B-157005, AUG. 18, 1965

B-157005, AUG. 18, 1965

TO MR. EDWARD D. PADGETT:

THIS REFERS TO YOUR VARIOUS CLAIMS PRESENTLY BEFORE OUR OFFICE. THE CLAIMS WILL BE CONSIDERED IN THE ORDER RECEIVED.

1. COMPENSATION FOR DAMAGES ARISING FROM ALLEGED PIRACY OF PERSONAL EFFECTS AND MATERIAL. THE RECORD SHOWS THAT WHEN SUSPENSION OF YOUR SECURITY CLEARANCE WAS REVOKED ON SEPTEMBER 11, 1964, THE COMBINATION OF A CONTAINER CONTAINING CLASSIFIED INFORMATION TO WHICH YOU PREVIOUSLY HAD ACCESS WAS CHANGED. A SEARCH WAS MADE TO LOCATE AND ACCOUNT FOR ALL CLASSIFIED DOCUMENTS HELD BY YOU. ALL SUCH MATERIAL WAS ACCOUNTED FOR AND TRANSFERRED TO OTHER PERSONNEL. AT THE REQUEST OF YOUR ATTORNEY A SEARCH WAS MADE FOR SAME PERSONAL PROPERTY WHICH YOU ALLEGED WAS IN YOUR CONTAINER. A SEARCH WAS MADE FOR THIS PROPERTY IN THE PRESENCE OF YOURSELF AND A REPRESENTATIVE OF THE AFGE WHO ACCOMPANIED YOU TO THE ARSENAL. YOU REFUSED TO PERSONALLY EXAMINE THE CONTENTS OF THE CONTAINER OR TO MAKE AN INVENTORY TO DETERMINE IF THE ALLEGED MATERIAL WAS ACTUALLY PRESENT, BUT YOU DID CALL FOR SEVERAL SPECIFIC DOCUMENTS AND FOLDERS TO BE REMOVED FROM THE CONTAINER BY THE PRESENT CUSTODIAN. SOME OF THE DOCUMENTS CALLED FOR WERE LOCATED AND WERE GIVEN TO INDIVIDUALS DESIGNATED BY YOU WHO WERE FORMERLY YOUR COWORKERS AND TO WHOM THE MATERIAL BELONGED.

THEREFORE, SINCE YOU HAD AMPLE OPPORTUNITY TO EXAMINE THE CONTENTS OF THE CONTAINER AND SUBMIT AN ITEMIZED LIST OF ALL PERSONAL EFFECTS AND MATERIAL WHICH YOU BELIEVED WERE BEING WITHHELD, NO GROUNDS EXIST FOR YOUR CLAIM FOR DAMAGES. FURTHERMORE, IT IS NOT WITHIN THE JURISDICTION OF OUR OFFICE TO CONSIDER CLAIMS FOR DAMAGES FOR LOSS OF PERSONAL PROPERTY OF EMPLOYEES OF THE DEPARTMENT OF THE ARMY. ANY SUCH CLAIMS WOULD BE FOR CONSIDERATION BY THE DEPARTMENT OF THE ARMY AND THE SETTLEMENT THEREOF WOULD BE FINAL AND CONCLUSIVE. SEE 10 U.S.C. 2732, 2735.

2. COMPENSATION FOR ALLEGED IMPROPER COMPUTATION OF REIMBURSEMENT FOR OFFICIAL TRAVEL ON APRIL 16 AND 17, 1964. BY TRAVEL ORDER DATED APRIL 14, 1964, YOU WERE AUTHORIZED TO TRAVEL FROM MORRISTOWN, NEW JERSEY, TO OSWEGO, NEW YORK, AND RETURN FOR THE PERFORMANCE OF TEMPORARY DUTY. TRAVEL WAS ACTUALLY PERFORMED FROM MORRISTOWN, NEW JERSEY, TO ITHACA, NEW YORK, AND RETURN. YOU WERE AUTHORIZED TO TRAVEL BY AIR OR PRIVATELY-OWNED AUTOMOBILE WITH REIMBURSEMENT LIMITED TO COST TO THE GOVERNMENT OF TRAVEL BY USUAL MODE OF TRANSPORTATION. THE TRAVEL ORDER ALSO AUTHORIZED $8 PER DIEM (ONE DAY TRAVEL) AND 10 CENTS PER MILE BY PRIVATELY-OWNED AUTOMOBILE. YOU LEFT HOME BY PRIVATELY-OWNED AUTOMOBILE AT 7:30 A.M. ON APRIL 16 AND RETURNED AT 12:30 A.M., APRIL 17, 1964. YOU WERE ALLOWED $45.60 FOR MILEAGE AND PER DIEM WHICH WAS LESS THAN THE COST OF COMMON CARRIER OF APPROXIMATELY $56.70. THE MILEAGE, 396 MILES AT 10 CENTS PER MILE, WAS BASED ON THE RAND MCNALLY STANDARD MILEAGE GUIDE. UNDER SECTION 3.5B OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS RELATING TO MILEAGE FOR TRAVEL BY PRIVATELY-OWNED AUTOMOBILE, PAYMENT MAY NOT BE MADE FOR MILEAGE IN EXCESS OF THAT SHOWN IN STANDARD HIGHWAY MILEAGE GUIDES AS THE DISTANCE BETWEEN THE AUTHORIZED POINTS OF TRAVEL IN THE ABSENCE OF AN EXPLANATION AS TO THE OFFICIAL NECESSITY FOR TRAVELING THE LONGER DISTANCE. SEE ALSO 26 COMP. GEN. 463. YOU WERE ALLOWED 3/4 DAY PER DIEM OR $6. A SUPPLEMENTAL CLAIM WAS SUBMITTED BY YOU ON MAY 13, 1964, FOR A TOTAL AMOUNT OF $52.30, REPRESENTING AN INCREASE OF $6.70 FROM THE AMOUNT PAID ON THE ORIGINAL CLAIM. OF THIS INCREASE $2 REPRESENTED AN ADDITIONAL QUARTER DAY WHICH WAS DISALLOWED UNDER THE PROVISIONS OF PARAGRAPH 7-8F3 (B) OF CPR T3.7. THE REMAINDER REPRESENTED A CLAIM FOR TAXICAB FARE AND TOLL CHARGES. UNDER PARAGRAPH 7-8F3 (B) OF CPR T3.7, WHEN THE TIME OF RETURN IS WITHIN 30 MINUTES AFTER THE BEGINNING OF A QUARTER DAY, PER DIEM FOR SUCH QUARTER DAY SHALL NOT BE ALLOWED IN THE ABSENCE OF A STATEMENT WITH THE TRAVEL VOUCHER EXPLAINING THE NECESSITY FOR THE TIME OF THE RETURN. IN VIEW OF THE MILEAGE TRAVELED DURING THE ONE DAY AND ALSO THE PERFORMANCE OF TEMPORARY DUTY WE FEEL THAT THIS IN ITSELF IS EXPLANATION ENOUGH FOR THE RETURN AT 12:30 A.M. AND WE ARE AUTHORIZING OUR CLAIMS DIVISION TO ISSUE A SETTLEMENT IN YOUR FAVOR IN THE AMOUNT OF $2 REPRESENTING AN ADDITIONAL QUARTER DAY PER DIEM.

SINCE YOU WERE AUTHORIZED THE USE OF YOUR PRIVATELY-OWNED AUTOMOBILE NO JUSTIFIABLE REASON COULD BE ASCERTAINED FOR USE OF A TAXICAB BETWEEN BINGHAMPTON AND OSWEGO AND THIS AMOUNT WAS DISALLOWED. HOWEVER, YOU WERE REIMBURSED AT THE RATE OF 10 CENTS PER MILE BETWEEN THOSE POINTS IN SETTLEMENT OF YOUR ORIGINAL CLAIM. THE SUPPLEMENTAL CLAIM FOR 50 CENTS TOLL CHARGE FOR THE BRIDGE AT THE DELAWARE WATER GAP WAS ALLOWED AND A CHECK FOR 50 CENTS WAS ISSUED IN YOUR FAVOR.

3. ALLEGED IMPROPER CHARGE OF ABSENCE WITHOUT LEAVE AND ENFORCED ANNUAL LEAVE. ON SEPTEMBER 18, 1964, AT 4 P.M. AN ATTEMPT WAS MADE TO CONTACT YOU AT YOUR WORK SITE. YOU WERE NOT PRESENT THERE NOR DID YOUR SUPERVISOR HAVE KNOWLEDGE OF YOUR WHEREABOUTS NOR DID YOU REPORT BACK TO WORK BY 4:30 P.M. THAT DAY. YOU WERE CARRIED IN AN ABSENCE WITHOUT LEAVE STATUS FOR ONE-HALF HOUR FROM THE PERIOD 4 P.M. TO 4:30 P.M. FOR THAT DAY.

AT APPROXIMATELY 8:10 A.M. ON SEPTEMBER 21, 1964, YOU CALLED MR. SUOZZO AND MR. R. DRUMMOND ANSWERED THE TELEPHONE IN MR. SUOZZO'S ABSENCE. YOU STATED YOU WANTED TO INFORM MR. SUOZZO THAT YOU WERE AT WORK AND HAD AN APPOINTMENT IN STATEN ISLAND AND THAT YOU WERE TO REPORT TO BUILDING 151 FOR TRANSPORTATION. YOU NOTED AND INITIALED IN A LOG BOOK ENTRY THAT AT 9 A.M. THAT SAME DAY YOU PROCEEDED TO BUILDING 151 AND STATEN ISLAND FOR AN UNKNOWN LENGTH OF TIME. YOU DID NOT KEEP YOUR APPOINTMENT IN BUILDING 151 AT 10 A.M. AS DIRECTED. A FURTHER CHECK WITH THE POST HOSPITAL REPORTED THAT YOU HAD NOT REPORTED THERE AT ALL. A SUBSEQUENT CONTACT WITH THE U. S. PUBLIC HEALTH SERVICE HOSPITAL AT STAPLETON, STATEN ISLAND, REVEALED THAT THERE WAS NO RECORD OF YOUR HAVING BEEN THERE. YOU WERE CARRIED IN AN ABSENCE WITHOUT LEAVE STATUS FOR 6 HOURS FROM 10 A.M. TO 4:30 P.M. ON SEPTEMBER 21, 1964.

THE INFORMATION FURNISHED US BY THE DEPARTMENT OF THE ARMY IS THAT YOU WERE CHARGED 3 HOURS ANNUAL LEAVE ON APRIL 12, 1965, BECAUSE YOU REPORTED FOR DUTY AT 10:40 A.M. ON THAT DATE. THE CHARGE TO ANNUAL LEAVE ON APRIL 12 WAS DIRECTED BY YOUR SUPERVISOR AFTER DETERMINING THAT YOUR ABSENCE WAS DUE TO YOUR GOING TO NEWARK, NEW JERSEY, IN CONNECTION WITH PERSONAL BUSINESS YOU HAD WITH THE TREASURY DEPARTMENT. ALTHOUGH YOU HAD NOT REQUESTED ANNUAL LEAVE TO COVER YOUR ABSENCE AND REFUSED TO INITIAL YOUR TIME CARD YOUR SUPERVISOR DECIDED TO CHARGE THE TIME TO ANNUAL LEAVE SINCE WORKLOAD CONDITIONS PERMITTED YOUR ABSENCE AND THE ALTERNATE DECISION TO CHARGE THE ABSENCE TO AWOL WAS NOT CONSIDERED IN YOUR BEST INTEREST OR THE GOVERNMENT'S UNDER THE CIRCUMSTANCES. SINCE YOU HAD SUFFICIENT ANNUAL LEAVE CREDITS TO COVER THE PERIOD CHARGED, NO DEDUCTION WAS MADE IN YOUR PAY CHECK COVERING THE PAY PERIOD IN WHICH THE ANNUAL LEAVE CHARGE WAS MADE.

THE INSTRUCTIONS OF THE CIVIL SERVICE COMMISSION, FEDERAL PERSONNEL MANUAL, SUPPLEMENT 990-2, BOOK 630, SUBCHAPTERS S1 AND S3, CONCERNING ABSENCE WITHOUT LEAVE AND ANNUAL LEAVE, PAGES 4 AND 17, PARAGRAPHS 5 AND 4B, RESPECTIVELY, READ IN PART AS FOLLOWS:

"AN ABSENCE FROM DUTY WHICH WAS NOT AUTHORIZED OR APPROVED OR FOR WHICH A LEAVE REQUEST HAS BEEN DENIED IS CHARGED ON THE LEAVE RECORD AS "ABSENT WITHOUT LEAVE.' PAY IS WITHHELD FOR THE ENTIRE PERIOD OF SUCH ABSENCE * *

"* * * THE ANNUAL LEAVE PROVIDED FOR IN THIS SECTION INCLUDING SUCH LEAVE AS WILL ACCRUE TO ANY OFFICER OR EMPLOYEE DURING THE YEAR, MAY BE GRANTED AT ANY TIME DURING SUCH YEAR AS THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS MAY PRESCRIBE.'

WE HAVE RULED CONSISTENTLY THAT THE GRANTING OF ANNUAL LEAVE OR THE PLACING OF AN EMPLOYEE IN AN ABSENCE WITHOUT LEAVE STATUS IS WITHIN ADMINISTRATIVE DISCRETION IN RESPECT OF ANY PERIOD OF TIME, AND THAT IT IS LEGALLY PROPER FOR AN ADMINISTRATIVE OFFICE TO CHARGE AN EMPLOYEE ANNUAL LEAVE OR PLACE HIM IN AN ABSENCE WITHOUT LEAVE STATUS FOR PERIODS DURING WHICH HE IS VOLUNTARILY ABSENT FROM AN OFFICIAL DUTY STATUS. IT IS IMMATERIAL, IN SUCH CASES, THAT THE EMPLOYEE HAD NOT REQUESTED THE LEAVE. SEE 24 COMP. GEN. 357, 360; 31 ID. 581, 586; 32 ID. 204; 40 ID. 312, 314; 44 ID. 274.

IN VIEW OF THE FOREGOING IT WOULD APPEAR THAT THE ADMINISTRATIVE OFFICIALS ACTED WITHIN THE LIMITS OF THEIR DISCRETIONARY AUTHORITY IN PLACING YOU ON ANNUAL LEAVE OR AN ABSENCE WITHOUT LEAVE STATUS WITHOUT YOUR CONSENT AND AS A CONSEQUENCE NO PROPER BASIS EXISTS FOR OUR OFFICE TO REQUEST OR AUTHORIZE A RECREDITING OF THE ANNUAL LEAVE OR TO REIMBURSE YOU FOR THE PERIOD WHEN YOU WERE IN AN ABSENCE WITHOUT LEAVE STATUS ADMINISTRATIVELY CHARGED FOR THE PERIODS OF ABSENCE.

CONCERNING YOUR STATEMENT THAT THE PICATINNY ARSENAL REFUSED TO ACCEPT YOUR MAIL, WE HAVE BEEN INFORMED BY THE ADMINISTRATIVE OFFICE THAT SPECIFIC INSTRUCTIONS WERE ISSUED TO YOU THAT COMMUNICATIONS RELATING TO GRIEVANCES SHOULD BE ADDRESSED TO THE PERSONNEL OFFICER. HOWEVER, YOU INSISTED ON ADDRESSING SUCH CORRESPONDENCE TO THE COMMANDING OFFICER IN PERSON BY REGISTERED OR CERTIFIED MAIL. THIS REQUIRED THE COMMANDING OFFICER TO OPEN THE MAIL PERSONALLY. AFTER SEVERAL MONTHS OF BEING SUBJECTED TO A CONTINUOUS FLOW OF SUCH LETTERS FROM YOU THE COMMANDING OFFICER ON MAY 24, 1965, DIRECTED THE CHIEF OF RECORDS AND MAIL SERVICES BRANCH TO REFUSE ALL CERTIFIED OR REGISTERED MAIL FROM YOU ADDRESSED TO THE COMMANDING OFFICER PERSONALLY.

YOU WILL RECEIVE A CHECK FOR THE $2 PREVIOUSLY MENTIONED AND WE ARE RETURNING HEREWITH TREASURY CHECK NO. 1,410,236, DATED MAY 26, 1964, DRAWN IN YOUR FAVOR BY W. R. KELLY, SPECIAL DISBURSING AGENT IN THE AMOUNT OF 50 CENTS.