B-106434, JANUARY 31, 1952, 31 COMP. GEN. 344

B-106434: Jan 31, 1952

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1952: REFERENCE IS MADE TO LETTER DATED NOVEMBER 5. YOUR CLAIM IS PREDICATED UPON THE BASIS THAT YOU WERE IMPROPERLY SEPARATED FROM A GRADE GS-7 POSITION IN THE CLAIMS DIVISION OF THIS OFFICE EFFECTIVE JUNE 24. IN THAT YOU WERE FORCED TO ACCEPT A TRANSFER TO ANOTHER AGENCY AT A LOWER GRADE ON JUNE 5. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THE ACT OF JUNE 10. - WAS NOT APPLICABLE IN YOUR CASE SINCE YOUR REMOVAL FROM THE SERVICE WAS NEVER ACTUALLY ACCOMPLISHED. YOU WERE ADVISED WITH RESPECT TO YOUR COMMENTS ON YOUR EFFICIENCY RATING THAT THERE WAS NOTHING TO SHOW THAT YOU HAD EVER FILED AN APPEAL FROM THE RATING GIVEN YOU FOR THE PERIOD IN QUESTION. IT AGAIN IS CONTENDED THAT YOUR EFFICIENCY WAS SUCH THAT YOU SHOULD NOT HAVE BEEN SELECTED FOR SEPARATION IN THE FIRST INSTANCE.

B-106434, JANUARY 31, 1952, 31 COMP. GEN. 344

COMPENSATION - DISCHARGES, SUSPENSIONS, ETC. - ACT OF JUNE 10, 1948 - TRANSFERS TO LOWER GRADE POSITIONS TO AVOID SEPARATION THE TRANSFER BY AN EMPLOYEE TO A POSITION IN A LOWER GRADE, TO AVOID A SEPARATION BY REDUCTION IN FORCE, DOES NOT CONSTITUTE A REMOVAL FROM THE SERVICE WITHIN THE "BACK PAY" PROVISIONS OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, SO AS TO ENTITLE SAID EMPLOYEE TO THE DIFFERENCE IN SALARY BETWEEN THE POSITION HELD PRIOR TO TRANSFER AND THE LOWER GRADE POSITION TO WHICH TRANSFERRED.

COMPTROLLER GENERAL WARREN TO MARJORIE P. GILLESPIE, JANUARY 31, 1952:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 5, 1951, FROM YOUR ATTORNEY, IVY LEE BUCHANAN, REQUESTING, ON YOUR BEHALF, REVIEW OF SETTLEMENT DATED OCTOBER 4, 1951, WHICH DISALLOWED YOUR CLAIM FOR SALARY AT THE RATE OF $4,075 PER ANNUM FROM JUNE 24, 1950 TO AUGUST 22, 1951 (DATE OF YOUR CLAIM), LESS AMOUNTS RECEIVED BY YOU THROUGH EMPLOYMENT WITH THE DISTRICT UNEMPLOYMENT COMPENSATION BOARD AND THE DEPARTMENT OF THE ARMY.

YOUR CLAIM IS PREDICATED UPON THE BASIS THAT YOU WERE IMPROPERLY SEPARATED FROM A GRADE GS-7 POSITION IN THE CLAIMS DIVISION OF THIS OFFICE EFFECTIVE JUNE 24, 1950, IN THAT YOU WERE FORCED TO ACCEPT A TRANSFER TO ANOTHER AGENCY AT A LOWER GRADE ON JUNE 5, 1950, TO AVOID A PROPOSED SEPARATION FROM THE SERVICE ON JUNE 24, 1950.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THE ACT OF JUNE 10, 1948, 62 STAT. 354, AMENDING THE ACT OF AUGUST 24, 1912, 5 U.S.C. 652-- WHICH AUTHORIZES PAYMENT OF COMPENSATION UNDER CERTAIN CIRCUMSTANCES TO EMPLOYEES REMOVED OR SUSPENDED FROM THE SERVICE--- WAS NOT APPLICABLE IN YOUR CASE SINCE YOUR REMOVAL FROM THE SERVICE WAS NEVER ACTUALLY ACCOMPLISHED, IT APPEARING THAT PRIOR TO THE PROPOSED EFFECTIVE DATE THEREOF, YOU TRANSFERRED TO A POSITION IN ANOTHER AGENCY. ALSO, YOU WERE ADVISED WITH RESPECT TO YOUR COMMENTS ON YOUR EFFICIENCY RATING THAT THERE WAS NOTHING TO SHOW THAT YOU HAD EVER FILED AN APPEAL FROM THE RATING GIVEN YOU FOR THE PERIOD IN QUESTION.

IT AGAIN IS CONTENDED THAT YOUR EFFICIENCY WAS SUCH THAT YOU SHOULD NOT HAVE BEEN SELECTED FOR SEPARATION IN THE FIRST INSTANCE, AND THAT THE NOTIFICATION OF THE PROPOSED SEPARATION ACTUALLY DID RESULT IN YOUR REMOVAL BECAUSE IT FORCED YOU TO SEEK ANOTHER POSITION ELSEWHERE.

YOU MAY BE ADVISED THAT THE NOTICE OF SEPARATION ISSUED TO YOU WAS PREDICATED UPON THE REDUCTION IN FORCE REGULATIONS IN EFFECT AT THAT TIME WHICH REQUIRED GIVING CERTAIN WEIGHTS IN THE FORM OF POINTS FOR THE VARIOUS TYPES OF EFFICIENCY RATINGS. DOUBTLESS, IF YOU HAD APPEALED YOUR EFFICIENCY RATING AND HAD BEEN SUCCESSFUL IN OBTAINING A HIGHER RATING THERE WOULD HAVE BEEN NECESSITATED A CHANGE IN THE NUMBER OF YOUR RETENTION POINTS WHICH MIGHT HAVE AFFECTED YOUR RELATIVE STANDING FOR RETENTION PURPOSES. HOWEVER, AS PREVIOUSLY INDICATED, YOU ELECTED NOT TO APPEAL YOUR RATING OF " GOOD" AND CONSEQUENTLY AT THE TIME THE NOTICES OF REDUCTION IN FORCE WERE ISSUED THERE WAS NO ALTERNATIVE BUT TO COMPUTE YOUR STANDING FROM THE OFFICIAL EFFICIENCY RATING THEN OF RECORD.

IN ANY EVENT, AND ASIDE FROM THE ADMINISTRATIVE CONSIDERATIONS OF THE CASE, THERE APPEARS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM IN THE ABSENCE OF A SPECIFIC STATUTE SO PROVIDING. THE ONLY STATUTE THAT MIGHT REQUIRE CONSIDERATION HERE IS THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 355, SUPRA, WHICH IN PERTINENT PART READS AS FOLLOWS:

ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY IN A REDUCTION IN FORCE WHO, AFTER AN APPEAL TO PROPER AUTHORITY, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION, FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED OR SUSPENDED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD. A DECISION WITH RESPECT TO ANY APPEAL TO PROPER AUTHORITY UNDER THIS PARAGRAPH SHALL BE MADE AT THE EARLIEST PRACTICABLE DATE.

UNDER THAT PROVISION OF LAW THERE IS PERCEIVED NO BASIS FOR THE VIEW THAT A TRANSFER TO A POSITION IN A LOWER GRADE CONSTITUTES A REMOVAL FROM THE SERVICE. ON THE CONTRARY, THIS OFFICE HAS HELD THAT A DEMOTION TO A LOWER GRADE IRRESPECTIVE OF THE REASON THEREFOR, DOES NOT COME WITHIN THE PROVISIONS OF THE SAID ACT. 28 COMP. GEN. 200; ID. 258; 29 ID. 10; 30 ID. 353. MOREOVER, IT IS APPARENT THAT YOU DO NOT OTHERWISE MEET THE CONDITIONS OF THAT STATUTE IN THAT YOU DID NOT APPEAL TO THE PROPER AUTHORITY AND HAVE NOT BEEN RESTORED TO DUTY UPON THE GROUND THAT YOUR REMOVAL WAS UNJUSTIFIED AND UNWARRANTED.

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 4, 1951, DISALLOWING YOUR CLAIM, MUST BE SUSTAINED.