B-183448, MAY 12, 1975

B-183448: May 12, 1975

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IS NOT ENTITLED TO PER DIEM OR TO REIMBURSEMENT FOR EXPENSES INCURRED WHILE OCCUPYING TEMPORARY QUARTERS AT PINE MOUNTAIN. BECAUSE RECORD INDICATES EMPLOYEE WAS INFORMED THAT PINE MOUNTAIN WAS TO BE HIS FIRST PERMANENT DUTY STATION AND FEDERAL TRAVEL REGULATIONS (FPMR 101 7) DO NOT PERMIT PAYMENT OF EITHER ALLOWANCE TO NEW EMPLOYEES AT THEIR PERMANENT DUTY STATION. 2. CIVILIAN EMPLOYEE OF ANIMAL AND PLANT HEALTH INSPECTION SERVICE SEEKS BACK PAY FOR PERIOD BETWEEN DATE OF HIS DISMISSAL AND TIME WHEN ONE-YEAR SERVICE AGREEMENT WOULD HAVE EXPIRED. HE IS NOT ENTITLED TO BACK PAY UNDER 5 U.S.C. 5596(B) IN ABSENCE OF FINDING BY ANIMAL AND PLANT HEALTH AND INSPECTION SERVICE OF CIVIL SERVICE COMMISSION UPON TIMELY APPLICATION OR APPEAL THAT EMPLOYEE HAS SUFFERED UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. 3.

B-183448, MAY 12, 1975

1. CIVILIAN EMPLOYEE, APPOINTED TO MANPOWER SHORTAGE POSITION, IS NOT ENTITLED TO PER DIEM OR TO REIMBURSEMENT FOR EXPENSES INCURRED WHILE OCCUPYING TEMPORARY QUARTERS AT PINE MOUNTAIN, GEORGIA, BECAUSE RECORD INDICATES EMPLOYEE WAS INFORMED THAT PINE MOUNTAIN WAS TO BE HIS FIRST PERMANENT DUTY STATION AND FEDERAL TRAVEL REGULATIONS (FPMR 101 7) DO NOT PERMIT PAYMENT OF EITHER ALLOWANCE TO NEW EMPLOYEES AT THEIR PERMANENT DUTY STATION. 2. CIVILIAN EMPLOYEE OF ANIMAL AND PLANT HEALTH INSPECTION SERVICE SEEKS BACK PAY FOR PERIOD BETWEEN DATE OF HIS DISMISSAL AND TIME WHEN ONE-YEAR SERVICE AGREEMENT WOULD HAVE EXPIRED. HE IS NOT ENTITLED TO BACK PAY UNDER 5 U.S.C. 5596(B) IN ABSENCE OF FINDING BY ANIMAL AND PLANT HEALTH AND INSPECTION SERVICE OF CIVIL SERVICE COMMISSION UPON TIMELY APPLICATION OR APPEAL THAT EMPLOYEE HAS SUFFERED UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. 3. PROBATIONARY SHORTAGE CATEGORY EMPLOYEE WHO WAS DISCHARGED PRIOR TO EXPIRATION OF HIS ONE-YEAR SERVICE AGREEMENT NEED NOT REIMBURSE U.S. GOVERNMENT FOR TRAVEL AND TRANSPORTATION EXPENSES PAID BY GOVERNMENT IN REPORTING TO HIS FIRST DUTY STATION WHERE THE SEPARATION WAS CONSIDERED FOR THE BENEFIT OF THE GOVERNMENT AND ACCEPTABLE TO THE AGENCY CONCERNED.

CARLTON H. MYERS - CLAIM FOR PER DIEM, SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS AND BACK PAY.:

THIS ACTION IS A RECONSIDERATION OF SETTLEMENT CERTIFICATE Z-2549168, NOVEMBER 25, 1974, BY THE TRANSPORTATION AND CLAIMS DIVISION (TCD) OF THE UNITED STATES GENERAL ACCOUNTING OFFICE DENYING A CLAIM BY DR. CARLTON H. MYERS FOR PER DIEM AND SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS AND COMPENSATION FROM THE DATE OF HIS SEPARATION TO THE DATE HE WOULD HAVE COMPLETED ONE YEAR OF SERVICE WITH THE ANIMAL AND PLANT HEALTH INSPECTION SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE. DR. MYERS ALSO REQUESTS REVIEW OF TCD'S CLAIM FOR REIMBURSEMENT OF ALL EXPENSES ALLOWED BY THE UNITED STATES FOR TRAVEL AND TRANSPORTATION INCIDENT TO HIS MOVE TO HIS FIRST PERMANENT DUTY STATION AT PINE MOUNTAIN, GEORGIA.

THE RECORD INDICATES THAT ON MARCH 12, 1973, DR. MYERS WAS APPOINTED TO A SHORTAGE CATEGORY POSITION AS A VETERINARIAN (GS-11) WITH THE MEAT AND POULTRY INSPECTION PROGRAM (MPIP) OF THE ANIMAL AND PLANT HEALTH INSPECTION SERVICE (APHIS). AFTER COMPLETION OF HIS INITIAL TRAINING, DR. MYERS REPORTED ON JUNE 11, 1973, TO HIS FIRST PERMANENT DUTY STATION AT PINE MOUNTAIN. DR. MYERS SUBMITTED A CLAIM FOR PER DIEM FOR THE PERIODS JUNE 12 THROUGH JUNE 25, 1973, AND JUNE 29 THROUGH JULY 3, 1973. STATES THAT APHIS DIRECTIVE 353.1, SECTIONS 1.2J AND 8.1, PROVIDE FOR PAYMENT OF SUBSISTENCE, WHILE OCCUPYING TEMPORARY QUARTERS, FOR A LENGTH OF TIME DETERMINED ON AN INDIVIDUAL BASIS, AND THAT IF AN EMPLOYEE IS ALREADY ON DUTY AT A NEW LOCATION, THE "REPORTING DATE" AT THE DUTY STATION IS CONSIDERED TO BE THE DATE THE EMPLOYEE RECEIVES OFFICIAL NOTICE THAT THIS LOCATION IS TO BE HIS PERMANENT DUTY STATION. DR. MYERS CLAIMS HE WAS NOT NOTIFIED THAT PINE MOUNTAIN WAS TO BE HIS PERMANENT DUTY STATION UNTIL THE SECOND WEEK OF JULY. APHIS DENIED DR. MYERS' CLAIM ON THE GROUND THAT THE FEDERAL TRAVEL REGULATIONS PROSCRIBE TEMPORARY QUARTERS PAYMENTS TO NEW APPOINTEES TO MANPOWER SHORTAGE POSITIONS.

WE BELIEVE THAT THE RECORD ESTABLISHES THAT DR. MYERS KNEW BY JUNE 11, 1973, THAT PINE MOUNTAIN, GEORGIA, WAS TO BE HIS PERMANENT DUTY STATION. ON APRIL 10, 1973, DR. MYERS WAS SENT A MEMO FROM J.D. WILLIS, ACTING REGIONAL DIRECTOR FOR THE SOUTHEASTERN REGION OF THE MEAT AND POULTRY INSPECTION PROGRAM STATING THAT IT APPEARED THAT DR. MYERS WOULD BE REASSIGNED TO PINE MOUNTAIN. IN ADDITION, RICHARD V. HORD, ADMINISTRATIVE ASSISTANT FOR PERSONNEL, SOUTHEASTERN REGIONAL OFFICE, STATES IN A MEMORANDUM TO THE ASSISTANT EXECUTIVE OFFICER OF THE AGENCY DATED SEPTEMBER 8, 1973, THAT ON OR ABOUT JUNE 6, 1973, HE TALKED TO DR. MYERS IN KENTUCKY AND TOLD HIM THAT PINE MOUNTAIN WAS TO BE HIS DUTY STATION AND THAT THE REPORTING DATE WOULD BE JUNE 11, 1973. MR. J.R. CORBIER, ADMINISTRATIVE OFFICER, SOUTHEASTERN REGIONAL OFFICE, TALKED TO DR. ALLEN NELSON, SPRINGDALE TRAINING CENTER, ON JUNE 1, 1973, AND INFORMED HIM THAT DR. MYERS' OFFICIAL DUTY STATION WAS CHANGED TO PINE MOUNTAIN. MR. CORBIER TOLD DR. NELSON THAT DR. MYERS SHOULD BE THAT WHEN DR. MYERS REPORTED TO THE AREA OFFICE IN ATHENS, GEORGIA, ON JUNE 11, 1973, HIS ASSIGNMENT TO PINE MOUNTAIN WAS AGAIN DISCUSSED WITH DR. RICHARD H. BECK, ACTING AREA SUPERVISOR. FURTHER, DR. MYERS STATES THAT HE WAS INFORMED IN JUNE 1973, BY DR. DODGEN, THAT HE WAS TO REPORT TO HIM IN HIS OFFICE IN ATHENS, GEORGIA, ON JUNE 11, 1973, ALTHOUGH HE DENIES THAT HE WAS TOLD THAT PINE MOUNTAIN WAS HIS PERMANENT DUTY STATION.

A CHANGE ACTION NOTICE DATED JUNE 8, 1973, ON FILE, SHOWS THAT EFFECTIVE JUNE 10, 1973, DR. MYERS' DUTY STATION WAS CHANGED TO PINE MOUNTAIN. IS ALSO NOTED THAT DR. MYERS, IN FILLING IN HIS TRAVEL VOUCHERS FOR THE PERIODS JUNE 1 TO JUNE 30, 1973, AND JUNE 13 TO JULY 3, 1973, SHOWS "PINE MOUNTAIN VALLEY, GEORGIA 31822" AS HIS OFFICIAL DUTY STATION AND "PINE MOUNTAIN, GEORGIA" AS HIS RESIDENCE. UNDER THE CIRCUMSTANCES, IT APPEARS THAT DR. MYERS KNEW THAT PINE MOUNTAIN WAS TO BE HIS PERMANENT DUTY STATION. THEREFORE, THE FEDERAL TRAVEL REGULATIONS (FPMR 101-7), IN EFFECT IN JUNE 1973 WOULD CONTROL THE PAYMENT OF PER DIEM.

DR. MYERS WAS ELIGIBLE FOR TRAVEL AND TRANSPORTATION EXPENSES AS A NEW APPOINTEE TO HIS FIRST OFFICIAL DUTY STATION BECAUSE HE WAS APPOINTED TO A SHORTAGE CATEGORY POSITION. SEE FEDERAL TRAVEL REGULATIONS (FPMR 101-7) PARA. 2-1.5F(1) (MAY 1973). FTR PARA. 2 1.5F(2) PROVIDES THAT A SHORTAGE CATEGORY EMPLOYEE SHALL NOT BE ALLOWED TRAVEL AND TRANSPORTATION EXPENSES UNTIL HE SIGNS AN AGREEMENT TO REMAIN IN THE SERVICE FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF HIS TRANSFER UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE AGENCY CONCERNED. UNDER THE ABOVE REGULATION A SEPARATED EMPLOYEE MAY BE RELIEVED OF LIABILITY FOR REPAYMENT OF TRANSPORTATION AND OTHER EXPENSES PAID BY THE GOVERNMENT IN CONNECTION WITH HIS APPOINTMENT TO A MANPOWER-SHORTAGE POSITION. THIS IS ON THE BASIS OF A DETERMINATION OF THE HEAD OF THE AGENCY CONCERNED THAT SUCH SEPARATION WAS FOR REASONS BEYOND THE CONTROL OF THE EMPLOYEE WHICH ARE ACCEPTABLE TO THE AGENCY. IT HAS BEEN INFORMALLY ASCERTAINED FROM THE DEPARTMENT OF AGRICULTURE THAT THE SEPARATION OF DR. MYERS WAS FOR THE BENEFIT OF THE GOVERNMENT AND ACCEPTABLE BY THAT DEPARTMENT. THEREFORE, DR. MYERS IS RELIEVED OF REIMBURSING THE GOVERNMENT FOR ANY TRAVEL AND TRANSPORTATION EXPENSES PAID TO HIM INCIDENT TO HIS TRANSFER TO PINE MOUNTAIN.

FTR PARA. 2-1.5F(4) SPECIFICALLY PROSCRIBES PAYMENT FOR SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS TO NEW SHORTAGE CATEGORY APPOINTEES ASSIGNED TO A FIRST PERMANENT DUTY STATION. SINCE IT HAS BEEN ESTABLISHED THAT PINE MOUNTAIN WAS DR. MYERS' PERMANENT DUTY STATION DURING THE PERIOD IN QUESTION, HE WOULD NOT BE ENTITLED TO TEMPORARY QUARTERS SUBSISTENCE.

THE DENIAL OF DR. MYERS' CLAIM FOR COMPENSATION FOR THE PERIOD FEBRUARY 8, 1974, UNTIL MARCH 12, 1974, WAS ALSO PROPER. THE ENTITLEMENT TO BACK PAY IS GOVERNED BY 5 U.S.C. 5596(B) (1970) WHICH PROVIDES:

"AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE -

"(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD; AND

"(2) FOR ALL PURPOSES, IS DEEMED TO HAVE PERFORMED SERVICE FOR THE AGENCY DURING THAT PERIOD, EXCEPT THAT THE EMPLOYEE MAY NOT BE CREDITED, UNDER THIS SECTION, LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT OF THE LEAVE AUTHORIZED FOR THE EMPLOYEE BY LAW OR REGULATION."

IN ORDER TO SUPPORT A CLAIM FOR BACK PAY UNDER THE FOREGOING STATUTE THERE MUST BE A FINDING BY THE APHIS AS THE AGENCY TAKING THE INITIAL ACTION OR THE CIVIL SERVICE COMMISSION ON THE BASIS OF A TIMELY APPEAL OR ADMINISTRATIVE DETERMINATION THAT DR. MYERS' SEPARATION WAS UNJUSTIFIED OR UNWARRANTED. SINCE THE APHIS HAS NOT DETERMINED THAT THE ACTION BY WHICH DR. MYERS WAS REMOVED WAS UNJUSTIFIED AND UNWARRANTED AND SINCE DR. MYERS DID NOT APPEAL THE ACTION TO THE CIVIL SERVICE COMMISSION IN ACCORDANCE WITH THE EXISTING PROCEDURES AT THE TIME IT WAS TAKEN, THERE IS NO AUTHORITY TO PAY DR. MYERS UNDER THE BACK PAY STATUTE.

FOR THE ABOVE REASONS, THAT PART OF THE SETTLEMENT OF NOVEMBER 25, 1974, DENYING DR. MYERS' CLAIM FOR PER DIEM IN LIEU OF SUBSISTENCE, SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS, AND BACK PAY FROM THE TIME OF HIS SEPARATION TO THE EXPIRATION OF HIS PROBATIONARY YEAR, IS SUSTAINED. THE SETTLEMENT IS MODIFIED IN THAT NO RECOVERY NEED BE INSTITUTED FOR REIMBURSEMENT OF TRAVEL EXPENSES ALREADY PAID TO DR. MYERS.