Request for Reconsideration of Claim for Backpay

An employee of the Department of the Navy requested reconsideration of his claim for backpay incident to the cancellation of his separation. The Merit Systems Protection Board decided that his separation on the basis of abandonment of position was defective. The separation was cancelled retroactively and the employee petitioned for backpay and substitution of annual and sick leave during the period covered by the decision. The agency denied the claim stating that the employee was in a nonpay nonduty status during the period in question since he was not physically able to perform his duties, and he had exhausted all of his leave. In view of the agency's certification that the employee was not physically fit for duty during the period of improper separation, GAO disallowed his claim. In computing backpay, an agency may not include any period for which the employee was not ready, willing, and able to perform his duties. Granting of any sick or annual leave was precluded by the fact that the employee had exhausted all of his leave. In the present appeal, the employee stated that he did return to work, but that the agency had prevented and is preventing him from returning to work even though he has been released by his doctor. This appeal is clearly predicated on a factual dispute with the agency which cannot be resolved through resort to the administrative record. GAO decides cases involving claims against the Government on the basis of the written record. Where an agency and a claimant disagree as to the facts in a case, GAO accepts the facts as presented by the agency in the absence of clear and convincing proof to the contrary. GAO must deny the claim and leave the claimant to his remedy in the courts.