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B-128473, MAY 18, 1967

B-128473 May 18, 1967
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DUPREE: THIS IS IN REPLY TO YOUR LETTER OF APRIL 25. IS UNDATED AND THEREFORE INVALID. YOU HAVE SUPPLIED A LETTER FROM YOUR OPTOMETRIST STATING THAT YOU HAVE ALWAYS HAD 20/20 DISTANCE VISION DURING THE PERIOD FROM 1956 THROUGH 1966. YOU FURTHER INDICATE THAT YOU HAVE PASSED ALL DRIVER'S LICENSE TESTS FROM 1947 THROUGH 1966 WITH 20/20 VISION IN EACH EYE. INDICATING THAT YOU WERE EXAMINED ON NOVEMBER 17. FOR A POSITION AS A FIREFIGHTER GS-4 IS UNDATED. IT IS NOTED THAT THERE IS ATTACHED TO IT A REPORT OF A LABORATORY EXAMINATION PERFORMED ON YOU IN CONNECTION WITH YOUR APPLICATION FOR A FIREFIGHTER POSITION. THIS EXAMINATION WAS ORDERED AND APPARENTLY INITIALED BY THE SAME DOCTOR WHO CONDUCTED YOUR PHYSICAL EXAMINATION.

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B-128473, MAY 18, 1967

TO MR. THURMAN H. DUPREE:

THIS IS IN REPLY TO YOUR LETTER OF APRIL 25, 1967, APPEALING FROM OUR OFFICE SETTLEMENT OF MARCH 20, 1967, DENYING YOUR CLAIM FOR THE DIFFERENCE IN PAY BETWEEN THAT OF A FIREFIGHTER, GRADE GS-4, AND A SECURITY GUARD, GRADE GS-3, DURING THE PERIOD NOVEMBER 15, 1956, TO OCTOBER 22, 1966, AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, RED RIVER ARMY DEPOT, TEXARKANA, TEXAS.

YOU ASSERT THAT THE STANDARD FORM 78, A REPORT OF A PHYSICAL EXAMINATION GIVEN TO YOU IN CONNECTION WITH YOUR APPLICATION FOR A POSITION AS A FIREFIGHTER WHICH CONTAINED THE EXAMINING PHYSICIAN'S DISAPPROVAL OF YOUR APPLICATION ON GROUNDS OF INABILITY TO MEET PHYSICAL AND VISUAL REQUIREMENTS, IS UNDATED AND THEREFORE INVALID. YOU HAVE SUPPLIED A LETTER FROM YOUR OPTOMETRIST STATING THAT YOU HAVE ALWAYS HAD 20/20 DISTANCE VISION DURING THE PERIOD FROM 1956 THROUGH 1966. YOU FURTHER INDICATE THAT YOU HAVE PASSED ALL DRIVER'S LICENSE TESTS FROM 1947 THROUGH 1966 WITH 20/20 VISION IN EACH EYE. PREVIOUSLY YOU FORWARDED A LETTER OF YOUR PHYSICIAN DATED NOVEMBER 9, 1966, INDICATING THAT YOU WERE EXAMINED ON NOVEMBER 17, 1956, AND FOUND PHYSICALLY ABLE TO RESUME YOUR DUTIES WITH THE FIRE DEPARTMENT AT RED RIVER ARMY DEPOT.

ALTHOUGH AS YOU POINT OUT YOUR PHYSICAL EXAMINATION, STANDARD FORM 78, FOR A POSITION AS A FIREFIGHTER GS-4 IS UNDATED, IT IS NOTED THAT THERE IS ATTACHED TO IT A REPORT OF A LABORATORY EXAMINATION PERFORMED ON YOU IN CONNECTION WITH YOUR APPLICATION FOR A FIREFIGHTER POSITION. THIS EXAMINATION WAS ORDERED AND APPARENTLY INITIALED BY THE SAME DOCTOR WHO CONDUCTED YOUR PHYSICAL EXAMINATION, DR. FROST, AND IS DATED OCTOBER 26, 1956. THIS IS THE DATE THAT THE DEPARTMENT OF THE ARMY ASCRIBES TO THE EXAMINATION. MOREOVER IN YOUR LETTERS OF MAY 8, 1966, TO THE CIVIL SERVICE COMMISSION, AND NOVEMBER 13, 1966, TO OUR OFFICE, YOU ADMIT THE TAKING OF A PHYSICAL EXAMINATION IN 1956 FOR A FIREFIGHTER POSITION IN WHICH YOU WERE FOUND NOT PHYSICALLY QUALIFIED.

THE RECORD INDICATES THAT AS A RESULT OF A REDUCTION IN FORCE YOU WERE CHANGED FROM FIREFIGHTER CPC-6, $3,600 PER ANNUM, TO GUARD CPC-5, $3,454 PER ANNUM, EFFECTIVE NOVEMBER 22, 1953. APPARENTLY VACANCIES OPENED UP IN THE FIREFIGHTER SERIES AND YOUR QUALIFICATIONS FOR SUCH A POSITION WERE EXAMINED. HOWEVER, THERE WAS NO REQUIREMENT UNDER ARMY REGULATIONS FOR MANDATORY RESTORATION TO A POSITION PREVIOUSLY HELD WHERE THE INITIAL REDUCTION WAS PROPER. CF. CPR NL.3-8.

WE POINT OUT THAT REGARDLESS OF THE CORRECTNESS OF ANY PHYSICAL EXAMINATION THAT YOU UNDERWENT AT THE TIME, THE FACT REMAINS THAT YOU WERE NOT APPOINTED OR REAPPOINTED TO GRADE GS-4 DURING THE PERIOD INVOLVED. HAS BEEN HELD THAT AN EMPLOYEE IS NOT ENTITLED TO THE SALARY OF A POSITION TO WHICH HE HAS NOT BEEN APPOINTED (OR REAPPOINTED). DVORKIN V. UNITED STATES, 101 CT.CL. 296, CERTIORARI DENIED 323 U.S. 730. MOREOVER, THERE WOULD BE NO AUTHORITY NOW TO MAKE SUCH AN APPOINTMENT RETROACTIVELY EFFECTIVE. 40 COMP. GEN. 207.

ACCORDINGLY, OUR PRIOR OFFICE SETTLEMENT DENYING YOUR CLAIM FOR THE DIFFERENCE IN COMPENSATION BETWEEN THAT OF A GUARD, GRADE GS-3, AND A FIREFIGHTER, GRADE GS-4, IS AND MUST BE SUSTAINED.

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