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B-186963 1 (1977-03-04)

handle is hein.gao/gaobadedh0001 and id is 1 raw text is: '..'I. -....... DECISION FILE: B-180963 MATTER OF: DIGEST: W1liam huberc wiv. Peru/ THE COMPTROLLER GENERAL O THE UNITBe *rATJ*a WAUMINGTON. D.C. 205dB DATE: March 1, 1977 Milo D. Burroughs - Back pay for concurrent military and civilian service Civilian employee, who was wrong- fully reinoved from hir civilian position, entered on active militar- service. Claim for back pay unde U. S. C. 5 5596 may not be paid for period after entrance on active military duty since cervice rendercd claimant unavailable for performance of civilian position. This action conderns an appeal by Mr. Milo D. Burroughs of the denial by our Claims Division of his claim for additional back pay in connection with his wrongful removal from employment with the Department of the Army. The record indi ates that effective September 22, 1967, Mr. Burroughs was removed from his position as a civilian employee of the Department of the Army as a result of a disciplinary action instituted by that Department. .'rhe removal was subsequently appealed to the Civil Service Ccmmission and'the Federal courts. Ultimately the Civil Vervice Cominission Board of Appeals and Review decided, on Maj 22, 1974, that the charges which resulted in the disciplinary actia were indidfficient to support the remoiral. The Board therefore recommended that'the employing'agency cancel the removal action and restore Mr. Burroughs to his former position and grade retroactively to September 22, 1967., Cancellation of the removal action was ef- fected by the agency on June 10, 1974. Mr. Burroughs was entitled to biick pay pursuant to 5 IT. S. C. 5 5596 (1970) and a check in the amount of $3, 869. 01 was issued in his favor on October 7, 1974. Since Mr. Burroughs had entered on actif e military duty 1n the United States Army on February 12, 1968, back pay was computed only for the pe'+iod from September 22, 1967 to'February 12, 1938. This c6mputation was made in accord- ance with the position of the Dipartment of the Armythat under the provisions of 5 U. S. C. § 5533 (1970), an individual is not entitled to receive doinpensation from more than ofte position paid from funds appropriated by the Congress. The check was re- turned by the claimant to the Department as unacceptable in light of his position that under the Back Pay Act, 5 U. S. C. 5 5596 (1970), he is entitled to back pay retroactive to the date of his wrongful removal, less the amount earned as an officer of the United States Army. I . a C) 0) r.

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