B-122843, AUG. 11, 1955

B-122843, AUG. 11, 1955

TO THE SECRETARY OF THE ARMY:

YOUR PREDECESSOR'S LETTER OF FEBRUARY 4, 1955, PRESENTS FOR DECISION A NUMBER OF QUESTIONS STATED TO HAVE ARISEN BECAUSE OF ACTIONS TAKEN IN SECURITY CASES UNDER AUTHORITY OF PUBLIC LAW 733, APPROVED AUGUST 26, 1950, 5 U.S.C. 22-1.

IT IS STATED THAT PAYMENTS FOR ANNUAL LEAVE AND 30-DAY PERIODS OF SUSPENSION WILL NOT BE MADE IF SECTION 9A OF THE HATCH ACT, 53 STAT. 1148, OR THE APPROPRIATION ACT PROVISIONS RELATING TO ADVOCACY OR MEMBERSHIP IN AN ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF THE GOVERNMENT BY FORCE OR VIOLENCE ARE INVOLVED.

THE DISCUSSION OF THE CASES AND THE QUESTIONS RELATED THERETO, ATTACHED TO YOUR LETTER, ARE CONSIDERED IN THE ORDER PRESENTED.

CASE A

"EMPLOYEE A SUSPENDED WITHOUT PAY UNDER PUBLIC

LAW 733, 81ST CONGRESS ------------------------------- 26 AUG 53

ANNUAL LEAVE GRANTED AT EMPLOYEE'S REQUEST

UNDER 31 CG 325, 32 CG 284 --------------------------- 29 NOV 53

RESTORED TO DUTY ON SECRETARY'S DECISION

AFTER CHARGES AND A HEARING -------------------------- 30 MAR 54

LEAVE GRANTED FROM 29 NOV 53 TO 4 HOURS

30 MAR 54 -------------------------------------------- 660 HOURS

MAXIMUM ACCRUAL FIGURE FOR ANNUAL LEAVE

(CATEGORY 8) ----------------------------------------- 692 HOURS

LEAVE ACCRUED AS OF 22 AUG 53 -------------------------- 753 HOURS

TOUR OF DUTY WAS 40 HOURS, MONDAY THRU FRIDAY ----------

RATE OF PAY ON 26 AUG 53, GS-12 ------------------------ $7440

DAILY RATE OF PAY AS GS-12 ----------------------------- $28.64

OUTSIDE EMPLOYMENT:

28 SEP 53 TO 27 OCT 53

5 NOV 53 TO 26 MAR 54, EXCEPT 1 JAN 54

DAILY RATE OF PAY BY PRIVATE INDUSTRY ------------------ $32.00

OUTSIDE EARNINGS, 28 SEP 53 THRU 26 MAY 54,

AT RATE OF $320 BIWEEKLY PER 40 HOUR WEEK ------------ $3,936.00

GOVERNMENT SALARY DURING ABOVE PERIODS OF

OUTSIDE EMPLOYMENT ----------------------------------- $3,720.20

AMOUNT DUE AT RATE OF $7440 PER ANNUM FROM

26 AUG 53 TO 4 HOURS 30 MAR 54 ----------------------- $4,421.13

AMOUNT PAID FOR ANNUAL LEAVE FROM 29 NOV 53

TO 4 HOURS 30 MAR 54 ----------------------------------- $2,475.36 " NOTWITHSTANDING THE REFERENCE TO ANNUAL LEAVE IN OUR DECISION, 32 COMP. GEN. 284, AND IN OTHER RELATED DECISIONS, WHEN AN EMPLOYEE HAS BEEN SUSPENDED FROM DUTY UNDER PUBLIC LAW 733 THE PERIOD DURING WHICH PAYMENT IS MADE TO THE EMPLOYEE, WITH A RESULTING CHARGE AGAINST HIS ANNUAL LEAVE ACCOUNT, MUST BE REGARDED AS A PART OF THE SUSPENSION PERIOD. THE QUESTIONS ON CASE A ARE CONSIDERED AND ANSWERED IN THE LIGHT OF THAT CONCLUSION.

QUESTION 1.

"IN ACCORDANCE WITH YOUR DECISIONS CITED ABOVE, WITHOUT CONSIDERING OUTSIDE EMPLOYMENT, IT IS BELIEVED THAT EMPLOYEE A SHOULD BE RECREDITED ON 30 MARCH 1954 WITH 692 HOURS OF ANNUAL LEAVE, HIS MAXIMUM ACCRUAL FIGURE, PLUS ANNUAL LEAVE ACCRUED IN 1954 UP TO THE DATE OF RESTORATION. IS THIS CORRECT?

ON THE FACTS STATED EMPLOYEE A, BY REFUNDING THE AMOUNT CHARGED AGAINST THE VALUE OF HIS ANNUAL LEAVE CEILING AT THE BEGINNING OF THE LEAVE YEAR 1953 OR BY APPROPRIATE REDUCTION OF THE RETROACTIVE COMPENSATION, IS ENTITLED TO HAVE SUCH LEAVE RECREDITED UPON RESTORATION. ALSO, ANNUAL LEAVE ACCRUED IN 1954 UP TO THE DATE OF RESTORATION PROPERLY IS FOR CREDITING TO HIS LEAVE ACCOUNT. ACCORDINGLY, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 2.

"IN LINE WITH THE PRINCIPLES EXPRESSED IN YOUR DECISIONS RELATING TO COLLECTIONS OF LUMP-SUM LEAVE PAYMENTS UPON REEMPLOYMENT, NO COLLECTION OR ADJUSTMENT WOULD BE REQUIRED FOR ANNUAL LEAVE PAID FOR PRIOR TO 9 JANUARY 1954 (END OF FIRST PAY PERIOD ENDING IN JANUARY 1954) BUT WHICH WAS NOT RECREDITABLE TO HIS ACCOUNT UPON RESTORATION ON 30 MARCH 1954. IS THIS CORRECT?

IN OUR DECISION OF NOVEMBER 3, 1954, B-121534, RELATING TO AN EMPLOYEE SUSPENDED, TERMINATED, AND LATER RESTORED UNDER PUBLIC LAW 733, WE HELD AS FOLLOWS:

"BY PREVIOUS LETTER DATED SEPTEMBER 20, 1954, YOU ALSO SUBMITTED THE QUESTION OF MR. CHASANOW'S ENTITLEMENT TO CREDIT FOR ANNUAL LEAVE OTHER THAN THAT COVERED BY HIS LUMP-SUM LEAVE PAYMENT (400 HOURS), WHICH IS IN EXCESS OF THE MAXIMUM ACCUMULATION PERMITTED BY LAW. THIS EXCESS LEAVE APPARENTLY AMOUNTS TO 61 HOURS EARNED FROM JANUARY 1, 1953, TO JULY 30, 1953, THE DATE OF SUSPENSION, PLUS 96 HOURS OF LEAVE WHICH HE WOULD HAVE EARNED DURING THAT PART OF HIS SUSPENSION FROM JULY 31 TO DECEMBER 31, 1953 (JANUARY 2, 1954, END OF LEAVE YEAR), AND WHICH OTHERWISE IS CREDITABLE TO AN EMPLOYEE RESTORED TO DUTY AFTER A SUSPENSION OR REMOVAL FROM THE SERVICE UNDER THE ACT OF AUGUST 26, 1950. SEE 31 COMP. GEN. 58.

"IN DECISION OF JULY 14, 1953, 32 COMP. GEN. 22, THERE WAS INVOLVED THE QUESTION OF WHETHER THE MAXIMUM LEAVE ACCUMULATION LIMITATION WAS APPLICABLE TO AN EMPLOYEE WHO WAS RESTORED TO DUTY AFTER THE END OF THE LEAVE YEAR AND WHO HAD RECEIVED A LUMP-SUM LEAVE PAYMENT PRIOR THERETO FOR LEAVE IN EXCESS OF THE LIMITATION APPLICABLE AT THE END OF THE YEAR. THAT CASE THE EMPLOYEE WAS SEPARATED ON OCTOBER 10, 1951, AND PAID FOR 629 HOURS OF ANNUAL LEAVE. HE WAS RESTORED TO DUTY ON APRIL 1, 1952. IT WAS HELD THAT THE FULL AMOUNT OF THE LUMP-SUM PAYMENT WAS FOR DEDUCTION FROM THE AMOUNT OTHERWISE PAYABLE FOR THE PERIOD OF SEPARATION AND THAT THE EMPLOYEE WAS ONLY ENTITLED TO CREDIT FOR LEAVE TO THE EXTENT OF 480 HOURS BY REASON OF THE APPLICATION OF THE MAXIMUM LEAVE ACCUMULATION LIMITATION AT THE END OF THE 1951 LEAVE YEAR. WHILE THE QUESTION HERE INVOLVES THE CREDIT OF LEAVE EARNED BEFORE AND DURING A PART OF THE PERIOD OF SUSPENSION, THAT FACT IS NOT SUFFICIENT TO TAKE IT OUTSIDE THE PRINCIPLE APPLIED IN THAT DECISION. SEE, ALSO, 32 COMP. GEN. 162.

"ACCORDINGLY, YOU ARE ADVISED THAT ANY ANNUAL LEAVE IN EXCESS OF THE EMPLOYEE'S CEILING OF 400 HOURS (MAXIMUM ACCUMULATION LIMITATION) IS NOT PROPER FOR CREDITING TO THE EMPLOYEE'S ACCOUNT.'

IN THE ADJUSTMENT OF THE PAY AND LEAVE ACCOUNTS OF EMPLOYEES UPON RESTORATION OR REINSTATEMENT UNDER PUBLIC LAW 733, THERE IS NO SOUND BASIS FOR DISCRIMINATION AMONG EMPLOYEES REGARDLESS OF WHETHER THEY ARE TERMINATED AND PAID A LUMP SUM FOR THEIR LEAVE OR SUSPENDED AND ALLOWED TO DRAW PERIODICALLY AGAINST THE VALUE OF THEIR ANNUAL LEAVE CREDITS. ACCORDINGLY, IN CONSONANCE WITH THE ABOVE-QUOTED RULING, COLLECTION OR ADJUSTMENT BY REDUCTION OF THE RETROACTIVE COMPENSATION WOULD BE REQUIRED CONCERNING THE UNUSED LEAVE EARNED DURING THE 1953 YEAR. THE QUESTION IS ANSWERED IN THE NEGATIVE.

QUESTION 3.

"ALTHOUGH IT DID NOT OCCUR IN THE CASE OF EMPLOYEE A, ANNUAL LEAVE TO THE EMPLOYEE'S CREDIT MIGHT EXPIRE PRIOR TO RESTORATION TO DUTY SO THAT THERE COULD BE A PERIOD OF SUSPENSION BOTH BEFORE AND AFTER THE GRANT OF ANNUAL LEAVE. SINCE ANNUAL LEAVE IS GENERALLY CONSIDERED SYNONYMOUS WITH DUTY, THE QUESTION ARISES AS TO WHETHER A PERIOD OF ANNUAL LEAVE GRANTED UNDER THE CIRCUMSTANCES WOULD BE COUNTED TOWARD COMPLETION OF THE WAITING PERIOD FOR PERIODIC AND LONGEVITY PAY INCREASES. SPECIFICALLY, IN THE STATED CIRCUMSTANCES, IT IS ASSUMED THAT THE RATE OF PAY WOULD CHANGE DURING THE PERIOD OF ANNUAL LEAVE WHEN A WAITING PERIOD IS COMPLETED, BUT, WHEN COMPUTING RETROACTIVE COMPENSATION WHAT RATE OF PAY WOULD BE USED FOR THE CONTINUATION OF THE SUSPENSION PERIOD AFTER ANNUAL LEAVE HAS BEEN EXHAUSTED? IN LINE WITH THE APPARENT DESIRE TO MAKE THE EMPLOYEE AS NEARLY WHOLE AS POSSIBLE IT IS BELIEVED THAT THE PROPER RATE WOULD BE THE RATE IN EFFECT AT THE RESUMPTION OF SUSPENSION WITHOUT PAY STATUS FOLLOWING EXPIRATION OF ANNUAL LEAVE. THIS WOULD MEET THE REQUIREMENTS OF PUBLIC LAW 733, 81ST CONGRESS SINCE THERE WOULD BE IN EFFECT A NEW SUSPENSION PERIOD.'

AS INDICATED IN OUR STATEMENT PRELIMINARY TO CASE A, THE EMPLOYEES MAY NOT BE VIEWED AS BEING IN AN ANNUAL LEAVE STATUS SO AS TO INTERRUPT THE PERIOD OF SUSPENSION. UNDER PUBLIC LAW 733 THE RATE OF COMPENSATION THE EMPLOYEE WAS RECEIVING ON THE DATE OF HIS INITIAL SUSPENSION IS THE ONLY RATE WHICH MAY BE CONSIDERED IN COMPUTING HIS COMPENSATION TO COVER THE PERIOD OF SUSPENSION. YOUR QUESTION IS ANSWERED ACCORDINGLY.

QUESTION 4.

"EMPLOYEE A'S DAILY, WEEKLY AND BIWEEKLY EARNINGS FROM OUTSIDE EMPLOYMENT WHILE IN A SUSPENSION AND ANNUAL LEAVE STATUS WERE HIGHER THAN HIS SALARY RATES AS A GS-12 EMPLOYEE AT $7440 PER ANNUM. YOUR DECISIONS CONCERNING RETROACTIVE COMPENSATION AUTHORIZED UNDER PUBLIC LAW 623, 80TH CONGRESS HAVE BEEN NOTED. IN EMPLOYEE A'S CASE AND IN OTHERS THE FOLLOWING QUESTIONS ARISE:

"A. SHOULD THE TOTAL AMOUNT RECEIVED FROM PRIVATE INDUSTRY ($3,936.00) BE DEDUCTED FROM THE SALARY PAYABLE FOR THE PERIOD OF SUSPENSION?

THE THIRD PROVISO OF PUBLIC LAW 733 AUTHORIZES ALLOWANCE TO AN EMPLOYEE RESTORED TO DUTY COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF HIS SUSPENSION IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH AN EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THE PERIOD OF HIS SUSPENSION AND HIS INTERIM NET EARNINGS. THE TERM "INTERIM NET EARNINGS," WHILE NOT DEFINED BY THE ACT, IS UNDERSTOOD TO BE THE EMPLOYEE'S GROSS INCOME FROM SOURCES OTHER THAN THE POSITION WITH THE GOVERNMENT FROM WHICH HE IS SUSPENDED, LESS ANY LEGITIMATE DEDUCTIONS FROM SUCH INCOME. ACCORDINGLY, SHOULD THE AGGREGATE AMOUNT STATED TO HAVE BEEN RECEIVED FROM PRIVATE INDUSTRY REPRESENT THE NET EARNINGS OF THE EMPLOYEE OVER THE ENTIRE PERIOD OF HIS SUSPENSION, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

"B. AS AN ALTERNATIVE TO QUESTION A ABOVE, SHOULD THE EARNINGS FROM OUTSIDE SOURCES BE COMPARED ON (1) A DAY-TO-DAY, (2) A WEEK-TO-WEEK OR (3) A BIWEEKLY-TO-BIWEEKLY BASIS WITH GOVERNMENT SALARY WHEN COMPUTING RETROACTIVE COMPENSATION UNDER PUBLIC LAW 733, 81ST CONGRESS?

"C. IN EMPLOYEE A'S CASE THIS DEPARTMENT IS OF THE OPINION THAT THE EXCESS EARNINGS FROM PRIVATE INDUSTRY OVER GOVERNMENT SALARY DURING THE SAME PERIOD OF TIME SHOULD NOT BE DEDUCTED FROM RETROACTIVE COMPENSATION FOR OTHER PARTS OF THE PERIOD OF SUSPENSION WHEN THE PERSON CONCERNED WAS NOT EMPLOYED AND PAID BY PRIVATE INDUSTRY. IS THIS CORRECT?

"D. SPECIFICALLY, IN EMPLOYEE A'S CASE FOR THE PERIOD 28 SEPTEMBER 1953 THROUGH 27 OCTOBER 1953 EMPLOYEE A RECEIVED $704 FROM PRIVATE EMPLOYMENT (2 BIWEEKLY PERIODS AT $320 EACH 2 DAYS AT $32 EACH). FOR THE SAME PERIOD EMPLOYEE A WOULD BE ENTITLED TO RETROACTIVE COMPENSATION UNDER PUBLIC LAW 733 IN THE AMOUNT OF $629.83 (1 BIWEEKLY PAY PERIOD AT $826.15 EACH, $143.20 FOR 5 DAYS FOR PAY PERIOD ENDING 3 OCT AND $200.48 FOR 7 DAYS FOR PAY PERIOD ENDING 31 OCT). THE DIFFERENCE OF $74.17 SHOULD NOT BE DEDUCTED FROM RETROACTIVE COMPENSATION DUE FOR PERIODS OF SUSPENSION WHEN NOT EMPLOYED BY PRIVATE INDUSTRY. IS THIS CORRECT?

"E.FOR THE PERIOD 5 NOVEMBER 1953 THROUGH 26 MARCH 1954 EMPLOYEE A RECEIVED $3232 (NO PAY FOR 1 JAN 54) FROM OUTSIDE EMPLOYMENT. FOR THE SAME PERIOD EMPLOYEE A'S RETROACTIVE COMPENSATION AS A GS-12 WOULD BE $2,919.03 ($200.48 FOR 7 DAYS IN PAY PERIOD ENDING 14 NOV, $2,575.35 FOR 9 DAY PERIODS ENDING 20 MAR 54 AND $143.20 FOR 5 DAYS IN PAY PERIOD ENDING 4 APR 54). BECAUSE EMPLOYEE A RECEIVED NO SALARY FROM PRIVATE EMPLOYMENT FOR 1 JANUARY 1954, THE RETROACTIVE COMPENSATION FOR COMPARISON WITH OUTSIDE EARNINGS SHOULD BE REDUCED TO $2,890.39. WITHOUT CONSIDERING THE PAYMENT MADE FOR ANNUAL LEAVE FOR PART OF THE SUBJECT PERIOD, THE DIFFERENCE OF $341.61 BETWEEN OUTSIDE EARNINGS AND RETROACTIVE COMPENSATION SHOULD NOT BE DEDUCTED FROM RETROACTIVE COMPENSATION FOR OTHER PARTS OF THE PERIOD OF SUSPENSION DURING WHICH EMPLOYEE A WAS NOT EMPLOYED BY PRIVATE INDUSTRY. IS THIS CORRECT?

IN VIEW OF THE ANSWER TO QUESTION 4A, QUESTIONS 4B, 4C, 4D, AND 4E ARE ANSWERED IN THE NEGATIVE.

"F. DURING THE PERIOD 29 NOVEMBER 1953 TO 26 MARCH 1954 EMPLOYEE A WAS ACTUALLY PAID $2,432.40 WHILE IN AN ANNUAL LEAVE STATUS. INSTRUCTIONS ARE REQUESTED AS TO WHETHER (1) EMPLOYEE A MUST REFUND THIS AMOUNT OR (2) ANNUAL LEAVE GRANTED DURING THAT PERIOD WOULD NOT BE RECREDITED TO HIS ACCOUNT. THE DEPARTMENT OF THE ARMY DOES NOT BELIEVE THAT EMPLOYEE A SHOULD GET BOTH SINCE HE MOST LIKELY WOULD NOT HAVE BEEN EMPLOYED BY PRIVATE INDUSTRY DURING THAT PERIOD IF HE HAD NOT BEEN SUSPENDED. THE DEPARTMENT OF THE ARMY FURTHER BELIEVES THAT THE SIMPLEST AND MOST EQUITABLE WAY TO SOLVE THIS PROBLEM WOULD BE TO DENY RECREDIT OF THE LEAVE. THE ANSWER TO THIS QUESTION WOULD, OF COURSE, AFFECT THE ANSWER TO QUESTION 1 ABOVE.'

IN ANSWER TO QUESTION 1 WE RECOGNIZED THAT THE EMPLOYEE'S ANNUAL LEAVE ACCOUNT, UPON REFUND OF THE MONEY PAID TO HIM BY THE GOVERNMENT DURING THE PERIOD OF SUSPENSION, OR APPROPRIATE REDUCTION OF HIS RETROACTIVE COMPENSATION, IS TO BE RECREDITED WITH LEAVE ONLY TO THE EXTENT THAT IT DOES NOT CAUSE HIS ANNUAL LEAVE CEILING AT THE BEGINNING OF THE LEAVE YEAR 1953 TO BE EXCEEDED. THE DEPARTMENT IS REQUIRED TO RECOVER THE PAYMENT MADE DURING THE SUSPENSION AND TO MAKE THE APPROPRIATE LEAVE RECREDIT. ANY PERIODIC PAYMENT MADE TO AN EMPLOYEE AS A CHARGE AGAINST THE VALUE OF ANNUAL LEAVE WHICH ACCRUED BUT WHICH WAS UNUSED DURING THE LEAVE YEAR 1953 MUST BE RECOVERED FROM THE EMPLOYEE BY COLLECTION OR REDUCTION OF THE RETROACTIVE COMPENSATION WITHOUT CREDIT OF SUCH LEAVE TO HIS ACCOUNT. SEE ANSWER TO QUESTION 2, CASE A. "G. THE DEPARTMENT FIGURES THAT EMPLOYEE A IS DUE RETROACTIVE COMPENSATION IN THE AMOUNT OF $629.83 GROSS FOR THE PERIOD 26 AUGUST THROUGH 27 SEPTEMBER 1953 ($200.48 FOR 7 DAYS IN PAY PERIOD ENDING 5 SEPTEMBER, $286.15 FOR ONE PAY PERIOD AND $143.20 FOR 5 DAYS IN PAY PERIOD ENDING 3 OCTOBER). IS THIS CORRECT? EMPLOYEE A IS ALSO DUE $42.96 FOR 29 MARCH 1954 AND 4 HOURS ON 30 MARCH 1954 PRIOR TO RESTORATION.'

IN THE RECITATION OF FACTS RELATING TO CASE A, IT IS STATED THAT THE AMOUNT DUE THE EMPLOYEE FOR THE PERIOD OF HIS SUSPENSION IS $4,421.13. DURING THE INTERIM HE IS SAID TO HAVE RECEIVED $3,936 FROM OUTSIDE EMPLOYMENT. ASSUMING THE LATTER AMOUNT TO BE THE EMPLOYEE'S NET EARNINGS, PUBLIC LAW 733 AUTHORIZES RETROACTIVE COMPENSATION TO THE EXTENT OF THE DIFFERENCE BETWEEN THE TWO AMOUNTS. THE QUESTION IS ANSWERED ACCORDINGLY.

CASE B

"THE CASE OF EMPLOYEE B IS NOT CURRENTLY PENDING ALTHOUGH CASES INVOLVING THESE CIRCUMSTANCES HAVE OCCURRED WHICH WERE RESOLVED WITHOUT HAVING TO ANSWER THESE QUESTIONS AND OTHER CASES WITH THESE PROBLEMS MAY ARISE AT ANY TIME. YOUR DECISIONS ON THE QUESTIONS PRESENTED ARE DESIRED SO AS TO FORM BASIS FOR GENERAL INSTRUCTIONS TO ALL OFFICES. FOR SIMPLICITY, THE CASE OF EMPLOYEE B IS PRESENTED AS AN ACTUAL CASE.

"EMPLOYEE B WAS EMPLOYED IN AN OVERSEAS AREA UNDER CONDITIONS WHICH WOULD AUTHORIZE RETURN TO THE UNITED STATES AT GOVERNMENT EXPENSE. FOLLOWING SUSPENSION UNDER PUBLIC LAW 733, 81ST CONGRESS EMPLOYEE B REQUESTED AND WAS GRANTED PERMISSION TO RETURN TO THE UNITED STATES IN ORDER TO HAVE A HEARING BEFORE A SECURITY HEARING BOARD IN ACCORDANCE WITH EXECUTIVE ORDER 10450 AND PUBLIC LAW 733. AFTER A HEARING AND UPON REVIEW OF THE CASE, B'S EMPLOYMENT IN HIS OVERSEAS POSITION HAS BEEN DETERMINED TO BE CLEARLY CONSISTENT WITH THE INTERESTS OF NATIONAL SECURITY AND RESTORATION TO DUTY IS TO BE ORDERED IN ACCORDANCE WITH PUBLIC LAW 733, 81ST CONGRESS. EMPLOYEE B INDICATES THAT HE DOES NOT DESIRE TO RETURN TO DUTY IN THE PARTICULAR OVERSEAS AREA AND IT IS ALSO INDICATED THAT THE POSITION WHICH EMPLOYEE B OCCUPIED MAY BE ABOLISHED WHICH WOULD RESULT IN HIS SEPARATION BY REDUCTION-IN-FORCE IN THE FORESEEABLE FUTURE.'

QUESTION 1.

"WOULD THE DEPARTMENT BE JUSTIFIED IN EFFECTING A "PAPER" RESTORATION SO AS TO SATISFY THE REQUIREMENTS OF PUBLIC LAW 733, 81ST CONGRESS AND TO AUTHORIZE RETROACTIVE COMPENSATION FOR THE PERIOD OF SUSPENSION UNDER THAT STATUTE?

UNDER THE FACTS RELATED A CONSTRUCTIVE OR "PAPER" RESTORATION WOULD SATISFY THE REQUIREMENTS OF PUBLIC LAW 733. SEE B-122137, DATED MARCH 29, 1955.

QUESTION 2.

"IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE, WOULD IT BE PERMISSIBLE FOR THE DEPARTMENT OF THE ARMY TO EFFECT A RETURN TO DUTY IN AN ANNUAL LEAVE STATUS SO AS TO SATISFY THE RESTORATION TO DUTY REQUIREMENTS OF PUBLIC LAW 733, 81ST CONGRESS? IF SO, WHAT PERIOD OF ANNUAL LEAVE WOULD SATISFY THAT REQUIREMENTS?

SINCE THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, AN ANSWER TO QUESTION 2 IS UNNECESSARY.

QUESTION 3.

"FOR THE PURPOSE OF AFFORDING AN EMPLOYEE A HEARING IN THE UNITED STATES, WHEN AN EMPLOYEE IN AN OVERSEAS AREA IS SUSPENDED UNDER PUBLIC LAW 733, 81ST CONGRESS AND THE ACTIVITIES INVOLVED IN THE SUSPENSION ACTION OCCURRED IN THE UNITED STATES, THE DEPARTMENT OF THE ARMY WOULD RETURN THE EMPLOYEE, HIS FAMILY AND HOUSEHOLD EFFECTS TO THE UNITED STATES AT GOVERNMENT EXPENSE, IF THOSE EXPENDITURES WERE OTHERWISE AUTHORIZED.'

"A. IF THE EMPLOYEE'S CASE WERE FAVORABLY DETERMINED UNDER EXECUTIVE ORDER 10450 AND RESTORATION TO DUTY ORDERED IN ACCORDANCE WITH PUBLIC LAW 733, 81ST CONGRESS, WOULD THE DEPARTMENT BE JUSTIFIED IN RETURNING THE EMPLOYEE, HIS FAMILY AND HOUSEHOLD EFFECTS TO THE OVERSEAS AREA AT GOVERNMENT EXPENSE IN ORDER TO EFFECT THE RESTORATION TO DUTY?

SO FAR AS THE EMPLOYEE IS CONCERNED, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE. 33 COMP. GEN. 582. THE ALLOWANCE OF TRANSPORTATION EXPENSES FOR HIS FAMILY AND HOUSEHOLD EFFECTS TO AND FROM THE UNITED STATES WOULD BE GOVERNED ENTIRELY BY THE ACT OF AUGUST 2, 1946, PUBLIC LAW 600, AS AMENDED. THERE IS NO AUTHORITY IMPLICIT IN PUBLIC LAW 733 FOR THE PAYMENT OF SUCH EXPENSES. A MORE EXPLICIT REPLY IS NOT POSSIBLE IN THE ABSENCE OF SPECIFIC FACTUAL SITUATIONS.

"B. UNDER THE CIRCUMSTANCES IN A ABOVE WOULD THE EMPLOYEE BE REQUIRED TO SERVE ANOTHER MINIMUM PERIOD OF ONE YEAR IN ACCORDANCE WITH EXISTING STATUTES IN ORDER TO AUTHORIZE RETURN TRANSPORTATION TO THE UNITED STATES AT GOVERNMENT EXPENSE?

WITH THE UNDERSTANDING THAT THE EMPLOYEE IS RESTORED TO DUTY UNDER HIS ORIGINAL AGREEMENT AND RETURNED TO HIS OVERSEAS AREA, A FURTHER AGREEMENT TO SERVE FOR AN ADDITIONAL YEAR WOULD NOT BE REQUIRED TO ENTITLE HIM TO TRANSPORATION TO THE UNITED STATES AT GOVERNMENT EXPENSE UPON COMPLETION OF HIS AGREED PERIOD OF SERVICE UNDER HIS ORIGINAL AGREEMENT. THE QUESTION IS NOT UNDERSTOOD TO RELATE TO THE EMPLOYEE'S IMMEDIATE FAMILY AND HOUSEHOLD EFFECTS.

"C. IF THE EMPLOYEE HAD SERVED ONE YEAR OF A 2-YEAR AGREEMENT, THE DEPARTMENT WOULD DESIRE TO RETURN THE EMPLOYEE, HIS FAMILY AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE SO THE EMPLOYEE COULD HAVE A HEARING IN THE UNITED STATES. WOULD THIS BE PERMISSIBLE? WOULD YOUR ANSWER BE DIFFERENT IF THE EMPLOYEE SIGNIFIED THAT HE DID NOT WISH TO RETURN OVERSEAS EVEN THOUGH HIS CASE MIGHT ULTIMATELY BE RESOLVED FAVORABLY.'

IMPLICIT AUTHORITY TO PAY THE TRAVEL EXPENSES OF THE EMPLOYEE TO THE UNITED STATES FOR A HEARING AND RETURN OVERSEAS AFTER RESTORATION MAY BE FOUND IN PUBLIC LAW 733. SEE ANSWER TO QUESTION 3A, CASE B, ABOVE. CONCERNING THE TRANSPORTATION AT GOVERNMENT EXPENSE OF THE EMPLOYEE'S IMMEDIATE FAMILY AND HOUSEHOLD EFFECTS, SEE THE ANSWER TO QUESTION 3A, CASE B.

CASE C

"THERE ARE AT THE PRESENT TIME A NUMBER OF CASES DEPENDENT UPON YOUR DECISION ON THE QUESTIONS STATED BELOW IN CONNECTION WITH THE CIRCUMSTANCES REPRESENTED BY CASE C. UNDER AUTHORITY DELEGATED BY ME, THE COMMANDING OFFICER OF A DEPARTMENT OF THE ARMY INSTALLATION EFFECTED THE IMMEDIATE SUSPENSION OF EMPLOYEE C UNDER AUTHORITY OF PUBLIC LAW 733, 81ST CONGRESS IN THE INTERESTS OF NATIONAL SECURITY. THE SECOND PROVISO OF SECTION 1 OF PUBLIC LAW 733, 81ST CONGRESS REQUIRES THAT EMPLOYEE C BE GIVEN A WRITTEN STATEMENT OF THE CHARGES AGAINST HIM WITHIN THIRTY DAYS AFTER HIS SUSPENSION. BECAUSE OF THE CIRCUMSTANCES OF THE CASE, A STATEMENT OF CHARGES COULD NOT BE DELIVERED TO EMPLOYEE C WITHIN THE THIRTY-DAY TIME LIMIT SET BY PUBLIC LAW 733, 81ST CONGRESS. EMPLOYEE C WAS ACTUALLY SUSPENDED ON 19 OCTOBER 1953 AND RESTORED TO DUTY UNDER THE ABOVE CIRCUMSTANCES ON 18 NOVEMBER 1953. ON 20 NOVEMBER 1953 EMPLOYEE C RESIGNED. RESTORATION ON 18 NOVEMBER 1953 WAS EFFECTED UNDER STANDING INSTRUCTIONS OF THE DEPARTMENT OF THE ARMY WHICH REQUIRE THAT UNDER SUCH CIRCUMSTANCES RESTORATION TO DUTY AND RESTRICTION SO AS NOT TO JEOPARDIZE NATIONAL SECURITY MUST BE EFFECTED UNTIL A WRITTEN STATEMENT OF THE CHARGES CAN BE DELIVERED. THOSE INSTRUCTIONS ARE BASED UPON AN INTERPRETATION THAT THE PROVISIONS OF THE SECOND PROVISO OF SECTION 1, PUBLIC LAW 733, 81ST CONGRESS WOULD AUTOMATICALLY REQUIRE RETROACTIVE BEYOND 30 DAYS WITHOUT ISSUANCE OF A WRITTEN STATEMENT OF THE CHARGES IN SUPPORT OF THE SUSPENSION ACTION. RESTORATION WAS NOT ORDERED AS A RESULT OF A DETERMINATION ON THE MERITS OF THE CASE. THE JUDGE ADVOCATE GENERAL OF THE DEPARTMENT OF THE ARMY HAS SUBMITTED AN OPINION INDICATING THAT A RESTORATION TO DUTY UNDER AUTHORITY OF PUBLIC LAW 733, 81ST CONGRESS WOULD AUTOMATICALLY REQUIRE RETROACTIVE COMPENSATION FOR ALL OR A PART OF THE PERIOD OF SUSPENSION, REGARDLESS OF THE REASON FOR THE RESTORATION ACTION. THIS WOULD MEAN THAT IN EMPLOYEE C'S CASE PAYMENT WOULD BE DUE FOR THE PERIOD FROM 19 OCTOBER THROUGH 17 NOVEMBER 1953. THERE IS CONSIDERABLE BASIS, HOWEVER, FOR ARGUING THAT THE RESTORATION MUST BE ORDERED BY THE HEAD OF THE AGENCY AFTER A DECISION IS MADE ON THE CASE BY HIM. IN MANY OTHER SIMILAR CASES AFTER SUSPENSION AND RESTORATION SOLELY BECAUSE CHARGES WERE NOT ISSUED WITHIN 30 DAYS, THE EMPLOYEES CONCERNED WERE ISSUED CHARGES AND RESUSPENDED AT A LATER DATE.'

QUESTION 1.

"WOULD A RESTORATION TO DUTY FOLLOWING SUSPENSION UNDER AUTHORITY OF PUBLIC LAW 733, 81ST CONGRESS AUTOMATICALLY AUTHORIZE PAYMENT FOR ALL OR A PART OF THE PERIOD OF SUSPENSION REGARDLESS OF THE REASON FOR THE RESTORATION?

THE STATUTE PROVIDES THAT UPON RESTORATION TO DUTY THE EMPLOYEE SHALL BE ALLOWED "COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUCH SUSPENSION.' A RESTORATION ON THE MERITS OF THE CASE IS NOT REQUIRED BEFORE THE PAY PROVISION MAY OPERATE. COMPENSATION ADMINISTRATIVELY MAY BE ALLOWED OR DENIED, HOWEVER, FOR THE ENTIRE PERIOD OF THE SUSPENSION. YOUR QUESTION IS ANSWERED ACCORDINGLY.

QUESTION 2.

"THE THIRD PROVISO OF PUBLIC LAW 733 CONTAINS THE FOLLOWING WORDING: "* * * IF SO REINSTATED OR RESTORED SHALL BE ALLOWED COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUCH SUSPENSION OR TERMINATION * * *.' UNDER THAT PROVISION OF STATUTE IF THE ANSWER TO QUESTION 1 ABOVE IS AFFIRMATIVE, WOULD IT BE PROPER TO LIMIT THE RETROACTIVE COMPENSATION TO A PERIOD LESS THAN THE WHOLE PERIOD OF SUSPENSION UNDER THE CIRCUMSTANCES STATED ABOVE? WOULD YOUR OFFICE OBJECT TO PAYMENT FOR ONE DAY TO SATISFY THE REQUIREMENTS OF THE LAW?

IN LINE WITH THE ANSWER TO QUESTION 1, THE FIRST PART OF QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE. CONCERNING THE LAST PART OF THE QUESTION, YOU ARE ADVISED THAT THE STATUTE DOES NOT REQUIRE PAYMENT OF ANY SUM TO SATISFY ITS REQUIREMENTS.

QUESTION 3.

"WOULD IT BE PERMISSIBLE FOR THE DEPARTMENT OF THE ARMY TO WITHHOLD RETROACTIVE COMPENSATION FOR THE PERIOD OF SUSPENSION IN ANY CASE WHERE THE DEPARTMENT DETERMINES THAT CHARGES WOULD HAVE BEEN ISSUED HAD NOT THE EMPLOYEE RESIGNED?

QUESTION 4.

"WHEN AN EMPLOYEE IS SUSPENDED, RESTORED TO DUTY AT THE END OF 30 DAYS AND AGAIN SUSPENDED WHEN CHARGES ARE ISSUED, WOULD IT BE PERMISSIBLE FOR THE DEPARTMENT OF THE ARMY TO WITHHOLD PAYMENT FOR THE INITIAL 30-DAY PERIOD OF SUSPENSION PENDING FINAL ADJUDICATION OF THE CASE ON THE MERITS?

QUESTION 5.

"AS AN EXTENSION OF QUESTION 4 ABOVE, WOULD THE DEPARTMENT BE JUSTIFIED IN WITHHOLDING COMPENSATION FOR THE INITIAL 30-DAY PERIOD OF SUSPENSION IF IT WERE ULTIMATELY DETERMINED THAT THE EMPLOYEE SHOULD BE REMOVED IN THE INTERESTS OF NATIONAL SECURITY UNDER AUTHORITY GRANTED BY PUBLIC LAW 733, 81ST CONGRESS, BUT REMOVAL ACTION WAS NOT TAKEN BECAUSE OF RESIGNATION?

QUESTIONS 3, 4, AND 5 ARE ANSWERED IN THE AFFIRMATIVE.

CASE D

"EMPLOYEE D WAS EMPLOYED ON A TEMPORARY APPOINTMENT NOT TO EXCEED ONE YEAR. DURING THE COURSE OF THIS TEMPORARY EMPLOYMENT EMPLOYEE D WAS SUSPENDED UNDER AUTHORITY OF PUBLIC LAW 733, 81ST CONGRESS. PRIOR TO FINAL ADJUDICATION OF THE CASE THE TEMPORARY APPOINTMENT EXPIRED AND WAS NOT RENEWED. SINCE THE DEPARTMENT OF THE ARMY FELT THAT A DETERMINATION SHOULD BE MADE ON THE MERITS OF THE CASE, THE CASE WAS CONTINUED AND A FAVORABLE ADJUDICATION WAS MADE. SINCE THE EMPLOYING INSTALLATION UNDER DELEGATED AUTHORITY HAD NOT CHOSEN TO EXTEND EMPLOYEE D'S TEMPORARY APPOINTMENT, HIS RESTORATION TO DUTY WAS NOT ORDERED BY THE INSTALLATION CONCERNED WAS ADVISED THAT EMPLOYEE D SHOULD BE REEMPLOYED IF HIS SERVICES WERE NEEDED IN A POSITION FOR WHICH HE WAS QUALIFIED. SUBSEQUENTLY, EMPLOYEE D WAS EMPLOYED ON AN INDEFINITE APPOINTMENT SOLELY ON ACTION OF THE APPOINTING AUTHORITIES AT THE INSTALLATION CONCERNED AND NOT BY MY ORDER. THE DEPARTMENT OF THE ARMY IS OF THE OPINION THAT EMPLOYEE D IS ENTITLED TO RETROACTIVE COMPENSATION FOR THE PERIOD OF SUSPENSION UP TO THE DATE ON WHICH HIS TEMPORARY APPOINTMENT WAS TERMINATED.'

QUESTION 1

"MAY THE DEPARTMENT PAY EMPLOYEE D FOR THE PERIOD OF SUSPENSION UP TO THE DATE THE TEMPORARY APPOINTMENT EXPIRED? WOULD THE ANSWER BE THE SAME IF THE TEMPORARY APPOINTMENT WERE OTHERWISE TERMINATED BEFORE THE NORMAL EXPIRATION DATE?

PAYMENT TO THE EMPLOYEE MAY BE MADE FOR ALL OR ANY PART OF THE PERIOD OF SUSPENSION NOT EXTENDING BEYOND THE EXPIRATION DATE OF THE TEMPORARY APPOINTMENT ONLY IF A "PAPER" RESTORATION IS ORDERED BY THE HEAD OF THE DEPARTMENT PURSUANT TO THE THIRD PROVISO, SECTION 1 OF PUBLIC LAW 733. THE SECOND PART OF THE QUESTION, IN THE ABSENCE OF SPECIFIC FACTUAL SITUATIONS CONTEMPLATED THEREBY, MAY NOT BE ANSWERED.

QUESTION 2. "WOULD YOUR ANSWER TO QUESTION 1 ABOVE BE DIFFERENT IF THE EMPLOYEE WERE NOT SUBSEQUENTLY EMPLOYED ON AN INDEFINITE APPOINTMENT OR ANY OTHER TYPE OF APPOINTMENT?

THE QUESTION IS ANSWERED IN THE NEGATIVE.

QUESTION 3.

"WHAT STEPS WOULD THE DEPARTMENT OF THE ARMY HAVE TO TAKE IN ORDER TO EFFECT RETROACTIVE COMPENSATION FOR THE PERIOD OF SUSPENSION? IF YOUR ANSWER TO THIS QUESTION INVOLVES A RESTORATION TO DUTY, WOULD IT BE PERMISSIBLE FOR THE DEPARTMENT TO EFFECT A "PAPER" RESTORATION? WOULD SUCH A "PAPER" RESTORATION BE EFFECTIVE ON THE DAY FOLLOWING THE TERMINATION OF THE TEMPORARY APPOINTMENT OR AS OF A CURRENT DATE?

SEE ANSWER TO QUESTION 1 ABOVE. THE "PAPER" RESTORATION SHOULD BE MADE EFFECTIVE ON THE LAST DAY OF THE TEMPORARY APPOINTMENT.