B-124176, DEC. 27, 1955

B-124176, DEC. 27, 1955

TO MR. CHARLES KUSHIN:

YOUR LETTER OF JULY 12, 1955, AND THE PAPERS YOU ENCLOSED WITH YOUR LETTER OF MAY 24, 1955, HAVE BEEN FULLY CONSIDERED HERE AND HAVE BEEN REVIEWED BY THE OFFICES CONCERNED IN THE DEPARTMENT OF THE ARMY. THE SUBSTANCE OF THE REPORT AND DETERMINATIONS OF FACT BY THE OFFICE OF THE ASSISTANT CHIEF OF STAFF, G-1, PERSONNEL, DEPARTMENT OF THE ARMY, IN YOUR CASE ARE INCLUDED HEREIN BELOW.

THE CIRCUMSTANCES SURROUNDING YOUR SEPARATION BY REDUCTION IN FORCE ARE REPORTED TO HAVE BEEN PROPER IN ALL RESPECTS EXCEPT THAT WHILE YOU WERE IN A SUSPENDED STATUS YOU SHOULD NOT HAVE BEEN PLACED ON ANNUAL LEAVE FOR PART OF THE REDUCTION IN FORCE PERIOD. HOWEVER, SINCE THE RECORD SHOWS YOU RECEIVED A REGULAR SALARY PAYMENT COVERING SUCH LEAVE PERIOD OF 96 HOURS (JULY 25 TO AUGUST 10, 1954) AND YOU WERE PAID A LUMP SUM AT THE SAME SALARY RATE FOR 103 HOURS, THE BALANCE OF YOUR LEAVE CREDIT, YOU APPARENTLY SUFFERED NO LOSS OF LEAVE.

AS TO THE MERITS OF YOUR CLAIM FOR THE PERIOD OF SUSPENSION FROM DUTY, MARCH 18 TO AUGUST 10, 1954, HAD YOU NOT BEEN SEPARATED IN REGULAR ORDER IN THE REDUCTION IN FORCE PRIOR TO THE DISMISSAL OF THE INDICTMENT UPON WHICH YOUR SUSPENSION WAS BASED, THE DEPARTMENT HAS DETERMINED THERE WOULD HAVE BEEN CAUSE FOR THEIR FAVORABLE ACTION UPON A "GRIEVANCE" COMPLAINT FROM YOU. HENCE, FOR PURPOSE OF CLARIFYING AND CORRECTION OF YOUR PERSONNEL RECORDS, YOUR PRESENT PROTEST OF THE SUSPENSION ACTION HAS BEEN CONSIDERED BY THE DEPARTMENT OF THE ARMY GRIEVANCE REVIEW BOARD IN THE SAME MANNER AS IF YOU HAD REMAINED ON THE DEPARTMENT'S ROLLS AND HAD INSTITUTED A PROPER GRIEVANCE APPEAL. THE SOLE ISSUE PROPERLY FOR CONSIDERATION BY THE REVIEW BOARD WAS WHETHER YOUR SUSPENSION FROM MARCH 18 TO AUGUST 10, 1954, BASED UPON THE INDICTMENT WAS PROPER. WHILE THE BOARD DETERMINED THAT YOUR SUSPENSION DURING THE PERIOD NOTED WAS UNWARRANTED AND UNJUSTIFIED IN THEIR FINAL ANALYSIS, THE BOARD'S RECOMMENDATION THAT YOU BE COMPENSATED FOR THE PERIOD,"IF POSSIBLE," MAY NOT BE LEGALLY FAVORED, FOR THE REASONS SET FORTH BELOW.

ORDINARILY, DURING A PERIOD OF ABSENCE FROM DUTY--- REGARDLESS OF THE REASONS--- EMPLOYEES ARE NOT ENTITLED TO PAYMENT OF REGULAR SALARY EXCEPT WHEN THEY ARE ON APPROVED LEAVE WITH PAY, OR AS MAY BE PROVIDED BY OTHER STATUTORY AUTHORITY. THE RECORD SHOWS YOU ARE NOT A VETERAN, NOR DOES IT APPEAR THAT YOU ARE OTHERWISE ENTITLED TO COMPENSATION BY VIRTUE OF SECTIONS 12 OR 14 OF THE VETERANS PREFERENCE ACT, AS AMENDED 5 U.S.C. 861 AND 863.

ALSO, THE DEPARTMENT'S RECORDS SHOW YOU HAD A NON-COMPETITIVE INDEFINITE STATUS WHEN SUSPENDED AS INSPECTOR, GS-7, AND YOUR PERSONNEL FILE CONTAINS NO EVIDENCE THAT YOU EVER POSSESSED A COMPETITIVE CIVIL SERVICE STATUS WITHIN PURVIEW OF THE APPLICABLE CIVIL SERVICE LAWS AND REGULATIONS. THEREFORE, THE COMPENSATION BENEFITS OF THE GENERAL LAW, THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 354, 5 U.S.C. 652, ARE NOT APPLICABLE IN YOUR CASE. THE PROVISIONS OF THAT ACT ARE CONFINED--- SO FAR AS IT PERTAINS TO NON VETERANS--- TO PERSONS "IN THE CLASSIFIED CIVIL SERVICE.' THAT TERM IS DEFINED PARTICULARLY IN THE ACT OF MARCH 27, 1922, 5 U.S.C. 679, AND IN CIVIL SERVICE RULE I, 5 C.F.R. 1.1, WHICH RULE PROVIDES "WHENEVER THERE IS A DOUBT THE COMMISSION SHALL DETERMINE WHETHER A POSITION IS IN THE COMPETITIVE SERVICE.'

SINCE THE FOREGOING LAWS AND REGULATIONS ARE NOT APPLICABLE IN YOUR CASE, OUR DECISION OF JUNE 27, 1955, IS AFFIRMED.