B-158925, AUG. 18, 1967

B-158925, AUG. 18, 1967

EMPLOYEES - RESTORATION AFTER MILITARY SERVICE DECISION TO ADMINISTRATOR OF FEDERAL AVIATION AGENCY CONCERNING RIGHT OF FORMER EMPLOYEE TO BE RESTORED TO FORMER POSITION AFTER EXTENDED MILITARY DUTY AS RESERVE OFFICER. FORMER EMPLOYEE WHO WAS SEPARATED TO ENTER MILITARY SERVICE AS A RESERVE OFFICER IN 1951 AND WHO UPON RELEASE ON DEC. 31, 1963, REQUESTED RESTORATION TO DUTY WHICH WAS REJECTED AND THEN IN 1966 REQUESTED RESTORATION AGAIN IS ENTITLED TO RESTORATION AND IN VIEW OF CONFUSION THAT EXISTED AS TO APPLICATION OF 5 U.S.C. 30R (B) AT TIME OF FIRST REJECTION, THE DELAY IN THE SECOND REQUEST FOR RESTORATION SHOULD NOT BE CONSIDERED WAIVER OR ABANDONMENT OF RIGHT TO RESTORATION. CONCERNING CLAIM FOR BACK PAY FOR REFUSAL OF AN AGENCY TO COMPLY WITH REEMPLOYMENT REQUEST UNDER 5 U.S.C. 3551 THERE IS NO STATUTE AUTHORIZING PAYMENT FOR LOSS OF COMPENSATION.

TO MR. MCKEE:

WE REFER TO YOUR LETTER OF JUNE 27, 1967, CONCERNING THE ENTITLEMENT OF A FORMER EMPLOYEE OF YOUR PREDECESSOR AGENCY, THE CIVIL AERONAUTICS ADMINISTRATION, TO BE RESTORED TO HIS FORMER POSITION AS PROVIDED BY 5 U.S.C. 3551 (5 U.S.C. 30R (B) (1964 ED.) ( AFTER AN EXTENDED PERIOD OF ACTIVE MILITARY DUTY AS A RESERVE OFFICER.

WE ADVISED YOU IN THE DECISION OF APRIL 27, 1966, B-158925, THAT THE RIGHT WHICH IS GIVEN MILITARY RESERVISTS BY THE PROVISION OF LAW NOW CODIFIED AS 5 U.S.C. 3551 TO BE RESTORED TO THE POSITION HELD WHEN CALLED TO ACTIVE DUTY IS NOT SUBJECT TO A TIME LIMIT SUCH AS THAT CONTAINED IN SECTION 9 OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, APPROVED JUNE 24, 1948, CH. 625, 62 STAT. 614, AS AMENDED, 50 U.S.C. APP. 459. NOTE YOUR COMMENTS WITH REGARD TO THE INTENT OF CONGRESS AT THE TIME THE LAW SO CODIFIED WAS ENACTED; HOWEVER, WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THAT PROVISION OR IN THE LEGISLATIVE HISTORIES OF PRIOR SIMILAR PROVISIONS WHICH WOULD JUSTIFY A DETERMINATION THAT 5 U.S.C. 3551 WAS INTENDED TO BE USED AS AUTHORITY FOR RESTORATION OF A FORMER EMPLOYEE TO CIVILIAN DUTY ONLY AFTER A COMPULSORY PERIOD OF MILITARY SERVICE. IN THE ABSENCE OF A DEMONSTRABLE LEGISLATIVE INTENT TO THE CONTRARY WE CONCLUDE THAT 5 U.S.C. 3551 SHOULD BE ENFORCED IN ACCORDANCE WITH THE REASONABLE MEANING THEREOF. THAT SECTION PROVIDES IN CLEAR TERMS FOR THE RESTORATION OF A RESERVIST AFTER ACTIVE MILITARY SERVICE TO THE CIVILIAN POSITION FORMERLY HELD BY HIM. IT CONTAINS NO LIMITATION AS TO THE LENGTH OF THE PERIOD OF MILITARY SERVICE WHICH MAY BE INVOLVED, AND IT DOES NOT PROVIDE THAT THE INDIVIDUAL MUST HAVE RETURNED FROM MILITARY SERVICE AS SOON AS WAS POSSIBLE WITHOUT HAVING VOLUNTARILY EXTENDED HIS PERIOD OF SERVICE. THEREFORE, WE DO NOT FIND A SUFFICIENT BASIS FOR MODIFYING THE DECISION OF APRIL 27, 1966.

THE SPECIFIC CASE WHICH YOU HAVE PRESENTED INVOLVES A FORMER EMPLOYEE WHO WAS SEPARATED FOR THE PURPOSE OF ENTERING MILITARY SERVICE AS A RESERVE OFFICER IN 1951 AND WHO, UPON RELEASE FROM ACTIVE MILITARY DUTY ON DECEMBER 31, 1963, PROMPTLY REQUESTED RESTORATION TO A POSITION WITH YOUR AGENCY. YOU SAY THAT ALTHOUGH SUCH REQUEST DID NOT SPECIFY THE STATUTORY AUTHORITY INVOLVED IT IS CLEAR THAT THE REQUEST WAS MADE UNDER THE PROVISIONS OF SECTION 9 OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT. THAT REQUEST WAS REJECTED BECAUSE THE FORMER EMPLOYEE HAD BEEN AWAY FROM HIS CIVILIAN POSITION FOR A PERIOD IN EXCESS OF THE TIME LIMIT SPECIFIED IN SECTION 9. IN JUNE 1966 THE FORMER EMPLOYEE AGAIN REQUESTED RESTORATION, AND THIS TIME HE SPECIFICALLY REFERRED TO THE PROVISION OF 5 U.S.C. 3551, AND OUR DECISION OF APRIL 27. YOU ASK FOR ADVICE AS TO WHETHER THE FORMER EMPLOYEE'S DELAY IN ASSERTING HIS RIGHT TO RESTORATION UNDER 5 U.S.C. 3551 MAY IN ITSELF BE CONSIDERED SUFFICIENT TO DEFEAT SUCH RIGHT.

WE SEE NO DIFFICULTY WITH AN ADMINISTRATIVE REQUIREMENT THAT A FORMER EMPLOYEE APPLY FOR RESTORATION WITHIN A REASONABLE TIME AFTER HE IS SEPARATED FROM MILITARY SERVICE, IN ORDER TO BE ELIGIBLE FOR THE BENEFITS OF 5 U.S.C. 3551; HOWEVER, WE DO NOT BELIEVE IT NECESSARILY FOLLOWS THAT THE INDIVIDUAL HERE INVOLVED HAS FAILED TO SATISFY SUCH A REQUIREMENT. HIS FIRST REQUEST FOR RESTORATION WAS TIMELY EVEN THOUGH HE MAY HAVE BEEN UNAWARE OF THE RESTORATION RIGHTS GRANTED BY 5 U.S.C. 30R (B) NOW 5 U.S.C. 3551, AND WAS IN FACT RELYING ON SECTION 9 OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT. IN VIEW THEREOF, AND IN VIEW OF THE CONFUSION WHICH EXISTED AT THE TIME CONCERNING THE CIRCUMSTANCES UNDER WHICH 5 U.S.C. 30R (B) WAS FOR APPLICATION, OUR OPINION IS THAT THE DELAY BY THE INDIVIDUAL IN AGAIN REQUESTING RESTORATION IS NOT TO BE CONSIDERED AS A WAIVER OR ABANDONMENT OF HIS RIGHT TO RESTORATION UNDER THAT STATUTE.

CONCERNING ANY CLAIM FOR COMPENSATION BY AN INDIVIDUAL BY REASON OF THE REFUSAL OF AN AGENCY TO COMPLY WITH HIS REEMPLOYMENT RIGHT UNDER 5 U.S.C. 3551, WE ARE NOT AWARE OF ANY STATUTE AUTHORIZING PAYMENT FOR THE LOSS OF COMPENSATION RESULTING THEREFROM. COMPARE THE PROVISIONS OF SECTION 9 OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, WHERE BACK PAY IS AUTHORIZED UPON A DETERMINATION BY THE CIVIL SERVICE COMMISSION THAT THE EMPLOYEE WAS ERRONEOUSLY REFUSED RESTORATION. WE POINT OUT, ALSO, THAT TO OUR KNOWLEDGE NO COURT CASE HAS CONSIDERED THIS ASPECT OF 5 U.S.C. 3551.