B-173782, JUL 6, 1972

B-173782: Jul 6, 1972

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ONLY CONCERN THE "SEPARATION" OF AN EMPLOYEE AND ARE INAPPLICABLE TO THE INSTANT CASE SINCE MR. NOT SEVERANCE PAY WHICH IS AUTHORIZED UNDER A SEPARATE STATUTE. THE PRIOR DENIAL IS SUSTAINED. INC.: REFERENCE IS MADE TO YOUR LETTER OF JULY 16. THE FILE IN YOUR CASE WAS MISPLACED THROUGH INADVERTENCE. THE RECORD SHOWS THAT YOU WERE EMPLOYED BY THE U.S. YOU WERE REASSIGNED TO THE RESIDENT OFFICE. BECAUSE THE DUTIES TO WHICH YOU WERE ASSIGNED CONSISTED OF SERVING AS SPECIAL ASSISTANT TO THE RESIDENT ENGINEER AT FORT BRAGG ON FINISHING WORK AT REMOTE LOCATIONS WITHIN A 150-MILE RADIUS FROM FORT BRAGG WHICH INCLUDED SEYMOUR JOHNSON AIR FORCE BASE. THE LEAVE OF ABSENCE WAS GRANTED EFFECTIVE MARCH 19.

B-173782, JUL 6, 1972

CIVILIAN EMPLOYEE - SEVERANCE PAY - ENTITLEMENT DECISION AFFIRMING PRIOR DENIAL OF A CLAIM OF JOHN D. GRADY, JR., FOR SEVERANCE PAY INCIDENT TO HIS RESIGNATION FROM EMPLOYMENT WITH THE ARMY CORPS OF ENGINEERS. THE REFERENCED CHANGE IN THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, 5 CFR 550.705, ONLY CONCERN THE "SEPARATION" OF AN EMPLOYEE AND ARE INAPPLICABLE TO THE INSTANT CASE SINCE MR. GRADY RESIGNED FROM HIS POSITION. FURTHER, IT SHOULD BE NOTED THAT THE COURT CASES WHICH PROMPTED THE AMENDMENT INVOLVED CIVIL SERVICE RETIREMENT, AND NOT SEVERANCE PAY WHICH IS AUTHORIZED UNDER A SEPARATE STATUTE. SEE PAULEY V. UNITED STATES, CT. CL. 142-68, DECIDED APRIL 16, 1971, AND PATTERSON V. UNITED STATES, CT. CL. 197-68, DECIDED JANUARY 22, 1971. ACCORDINGLY, THE PRIOR DENIAL IS SUSTAINED.

TO CONTRACTORS AND ENGINEERS SERVICES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 16, 1971, WHEREIN YOU APPEAL THE SETTLEMENT OF YOUR CLAIM BY OUR CLAIMS DIVISION ON APRIL 10, 1970, IN VIEW OF THE RECENT CHANGE IN POLICY BY THE UNITED STATES CIVIL SERVICE COMMISSION WITH RESPECT TO AN EMPLOYEE'S ENTITLEMENT TO SEVERANCE PAY. REGRET THE DELAY IN RESPONDING TO YOUR APPEAL, BUT THE FILE IN YOUR CASE WAS MISPLACED THROUGH INADVERTENCE.

THE RECORD SHOWS THAT YOU WERE EMPLOYED BY THE U.S. ARMY CORPS OF ENGINEERS AS THE RESIDENT ENGINEER AT THE SEYMOUR JOHNSON AIR FORCE BASE, GOLDSBORO, NORTH CAROLINA. IN VIEW OF THE SCHEDULED CLOSING OF THAT BASE, YOU WERE REASSIGNED TO THE RESIDENT OFFICE, CORPS OF ENGINEERS, FORT BRAGG, NORTH CAROLINA, EFFECTIVE JANUARY 16, 1966. YOU DID NOT PHYSICALLY REPORT FOR DUTY AT FORT BRAGG, NORTH CAROLINA, BECAUSE THE DUTIES TO WHICH YOU WERE ASSIGNED CONSISTED OF SERVING AS SPECIAL ASSISTANT TO THE RESIDENT ENGINEER AT FORT BRAGG ON FINISHING WORK AT REMOTE LOCATIONS WITHIN A 150-MILE RADIUS FROM FORT BRAGG WHICH INCLUDED SEYMOUR JOHNSON AIR FORCE BASE. THEREAFTER YOU REQUESTED 6 MONTHS LEAVE OF ABSENCE IN ORDER TO PREPARE YOURSELF AND TAKE THE NORTH CAROLINA STATE PROFESSIONAL ENGINEER EXAMINATION. THE LEAVE OF ABSENCE WAS GRANTED EFFECTIVE MARCH 19, 1966, AND WAS TO CONTINUE THROUGH SEPTEMBER 18, 1966. IN LETTERS DATED SEPTEMBER 9 AND 16, 1966, YOU STATED THAT YOU WERE UNWILLING TO TRANSFER PHYSICALLY FROM GOLDSBORO TO FORT BRAGG AND REQUESTED THAT AT THE EXPIRATION OF YOUR LEAVE OF ABSENCE YOU BE PAID WHATEVER SEVERANCE PAY WAS DUE. YOUR LETTERS WERE ACCEPTED AS VOLUNTARY RESIGNATION EFFECTIVE SEPTEMBER 18, 1966, AND YOU WERE DENIED SEVERANCE PAY BY THE AGENCY ON THE GROUND THAT PRIOR TO YOUR LEAVE OF ABSENCE YOU WERE REASSIGNED FROM ONE COMMUTING AREA TO ANOTHER WITHIN THE SAME COMPETITIVE AREA DUE TO THE CLOSING OF SEYMOUR JOHNSON AIR FORCE BASE.

OUR CLAIMS DIVISION SUSTAINED THE AGENCY ACTION AND UPON REVIEW WE AGREE THAT ON THE BASIS OF THE REGULATIONS THEN IN EFFECT YOUR RESIGNATION MAY NOT BE REGARDED AS INVOLUNTARY SO AS TO PERMIT ALLOWANCE OF SEVERANCE PAY. HOWEVER, AS PREVIOUSLY INDICATED YOU BELIEVE A RECENT CHANGE IN THE POLICY OF THE CIVIL SERVICE COMMISSION MAY BE A BASIS FOR ALLOWANCE OF YOUR CLAIM AT THIS TIME. APPARENTLY, THE CHANGE OF POLICY TO WHICH YOU REFER IS IN THE FORM OF A CHANGE IN THE COMMISSION'S REGULATIONS WHICH APPEAR IN 5 CFR 550.705 AS FOLLOWS:

"SEC 550.705 FAILURE TO ACCEPT ASSIGNMENT.

"WHEN AN EMPLOYEE IS SEPARATED BECAUSE HE DECLINES TO ACCEPT ASSIGNMENT TO ANOTHER COMMUTING AREA, THE SEPARATION IS AN INVOLUNTARY SEPARATION NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY FOR PURPOSE OF ENTITLEMENT TO SEVERANCE PAY, UNLESS HIS POSITION DESCRIPTION OR OTHER WRITTEN AGREEMENT OR UNDERSTANDING PROVIDES FOR THESE ASSIGNMENTS."

WE POINT OUT THAT THE ABOVE CHANGE IN REGULATIONS WAS APPLICABLE ONLY TO THE "SEPARATION" OF AN EMPLOYEE. NO CHANGE WAS MADE IN THE REGULATIONS SETTING FORTH THE CIRCUMSTANCES UNDER WHICH A RESIGNATION MAY BE REGARDED AS AN INVOLUNTARY SEPARATION FROM THE SERVICE. MOREOVER, THE FACT THAT REGULATIONS MAY BE AMENDED TO ALLOW CLAIMS SIMILAR TO THOSE THAT WERE NOT ALLOWABLE UNDER PREVIOUS REGULATIONS DOES NOT NECESSARILY FORM A BASIS FOR RECONSIDERATION OF SUCH PRIOR CLAIMS. AN EXCEPTION TO THIS MAY BE WARRANTED WHERE THE AMENDMENT IS TO BE REGARDED AS A CLARIFICATION OF THE ORIGINAL REGULATIONS. ACTUALLY THE COURT CASES WHICH PROMPTED THE AMENDMENT QUOTED ABOVE, NAMELY, PAULEY V. UNITED STATES, CT. CL. 142-68, DECIDED APRIL 16, 1971, AND PATTERSON V. UNITED STATES, CT. CL. 197-68, DECIDED JANUARY 22, 1971, INVOLVED CIVIL SERVICE RETIREMENT AND NOT SEVERANCE PAY WHICH IS AUTHORIZED UNDER A SEPARATE STATUTE. APPARENTLY, THE SEVERANCE PAY REGULATIONS WERE AMENDED FOR THE PURPOSE OF MAKING THEM CONSISTENT WITH THE RETIREMENT REGULATIONS WHICH WERE AMENDED AT THE SAME TIME. IN ANY EVENT SINCE YOU RESIGNED FROM YOUR POSITION, THE CHANGE IN THE REGULATIONS COULD NOT IN ANY WAY BE APPLICABLE TO YOUR SITUATION.

ACCORDINGLY, WE MUST AGAIN DENY YOUR CLAIM FOR SEVERANCE PAY.