B-113831, APRIL 15, 1953, 32 COMP. GEN. 449

B-113831: Apr 15, 1953

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WAS PLACED IN A TERMINAL LEAVE STATUS AND AT THE CONCLUSION THEREOF WAS FURLOUGHED AND WHO. WAS ORDERED TO BE RESTORED TO DUTY AND TO BE REIMBURSED FOR TIME LOST. IS ENTITLED TO COMPENSATION ONLY FROM DATE OF THE EXPIRATION OF HIS ANNUAL LEAVE TO DATE OF RESTORATION TO DUTY. IS NOT ENTITLED TO CREDIT FOR LEAVE ACCRUALS DURING THE PERIOD OF REMOVAL. WAS REINSTATED IN A LOWER GRADE THAN THAT HELD BEFORE HIS REMOVAL. - PRIOR POSITION HAVING BEEN ABOLISHED WHILE THE EMPLOYEE WAS ON TERMINAL LEAVE. - SHOULD BE COMPUTED UPON THE COMPENSATION OF THE GRADE HE WOULD HAVE OCCUPIED ON THE DATE OF SEPARATION FROM DUTY HAD THE PROPER ADMINISTRATIVE ACTION BEEN TAKEN IN THE FIRST INSTANCE. IT IS STATED IN YOUR LETTER THAT MR.

B-113831, APRIL 15, 1953, 32 COMP. GEN. 449

OFFICERS AND EMPLOYEES - SUSPENSION OR REMOVAL - RESTORATION - COMPENSATION AND LEAVE RIGHTS AN EMPLOYEE WHO, UPON RECEIPT OF A REDUCTION IN FORCE NOTICE, WAS PLACED IN A TERMINAL LEAVE STATUS AND AT THE CONCLUSION THEREOF WAS FURLOUGHED AND WHO, UPON APPEAL TO THE CIVIL SERVICE COMMISSION, WAS ORDERED TO BE RESTORED TO DUTY AND TO BE REIMBURSED FOR TIME LOST, IS ENTITLED TO COMPENSATION ONLY FROM DATE OF THE EXPIRATION OF HIS ANNUAL LEAVE TO DATE OF RESTORATION TO DUTY, UNDER THE "BACK PAY" PROVISION OF THE ACT OF JUNE 10, 1948, AND IS NOT ENTITLED TO CREDIT FOR LEAVE ACCRUALS DURING THE PERIOD OF REMOVAL. THE COMPENSATION PAYABLE UNDER SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, TO AN EMPLOYEE WHO, AFTER HAVING BEEN ERRONEOUSLY REMOVED DUE TO A REDUCTION IN FORCE, WAS REINSTATED IN A LOWER GRADE THAN THAT HELD BEFORE HIS REMOVAL--- PRIOR POSITION HAVING BEEN ABOLISHED WHILE THE EMPLOYEE WAS ON TERMINAL LEAVE--- SHOULD BE COMPUTED UPON THE COMPENSATION OF THE GRADE HE WOULD HAVE OCCUPIED ON THE DATE OF SEPARATION FROM DUTY HAD THE PROPER ADMINISTRATIVE ACTION BEEN TAKEN IN THE FIRST INSTANCE.

COMPTROLLER GENERAL WARREN TO T. W. CHAPPELL, OFFICE OF PRICE STABILIZATION, APRIL 15, 1953:

BY LETTER DATED FEBRUARY 13, 1953, THE DIRECTOR, BUDGET AND FINANCE DIVISION, OFFICE OF PRICE STABILIZATION, FILE 2933/LKM, FORWARDED HERE YOUR LETTER OF FEBRUARY 5, 1953, FILE 10400/2930, TOGETHER WITH ENCLOSURES, IN WHICH YOU REQUEST A DECISION AS TO THE AMOUNTS PROPERLY PAYABLE ON CERTAIN VOUCHERS THEREWITH SUBMITTED, STATED IN FAVOR OF JETHRO S. WATSON, AN EMPLOYEE OF THE DISTRICT OFFICE OF PRICE STABILIZATION, CHARLESTON, WEST VIRGINIA, COVERING THE PERIOD SEPTEMBER 1 THROUGH DECEMBER 1, 1952.

IT IS STATED IN YOUR LETTER THAT MR. WATSON WAS EMPLOYED BY THE OFFICE OF PRICE STABILIZATION, AS BUSINESS ANALYST, GS-11, AT THE RATE OF $5,940 PER ANNUM; THAT ON AUGUST 1, 1952, HE WAS ADVISED THAT HIS LAST DAY OF ACTIVE DUTY WOULD BE AUGUST 31, 1952; THAT HE WAS PLACED IN A TERMINAL ANNUAL LEAVE STATUS EFFECTIVE SEPTEMBER 1, 1952, THROUGH SIX HOURS ON OCTOBER 21, 1952; THAT HE RECEIVED PAYMENT FOR SAID PERIOD COVERING 268 HOURS OF ACCUMULATED ANNUAL LEAVE, ONE HOLIDAY, AND 18 HOURS' CURRENT ACCRUED LEAVE; THAT HE WAS PLACED IN A FURLOUGH (LEAVE WITHOUT PAY) STATUS, EFFECTIVE TWO HOURS ON OCTOBER 21, 1952, THROUGH APRIL 30, 1953.

ALSO, IT IS STATED THAT MR. WATSON APPEALED HIS REDUCTION IN FORCE SEPARATION AS AFORESAID TO THE FOURTH CIVIL SERVICE REGION; THAT A DECISION WAS RENDERED IN HIS FAVOR IN CONNECTION WITH WHICH IT WAS ORDERED HE BE RETURNED TO DUTY AND REIMBURSED FOR THE TIME LOST, LESS MONEY PAID HIM FOR ANNUAL LEAVE AND EARNED FROM OTHER SOURCES DURING SAID PERIOD; THAT IN COMPLIANCE WITH SAID ORDER MR. WATSON WAS RETURNED TO DUTY ON DECEMBER 2, 1952, AS BUSINESS ANALYST, GS-9, AT THE RATE OF $5,810 PER ANNUM, FOR THE REASON THAT SINCE HIS GS-11 JOB HAD BEEN ABOLISHED ON AUGUST 31, 1952, HIS APPEAL WAS MADE FOR THIS GS-9 POSITION, WHICH WAS OCCUPIED BY A NONVETERAN.

UPON THE BASIS OF THOSE FACTS, YOU PRESENT THE FOLLOWING QUESTIONS:

1. IS THE EMPLOYEE ENTITLED TO RESTORATION PAY COVERING THE PERIOD, SEPTEMBER 1 THROUGH DECEMBER 1, 1952, LESS THE AMOUNT PAID HIM FOR TERMINAL LEAVE AND ANY MONEYS EARNED BY HIM DURING THIS PERIOD, AND SHOULD HE BE CREDITED WITH 268 HOURS ANNUAL LEAVE ACCUMULATED TO HIS CREDIT AS OF AUGUST 31, 1952? (SEE ATTACHED VOUCHER, NET AMOUNT $547.34.)

2. OR, IS HE ENTITLED TO RESTORATION PAY FOR THE PERIOD FROM TWO HOURS ON OCTOBER 21 THROUGH DECEMBER 1, 1952, LESS ANY MONEYS EARNED BY HIM DURING THIS PERIOD? (SEE ATTACHED VOUCHER, NET AMOUNT $547.22.)

3. IF EITHER OF THE ABOVE PAYMENTS ARE MADE, SHOULD THEY BE MADE AT SALARY OF $5,940 PLUS PERIODIC PAY INCREASES TO $6,140 ON SEPTEMBER 14, 1952, OR AT NEW SALARY OF $5,810 WHEN RESTORED TO DUTY?

4. WOULD THE EMPLOYEE BE ENTITLED TO LEAVE ACCRUALS COVERING THE PERIOD OF RESTORATION PAY IN QUESTIONS 1 AND 2?

IN VIEW OF THE RULING BY THE CIVIL SERVICE COMMISSION, THERE APPEARS TO BE NO QUESTION THAT THE EMPLOYEE WAS RESTORED TO DUTY UPON THE GROUND THAT HIS REMOVAL FROM SERVICE WAS UNWARRANTED, SO AS TO QUALIFY HIM FOR THE COMPENSATION BENEFITS OF SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652. HOWEVER, IT HAS BEEN HELD BY THIS OFFICE THAT THE ANNUAL LEAVE TAKEN BY AN EMPLOYEE IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE--- EVEN THOUGH DUE TO REDUCTION IN FORCE NOTICE--- IS NOT PART OF A REMOVAL OR SUSPENSION FROM THE SERVICE UNDER THE ABOVE ACT. 28 COMP. GEN. 333. THE FACT THAT THE EMPLOYEE IN THIS CASE ENTERED A FURLOUGH STATUS ON OCTOBER 21, 1952, AFTER EXPIRATION OF HIS ANNUAL LEAVE, RATHER THAN BEING ABSOLUTELY SEPARATED AT THE TIME WOULD NOT MAKE ANY MATERIAL DIFFERENCE. HENCE, THE EMPLOYEE IS ENTITLED TO COMPENSATION UNDER SUCH ACT ONLY FROM THE DATE OF THE EXPIRATION OF HIS ANNUAL LEAVE TO THE DATE OF HIS RESTORATION TO DUTY, THAT IS, FROM TWO HOURS ON OCTOBER 21, 1952, THROUGH DECEMBER 1, 1952, LESS, OF COURSE, ANY AMOUNT EARNED THROUGH OTHER EMPLOYMENT DURING SAID PERIOD.

WITH RESPECT TO THE RATE OF COMPENSATION TO BE PAID, YOU ARE ADVISED THE EMPLOYEE IS ENTITLED TO BACK PAY COMPUTED UPON THE COMPENSATION OF THE GRADE ( GS-9) HE WOULD HAVE BEEN OCCUPYING ON OCTOBER 21, 1952, HAD ADMINISTRATIVE ACTION BEEN TAKEN IN THE FIRST INSTANCE. B-105222, DECEMBER 12, 1951. ALSO, IT MAY BE STATED THAT THE ACT OF JUNE 10, 1948, SPECIFICALLY EXCEPTS THE ,ACCUMULATION OF LEAVE" DURING THE PERIOD OF SEPARATION OR SUSPENSION FROM THE SERVICE FOR WHICH COMPENSATION IS ALLOWABLE.

THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.

UPON THE BASIS OF THE FOREGOING NEITHER OF THE VOUCHERS SUBMITTED, WHICH ARE RETURNED HEREWITH, APPEAR PROPER FOR CERTIFICATION.