B-257666 May 15, 1995

B-257666: May 15, 1995

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Years later he claimed backpay on the basis that the downgrade was improper because others with medical disabilities were not downgraded. His claim is denied. Were more favorably treated than he. The procedures followed in his case were proper. The individual determination made in 1983 was a matter primarily for the Air Force to make. Appealing the action of our Claims Group which denied your claim for backpay arising out of a downgrade you accepted in March 1983 while you were employed by the Air Force. We have reviewed the Claims Group's denial of your claim. As a result of which you were offered and you accepted the downgrade to a different position that you could perform. The Claims Group explained that the downgrading was properly carried out under regulations governing the Air Force Medically Disqualified Program.

B-257666 May 15, 1995

An employee who incurred a medical disability that prevented him from performing his job voluntarily accepted a downgrade to a position he could perform. Years later he claimed backpay on the basis that the downgrade was improper because others with medical disabilities were not downgraded. His claim is denied. He has presented no evidence demonstrating that others with similar medical disabilities, skills, etc., were more favorably treated than he. In any event, the procedures followed in his case were proper, and the individual determination made in 1983 was a matter primarily for the Air Force to make, not GAO.

Mr. Tom L. Davila, Jr. 4110 Seabrook San Antonio, Texas 78219

Dear Mr. Davila:

This replies to your letters of June 15 and September 29, 1994, appealing the action of our Claims Group which denied your claim for backpay arising out of a downgrade you accepted in March 1983 while you were employed by the Air Force.

We have reviewed the Claims Group's denial of your claim, [1] and we find no error of law or fact in the Claims Group's action. The Air Force determined that a permanent medical disability you incurred prevented you from performing your current job in 1983, as a result of which you were offered and you accepted the downgrade to a different position that you could perform. The Claims Group explained that the downgrading was properly carried out under regulations governing the Air Force Medically Disqualified Program. You do not dispute the Air Force's determination that you were medically disqualified from performing the duties of your prior position. Your claim and appeal are based upon the allegation that others who had similar medical restrictions were not downgraded from their jobs but were reassigned or "loaned" to other departments in other positions at the same grade level.

Under the Medically Disqualified Program, the decision of whether to reassign laterally to another position or downgrade to another position is a unique event for each employee, depending on the employee's medical condition, the employee's previous education, training, and skills, and the number and kinds of job openings available at the time. You have not established that the individual medical conditions and previous education, training, and skills of the other employees you referred to were in fact similar to yours. [2] In any event, individual determinations of this type are primarily for the employing agency to make, and we have no basis now to find that the Air Force's determination in your individual circumstances in 1983 was improper.

In summary, the record before us shows that you voluntarily accepted a downgrade under the Air Force Medically Disqualified Program and you have been paid accordingly. You have not established that your downgrade was improper, and thus, there is no basis for us to allow your claim for backpay. Accordingly, our Claims Group's settlement is affirmed.

You also ask why you were advised in a letter from our Office dated December 21, 1990, which returned your initial correspondence, that our Office had no jurisdiction to consider your claim. It appears that this letter was written with the misunderstanding that you were seeking to have an involuntary downgrade reversed, a matter within the jurisdiction of the Merit Systems Protection Board as an adverse action under 5 U.S.C. Sec. 7513, not our Office. [3] When your subsequent correspondence was received, it was recognized that the matter concerned a voluntary downgrade, but you were claiming backpay, a claim over which we do have jurisdiction. See Melvin Ackley, Jr., 60 Comp.Gen. 417 (1981). For this reason, your claim subsequently was accepted and adjudicated. [4]

1. Claims Group settlement certificate Z-2869167, June 3, 1994.

2. In adjudicating claims against the government, such as yours, our Office is confined to the written record that is presented to us by the claimant and by the agency, and the claimant has the burden of producing evidence to establish his claim. 4 C.F.R. Sec. 31.7.

3. It also appears that you filed a complaint with the Merit Systems Protection Board, but the Board dismissed it for lack of jurisdiction.

4. We also note that although your downgrade occurred in March 1983, you were entitled to retained pay, and thus it appears your entitlement to pay at the rate applicable to your former position continued until the general pay increase in January 1984 occurred, of which you were entitled to receive only 50 percent under the retained pay rules. At that point, the backpay claim now before us arose, and since you apparently filed your claim with the Air Force within 6 years after that time, your claim appears to have been timely filed. See B-198713.4, Dec. 11, 1989, explaining amendments to 4 C.F.R. Part 31, to provide that filing a claim in the agency out of which it arose tolls the 6-year statute of limitations, 31 U.S.C. Sec. 3702(b).

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