B-148917, JUL. 2, 1964

B-148917, JUL. 2, 1964

TO MR. ROBERT H. MANLEY:

WE REFER TO YOUR LETTER OF MARCH 17, 1964, CONCERNING THE CLAIM OF YOUR CLIENT MR. JEAN SEIB FOR COMPENSATION IN LIEU OF SUBSISTENCE AND QUARTERS AND THE CLAIM OF THE UNITED STATES FOR REFUND OF COMPENSATION ERRONEOUSLY PAID MR. SEIB. BOTH CLAIMS ARE FOR THE PERIOD MR. SEIB WAS ON LEAVE WITHOUT PAY FROM HIS EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY, LABOR SERVICE FORCES, CAPTIEUX, FRANCE.

THE DEPARTMENT OF THE ARMY HAS REPORTED TO US THAT MR. SEIB WAS ORIGINALLY PLACED ON LEAVE WITHOUT PAY ON OCTOBER 13, 1958, PENDING THE OUTCOME OF AN INVESTIGATION INTO ALLEGATIONS OF MISCONDUCT WHICH HAD BEEN MADE AGAINST HIM. MR. SEIB WAS RETAINED IN A LEAVE WITHOUT PAY STATUS BY PUBLISHED ORDERS OF HEADQUARTERS, UNITED STATES ARMY AMMUNITION DEPOT, CAPTIEUX, FRANCE, UNTIL JULY 9, 1959, EXCEPT FOR A PERIOD OF "ORDINARY" LEAVE ALLOWED HIM IN DECEMBER 1958 AND JANUARY 1959. ON DECEMBER 26, 1958, WHILE ON "ORDINARY" LEAVE MR. SEIB REQUESTED DISCHARGE FROM THE LABOR SERVICE FORCES FOR THE PURPOSE OF RESETTLING IN FRANCE. IN VIEW OF THAT REQUEST THE DEPARTMENT OF THE ARMY DETERMINED THAT NO FURTHER ACTION WOULD BE TAKEN WITH REGARD TO THE ALLEGATIONS OF MISCONDUCT AND PROCEEDINGS WERE BEGUN TO EFFECT HIS DISCHARGE. HOWEVER, SINCE MR. SEIB WAS NOT A FRENCH CITIZEN BUT HAD BEEN BROUGHT INTO FRANCE FROM GERMANY BY THE DEPARTMENT OF THE ARMY, THAT DEPARTMENT WAS REQUIRED TO RETURN HIM TO GERMANY BEFORE HIS DISCHARGE UNLESS THE FRENCH GOVERNMENT HAD PREVIOUSLY AUTHORIZED HIM TO SETTLE IN FRANCE. MR. SEIB WAS DISCHARGED ON SEPTEMBER 7, 1959, HAVING OBTAINED PERMISSION TO RESIDE IN FRANCE. HE WAS PAID $1,188.10 ON OR ABOUT SEPTEMBER 15, 1959, AS COMPENSATION WHICH WOULD HAVE BEEN PAID DURING THE PERIOD OF LEAVE WITHOUT PAY. HE NOW CLAIMS THE VALUE OF SUBSISTENCE AND QUARTERS WHICH WOULD HAVE BEEN FURNISHED IN KIND HAD HE NOT BEEN PLACED ON LEAVE WITHOUT PAY.

AN EMPLOYEE OF THE GOVERNMENT IS ENTITLED TO COMPENSATION ONLY WHEN HE IS IN A DUTY STATUS OR WHEN HE IS ON AUTHORIZED LEAVE WITH PAY. EXCEPTIONS TO THAT RULE ARE PROVIDED BY SECTION 6 OF THE ACT OF AUGUST 24, 1912, CH. 389, 37 STAT. 555, AS AMENDED, 5 U.S.C. 652, APPLICABLE TO CLASSIFIED (COMPETITIVE) CIVIL SERVICE EMPLOYEES AND TO EMPLOYEES ENTITLED TO VETERANS PREFERENCE AND BY THE ACT OF AUGUST 26, 1950, CH. 803, 64 STAT. 476, 5 U.S.C. 22-1, IN CERTAIN SECURITY CASES, HOWEVER, THOSE PROVISIONS DO NOT COVER EMPLOYEES SUCH AS MR. SEIB. THEREFORE, THE DEPARTMENT OF THE ARMY WAS NOT AUTHORIZED TO ALLOW BACK PAY TO MR. SEIB AND THE AMOUNT THEY ALLOWED MUST BE REFUNDED. SIMILARLY HE IS NOT ENTITLED TO ANY ALLOWANCE FOR SUBSISTENCE AND QUARTERS DURING THE PERIOD HE WAS NOT IN A DUTY STATUS, SUBSISTENCE IN KIND BEING A PART OF THE COMPENSATION PRESCRIBED FOR HIS POSITION. IN THAT CONNECTION WE NOTE THAT THE ACTION OF HEADQUARTERS, UNITED STATES ARMY AMMUNITION DEPOT, CAPTIEUX, FRANCE, IN ALLOWING MR. SEIB LEAVE WITHOUT PAY IN VIOLATION OF ADMINISTRATIVE REGULATIONS REGARDING THE GRANTING OF SUCH LEAVE TO LABOR SERVICE FORCES EMPLOYEES DOES NOT MAKE THE RETROACTIVE PAYMENT OF SALARY LEGAL SINCE THERE IS NO STATUTORY AUTHORITY FOR SUCH PAYMENT. SEE B-140969, B-141249, FEBRUARY 1, 1962, 41 COMP. GEN. 499, COPY ENCLOSED.

FOR THE REASONS STATED MR. SEIB IS NOT ENTITLED TO ADDITIONAL PAYMENT FOR QUARTERS AND SUBSISTENCE WHILE HE WAS IN A LEAVE WITHOUT PAY STATUS AND HE IS INDEBTED TO THE UNITED STATES FOR THE COMPENSATION WHICH WAS PAID HIM FOR THAT PERIOD IN THE AMOUNT OF $1,188.10.

THE SETTLEMENT OF OUR CLAIMS DIVISION OF JUNE 28, 1962, WAS CORRECT AND MUST BE SUSTAINED. PAYMENT OF THE AMOUNT DUE SHOULD BE MADE IN ACCORDANCE WITH OUR CLAIMS DIVISION LETTER OF NOVEMBER 15, 1963.