B-148792, NOV. 3, 1967

B-148792, NOV. 3, 1967

COMPENSATION - BACK PAY DECISION CONCERNING CLAIM OF FORMER NAVY DEPARTMENT EMPLOYEE FOR BACK PAY FOR PERIOD WHEN HE WAS DETERMINED TO BE PHYSICALLY UNFIT FOR DUTY. IN LIGHT OF CONFLICTING MEDICAL CONCLUSIONS AS TO AN EMPLOYEES FITNESS FOR DUTY OVER THE PERIOD AUGUST 1960 TO AUGUST 1961, WHEN THE CIVIL SERVICE COMMISSION REVERSED A DISABILITY RETIREMENT DECISION AND THE EMPLOYEE WAS RESTORED TO DUTY, GAO MAY NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE MARINE CORPS AND HOLD THAT SUCH DETERMINATION WAS ARBITRARY OR CAPRICIOUS THEREFORE, THE REMOVAL FROM ACTIVE DUTY MAY NOT BE REGARDED AS UNJUSTIFIED OR UNWARRANTED TO ENTITLE THE EMPLOYEE TO BACK PAY UNDER THE LLOYD-LA FOLLETTE ACT OF 1912, AS AMENDED.

TO MR. GEORGE L. GULLETTE:

WE REFER TO YOUR LETTERS OF SEPTEMBER 14 AND OCTOBER 7, 1967, THE LATTER ENCLOSING A POWER OF ATTORNEY FROM MR. DAVID E. GILBERT, IN WHICH YOU REQUEST AS MR. GILBERT'S ATTORNEY RECONSIDERATION OF OUR DECISION TO THE SECRETARY OF THE NAVY OF MAY 23, 1962, B-148792, CONCERNING YOUR CLIENT'S CLAIM FOR BACK PAY.

FOR YOUR CONVENIENCE WE ENCLOSE A COPY OF THAT DECISION AND ALSO A COPY OF OUR DECISION OF DECEMBER 19, 1962, TO THE NATIONAL PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, IN THE SAME CASE. WE BELIEVE THAT THE ESSENTIAL FACTS ARE SET OUT IN THE DECISIONS REFERRED TO AND THAT THEY NEED NOT HERE BE REPEATED IN FULL.

YOUR LETTER OF SEPTEMBER 14, 1967, SUGGESTS THAT MR. GILBERT'S CASE IS FOR CONSIDERATION UNDER THE BACK PAY ACT OF 1966, PUB.L. 89-380, APPROVED MARCH 30, 1966, NOW CODIFIED IN 5 U.S.C. 7501. WE ARE OF THE OPINION THAT SINCE MR. GILBERT'S REMOVAL FROM AND RESTORATION TO ACTIVE DUTY TOOK PLACE IN 1960 AND 1961, HIS CASE IS FOR CONSIDERATION ONLY UNDER THE LLOYD- LAFOLLETTE ACT OF 1912 AS AMENDED BY THE ACT OF JUNE 10, 1948, FORMERLY 5 U.S.C. 652 (B) (1964 ED.).

THE LATTER ACT READ IN PERTINENT PART AS FOLLOWS:

"ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY UNDER SUBSECTION (A) OF THIS SECTION WHO, AFTER FILING A WRITTEN ANSWER TO THE CHARGES AS PROVIDED UNDER SUCH SUBSECTION OR AFTER ANY FURTHER APPEAL TO PROPER AUTHORITY AFTER RECEIPT OF AN ADVERSE DECISION ON THE ANSWER, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION, FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED OR SUSPENDED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD. A DECISION WITH RESPECT TO ANY APPEAL TO PROPER AUTHORITY UNDER THIS PARAGRAPH SHALL BE MADE AT THE EARLIEST PRACTICABLE DATE.'

MR. GILBERT WAS RESTORED TO AN ACTIVE DUTY STATUS ON AUGUST 11, 1961, AND WE BELIEVE THAT THE DECISIVE ISSUE IN THIS CASE IS WHETHER THAT RESTORATION CONSTITUTED A DETERMINATION THAT HIS REMOVAL FROM AN ACTIVE DUTY STATUS FOR THE PERIODS NOW IN QUESTION WAS UNJUSTIFIED OR UNWARRANTED.

IN THE CONSIDERATION OF THAT QUESTION WE BELIEVE IT DESIRABLE TO REITERATE CERTAIN OF THE SALIENT FACTS.

ON AUGUST 24, 1960, MR. GILBERT SUBMITTED TO THE MARINE CORPS SCHOOLS A CERTIFICATE FROM HIS PERSONAL PHYSICIAN TO THE EFFECT THAT IF MR. GILBERT WAS FITTED WITH A PROPER BACK BRACE HE SHOULD BE ABLE TO RETURN TO FULL DUTY.

ON THAT DAY, BECAUSE OF PRIOR MEDICAL HISTORY, MR. GILBERT WAS REFERRED TO THE SCHOOLS' SURGEON AND OTHER MEDICAL STAFF FOR A REPORT ON HIS FITNESS TO RETURN TO DUTY.

AFTER SEVERAL EXAMINATIONS MR. GILBERT WAS INFORMED ON SEPTEMBER 30, 1960, OF THE PHYSICIANS' FINDINGS THAT HE WAS PHYSICALLY UNABLE TO CONTINUE EMPLOYMENT AT THE MARINE CORPS SCHOOLS.

ON OR AFTER JANUARY 5, 1961, MR. GILBERT WAS NOTIFIED BY THE CIVIL SERVICE COMMISSION TO REPORT TO A VETERANS ADMINISTRATION FACILITY FOR A PHYSICAL EXAMINATION IN CONNECTION WITH HIS AGENCY'S APPLICATION FOR HIS RETIREMENT ON DISABILITY.

ON FEBRUARY 9, 1961, THE MARINE CORPS WAS NOTIFIED BY THE BUREAU OF RETIREMENT AND INSURANCE, CIVIL SERVICE COMMISSION, THAT MR. GILBERT DID NOT QUALIFY FOR RETIREMENT BECAUSE HE WAS NOT TOTALLY DISABLED WITHIN THE MEANING OF THE RETIREMENT ACT.

ON APRIL 13, 1961, THE BUREAU OF RETIREMENT AND INSURANCE NOTIFIED THE CORPS THAT THE APPLICATION FOR RETIREMENT ON DISABILITY HAD BEEN APPROVED.

ON JULY 31, 1961, THE CORPS WAS ADVISED BY THE BOARD OF APPEALS AND REVIEW, CIVIL SERVICE COMMISSION, THAT THE COMMISSION'S DECISION OF APRIL 13, 1961, HAD BEEN REVERSED AND THAT MR. GILBERT'S RETIREMENT ON DISABILITY HAD BEEN DISALLOWED.

ON AUGUST 11, 1961, MR. GILBERT WAS RESTORED TO ACTIVE DUTY.

IN OUR DECISION OF MAY 23, 1962, WE RULED THAT MR. GILBERT WAS ENTITLED TO BACK PAY FOR THE PERIOD EXTENDING FROM THE DATE OF RECEIPT OF THE COMMISSION'S NOTICE OF FEBRUARY 6, 1961, HOLDING MR. GILBERT INELIGIBLE FOR RETIREMENT, TO THE DATE OF RECEIPT OF ITS LETTER OF APRIL 13, 1961, REVERSING THAT RULING.

NO DETERMINATION WAS MADE BY EITHER THE MARINE CORPS OR THE CIVIL SERVICE COMMISSION THAT MR. GILBERT'S REMOVAL FROM AN ACTIVE DUTY STATUS FOR THE PERIODS NOW IN QUESTION WAS UNJUSTIFIED OR UNWARRANTED. NOTHING APPEARS IN RECORD TO INDICATE WHETHER DURING THE PERIOD OF MR. GILBERT'S ABSENCE FROM ACTIVE DUTY HIS PHYSICAL CONDITION IMPROVED, DETERIORATED AND IN ANY WAY WAS MODIFIED.

IN THE LIGHT OF THE CONFLICTING MEDICAL CONCLUSIONS AS TO HIS FITNESS FOR DUTY OVER THE PERIOD AUGUST 1960 TO AUGUST 7, 1961, AND THE HISTORY OF THE CASE AS CITED ABOVE, WE MAY NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE MARINE CORPS AND RULE THAT ITS DETERMINATION CONCERNING MR. GILBERT'S DISABILITY WAS ARBITRARY OR CAPRICIOUS.

THEREFORE WE MUST SUSTAIN THE CONCLUSION REACHED IN OUR EARLIER DECISIONS.

WE NOTE YOUR STATEMENT THAT MR. GILBERT HAS NOT NEGOTIATED THE CHECK RECEIVED BY HIM IN CONNECTION WITH THE PAYMENT AUTHORIZED BY OUR DECISION OF MAY 23, 1962. SO FAR AS OUR OFFICE IS CONCERNED HE MAY NEGOTIATE THE CHECK WITHOUT PREJUDICE TO ANY FURTHER ACTION HE MAY CARE TO TAKE REGARDING HIS CLAIM.