B-176048, FEB 28, 1973

B-176048: Feb 28, 1973

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BUCHANAN FOR THE AMOUNT OF OUTSIDE EARNINGS WHICH WERE DEDUCTED FROM HIS BACK PAY UPON RESTORATION TO DUTY AFTER AN ERRONEOUS SEPARATION. THE MONTHLY AVERAGE OF OUTSIDE EARNINGS FOR THE 2 YEARS PRIOR TO THE EMPLOYEE'S ERRONEOUS SEPARATION SHOULD BE MULTIPLIED BY THE NUMBER OF MONTHS HE WAS ERRONEOUSLY SEPARATED. THE RESULTANT AMOUNT MAY BE PAID THE EMPLOYEE BECAUSE THIS AMOUNT SHOULD HAVE BEEN EXEMPTED FROM THE OUTSIDE EARNINGS DEDUCTION FROM THE BACK PAY DUE UPON RESTORATION TO DUTY. YOU HAVE NOW FURNISHED US INFORMATION OBTAINED FROM YOUR INCOME TAX RECORDS SHOWING THAT FOR THE YEAR 1969 YOU HAD OUTSIDE EARNINGS OF $1. YOU WERE SEPARATED AND ALLOWED BACK PAY WITH DEDUCTION OF ALL OUTSIDE EARNINGS FOR APPROXIMATELY 6 MONTHS FROM SEPTEMBER 10.

B-176048, FEB 28, 1973

CIVILIAN EMPLOYEE - ERRONEOUS SEPARATION - RESTORATION TO DUTY - DEDUCTIONS FROM BACK PAY FOR OUTSIDE EARNINGS DECISION ALLOWING IN PART THE CLAIM OF LEE K. BUCHANAN FOR THE AMOUNT OF OUTSIDE EARNINGS WHICH WERE DEDUCTED FROM HIS BACK PAY UPON RESTORATION TO DUTY AFTER AN ERRONEOUS SEPARATION. THE MONTHLY AVERAGE OF OUTSIDE EARNINGS FOR THE 2 YEARS PRIOR TO THE EMPLOYEE'S ERRONEOUS SEPARATION SHOULD BE MULTIPLIED BY THE NUMBER OF MONTHS HE WAS ERRONEOUSLY SEPARATED, AND THE RESULTANT AMOUNT MAY BE PAID THE EMPLOYEE BECAUSE THIS AMOUNT SHOULD HAVE BEEN EXEMPTED FROM THE OUTSIDE EARNINGS DEDUCTION FROM THE BACK PAY DUE UPON RESTORATION TO DUTY.

TO DR. LEE K. BUCHANAN:

THIS REFERS TO YOUR LETTER OF OCTOBER 31, 1972, CONCERNING THE ACTION TAKEN BY THE DEPARTMENT OF AGRICULTURE IN DEDUCTING OUTSIDE EARNINGS FROM THE BACK PAY ALLOWED YOU UPON RESTORATION TO DUTY AFTER AN ERRONEOUS SEPARATION.

BY LETTER OF OCTOBER 5, 1972, WE ADVISED YOU THAT WE WOULD FURTHER CONSIDER THE APPROPRIATENESS OF THE DEDUCTIONS OF OUTSIDE EARNINGS IF YOU WOULD PROVIDE US WITH A STATEMENT OF THE AMOUNT AND SOURCE OF SUCH EARNINGS FOR 2 YEARS PRIOR TO YOUR REMOVAL FROM THE SERVICE.

YOU HAVE NOW FURNISHED US INFORMATION OBTAINED FROM YOUR INCOME TAX RECORDS SHOWING THAT FOR THE YEAR 1969 YOU HAD OUTSIDE EARNINGS OF $1,250 AND $3,065 FOR THE YEAR 1970. THIS WOULD AMOUNT TO A MONTHLY AVERAGE OF $179.79 FOR THE 24 MONTHS INVOLVED. YOU WERE SEPARATED AND ALLOWED BACK PAY WITH DEDUCTION OF ALL OUTSIDE EARNINGS FOR APPROXIMATELY 6 MONTHS FROM SEPTEMBER 10, 1971, TO MARCH 6, 1972. HOWEVER, OUR VIEW IS THAT YOUR OUTSIDE EARNINGS OF $179.79 EACH MONTH OR A TOTAL OF $1,078.74 FOR THE PERIOD OF SEPARATION SHOULD HAVE BEEN EXEMPTED FROM THE AMOUNT OF EARNINGS FOR DEDUCTION FROM YOUR BACK PAY. THIS IS ON THE BASIS THAT YOU WERE EARNING THE AVERAGE MONTHLY AMOUNT FROM OUTSIDE SOURCES PRIOR TO YOUR SEPARATION FROM THE DEPARTMENT OF AGRICULTURE. WE FIND NO BASIS FOR ALLOWING ANY ADDITIONAL EXEMPTION. SEE OUR LETTER TO YOU DATED OCTOBER 5, 1972.

ACCORDINGLY, WE ARE ADVISING OUR TRANSPORTATION AND CLAIMS DIVISION (GENERAL CLAIMS) TO ISSUE A SETTLEMENT IN YOUR FAVOR IN THE AMOUNT OF $1,078.74.