B-143187, JUL. 18, 1960

B-143187, JUL. 18, 1960

TO MR. LAWRENCE M. LEE:

THIS REFERS TO YOUR LETTER OF MAY 26, 1960, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED DECEMBER 3, 1959. THAT SETTLEMENT DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES ALLEGED TO BE DUE FOR (1) MILEAGE (INCLUDING PER DIEM IN LIEU OF SUBSISTENCE) FOR TRAVEL YOU PERFORMED JULY 1-4, 1959; AND (2) FOR THE TRANSPORTATION OF YOUR HOUSEHOLD GOODS FROM PHOENIX, ARIZONA, TO FOSTER,OREGON, IN CONNECTION WITH YOUR EMPLOYMENT WITH THE UNITED STATES FOREST SERVICE, REGION 6, DEPARTMENT OF AGRICULTURE, PORTLAND, OREGON.

OUR RECORDS SHOW THAT EFFECTIVE JULY 6, 1959, YOU WERE GIVEN A CAREER- CONDITIONAL (PROBATIONAL) APPOINTMENT AS HIGHWAY ENGINEER, GRADE GS-7, $5,430 PER ANNUM, WITH THE UNITED STATES FOREST SERVICE, AND ASSIGNED TO DUTY IN REGION 6, PORTLAND, OREGON. PRIOR TO YOUR APPOINTMENT, TRAVEL AUTHORIZATION NO. 20-R6-267, DATED JUNE 26, 1959, DIRECTED YOU TO PROCEED TO THE NEW DUTY STATION BY PRIVATELY OWNED AUTOMOBILE FOR WHICH YOU WERE ELIGIBLE TO RECEIVE MILEAGE AT THE RATE OF 5 CENTS PER MILE, PLUS A PER DIEM ALLOWANCE OF $12 PER DAY WHILE EN ROUTE. YOUR TRAVEL AUTHORIZATION ALSO INCLUDED AUTHORITY FOR THE TRANSPORTATION OF YOUR HOUSEHOLD GOODS TO FOSTER, OREGON, AT GOVERNMENT EXPENSE.

YOUR PROBATIONAL APPOINTMENT AS HIGHWAY ENGINEER FOR DUTY WITHIN THE UNITED STATES WAS IN ACCORD WITH THE PROVISIONS OF SECTION 7, SUBSECTION (B), OF THE ACT OF AUGUST 2, 1946 (60 STAT. 808), AS AMENDED BY THE ACT OF AUGUST 25, 1958 (72 STAT. 843), 5 U.S.C. 73B-3, WHICH READS, IN PERTINENT PART, AS FOLLOWS:

"* * * TRAVEL AND TRANSPORTATION EXPENSES MAY BE ALLOWED WHETHER THE PERSON SELECTED FOR APPOINTMENT HAS BEEN APPOINTED OR NOT AT THE TIME OF SUCH TRAVEL. HOWEVER, THE TRAVEL AND TRANSPORTATION EXPENSES AUTHORIZED BY THIS SUBSECTION SHALL NOT BE ALLOWED UNLESS THE PERSON SELECTED FOR APPOINTMENT SHALL AGREE IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR TWELVE MONTHS FOLLOWING HIS APPOINTMENT UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. IN CASE OF VIOLATION OF SUCH AGREEMENT, ANY MONEYS EXPENDED BY THE UNITED STATES ON ACCOUNT OF SUCH TRAVEL AND TRANSPORTATION SHALL BE RECOVERABLE FROM THE INDIVIDUAL CONCERNED AS A DEBT DUE THE UNITED STATES.'

ON JUNE 2, 1959--- IN COMPLIANCE WITH THE ABOVE-QUOTED STATUTORY PROVISIONS--- YOU EXECUTED AN AGREEMENT WHEREIN YOU AGREED TO REMAIN IN THE GOVERNMENT SERVICE FOR A PERIOD OF 12 MONTHS FOLLOWING YOUR APPOINTMENT UNLESS INVOLUNTARILY SEPARATED. THE LAST SENTENCE OF THAT AGREEMENT READS:

"* * * IF THIS AGREEMENT IS VIOLATED, I UNDERSTAND THAT THE COST OF THE TRANSFER WILL BE RECOVERED BY THE AGENCY.'

YOU PERFORMED THE TRAVEL AUTHORIZED IN YOUR AUTOMOBILE AND YOUR HOUSEHOLD EFFECTS, WEIGHING 700 POUNDS, WERE TRANSPORTED IN A RENTED TRAILER TOWED BEHIND. IT IS ADMINISTRATIVELY REPORTED THAT YOU ENTERED ON DUTY AT THE PLACE DESIGNATED ON JULY 6, AND THAT YOU WERE SEPARATED FROM YOUR POSITION EFFECTIVE JULY 30, 1959, AFTER HAVING BEEN RETAINED IN A PAY STATUS ONLY 29 HOURS (JULY 6-9), AND IN A LEAVE WITHOUT-PAY STATUS FOR THE REMAINING PERIOD FROM JULY 9 THROUGH 30, 1959. YOU WERE REMOVED FROM YOUR POSITION BECAUSE OF UNSATISFACTORY SERVICE (DISQUALIFICATION), AS A RESULT OF YOUR REFUSAL TO PERFORM WORK ASSIGNMENTS AS DIRECTED BY YOUR SUPERVISOR.

NOT HAVING FULFILLED THE TERMS OF YOUR EMPLOYMENT AGREEMENT AND SINCE YOUR REMOVAL (SEPARATION) FROM THE FEDERAL SERVICE WAS FOR CAUSE, IT NECESSARILY FOLLOWS THAT NO RIGHT TO REIMBURSEMENT ACCRUED TO YOU FOR THE TRAVEL AND TRANSPORTATION EXPENSES CLAIMED.

IN YOUR RECENT LETTER YOU SAY THAT AFTER TRAVELING FROM PHOENIX TO YOUR DUTY STATION AND WORKING FOUR DAYS, YOUR PAY WAS TERMINATED AND YOU WERE OFFICIALLY ADVISED THAT THE POSITION OF HIGHWAY ENGINEER DID NOT EXIST. CONTRARY TO YOUR CONTENTION, HOWEVER, THE EVIDENCE ON FILE HERE SHOWS THAT SINCE YOU WERE UNWILLING TO COMPLETE YOUR EMPLOYMENT AGREEMENT AND REFUSED TO PERFORM THE WORK ASSIGNMENTS REQUIRED WHILE EMPLOYED AS A MEMBER OF A ROAD SURVEY CREW, THE FOREST SERVICE HAD NO ALTERNATIVE OTHER THAN TO TERMINATE YOUR EMPLOYMENT AND SEPARATE YOU FROM THE FEDERAL SERVICE. MOREOVER, OUR RECORD SHOWS THAT YOUR REMOVAL FROM THE SERVICE DURING YOUR PROBATIONARY PERIOD WAS IN ACCORD WITH CIVIL SERVICE REGULATIONS, AND WAS EFFECTED AFTER VARIOUS OFFICIALS OF THE FOREST SERVICE ON NUMEROUS OCCASIONS HAD ENDEAVORED TO PERSONALLY EXPLAIN THE WORK OF THE FOREST SERVICE AND, ALSO THE DUTIES YOU WOULD BE ASSIGNED AND EXPECTED TO PERFORM AS A PART OF YOUR INITIAL TRAINING DURING SUCH PROBATIONARY PERIOD.

IN THE CIRCUMSTANCES, AND SINCE YOUR SEPARATION WAS NOT FOR REASONS BEYOND YOUR CONTROL AND NOT ACCEPTABLE TO THE FOREST SERVICE, NO BASIS EXISTS FOR THE PAYMENT OF YOUR CLAIM. CONSEQUENTLY, THE SETTLEMENT OF DECEMBER 3, 1959, MUST BE AND IS SUSTAINED.