B-152892, MAY 8, 1964

B-152892, MAY 8, 1964

TO MR. FLORENCIO S. DEQUEP:

YOUR LETTER OF APRIL 7, 1964, REQUESTS RECONSIDERATION OF YOUR CLAIM FOR BACK PAY FOR THE PERIOD JUNE 1959 TO JUNE 11, 1960, AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, ANDERSON AIR FORCE BASE, GUAM, WHICH WAS DISALLOWED BY OFFICE SETTLEMENT OF FEBRUARY 25, 1964.

THE ACT OF JUNE 10, 1948, PUB.L. 623, 62 STAT. 354, 5 U.S.C. 652, PROVIDES IN PERTINENT PART THAT ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY, WHO, AFTER AN APPEAL TO PROPER AUTHORITY, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL 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, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT.

THE FACTS OF RECORD ARE THAT YOU WERE AUTHORIZED BY SPECIAL ORDER NO. C- 74, DATED FEBRUARY 12, 1959, TO PROCEED TO MANILA, PHILIPPINES, FOR 30 DAYS' REEMPLOYMENT LEAVE. YOU WERE ADVISED BY APPROPRIATE NOTICE THAT YOUR SERVICES WERE TERMINATED EFFECTIVE MAY 31, 1959, DUE TO THE AVAILABILITY OF UNITED STATES CITIZENS TO PERFORM THE DUTIES OF YOUR POSITION. THE NOTICE WAS CANCELLED BY STANDARD FORM 50, DATED APRIL 12, 1960, STATING THAT THE TERMINATION ACTION WAS IMPROPER AND YOU WERE RESTORED TO A LEAVE-WITHOUT-PAY STATUS. YOU RETURNED TO DUTY ON JUNE 12, 1960, AND REQUESTED PAYMENT FOR THE PERIOD JUNE 1, 1959, TO JUNE 12, 1960, ON THE BASIS THAT YOU WERE NOT NOTIFIED OF YOUR RIGHT TO APPEAL TO THE AGENCY OR THE CIVIL SERVICE COMMISSION.

OUR OFFICE SETTLEMENT POINTED OUT THAT YOU HAD NOT RESPONDED TO OUR REQUESTS TO FURNISH INFORMATION CONCERNING ANY EFFORTS BY YOU TO SECURE OTHER EMPLOYMENT TO MITIGATE DAMAGES TO THE GOVERNMENT. YOU NOW INFORM US THAT BECAUSE OF A SEVERE UNEMPLOYMENT CONDITION IN THE PHILIPPINES YOU PREFERRED TO STAY AT HOME AND FARM YOUR HALF ACRE OF LAND. YOU ALSO REFER TO THE CLAIM OF MR. PORFIRIO N. GUILLERMO WHICH YOU SAY WAS ALLOWED AND IS IDENTICAL TO YOURS.

MR. GUILLERMO'S CLAIM WAS NOT ALLOWED FOR THE ENTIRE PERIOD OF SEPARATION BUT WAS ALLOWED ONLY IN PART. ALSO, MR. GUILLERMO'S CLAIM IS NOT IDENTICAL TO YOURS SINCE THE RECORD IN HIS CASE SHOWS THAT HE MADE AN EFFORT TO APPEAL BY WRITING TO THE AIR FORCE REQUESTING RECONSIDERATION OF HIS TERMINATION, AND THAT HE RECEIVED A REPLY. YOU HAVE STATED THAT YOU WROTE YOUR FORMER SUPERVISOR CONCERNING YOUR TERMINATION BUT RECEIVED NO REPLY. HOWEVER, THE RECORD DOES NOT SHOW THAT THE LETTER WAS RECEIVED. ALSO, IT DOES NOT APPEAR THAT YOU MADE ANY EFFORT TO ASCERTAIN WHETHER YOUR LETTER HAD BEEN RECEIVED OR TO HAVE YOUR TERMINATION RECONSIDERED. RATHER, IT APPEARS THAT YOU THEN ACCEPTED THE ACTION AND MADE NO EFFORTS TO SECURE REEMPLOYMENT WITH THE AIR FORCE AND THAT YOUR REEMPLOYMENT RESULTED FROM ACTION BY THE AIR FORCE WITHOUT AN APPEAL OF ANY SORT FROM YOU. THEREFORE, THE FACT THAT THE AIR FORCE TOOK CORRECTIVE ACTION DOES NOT GIVE YOU A RIGHT TO BACK PAY FOR THE PERIOD BETWEEN THE DATE OF SEPARATION AND THE DATE THE SEPARATION WAS CANCELLED IN THE ABSENCE OF ACTION BY YOU TO APPEAL THE MATTER OR SEEK EMPLOYMENT. THE REASON GIVEN FOR NOT SEEKING EMPLOYMENT IS NOT DEEMED SUFFICIENT. CONSEQUENTLY, YOUR CLAIM FOR THE PERIOD FROM THE DATE OF SEPARATION TO THE DATE OF RECEIPT OF THE NOTICE OF CANCELLATION OF YOUR SEPARATION IS DISALLOWED. WHILE THE DATE OF RECEIPT IS NOT PRECISELY ASCERTAINABLE, WE ASSUME YOU WOULD HAVE RECEIVED THE NOTICE WITHIN 16 DAYS WHICH WOULD HAVE BEEN BY APRIL 29, 1960. FROM THAT TIME UNTIL YOUR RETURN TO DUTY YOU ARE TO BE REGARDED AS HAVING A REASONABLE BASIS FOR NOT SEEKING EMPLOYMENT. THEREFORE, WE ARE TAKING ACTION TO ALLOW YOU BACK PAY FROM APRIL 29, 1960, TO THE DATE YOU RETURNED TO DUTY, WHICH WAS JUNE 12, 1960. YOUR CLAIM FOR DAMAGES IS DISALLOWED SINCE THERE IS NO PROVISION FOR DAMAGES IN ADDITION TO BACK PAY IN THE ACT OF JUNE 10, 1948, CITED ABOVE.