B-153737, MAY 4, 1964

B-153737, MAY 4, 1964

TO MRS. VIRGIE B. MORTON, AUTHORIZED CERTIFYING OFFICER, COAST AND GEODETIC SURVEY:

THIS REFERS TO YOUR LETTER OF MARCH 9, 1964, REFERENCE NO. L-3221, WHEREIN YOU REQUEST OUR DECISION WHETHER THE CLAIM OF MR. WALTER L. COLSON, AN EMPLOYEE OF THE COAST AND GEODETIC SURVEY MAY BE PAID. WHILE A VOUCHER WAS NOT SUBMITTED YOU INDICATE THE MATTER IS BEFORE YOU FOR DISPOSITION.

THE INFORMATION FURNISHED SHOWS THAT MR. COLSON WAS SEPARATED FROM THE COAST AND GEODETIC SURVEY ON AUGUST 18, 1963. AFTER A HEARING HE WAS REINSTATED ON NOVEMBER 4, 1963, AND WAS PAID BACK PAY DUE HIM FOR THE PERIOD OF THE SEPARATION LESS $588.33, THE AMOUNT EARNED THROUGH OTHER EMPLOYMENT DURING THIS PERIOD.

OF THE $588.33 WITHHELD FROM THE BACK SALARY DUE MR. COLSON, AS THE AMOUNT EARNED THROUGH OTHER EMPLOYMENT, $203.33 WAS EARNED FROM THE HANDLEY MOTOR CO., $35 FROM FRANCIS AND PARSONS, INC., AND $350 FROM CHERNER-SHIRLINGTON MOTOR CO. THE RECORD SHOWS THAT PRIOR TO HIS SEPARATION HE WORKED OUTSIDE OF HIS DUTY HOURS WITH THE GOVERNMENT FOR THE HANDLEY MOTOR CO., AND FRANCIS AND PARSONS, INC., AND CONTINUED TO DO SO SUBSEQUENT TO HIS SEPARATION. HOWEVER, THE INFORMATION FURNISHED SHOWS THAT THE FIRST INDICATION THAT HE WORKED FOR THE CHERNER-SHIRLINGTON MOTOR CO., WAS SEPTEMBER 5, 1963, OR SUBSEQUENT TO HIS SEPARATION.

SECTION 6 (B) (1) OF THE ACT OF JUNE 10, 1948, 62 STAT. 355, 5 U.S.C. 652, AUTHORIZES BACK PAY TO AN EMPLOYEE FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION AS A RESULT OF HIS UNWARRANTED OR UNJUSTIFIED SEPARATION FROM THE SERVICE. THE COMPENSATION PAYABLE IS AT THE RATE RECEIVED ON THE DATE OF SUCH DISCHARGE, BUT THERE IS FOR DEDUCTION "ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD.' COMPUTING BACK PAY FOR A PERIOD OF UNWARRANTED OR UNJUSTIFIED SEPARATION WE FOLLOW THE RULING IN THE CASE OF JACKSON V. UNITED STATES, 121 CT.CL. 405. IN THE JACKSON CASE, THE COURT HELD THAT AMOUNTS EARNED BY THE PLAINTIFF AS A STEWARD DURING THE PERIOD OF HIS DISCHARGE SHOULD NOT BE CHARGED AGAINST THE AMOUNT DUE HIM AS BACK PAY BECAUSE AT THE TIME OF HIS DISCHARGE, AND APPROXIMATELY 3 YEARS PRIOR THERETO, HE WAS ALREADY ENGAGED IN THIS EMPLOYMENT, IN ADDITION TO HIS DUTIES WITH THE GOVERNMENT. ACCORDINGLY, SINCE THE RECORD SHOWS THAT MR. COLSON WAS EMPLOYED BY THE HANDLEY MOTOR CO., AND FRANCIS AND PARSONS, INC., PRIOR TO HIS SEPARATION HE WOULD BE ENTITLED TO A REFUND OF THE MONIES EARNED WITH THOSE COMPANIES SUBSEQUENT TO HIS SEPARATION WHICH WAS DEDUCTED FROM BACK PAY DUE HIM AT THE TIME OF HIS REINSTATEMENT. HOWEVER, AS IT APPEARS FROM THE RECORD THAT HE STARTED WORKING FOR THE CHERNER-SHIRLINGTON MOTOR CO., AFTER HIS SEPARATION IT WAS PROPER TO DEDUCT HIS EARNINGS WITH THAT COMPANY FROM HIS BACK PAY.