B-150304, APR. 28, 1964

B-150304, APR. 28, 1964

TO MR. THOMAS J. BEEBE:

THIS REFERS TO YOUR LETTER OF MARCH 20, 1964, REQUESTING REVIEW OF OUR OFFICE SETTLEMENT DATED MARCH 13, 1964, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION FOR THE PERIOD APRIL 20 THROUGH JUNE 10, 1961, BELIEVED TO BE DUE BY REASON OF THE DELAY IN YOUR REEMPLOYMENT WITH THE DEPARTMENT OF STATE UPON YOUR RETURN FROM A THREE-MONTH PERIOD OF MILITARY TRAINING.

THE RECORD DISCLOSES THAT BY TRAVEL ORDER DATED SEPTEMBER 20, 1960, YOU WERE TO BE TRANSFERRED TO COCHABAMBA, BOLIVIA, AFTER COMPLETING A PERIOD OF HOME LEAVE IN THE UNITED STATES. YOUR TRANSFER TO BOLIVIA EVIDENTLY WAS POSTPONED PENDING YOUR COMPLETION OF ACTIVE DUTY TRAINING DURING THE PERIOD JANUARY 10 THROUGH APRIL 19, 1961. WHILE ON ACTIVE DUTY, YOU NOTIFIED YOUR AGENCY BY LETTER OF JANUARY 27, 1961, THAT YOU WOULD BE UNABLE TO PROCEED TO YOUR NEW POST OF ASSIGNMENT IN BOLIVIA DUE TO YOUR WIFE'S PREGNANCY AND REQUESTED A TRANSFER TO DUTY IN THE DEPARTMENT (PRESUMABLY WASHINGTON, D.C.) UPON YOUR RELEASE FROM ACTIVE DUTY TRAINING.

BY LETTER OF FEBRUARY 10, 1961, YOUR AGENCY ADVISED YOU THAT NO DECISION WOULD BE MADE ON YOUR REQUEST FOR TRANSFER UNTIL YOU AND YOUR DEPENDENTS HAD COMPLETED THE REQUIRED PHYSICAL EXAMINATIONS AND THE REPORTS HAD BEEN RECEIVED FOR REVIEW BY THE MEDICAL DIVISION. THEREAFTER, YOU ATTEMPTED TO COMPLY WITH YOUR AGENCY'S REQUIREMENTS, BUT FOR VARIOUS REASONS NEVER SUCCEEDED IN DOING SO. SINCE YOU AND YOUR FAMILY HAD NOT COMPLETED THE PHYSICAL EXAMINATIONS AS OF APRIL 19, 1961, THE DATE YOU WERE RELEASED FROM TRAINING, YOU WERE CARRIED ON THE ROLLS OF THE STATE DEPARTMENT IN A LEAVE-WITHOUT-PAY STATUS UNTIL JUNE 10, 1961, THE EFFECTIVE DATE OF YOUR RESIGNATION.

IN ACCORDANCE WITH SECTION 9 (G) (4) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, AS AMENDED, 50 U.S.C. APPENDIX 459, AND SECTION 35.301 (A) (2) OF THE CIVIL SERVICE COMMISSION'S REGULATIONS ISSUED PURSUANT THERETO (FEDERAL PERSONNEL MANUAL, PAGE R-6-22), YOU APPEALED TO THE COMMISSION IN FURTHERANCE OF YOUR RIGHT TO RETURN TO WORK. SINCE YOUR LETTER OF APPEAL WAS NOT RECEIVED BY THE COMMISSION UNTIL JANUARY 4, 1962, THE COMMISSION REFUSED TO HEAR YOUR APPEAL ON THE GROUND THAT IT HAD NOT BEEN TIMELY FILED. THIS DETERMINATION WAS UPHELD BY THE CIVIL SERVICE COMMISSION BOARD OF APPEALS AND REVIEW BY LETTER TO YOU OF JULY 2, 1962.

EMPLOYEES OF THE GOVERNMENT ARE ENTITLED TO THE COMPENSATION OR SALARY OF THEIR POSITIONS ONLY FOR THE PERIOD THAT SERVICES ARE RENDERED OR FOR THE PERIODS THEY ARE IN LEAVE-WITH-PAY STATUS, UNLESS SUCH COMPENSATION OR SALARY IS OTHERWISE AUTHORIZED SPECIFICALLY BY LAW. PRIOR TO THE SELECTIVE SERVICE ACT OF JUNE 24, 1948, 62 STAT. 604, RENAMED THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT BY SECTION 1 (A) OF THE ACT OF JUNE 19, 1951, THERE EXISTED NO STATUTORY PROVISIONS FOR GRANTING COMPENSATION OR SALARY TO EMPLOYEES WHO WERE NOT REEMPLOYED OR WHOSE REEMPLOYMENT WAS DELAYED AFTER MILITARY SERVICE. HOWEVER, SECTION 9 OF THE ACT OF JUNE 24, 1948, AS AMENDED, 50 U.S.C. APPENDIX 459, PROVIDES, IN PART, AS FOLLOWS:

"* * * THE CIVIL SERVICE) COMMISSION IS AUTHORIZED AND DIRECTED WHENEVER IT FINDS, UPON APPEAL OF THE PERSON CONCERNED, THAT ANY AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA HAS FAILED OR REFUSES TO COMPLY WITH THE PROVISIONS OF THIS SECTION, TO ISSUE AN ORDER SPECIFICALLY REQUIRING SUCH AGENCY OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA TO COMPLY WITH SUCH PROVISIONS AND TO COMPENSATE SUCH PERSON FOR ANY LOSS OF SALARY OR WAGES SUFFERED BY REASON OF FAILURE TO COMPLY WITH SUCH PROVISIONS, LESS ANY AMOUNTS RECEIVED BY HIM THROUGH OTHER EMPLOYMENT, UNEMPLOYMENT COMPENSATION, OR READJUSTMENT ALLOWANCES * * *"

UNDER THE ABOVE STATUTE THE CIVIL SERVICE COMMISSION HAS BEEN GRANTED THE SOLE AUTHORITY TO DETERMINE WHETHER AN AGENCY HAS FAILED TO PROPERLY RESTORE THE EMPLOYEE TO DUTY AFTER MILITARY SERVICE AND WHETHER THE EMPLOYEE HAS SUFFERED A LOSS OF COMPENSATION BY REASON OF THE AGENCY'S FAILURE TO COMPLY WITH THE RESTORATION PROVISONS OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT. SINCE THE COMMISSION HAS REFUSED TO CONSIDER YOUR APPEAL, OUR OFFICE HAS NO LEGAL BASIS TO ALLOW YOUR CLAIM FOR COMPENSATION UNDER THAT STATUTE. MOREOVER, AS INDICATED IN OUR SETTLEMENT OF MARCH 13, 1964, THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, AUTHORIZING "BACK PAY" IN CERTAIN CASES OF REMOVAL OR SUSPENSION FROM THE SERVICE IS NOT REGARDED AS APPLICABLE IN YOUR CASE. THEREFORE, THE DISALLOWANCE OF YOUR CLAIM MUST BE SUSTAINED.