROM ACTIVE MILITARY SERVICE, AND HAS BEEN TOLD BY HIS FORMER PERSONNEL OFFICE THAT HE IS NOT ENTITLED TO SEVERANCE PAY BECAUSE HE WAS IN MILITARY SERVICE WHEN THE BASE WAS CLOSED.

UNDER SECTION 550.705 OF THE COMMISSION'S SEVERANCE PAY REGULATIONS, AN EMPLOYEE WHO IS SEPARATED BECAUSE HE DECLINES TO ACCEPT ASSIGNMENT TO ANOTHER COMMUTING AREA IS ENTITLED TO SEVERANCE PAY IF THE PROPOSED ASSIGNMENT IS THE RESULT OF, OR IN CONNECTION WITH, A TRANSFER OF FUNCTION OR REDUCTION-IN-FORCE SITUATION. IF THE EMPLOYEE HAD REMAINED IN HIS CIVILIAN POSITION, HE WOULD HAVE AUTOMATICALLY QUALIFIED TO RECEIVE SEVERANCE PAY IF HE HAD DECLINED TO GO WITH HIS JOB TO CALIFORNIA.

OUR VIEW IS THAT AN EMPLOYEE WHO HAS ENTERED THE MILITARY SERVICE FROM A CIVILIAN POSITION TO WHICH HE HAS RESTORATION RIGHTS HAS THE SAME OPTION (UPON MAKING APPLICATION FOR REINSTATEMENT IN HIS CIVILIAN JOB) AS OTHER EMPLOYEES. IN OTHER WORDS, HE HAS A RIGHT TO BE REINSTATED IN THE CIVILIAN SERVICE AT THE PLACE WHERE HIS OFFICE WAS TRANSFERRED OR MAY DECLINE TO DO SO AND THUS BECOME ELIGIBLE FOR SEVERANCE PAY ON THE BASIS OF BEING INVOLUNTARILY SEPARATED FROM THE CIVILIAN SERVICE. IT WOULD SEEM TO US THAT ACTUALLY THE INDIVIDUAL SHOULD BE GIVEN A PAPER RESTORATION TO ESTABLISH HIS PAY SCALE AND HIS INVOLUNTARY SEPARATION THEN MADE OF RECORD.

YOU REFER TO 5 CFR 353.402, WHICH INDICATES THAT AN INDIVIDUAL WITH RESTORATION RIGHTS IS ENTITLED TO BE RESTORED AS SOON AS POSSIBLE AFTER HIS APPLICATION FOR RESTORATION IS RECEIVED IN THE AGENCY BUT NOT LATER THAN 30 DAYS AFTER RECEIPT OF HIS APPLICATION. YOU ASK WHETHER THE SEVERANCE PAY WOULD BEGIN TO RUN UPON HIS APPLICATION BEING MADE FOR RESTORATION OR THE 30TH DAY AFTER THE APPLICATION IS RECEIVED. INDICATED ABOVE, IF A PAPER RESTORATION AND INVOLUNTARY SEPARATION BE PROCESSED, THEN THE SEVERANCE PAY WOULD RUN FROM THE DATE FIXED AS THE DATE OF SUCH SEPARATION. WE SEE NO REASON IN THE INSTANT CASE AS TO WHY THE INDIVIDUAL'S RESTORATION COULD NOT BE FIXED AS OF THE DATE HE MADE APPLICATION FOR RESTORATION, AND HIS INVOLUNTARY SEPARATION DATE FIXED AS OF THE DATE HE INFORMED THE AGENCY HE DID NOT DESIRE TO ACCEPT ASSIGNMENT IN CALIFORNIA.