B-172195(05), NOV 23, 1971

B-172195(05): Nov 23, 1971

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WILL HAVE NO OBJECTION TO THE PAYMENT BY THE DEPARTMENT OF THE ARMY OF BACK PAY TO MR. WHERE CLAIMANT WAS ADVISED THAT HE COULD EXTEND THE 60-DAY NOTICE OF SEPARATION PERIOD AN ADDITIONAL 30 DAYS IN EITHER AN ANNUAL LEAVE OR LEAVE -WITHOUT-PAY STATUS INCIDENT TO A REDUCTION IN FORCE LATER FOUND DEFECTIVE BY THE CIVIL SERVICE COMMISSION'S ATLANTA REGIONAL OFFICE. 5 U.S.C. 5596 REQUIRES THAT CLAIMANT BE PAID BACK PAY FOR THE 30-DAY PERIOD IN THE LEAVE-WITHOUT PAY STATUS SINCE ENTERING SUCH STATUS WAS NOT AN ENTIRELY VOLUNTARY ACT. SECRETARY: ENCLOSED ARE COPIES OF CORRESPONDENCE OF THIS OFFICE. MASON'S CLAIM THAT HE IS ENTITLED TO BACK PAY FOR A PERIOD THAT HE WAS IN LEAVE-WITHOUT-PAY STATUS PRIOR TO BEING SEPARATED PURSUANT TO AN ERRONEOUS REDUCTION-IN-FORCE ACTION.

B-172195(05), NOV 23, 1971

CIVILIAN EMPLOYEE - ERRONEOUS REDUCTION IN FORCE - BACK PAY DECISION THAT THE COMP. GEN. WILL HAVE NO OBJECTION TO THE PAYMENT BY THE DEPARTMENT OF THE ARMY OF BACK PAY TO MR. CHESTER W. MASON FOR THE PERIOD OF LEAVE WITHOUT PAY, MARCH 20 TO APRIL 18, 1971, INCIDENT TO A REDUCTION IN FORCE, WHILE AN EMPLOYEE OF THE ARMY CORPS OF ENGINEERS, NASHVILLE DISTRICT. WHERE CLAIMANT WAS ADVISED THAT HE COULD EXTEND THE 60-DAY NOTICE OF SEPARATION PERIOD AN ADDITIONAL 30 DAYS IN EITHER AN ANNUAL LEAVE OR LEAVE -WITHOUT-PAY STATUS INCIDENT TO A REDUCTION IN FORCE LATER FOUND DEFECTIVE BY THE CIVIL SERVICE COMMISSION'S ATLANTA REGIONAL OFFICE, THE "BACK PAY ACT OF 1966," AS AMENDED, 5 U.S.C. 5596 REQUIRES THAT CLAIMANT BE PAID BACK PAY FOR THE 30-DAY PERIOD IN THE LEAVE-WITHOUT PAY STATUS SINCE ENTERING SUCH STATUS WAS NOT AN ENTIRELY VOLUNTARY ACT.

TO MR. SECRETARY:

ENCLOSED ARE COPIES OF CORRESPONDENCE OF THIS OFFICE, THE CIVIL SERVICE COMMISSION, AND MR. CHESTER W. MASON, AN EMPLOYEE OF THE U.S. ARMY CORPS OF ENGINEERS, NASHVILLE DISTRICT, NASHVILLE, TENNESSEE, REGARDING MR. MASON'S CLAIM THAT HE IS ENTITLED TO BACK PAY FOR A PERIOD THAT HE WAS IN LEAVE-WITHOUT-PAY STATUS PRIOR TO BEING SEPARATED PURSUANT TO AN ERRONEOUS REDUCTION-IN-FORCE ACTION. IT APPEARS THAT DURING THE HEARING ON MR. MASON'S APPEAL OF THE REDUCTION IN FORCE THE CIVIL SERVICE COMMISSION DID NOT CONSIDER MR. MASON'S RIGHT TO BACK PAY FOR THE PERIOD HE WAS IN THE LEAVE-WITHOUT-PAY STATUS, AND IT HAS REFERRED THE MATTER TO THIS OFFICE.

THE RECORD BEFORE US INDICATES THAT MR. MASON WAS EMPLOYED BY THE U.S. ARMY CORPS OF ENGINEERS, NASHVILLE DISTRICT, NASHVILLE, TENNESSEE, ASSIGNED TO THE CORDELL HULL DAM AND RESERVOIR PROJECT, WHEN HE WAS ISSUED A REDUCTION-IN-FORCE NOTICE ON JANUARY 14, 1971, TO BE EFFECTIVE MARCH 19, 1971. THE NOTICE, IN COMPLIANCE WITH DEPARTMENT OF DEFENSE INSTRUCTION 1400.21, PARAGRAPH III.B.3, ADVISED MR. MASON THAT HE HAD THE RIGHT TO EXTEND THE 60-DAY NOTICE OF SEPARATION PERIOD AN ADDITIONAL 30 DAYS IN EITHER AN ANNUAL-LEAVE OR LEAVE-WITHOUT-PAY STATUS. HE SUBSEQUENTLY REQUESTED THE EXTENSION, SPECIFYING LEAVE WITHOUT PAY, AND HE WAS SEPARATED ON APRIL 18, 1971. MR. MASON FILED A REDUCTION-IN-FORCE APPEAL WITH THE CIVIL SERVICE COMMISSION'S ATLANTA REGIONAL OFFICE WHICH FOUND THE ACTION TO BE DEFECTIVE AND ORDERED THAT MR. MASON BE RESTORED TO A LOWER GRADED POSITION RETROACTIVE TO THE DAY FOLLOWING HIS DATE OF SEPARATION. HE WAS REINSTATED, WITH ALL BENEFITS, EFFECTIVE ON APRIL 19, 1971. MR. MASON NOW CONTENDS THAT THE ACTION SHOULD HAVE INCLUDED THE 30- DAY PERIOD THAT HE WAS ON LEAVE WITHOUT PAY AND THAT HE IS ENTITLED TO PAY FOR THAT PERIOD, MARCH 20 TO APRIL 18, 1971.

IT WOULD APPEAR THAT MR. MASON IS RIGHTFULLY ENTITLED TO BACK PAY FOR THAT PERIOD. THE "BACK PAY ACT OF 1966," AS AMENDED, 5 U.S.C. 5596, GOVERNS AN EMPLOYEE'S ENTITLEMENT TO BACK PAY FOLLOWING A SEPARATION LATER FOUND TO BE THE RESULT OF AN ERRONEOUS PERSONNEL ACTION. SECTION 550.804 OF THE CIVIL SERVICE REGULATIONS, FOUND IN TITLE 5 OF THE CODE OF FEDERAL REGULATIONS, PROVIDES THAT "WHEN AN APPROPRIATE AUTHORITY CORRECTS AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, THE AGENCY SHALL RECOMPUTE FOR THE PERIOD COVERED BY THE CORRECTIVE ACTION THE PAY, ALLOWANCES, DIFFERENTIALS, AND LEAVE ACCOUNT *** OF THE EMPLOYEE AS IF THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION HAD NOT OCCURRED *** ." THE RECORD INDICATES THAT MR. MASON WAS ADVISED THAT HE COULD HAVE HIS SEPARATION DATE EXTENDED BY REQUESTING 30 DAYS OF LEAVE WITHOUT PAY SINCE A REDUCTION IN FORCE WAS INVOLVED. HAD MR. MASON NOT APPLIED FOR THE LEAVE, HE WOULD HAVE BEEN SEPARATED EFFECTIVE MARCH 19, 1971, AND THE LATER RESTORATION WOULD HAVE BEEN RETROACTIVE TO THAT DATE. SINCE THE GRANTING OF THE LEAVE WITHOUT PAY DOES NOT APPEAR TO HAVE BEEN ENTIRELY VOLUNTARY, OUR VIEW IS THAT SUCH ACTION WAS ERRONEOUS SO AS TO FALL WITHIN THE PURVIEW OF THE "BACK PAY" PROVISIONS REFERRED TO ABOVE.

ACCORDINGLY, BASED ON THE RECORD BEFORE US, OUR OFFICE WILL HAVE NO OBJECTION TO THE PAYMENT BY THE DEPARTMENT OF THE ARMY OF BACK PAY TO MR. MASON FOR THE PERIOD OF LEAVE WITHOUT PAY, MARCH 20 ..END :