A-39517, NOVEMBER 21, 1931, 11 COMP. GEN. 202

A-39517: Nov 21, 1931

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ERRONEOUS - LEAVES OF ABSENCE A NAVY YARD EMPLOYEE WHO WAS ERRONEOUSLY PLACED ON THE SUPERANNUATED RETIREMENT LIST AND SUBSEQUENTLY RESTORED TO DUTY IS NOT TO BE CONSIDERED AS HAVING BEEN SEPARATED FROM THE SERVICE. RETROACTIVELY COVERING THE PERIOD HE WAS ERRONEOUSLY CONSIDERED AS NOT ON THE ACTIVE ROLL. IS ENTITLED TO PAY FOR RETROACTIVE LEAVE ON AUGUST 1. TO WHICH THE CIVIL SERVICE COMMISSION AND THE NAVY DEPARTMENT ARE JOINT SIGNATORIES. PARAGRAPH 92 OF THE EMPLOYMENT REGULATIONS ABOVE REFERRED TO PROVIDES THAT "AFTER A DISCHARGE IS EFFECTIVE. THE ACTION OF THE DEPARTMENT IN THE ABOVE CASE AND IN CASES OF A SIMILAR NATURE IS IN ACCORDANCE WITH THE PROVISIONS OF THE ABOVE QUOTED REGULATIONS.

A-39517, NOVEMBER 21, 1931, 11 COMP. GEN. 202

RETIREMENT, ERRONEOUS - LEAVES OF ABSENCE A NAVY YARD EMPLOYEE WHO WAS ERRONEOUSLY PLACED ON THE SUPERANNUATED RETIREMENT LIST AND SUBSEQUENTLY RESTORED TO DUTY IS NOT TO BE CONSIDERED AS HAVING BEEN SEPARATED FROM THE SERVICE, BUT MAY BE GRANTED LEAVE WITH OR WITHOUT PAY, NOT TO EXCEED THE AMOUNT AUTHORIZED BY STATUTE, RETROACTIVELY COVERING THE PERIOD HE WAS ERRONEOUSLY CONSIDERED AS NOT ON THE ACTIVE ROLL, ENTITLING HIM TO ALL THE RIGHTS TO LEAVE INCIDENT TO CONTINUOUS SERVICE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, NOVEMBER 21, 1931:

THERE HAS BEEN RECEIVED BY YOUR DIRECTION REQUEST OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, DATED NOVEMBER 11, 1931, FOR DECISION WHETHER JOHN H. JAMES, CRANEMAN AT THE WASHINGTON NAVY YARD, IS ENTITLED TO PAY FOR RETROACTIVE LEAVE ON AUGUST 1, 1931, AFTER HAVING BEEN ERRONEOUSLY PLACED ON RETIRED LIST AND RESTORED DUTY, ATTENTION BEING PARTICULARLY INVITED TO THE STATEMENTS EMBODIED IN THE THIRD INDORSEMENT HEREON:

THE THIRD INDORSEMENT REFERRED TO CONTAINS THE FOLLOWING:

2. THE DEPARTMENT, UNDER DATE OF AUGUST 26, 1931, IN VIEW OF THE REJECTION OF THE APPLICATION FOR ANNUITY OF JOHN H. JAMES, CRANEMAN, ELECTRIC, NAVY YARD, WASHINGTON, D.C., UNDER THE PROVISIONS OF SECTION 1 OF THE CIVIL SERVICE RETIREMENT ACT, UPON THE GROUND THAT HE HAD NOT REACHED THE AGE OF RETIREMENT AND IN ACCORDANCE WITH PARAGRAPH 92 OF THE REGULATIONS GOVERNING THE EMPLOYMENT OF CIVIL PERSONNEL UNDER THE NAVAL SERVICE, CIVIL SERVICE FORM 2009, TO WHICH THE CIVIL SERVICE COMMISSION AND THE NAVY DEPARTMENT ARE JOINT SIGNATORIES, DIRECTED THAT HE BE RESTORED TO DUTY, THE RECORD OF HIS RETIREMENT CANCELED, AND THAT HE BE CONSIDERED IN THE STATUS OF AN EMPLOYEE ON LEAVE WITHOUT PAY FROM THE DATE OF HIS RETIREMENT, AUGUST 1, 1931, TO THE DATE OF HIS RESTORATION TO DUTY, SEPTEMBER 1, 1931, THUS MAKING HIS SERVICE CONTINUOUS. PARAGRAPH 92 OF THE EMPLOYMENT REGULATIONS ABOVE REFERRED TO PROVIDES THAT "AFTER A DISCHARGE IS EFFECTIVE, NO CHANGE SHALL BE MADE IN THE RECORD OF DISCHARGE WITHOUT SPECIFIC AUTHORITY OF THE NAVY DEPARTMENT.' THE ACTION OF THE DEPARTMENT IN THE ABOVE CASE AND IN CASES OF A SIMILAR NATURE IS IN ACCORDANCE WITH THE PROVISIONS OF THE ABOVE QUOTED REGULATIONS, AND SUCH ACTION HAS NOT BEEN QUESTIONED BY THE CIVIL SERVICE COMMISSION.

3. THIS CASE IS PRESENTED BY THE COMMANDANT OF THE WASHINGTON NAVY YARD, UPON THE REQUEST OF THE DISBURSING OFFICER OF THE YARD, FOR THE DECISION OF THE COMPTROLLER GENERAL AS TO WHETHER PAYMENT TO JAMES TO ONE DAY'S PAY FOR RETROACTIVE LEAVE ON AUGUST 1, 1931, IS AUTHORIZED, IN VIEW OF ADVERSE ACTION OF THE COMPTROLLER GENERAL IN THE CASE OF WILLIAM R. SIMPSON, WHOSE DISCHARGE ON ACCOUNT OF LACK OF WORK WAS CANCELLED UPON AUTHORITY OF THE DEPARTMENT, DATED AUGUST 25, 1930, AND WHO WAS CONSIDERED AS ON LEAVE WITHOUT PAY BETWEEN THE DATE OF HIS SEPARATION FROM THE POSITION OF MACHINIST AND THE DATE OF HIS REPORTING FOR DUTY UNDER APPOINTMENT AS COPYIST DRAFTSMAN. THE COMPTROLLER GENERAL HELD IN THE SIMPSON CASE THAT " "CANCELLATION" " OF THE DISCHARGE BY LETTER OF AUGUST 25, 1930, IS OF NO EFFECT, AS THE DISCHARGE HAD ALREADY BEEN CONSUMMATED.' THIS DECISION OF THE COMPTROLLER GENERAL, IF LITERALLY CONSTRUED, WOULD PROHIBIT THE CANCELLATION OF DISCHARGES OF EMPLOYEES AND THEIR RESTORATION TO DUTY UNDER THE AUTHORITY CONTAINED IN PARAGRAPH 92 OF THE EMPLOYMENT REGULATIONS ABOVE QUOTED IN THE CASES OF THOSE IMPROPERLY DISCHARGED FOR LACK OF WORK OR FUNDS, OR OTHER REASONS, OR IMPROPERLY OR ERRONEOUSLY RETIRED ON ACCOUNT OF AGE OR TOTAL DISABILITY.

IT HAS BEEN HELD THAT A NAVY-YARD EMPLOYEE IS NOT ENTITLED (UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 617) TO PAY FOR ACCRUED LEAVE NOT TAKEN PRIOR TO SEPARATION FROM THE SERVICE. THEREFORE, A NAVY-YARD EMPLOYEE WHO IS ACTUALLY SEPARATED FROM THE SERVICE AND LATER REINSTATED, THAT IS, WHERE THE SERVICE OF THE EMPLOYEE IS NOT CONTINUOUS, BUT NOT TAKEN PRIOR TO SEPARATION FROM THE SERVICE. HOWEVER, A SEPARATION FROM THE ACTIVE ROLL SOLELY FOR THE PURPOSE OF GRANTING RETIREMENT, WHICH ACTION IS LATER FOUND TO HAVE BEEN ERRONEOUS, IS NOT A SEPARATION FROM THE SERVICE WITHIN THE MEANING OF THE ABOVE-STATED PRINCIPLE. SEE DECISION OF JULY 1, 1931, 11 COMP. GEN. 1, 3, WHEREIN IT IS STATED---

* * * AN EMPLOYEE WHOSE SEPARATION FROM THE ACTIVE SERVICE IS SOLELY FOR THE PURPOSE OF GRANTING THE BENEFITS OF DISABILITY RETIREMENT MAY NOT, BY ADMINISTRATIVE ACTION, BE PLACED IN SUCH A POSITION AS TO LOSE THE BENEFITS OF BOTH AN ACTIVE DUTY AND A RETIRED STATUS. CHANGE FROM ACTIVE DUTY TO RETIRED STATUS IS NOT TO BE CONTROLLED BY THE SAME PRINCIPLES APPLICABLE TO DISMISSAL OR OTHER SEPARATIONS FROM THE SERVICE. SEE 10 COMP. GEN. 478.

THE SAME PRINCIPLE WOULD APPLY IN SUCH A CASE AS THIS WHERE THE ERRONEOUS ADMINISTRATIVE ACTION WAS BASED ON THE AGE RATHER THAN THE DISABILITY OF THE EMPLOYEE.

IN DECISION OF NOVEMBER 23, 1912, 19 COMP. DEC. 311, IT WAS HELD (QUOTING FROM THE SYLLABUS/---

THE GRANTING OF LEAVES OF ABSENCE WITHIN THE LAW IS AN ADMINISTRATIVE ACT, AND THE HEAD OF A DEPARTMENT OR OTHER PERSONS WITH AUTHORITY TO GRANT SUCH LEAVES WITH PAY MAY, IN ORDER TO CURE AN OMISSION, GRANT SUCH LEAVES NUNC PRO TUNC.

ACCORDINGLY, IN THE INSTANT CASE, THE ADMINISTRATIVE OFFICE HAS AUTHORITY TO GRANT LEAVE, WITH OR WITHOUT PAY, NOT TO EXCEED THE AMOUNTS AUTHORIZED BY STATUTE, RETROACTIVELY COVERING THE PERIOD THE EMPLOYEE WAS ERRONEOUSLY CLASSED OR CONSIDERED AS NOT ON THE ACTIVE ROLL DURING AUGUST, 1931, ENTITLING THE EMPLOYEE TO ALL THE RIGHTS TO LEAVE INCIDENT TO CONTINUOUS SERVICE.