B-148334, APR. 15, 1963

B-148334, APR. 15, 1963

TO MR. LAWRENCE P. O-BRIEN:

WE REFER TO YOUR CLAIM AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE NAVY FOR BACK PAY; PREMIUM PAY; STEP-INCREASES; LEAVE; UNIFORM ALLOWANCE; EXTRA HOUSING, MEDICAL AND MISCELLANEOUS EXPENSES; AND TRAVEL EXPENSES, FOR THE PERIOD JUNE 1961 TO AUGUST 1962. THE ITEMS CLAIMED WILL BE DEALT WITH HEREIN IN THE ORDER STATED.

WE HAVE REVIEWED THE RECORD IN YOUR CASE, AND OUR OPINION IS THAT THE ENTIRE PERIOD YOU WERE PLACED ON LEAVE WITHOUT PAY AND WERE SEPARATED IS TO BE REGARDED AS A PERIOD OF SUSPENSION AND SEPARATION COMPENSABLE UNDER SECTION 6 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 555, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 354, 5 U.S.C. 652 (B) (2). THAT ACT PROVIDES:

"/2) ANY PERSON WHO IS DISCHARGED, SUSPENDED, OR FURLOUGHED WITHOUT PAY, UNDER SECTION 863 OF THIS TITLE, WHO, AFTER ANSWERING THE REASONS ADVANCED FOR SUCH DISCHARGE, SUSPENSION, OR FURLOUGH OR AFTER AN APPEAL TO THE CIVIL SERVICE COMMISSION, AS PROVIDED UNDER SUCH SECTION, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH DISCHARGE, SUSPENSION, OR FURLOUGH WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH DISCHARGE, SUSPENSION, OR FURLOUGH FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS DISCHARGED, SUSPENDED, OR FURLOUGHED, 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.'

YOUR RATE OF PAY ON THE DAY YOU WERE PLACED ON LEAVE WITHOUT PAY WAS GS- 8, STEP 1, $5,885 PER ANNUM. YOU WERE ALSO RECEIVING 20 PERCENT PREMIUM PAY. IF YOU HAD NOT BEEN PLACED IN A NONDUTY STATUS YOUR NEXT STEP- INCREASE WOULD HAVE BECOME DUE IN FEBRUARY 1962. SINCE 5 U.S.C. 652 (B) (2) PROVIDES THAT COMPENSATION SHALL BE PAID AT THE RATE RECEIVED ON THE DATE OF DISCHARGE, SUSPENSION OR FURLOUGH, WITHIN GRADE SALARY ADVANCEMENTS AND GENERAL SALARY INCREASES, HAVING EFFECTIVE DATES SUBSEQUENT TO THE DATE OF REMOVAL, SUSPENSION OR FURLOUGH, MAY NOT BE CONSIDERED IN THE COMPUTATION OF BACK PAY. THEREFORE, THE COMPENSATION DUE YOU IS TO BE COMPUTED AT THE RATE YOU WERE RECEIVING ON THE DATE YOU WERE PLACED ON LEAVE WITHOUT PAY, INCLUDING THE PREMIUM PAY YOU NORMALLY WOULD HAVE EARNED DURING THE PERIOD OF SUSPENSION. THE INTERIM EARNINGS YOU EARNED FROM OTHER EMPLOYMENT ARE FOR DEDUCTION FROM THE AMOUNT YOU WOULD HAVE EARNED IF YOU HAD BEEN ON ACTUAL DUTY.

THE EFFECTIVE DATE FOR YOUR INCREASE TO STEP 2 OF GS-8 WAS ADMINISTRATIVELY SET AS AUGUST 1, 1962. ALTHOUGH A STEP-INCREASE WHICH BECOMES DUE AFTER THE DATE OF REMOVAL, SUSPENSION OR FURLOUGH MAY NOT BE INCLUDED IN THE COMPUTATION OF BACK PAY, AN EMPLOYEE IS ENTITLED--- SINCE 5 U.S.C. 652 (B) (2) SPECIFIES THAT AN EMPLOYEE SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD--- TO HAVE THE PERIOD OF REMOVAL, SUSPENSION OR FURLOUGH CREDITED AS SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS. THEREFORE, THE EFFECTIVE DATE FOR THE INCREASE TO STEP 2 OF YOUR GRADE IS FEBRUARY 1962, AND SERVICE CREDIT FOR STEP 3 WOULD BEGIN AT THAT TIME. THE ADMINISTRATIVE OFFICE WILL BE SO INFORMED.

SINCE 5 U.S.C. 652 (B) (2) SPECIFIES THAT A PERIOD OF REMOVAL, SUSPENSION OR FURLOUGH MAY NOT BE CONSIDERED SERVICE FOR THE ACCUMULATION OF LEAVE, YOU ARE NOT ENTITLED TO CREDIT FOR LEAVE WHICH WOULD HAVE ACCUMULATED DURING THE PERIOD OF SUSPENSION AND SEPARATION.

IN REGARD TO THE UNIFORM ALLOWANCE, YOU WERE PAID THE INITIAL ANNUAL ALLOWANCE OF $100 IN MARCH 1961, WHICH IS THE MAXIMUM ANNUAL AMOUNT AUTHORIZED BY SECTION 402 OF THE FEDERAL EMPLOYEES UNIFORM ALLOWANCE ACT, APPROVED SEPTEMBER 1, 1954, CH. 1208, 68 STAT. 1114, AS AMENDED, 5 U.S.C. 2131, TO DEFRAY THE COST OF UNIFORMS REQUIRED TO BE WORN BY EMPLOYEES. THAT ALLOWANCE COVERED THE PERIOD JANUARY 27, 1961, TO JANUARY 26, 1962. AFTER YOUR RETURN TO DUTY IN AUGUST 1962, YOU WERE PAID A QUARTERLY REPLACEMENT ALLOWANCE OF $28.40FOR THE QUARTER OCTOBER-DECEMBER 1962. THE UNIFORM ALLOWANCE IS AUTHORIZED FOR THE PURPOSE OF DEFRAYING EXPENSES INCURRED BY EMPLOYEES IN OBTAINING UNIFORMS THEY ARE REQUIRED TO WEAR IN THE PERFORMANCE OF OFFICIAL DUTIES AND WHICH ARE NOT FURNISHED TO THEM. IT IS NOT AN ITEM OF COMPENSATION WHICH MAY BE INCLUDED AS A PART OF SALARY IN COMPUTING BACK PAY DUE UNDER 5 U.S.C. 652 (B) (2).

YOU ALSO CLAIM HOUSING, MEDICAL, AND MISCELLANEOUS EXPENSES INCURRED BY YOU AT A GREATER COST THAN WOULD HAVE BEEN INCURRED AT GUANTANAMO BAY. THE TIME OF YOUR EMPLOYMENT YOU WERE FOUND TO BE ELIGIBLE FOR RENT-FREE QUARTERS OR QUARTERS ALLOWANCE IN ACCORDANCE WITH NAVY CIVILIAN PERSONNEL INSTRUCTION 591. LIVING QUARTERS WERE FURNISHED TO YOU WITHOUT CHARGE AT GUANTANAMO BAY. THE USE OF FREE QUARTERS RESULTED, OF COURSE, IN A MONETARY BENEFIT TO YOU. ALSO, VARIOUS OTHER FACILITIES WERE AVAILABLE AT A RELATIVELY LOW COST. ALTHOUGH YOUR COST OF LIVING IN THE UNITED STATES MAY HAVE EXCEEDED THAT AT GUANTANAMO BAY, THE PROVISIONS OF 5 U.S.C. 652 (B) (2) NEITHER EXPRESSLY OR IMPLIEDLY AUTHORIZE CONSIDERATION OF ITEMS RELATING TO DIFFERENCES IN COST OF LIVING EITHER AS CREDITS TO COMPENSATION OR AS DEBITS AGAINST EARNINGS FROM OTHER EMPLOYMENT. THEREFORE, NO BASIS EXISTS FOR THE ALLOWANCE OF THOSE ITEMS.

OUR CLAIMS DIVISION IS TODAY BEING AUTHORIZED TO SETTLE YOUR CLAIM IN ACCORDANCE WITH THE ABOVE DETERMINATION, AND A SETTLEMENT FOR THE SUM FOUND DUE WILL ISSUE IN YOUR FAVOR IN DUE COURSE.

IN REGARD TO TRAVEL AND TRANSPORTATION EXPENSES IN CONNECTION WITH THE PERIOD OF SUSPENSION, THE DEPARTMENT OF THE NAVY HAS REPORTED THAT TRANSPORTATION WAS PROVIDED AT GOVERNMENT EXPENSE FOR YOU AND YOUR DEPENDENTS FROM GUANTANAMO BAY, CUBA, TO NORTH MIAMI BEACH, FLORIDA, AND RETURN. YOU TRAVELED ON A MATS SHIP FROM GUANTANAMO BAY TO NEW YORK CITY, AND THEN BY PRIVATELY-OWNED AUTOMOBILE FROM NEW YORK TO MIAMI. YOU WERE PAID MILEAGE FROM BROOKLYN, NEW YORK, TO MIAMI, FLORIDA, A DISTANCE OF 1,345 MILES AT 10 CENTS A MILE FOR A TOTAL OF $134.60. IN ADDITION, YOU WERE PAID $68.25 FOR PER DIEM, AND $7.65 FOR TOLLS; THE TOTAL REIMBURSEMENT WAS $210.50. YOUR HOUSEHOLD GOODS WERE SHIPPED ON A GOVERNMENT BILL OF LADING TO MIAMI, FLORIDA. THE HOUSEHOLD GOODS REMAINED IN STORAGE AT THE SUDDATH WAREHOUSE IN MIAMI AT GOVERNMENT EXPENSE UNTIL REMOVED BY YOU TO A WAREHOUSE OWNED BY YOUR RELATIVES. THIS LATER MOVE WAS AT GOVERNMENT EXPENSE.

THE DEPARTMENT ALSO HAS INFORMED US THAT YOU WERE AUTHORIZED TRANSPORTATION FOR YOURSELF AND YOUR DEPENDENTS FROM NORTH MIAMI BEACH, FLORIDA, TO GUANTANAMO BAY, ON AUGUST 1, 1962, BY COMMERCIAL AIR (TOURIST CLASS) TO NORFOLK, VIRGINIA, AND MATS FROM NORFOLK TO GUANTANAMO BAY. YOU WERE ALSO AUTHORIZED TO SHIP YOUR HOUSEHOLD GOODS AT GOVERNMENT EXPENSE CHARGEABLE TO THE NAVY MANAGEMENT FUNDS. THERE IS NO RECORD OF ANY COST TO YOU FOR SHIPMENT OF YOUR HOUSEHOLD GOODS FROM GUANTANAMO BAY TO THE CONTINENTAL UNITED STATES AND RETURN. IN CONNECTION WITH THE RETURN TRIP TO GUANTANAMO BAY IN AUGUST 1962, THE DEPARTMENT SAID IN THEIR REPORT THAT YOUR TRAVEL CLAIM WAS PAID AS FOLLOWS:

"FOR TRAVEL BY PRIVATELY-OWNED VEHICLE FROM KEYSTONE, FLORIDA, TO NORFOLK, VIRGINIA, 686 MILES AT 12 CENTS PER MILE...$82.32

"PER DIEM FOR 1/2 DAY ON 7 AUGUST 1962, FOR 2 FULL DAYS ON 8 AND 9 AUGUST 1962, AND FOR 3/4 DAY 14 AUGUST 1962...$49.50"

IN REGARD TO THE INQUIRY IN YOUR LETTER OF JANUARY 8, 1963, CONCERNING THE AMOUNTS DUE YOU RELATIVE TO EVACUATION FROM CUBA ON OCTOBER 22, 1962, WHICH WE REFERRED TO THE DEPARTMENT OF THE NAVY FOR CONSIDERATION, THE DEPARTMENT OF THE NAVY HAS REPORTED THAT:

"* * * ALL EVACUEES AND THEIR DEPENDENTS WERE AUTHORIZED SPECIAL PER DIEM PAYMENTS UNTIL 10 NOVEMBER, SPECIAL SUBSISTENCE PAYMENTS AFTER THAN DATE, GOVERNMENT TRANSPORTATION OR REIMBURSEMENT IN LIEU THEREOF, POST DIFFERENTIAL AS AUTHORIZED BY THE STATE DEPARTMENT, AND SPECIAL ASSIGNMENTS WERE PROVIDED IN THE UNITED STATES SO AS TO CONTINUE SALARY PAYMENTS. INSOFAR AS IS KNOWN, THESE PAYMENTS WERE MADE TO CLAIMANT UNTIL HIS REASSIGNMENT TO THE U.S. NAVAL BASE, CHARLESTON, SOUTH CAROLINA, ON 21 DECEMBER 1962 AND NO ADDITIONAL AMOUNTS ARE DUE.'

IT APPEARS, THEREFORE, THAT YOU HAVE RECEIVED PAYMENT FOR YOUR VARIOUS TRAVEL AND TRANSPORTATION EXPENSES IN FULL.