B-201633, APR 15, 1983

B-201633, APR 15, 1983

DIGEST: AN ARMY EMPLOYEE WAS ON SICK LEAVE, ANNUAL LEAVE, AND LEAVE WITHOUT PAY FOR A 2-1/2-MONTH PERIOD PRIOR TO THE DATE OF HIS RESIGNATION FOR THE PURPOSE OF RETIRING. UPON SEPARATION, HE WAS NOT ELIGIBLE TO RETIRE AND HE APPEALED HIS SEPARATION. EMPLOYEE WAS REINSTATED AS OF THE SEPARATION DATE WITH BACKPAY FOR THE PERIOD HE WAS NOT ON THE ROLLS. HE IS NOT ENTITLED TO BACKPAY AND RECREDITING OF LEAVE FOR THE 2-1/2-MONTH PERIOD PRIOR TO THE DATE OF HIS RESIGNATION DURING WHICH HE WAS IN A LEAVE STATUS. THE RECORD DOES NOT ESTABLISH THAT THE LEAVE WAS INVOLUNTARY OR THAT THE EMPLOYEE WAS READY, WILLING, AND ABLE TO WORK DURING SUCH PERIOD.

RALPH C. HARBIN:

MRS. IRENE N. HARBIN SEEKS BACKPAY AND RECREDITING OF LEAVE ON BEHALF OF HER DECEASED HUSBAND, RALPH C. HARBIN, FOR THE APPROXIMATELY 2-1/2-MONTH PERIOD HE WAS ON APPROVED LEAVE WITH AND WITHOUT PAY PRIOR TO HIS INVOLUNTARY AND ERRONEOUS SEPARATION ON OCTOBER 31, 1973. SINCE THERE IS NO EVIDENCE THAT MR. HARBIN WAS IN A LEAVE STATUS INVOLUNTARILY OR THAT HE WAS READY, WILLING, AND ABLE TO PERFORM THE DUTIES OF HIS POSITION, THE CLAIM IS DENIED.

MRS. HARBIN'S PRESENT CLAIM ARISES OUT OF THE SAME PERSONNEL ACTIONS INVOLVED IN OUR PREVIOUS DECISION WHICH DEALT WITH MR. HARBIN'S TRAVEL, TRANSPORTATION AND RELOCATION EXPENSES CLAIMS ARISING OUT OF THOSE MATTERS. MATTER OF HARBIN, 61 COMP.GEN. 57 (1981).

MR. HARBIN WAS A CIVILIAN EMPLOYEE OF THE UNITED STATES ARMY IN VIET NAM FROM NOVEMBER 1971 TO AUGUST 1973. HE RETURNED TO THE UNITED STATES IN AUGUST FOR SEPARATION. APPARENTLY DUE TO INFORMATION HE RECEIVED FROM AGENCY OFFICIALS REGARDING THE EFFECT OF A REDUCTION IN FORCE ON HIS STATUS, HE EXPECTED TO BE SEPARATED AS A RETIRED ANNUITANT. HE, THEREFORE, RESIGNED EFFECTIVE OCTOBER 31, 1973. UNDER THE REMARKS SECTION ON THE STANDARD FORM 50, NOTIFICATION OF PERSONNEL ACTION, EFFECTING HIS RESIGNATION, IT IS STATED: "REASON FOR RESIGNATION: ANNUAL LEAVE AND SICK LEAVE UNTIL EXHAUSTED AND LWOP (LEAVE WITHOUT PAY) NTE (NOT TO EXCEED) 30 DAYS. NO OTHER INFORMATION AVAILABLE."

CONSISTENT WITH THE INFORMATION UNDER THE REMARKS SECTION OF THE STANDARD FORM 50, APPARENTLY MR. HARBIN WAS IN A LEAVE STATUS WHILE HE AWAITED HIS SEPARATION ON OCTOBER 31, 1973. MRS. HARBIN INFORMS US THAT FROM AUGUST 18, UNTIL OCTOBER 31, 1973, HE WAS IN A LEAVE STATUS AND WAS CHARGED WITH 134 HOURS' ANNUAL LEAVE, 112 HOURS' SICK LEAVE, AND THE REMAINING TIME WAS LEAVE WITHOUT PAY.

IN NOVEMBER 1973 HE APPEALED HIS SEPARATION SINCE HE WAS NOT ELIGIBLE TO RETIRE AS HE HAD BEEN LED TO BELIEVE. IN DECEMBER 1973 HE ACCEPTED EMPLOYMENT WITH THE NAVY IN SEATTLE, WASHINGTON. EVENTUALLY, HE WAS SUCCESSFUL IN HIS APPEAL OF HIS OCTOBER 1973 SEPARATION, AND AS DIRECTED BY THE FEDERAL EMPLOYEES APPEALS AUTHORITY OF THE CIVIL SERVICE COMMISSION, HIS RESIGNATION WAS CANCELLED AND HE WAS CONSIDERED CONTINUOUSLY IN A DUTY AND PAY STATUS FROM OCTOBER 31, 1973, TO THE DATE HE WAS EMPLOYED BY THE NAVY, DECEMBER 17, 1973. HE RECEIVED BACKPAY FOR THAT PERIOD. HOWEVER, THE APPEALS AUTHORITY DECISION DOES NOT MENTION ANYTHING REGARDING HIS USE OF LEAVE BEFORE OCTOBER 31, 1973, NOR DOES IT DIRECT THAT ANY RELIEF BE GIVEN HIM FOR THE PERIOD BEFORE OCTOBER 31, 1973.

THE BACKPAY ACT, 5 U.S.C. 5596 (1976), PROVIDES IN PERTINENT PART THAT AN AGENCY EMPLOYEE WHO IS FOUND TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, WHICH RESULTS IN THE WITHDRAWAL OR REDUCTION OF ALL OR PART OF HIS PAY AND ALLOWANCES, IS ENTITLED UPON CORRECTION OF THE ACTION TO RECOVER THE AMOUNT HE WOULD HAVE EARNED DURING THAT PERIOD AS IF THE PERSONNEL ACTION HAD NOT OCCURRED. FURTHERMORE, FOR ALL PURPOSES THE EMPLOYEE IS DEEMED TO HAVE PERFORMED SERVICES FOR THE AGENCY DURING THAT PERIOD. HOWEVER, EVEN AFTER IT IS ESTABLISHED THAT AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WAS TAKEN AGAINST AN EMPLOYEE, ENTITLEMENT TO BACKPAY IS STILL NOT ESTABLISHED UNLESS THE EMPLOYEE CAN DEMONSTRATE THAT HE WAS READY, WILLING AND ABLE TO WORK DURING THE TIME HE WAS ON LEAVE. SEE B-179965, JULY 18, 1974, CITING SEEBACK V. UNITED STATES, 182 CT.CL. 342, 352 (1968). SEE ALSO MATTER OF RICHARDS, B-199263, FEBRUARY 4, 1981.

ON THE RECORD BEFORE US, THERE IS NO EVIDENCE THAT MR. HARBIN'S PLACEMENT ON LEAVE WAS INVOLUNTARY OR THAT HE WAS IN FACT READY, WILLING AND ABLE TO PERFORM HIS DUTIES DURING THE PERIOD FROM AUGUST 18 TO OCTOBER 31, 1973. (FOR PART OF THIS PERIOD, THE AGENCY AUTHORIZED MR. HARBIN TO USE SICK LEAVE WHICH IS AUTHORIZED ONLY IN CERTAIN CIRCUMSTANCES INVOLVING ILLNESS OR MEDICAL CARE, INCLUDING WHEN THE EMPLOYEE IS INCAPACITATED DUE TO ILLNESS. MATTER OF DELEO, B-207444, OCTOBER 20, 1982, AND CASES CITED.) THEREFORE, IN THIS CASE THERE IS NO BASIS TO AWARD BACKPAY OR TO RESTORE LEAVE UNDER 5 U.S.C. SEC. 5596. SEE MATTER OF HOFFLER, B-128314, JANUARY 8, 1979, AND CASES CITED; AND B-179965, JULY 18, 1974.