B-127525, MAY 16, 1956

B-127525, MAY 16, 1956

TO MRS. MARIANNE L. EDWARDS:

YOUR RECENT LETTER REQUESTS REVIEW OF OUR SETTLEMENT OF MARCH 15, 1956, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION FOR THE PERIOD APRIL 15, 1954, TO AUGUST 11, 1955, DURING WHICH PERIOD YOU ALLEGE YOU WERE SUSPENDED AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, HEADQUARTERS, AIR DEFENSE COMMAND, COLORADO SPRINGS, COLORADO.

A REVIEW OF THE RECORD SHOWS THAT THE DEPARTMENT OF THE AIR FORCE REPORTED TO OUR OFFICE THAT NO SUSPENSION WAS ORDERED IN YOUR CASE, BUT THAT YOU WERE IN A VOLUNTARY LEAVE-WITHOUT-PAY STATUS FOR THE PERIOD INVOLVED. SINCE THERE WAS NO LEGAL BASIS FOR AUTHORIZING PAYMENT OF COMPENSATION TO YOU FOR THE PERIOD OF LEAVE WITHOUT PAY, YOUR CLAIM WAS DISALLOWED, AS ADMINISTRATIVELY RECOMMENDED.

IN YOUR REQUEST FOR REVIEW YOU STATE, IN SUBSTANCE, THAT YOU WERE REMOVED FROM YOUR SENSITIVE POSITION AT THE ABOVE INSTALLATION AS A "SECURITY RISK; " YOU PREFERRED NOT TO REMAIN IN ANOTHER POSITION IN WHICH YOU WERE PLACED BECAUSE YOU LACKED THE QUALIFICATIONS THEREFOR; THE DEPARTMENT OF THE AIR FORCE PLACED YOU UNDER SUSPENSION AND ADVISED YOU THAT THERE WAS NO POSSIBILITY OF EMPLOYMENT AT THE INSTALLATION UNTIL WHICH TIME AS YOU WOULD BE CLEARED; AND, THAT YOU WERE ,TRICKED" INTO SIGNING THE APPLICATION FOR LEAVE WITHOUT PAY.

YOUR ABOVE STATEMENTS REGARDING THE SUSPENSION AND THE MEANS EMPLOYED IN PLACING YOU IN A LEAVE-WITHOUT-PAY STATUS ARE AT VARIANCE WITH THE FACTS OF THE CASE AS REPORTED TO US BY THE DEPARTMENT OF THE AIR FORCE. IN THIS CONNECTION YOU MAY BE INFORMED THAT UNDER DATE OF NOVEMBER 21, 1955, THE DEPARTMENT ADVISED US IN PART AS FOLLOWS:

"SINCE THE AIR FORCE DID NOT SUSPEND MRS. EDWARDS AND SHE PERFORMED NO WORK FROM APRIL 1954 TO AUGUST 1955, IT APPEARS THAT THERE IS NO LEGAL BASIS FOR PAYMENT OF SALARY DURING THE PERIOD. THERE IS NO EVIDENCE TO SHOW THE EMPLOYEE WAS FORCED TO APPLY FOR LEAVE WITHOUT PAY IN LIEU OF SUSPENSION. SHE WAS OFFERED A POSITION FOR WHICH SHE QUALIFIED BY REASON OF TRAINING, AND WHICH SHE REJECTED AFTER A SINGLE DAY'S TRIAL. THIS OFFER APPEARS TO BE AN HONEST EFFORT ON THE PART OF THE EMPLOYING OFFICE TO UTILIZE HER SERVICES UNTIL SUCH TIME AS SECURITY CLEARANCE WAS RECEIVED. * * *"

WHERE CONFLICTS OF FACTS ARISE BETWEEN ALLEGATIONS OF A CLAIMANT AND THE OFFICIAL RECORDS OF THE ADMINISTRATIVE OFFICE CONCERNED, THE LATTER NECESSARILY ARE PRESUMED TO BE CORRECT IN THE ABSENCE OF CONCLUSIVE EVIDENCE TO THE CONTRARY. THE UNSUPPORTED STATEMENTS APPEARING IN YOUR LETTER MAY NOT BE VIEWED AS OVERCOMING THE PRESUMPTION OF THE CORRECTNESS OF THE ADMINISTRATIVE REPORT IN THIS MATTER.

FURTHERMORE, ASSUMING THAT THE DEPARTMENT OF THE AIR FORCE DID SUSPEND YOU FROM THE SERVICE AS YOU ALLEGE, SUCH ACTION WOULD NOT AFFORD A BASIS FOR THE PAYMENT OF YOUR CLAIM. UNDER THE ACT OF AUGUST 26, 1950, 64 STAT. 476, THE SECRETARY OF THE AIR FORCE IS AUTHORIZED TO SUSPEND WITHOUT PAY ANY OFFICER OR EMPLOYEE OF HIS DEPARTMENT WHEN DEEMED IN THE INTEREST OF NATIONAL SECURITY. SECTION 1 OF THAT ACT FURTHER PROVIDES IN PERTINENT PART AS FOLLOWS:

"* * * THAT ANY PERSON WHOSE EMPLOYMENT IS SO SUSPENDED OR TERMINATED UNDER THE AUTHORITY OF THIS ACT MAY, IN THE DISCRETION OF THE AGENCY HEAD CONCERNED, BE REINSTATED OR RESTORED TO DUTY, AND IF SO REINSTATED OR RESTORED SHALL BE ALLOWED COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUCH SUSPENSION OR TERMINATION * * *.'

THE DISCRETION VESTED IN THE DEPARTMENT OF THE AIR FORCE UNDER THE ABOVE PROVISION INCLUDES NOT ONLY A DETERMINATION WHETHER AN EMPLOYEE SHOULD BE RESTORED TO DUTY, BUT, ALSO, WHETHER AN EMPLOYEE SO RESTORED SHALL RECEIVE COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF THE SUSPENSION FROM DUTY. IN VIEW OF THE ADMINISTRATIVE DISAPPROVAL OF THE CLAIM, IT FOLLOWS THAT YOU WOULD BE PRECLUDED BY THE ACT FROM PAYMENT OF COMPENSATION FOR THE PERIOD OF SUSPENSION.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND, UPON REVIEW, THE SETTLEMENT OF MARCH 15, 1956, IS SUSTAINED.