B-113832, MARCH 10, 1953, 32 COMP. GEN. 390

B-113832: Mar 10, 1953

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OFFICERS AND EMPLOYEES - SUSPENSION OR REMOVAL - RESTORATION AN EMPLOYEE WHO WAS ERRONEOUSLY FURLOUGHED IN A REDUCTION IN FORCE. PAID FOR ACCUMULATED ANNUAL LEAVE AND THEN PLACED IN A LEAVE WITHOUT PAY STATUS IS ENTITLED UPON REINSTATEMENT TO THE BACK PAY BENEFITS OF THE ACT OF JUNE 10. FROM THE DATE HE WAS PLACED IN A LEAVE WITHOUT PAY STATUS COMPUTED AT THE RATE HE WAS RECEIVING ON THE DATE THE FURLOUGH BEGAN. - LESS OUTSIDE EARNINGS AND RETIREMENT DEDUCTIONS WHERE INVOLVED PERIOD IS TO BE COUNTED FOR RETIREMENT. IT IS REPORTED IN YOUR LETTER THAT MR. SOUTHWORTH WAS EMPLOYED BY THE OFFICE OF PRICE STABILIZATION AS BUSINESS ANALYST. THAT HE WAS PLACED IN A TERMINAL ANNUAL LEAVE STATUS EFFECTIVE SEPTEMBER 1.

B-113832, MARCH 10, 1953, 32 COMP. GEN. 390

OFFICERS AND EMPLOYEES - SUSPENSION OR REMOVAL - RESTORATION AN EMPLOYEE WHO WAS ERRONEOUSLY FURLOUGHED IN A REDUCTION IN FORCE, PAID FOR ACCUMULATED ANNUAL LEAVE AND THEN PLACED IN A LEAVE WITHOUT PAY STATUS IS ENTITLED UPON REINSTATEMENT TO THE BACK PAY BENEFITS OF THE ACT OF JUNE 10, 1948, FROM THE DATE HE WAS PLACED IN A LEAVE WITHOUT PAY STATUS COMPUTED AT THE RATE HE WAS RECEIVING ON THE DATE THE FURLOUGH BEGAN--- LESS OUTSIDE EARNINGS AND RETIREMENT DEDUCTIONS WHERE INVOLVED PERIOD IS TO BE COUNTED FOR RETIREMENT--- WITHOUT REGARD TO THE BENEFIT OF ANY SALARY INCREASES OCCURRING DURING SUCH PERIOD; HOWEVER THE LAW SPECIFICALLY EXCEPTS THE ACCUMULATION OF LEAVE DURING THE PERIOD OF SUCH FURLOUGH.

COMPTROLLER GENERAL WARREN TO T. W. CHAPPELL, OFFICE OF PRICE STABILIZATION, MARCH 10, 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 10, 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 LOUIS S. SOUTHWORTH, AN EMPLOYEE OF THE DISTRICT OFFICE OF PRICE STABILIZATION, CHARLESTON, WEST VIRGINIA, COVERING THE PERIOD FROM SEPTEMBER 1, 1952, TO JANUARY 27, 1953.

IT IS REPORTED IN YOUR LETTER THAT MR. SOUTHWORTH WAS EMPLOYED BY THE OFFICE OF PRICE STABILIZATION AS BUSINESS ANALYST, GS-9, AT THE RATE OF $5,060 PER ANNUM; THAT ON AUGUST 1, 1952, HE RECEIVED A NOTICE OF SEPARATION BY REDUCTION IN FORCE TO THE EFFECT 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 THE CLOSE OF BUSINESS ON OCTOBER 2, 1952; THAT HE RECEIVED PAYMENT FOR SAID PERIOD COVERING 172 HOURS OF ACCUMULATED LEAVE, ONE HOLIDAY, AND 12 HOURS CURRENTLY ACCRUED ANNUAL LEAVE; THAT HE WAS PLACED IN A FURLOUGH (LEAVE WITHOUT PAY) STATUS EFFECTIVE OCTOBER 3, 1952, THROUGH THE CLOSE OF BUSINESS ON APRIL 30, 1953.

ALSO, IT IS REPORTED THAT MR. SOUTHWORTH APPEALED SAID REDUCTION IN FORCE SEPARATION TO THE CIVIL SERVICE COMMISSION; THAT A DECISION WAS RENDERED IN HIS FAVOR AND IT WAS RECOMMENDED "THAT HE BE RESTORED TO DUTY RETROACTIVELY TO THE DATE HE WAS IMPROPERLY SEPARATED, AUGUST 31, 1952; " THAT IN COMPLIANCE WITH SAID RECOMMENDATION "HIS RESTORATION TO DUTY WAS EFFECTED AS OF JANUARY 28, 1953, TO BE CARRIED IN A NON-PAY STATUS TO FEBRUARY 28, 1953, AT WHICH TIME HE WOULD BE SEPARATED DUE TO REDUCTION IN FORCE.'

UPON THE BASIS OF THOSE FACTS YOU PRESENT SEVERAL QUESTIONS, PRINCIPALLY (1) WHETHER THE EMPLOYEE IS ENTITLED TO RESTORATION PAY FOR THE PERIOD FROM SEPTEMBER 1, 1952 TO JANUARY 27, 1953, LESS THE AMOUNT PAID TO HIM FOR TERMINAL LEAVE AND MONEYS EARNED BY HIM DURING SAID PERIOD, OR (2) WHETHER THE EMPLOYEE IS ENTITLED TO RESTORATION PAY FOR THE PERIOD FROM OCTOBER 3, 1952, THROUGH JANUARY 27, 1953, LESS MONEYS EARNED BY HIM DURING SAID PERIOD.

IN 29 COMP. GEN. 492, IT WAS HELD, QUOTING FROM THE SYLLABUS---

AN EMPLOYEE WHO WAS ERRONEOUSLY FURLOUGHED IN A REDUCTION IN FORCE AND CARRIED IN A NONPAY STATUS AFTER EXHAUSTION OF HIS ANNUAL LEAVE IS ENTITLED UPON REINSTATEMENT TO THE BACK-PAY BENEFITS OF THE ACT OF JUNE 10, 1948, ONLY FROM THE DATE HE WAS PLACED IN A FURLOUGH WITHOUT PAY STATUS AND COMPENSATION FOR SUCH FURLOUGH PERIOD SHOULD BE COMPUTED AT THE RATE RECEIVED ON THE DATE THE FURLOUGH WITHOUT PAY BEGAN.

IN LIGHT OF THAT DECISION MR. SOUTHWORTH IS ENTITLED TO RESTORATION PAY ONLY FOR THE PERIOD HE WAS CARRIED IN A LEAVE WITHOUT PAY STATUS, THAT IS, FROM OCTOBER 3, 1952, THROUGH JANUARY 27, 1953, LESS ANY MONEYS EARNED BY HIM DURING SAID PERIOD. CF. 28 COMP. GEN. 333. ACCORDINGLY, THE ALTERNATE QUESTION (2) PRESENTED IN YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO THE RATE OF COMPENSATION TO BE PAID, YOU ARE ADVISED THAT THE BENEFIT OF SALARY INCREASES OCCURRING DURING THE PERIOD OF SEPARATION MAY NOT BE APPLIED IN COMPUTING COMPENSATION COVERING ANY STATUTE SPECIFICALLY PROVIDING THAT THE BACK PAY SHALL BE "AT THE RATE RECEIVED ON THE DATE OF SAID REMOVAL OR SUSPENSION.' ALSO, THE LAW SPECIFICALLY EXCEPTS THE "ACCUMULATION OF EAVE" DURING THE PERIOD OF SUCH SEPARATION. HOWEVER, SINCE THE INVOLVED PERIOD APPEARS FOR COUNTING FOR RETIREMENT PURPOSES, THERE SHOULD BE DEDUCTED FROM THE GROSS SALARY PAYABLE FOR THE SAID PERIOD THE APPLICABLE PERCENTAGE RETIREMENT REDUCTIONS. SEE 28 COMP. GEN. 333, 336; ID. 563; 32 ID. 132.

PAYMENT ON THE SUBMITTED VOUCHERS SHOULD BE IN ACCORDANCE WITH THE FOREGOING.