B-106791, MAY 26, 1964

B-106791, MAY 26, 1964

TO MR. HERBERT A. BORNHOFT:

YOUR LETTER OF APRIL 5, 1964, REQUESTS FURTHER CONSIDERATION OF YOUR CLAIM FOR $31,834.06, REPRESENTING SEVERANCE PAY, SALARY AND ALLOWANCES ALLEGED TO BE DUE FOR A PERIOD OF THE 13 1/2 MONTHS REMAINING UNDER YOUR AGREEMENT TO SERVE OVERSEAS WHICH WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED APRIL 2, 1964.

THE RECORD SHOWS THAT YOU WERE EMPLOYED BY THE INTERNATIONAL COOPERATION ADMINISTRATION, AT VIENTIANE, LAOS, IN THE GRADE OF FSR 501-3, UNDER AN EXCEPTED SERVICE APPOINTMENT. YOUR APPOINTMENT WITH ICA WAS TERMINATED EFFECTIVE NOVEMBER 3, 1961, UNDER THE AUTHORITY OF SECTION 621 (D) OF PUB.L. 87-195, APPROVED SEPTEMBER 4, 1961, 75 STAT. 446, 22 U.S.C. 2381 (D), SUPP. III, DUE TO THE ABOLISHMENT OF THE INTERNATIONAL COOPERATION ADMINISTRATION. ON THE FOLLOWING DAY, NOVEMBER 4, 1961, YOU WERE GIVEN A LIMITED EXCEPTED APPOINTMENT, FOREIGN SERVICE RESERVE LIMITED, WITH THE AGENCY FOR INTERNATIONAL DEVELOPMENT, NOT TO EXCEED THE CLOSE OF BUSINESS FEBRUARY 1, 1962, PURSUANT TO THE PROVISIONS OF SECTION 625 (D) (2) OF PUB.L. 87-195, 22 U.S.C. 2385 (D) (2), SUPP. III. THIS APPOINTMENT WAS MADE WITHOUT A BREAK IN SERVICE FROM ICA. YOU WERE GRANTED THE SAME RETURN TRAVEL AND TRANSPORTATION PRIVILEGES THAT YOU WOULD HAVE RECEIVED FROM THE INTERNATIONAL COOPERATION ADMINISTRATION WITHIN THE LIMITATIONS APPLICABLE TO AGENCY FOR INTERNATIONAL DEVELOPMENT EMPLOYEES BEING SEPARATED FROM THE SERVICE. THIS APPOINTMENT WAS EXTENDED, EFFECTIVE FEBRUARY 2, 1962, NOT TO EXCEED MAY 2, 1962. YOUR APPOINTMENT, FOREIGN SERVICE RESERVE LIMITED (NTE COB 5-2-62), WAS TERMINATED BY SEPARATION, EFFECTIVE MARCH 17, 1962, FOR THE PURPOSE OF EXERCISING YOUR REEMPLOYMENT RIGHTS WITH THE DEPARTMENT OF THE AIR FORCE. YOU SAY THAT YOUR THIRD 2- YEAR TOUR OF OVERSEAS DUTY WITH THE INTERNATIONAL COOPERATION ADMINISTRATION AND THE AGENCY FOR INTERNATIONAL DEVELOPMENT, WHICH BEGAN IN JANUARY 1961, WAS CUT FROM 24 TO 10 1/2 MONTHS IN VIOLATION OF A CONTRACT OF EMPLOYMENT. YOU THEREFORE CLAIM YOUR SALARY AND ALLOWANCES IN THE AMOUNT OF $22,007.81 AND SEVERANCE BENEFITS IN THE AMOUNT OF $9,826.25.

AS POINTED OUT IN OFFICE SETTLEMENT OF APRIL 2, 1964, THE ONLY CONTRACT BETWEEN YOU AND THE GOVERNMENT IN REGARD TO EMPLOYMENT WAS YOUR APPOINTMENT AS FISCAL OFFICER, FSR-501-3, EVIDENCED BY SF-50, NOTIFICATION OF PERSONNEL ACTION, A FORM GENERALLY USED FOR THE APPOINTMENT OF GOVERNMENT EMPLOYEES. YOUR EXCEPTED SERVICE APPOINTMENT WITH ICA COULD HAVE BEEN TERMINATED AT ANY TIME FOR A NUMBER OF LAWFUL REASONS. ALSO, THE FACT THAT THE AGENCY MAY HAVE INFORMED YOU THAT YOUR TOUR OF DUTY WAS FOR TWO YEARS DID NOT OBLIGATE THE GOVERNMENT TO RETAIN YOU AT THAT PARTICULAR DUTY STATION FOR A PARTICULAR LENGTH OF TIME. HERE, YOUR EXCEPTED SERVICE APPOINTMENT WAS LAWFULLY TERMINATED PURSUANT TO SECTION 621 (D) OF PUB.L. 87-195, SUPRA. YOUR LIMITED EXCEPTED APPOINTMENT WITH AID GAVE YOU NO RIGHT TO CONTINUED EMPLOYMENT AFTER THE TIME LIMIT ON THE APPOINTMENT HAD EXPIRED. YOU EXERCISED REEMPLOYMENT RIGHTS BEFORE THIS APPOINTMENT EXPIRED. WHILE UNDER ADMINISTRATIVE REGULATIONS YOU MAY HAVE BEEN ENTITLED TO CERTAIN TRANSPORTATION AND TRAVEL EXPENSES BASED ON THE LENGTH OF TIME SERVED OVERSEAS, NEVERTHELESS, SUCH ENTITLEMENT HAD NO BEARING ON YOUR RIGHT TO CONTINUED EMPLOYMENT. THEREFORE, THERE IS NO BASIS IN THE RECORD FOR ALLOWING YOUR CLAIM FOR SALARY AND ALLOWANCES.

YOU ALSO CLAIM SEVERANCE BENEFITS UNDER SECTION 625 (E) OF PUB.L. 87-195, SUPRA, 22 U.S.C. 2385 (E), SUPP. IV, WHICH PROVIDES THAT:

"THE PRESIDENT IS AUTHORIZED TO PRESCRIBE BY REGULATION STANDARDS OR OTHER CRITERIA FOR MAINTAINING ADEQUATE PERFORMANCE LEVELS FOR PERSONNEL APPOINTED OR ASSIGNED PURSUANT TO PARAGRAPH (2) OF SUBSECTION (D) OF THIS SECTION AND SECTION 527 (C) (2) OF THE MUTUAL SECURITY ACT OF 1954, AS AMENDED, AND MAY NOTWITHSTANDING ANY OTHER LAW, BUT SUBJECT TO AN APPROPRIATE ADMINISTRATIVE APPEAL, SEPARATE EMPLOYEES WHO FAIL TO MEET SUCH STANDARDS OR OTHER CRITERIA, AND ALSO MAY GRANT SUCH PERSONNEL SEVERANCE BENEFITS OF ONE MONTH'S SALARY FOR EACH YEAR'S SERVICE, BUT NOT TO EXCEED ONE YEAR'S SALARY AT THE THEN CURRENT SALARY RATE OF SUCH PERSONNEL.'

YOU WERE NOT SEPARATED UNDER THE PROVISIONS OF THAT SECTION. RATHER, AS POINTED OUT ABOVE, YOUR LIMITED EXCEPTED APPOINTMENT WITH ICA MADE UNDER SECTION 625 (D) (2) WOULD HAVE EXPIRED BY ITS TERMS EXCEPT FOR THE FACT THAT YOU EXERCISED YOUR REEMPLOYMENT RIGHTS WITH THE DEPARTMENT OF THE AIR FORCE. THUS, YOU HAVE NO ENTITLEMENT TO SEVERANCE BENEFITS UNDER SECTION 625 (E).

BECAUSE OF THE FOREGOING, THE DISALLOWANCE OF YOUR CLAIM IS HEREBY SUSTAINED.