B-117675, JANUARY 15, 1954, 33 COMP. GEN. 295

B-117675: Jan 15, 1954

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IS ORDERED RETROACTIVELY RESTORED TO DUTY. IS NOT ENTITLED TO COMPENSATION FOR THE PERIOD OF SUSPENSION UNDER BACK PAY PROVISIONS OF SECTION 6 (B) (2) OF THE ACT OF JUNE 10. 1954: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 9. WHEN A DISCHARGE IS FOUND UPON ITS MERITS TO BE TOO DRASTIC. WHAT GIVES RISE TO THE QUESTION IS THE SETTLEMENT MADE IN ANSWER TO QUESTION 6 IN THE DECISION OF MAY 20. AS FOLLOWS: WHERE RETROACTIVE RESTORATION IS RECOMMENDED UPON THE MERITS OF THE CASE. AFFIRMATIVE ADMINISTRATIVE ACTION IS TAKEN TO COMPLY THEREWITH. IT FOLLOWS THAT THE AFFECTED EMPLOYEE IS ENTITLED TO BACK PAY FOR THE ENTIRE PERIOD OF REMOVAL. IN RESPECT OF THAT STATEMENT YOUR LETTER STATES: IT IS IMPLIED IN THE ABOVE DECISION THAT IF THE COMMISSION RECOMMENDED A RETROACTIVE RESTORATION TO DUTY OF A PREFERENCE ELIGIBLE IN CONNECTION WITH A SECTION 14 APPEAL OF A DISCHARGE AND THAT A PART OF THE PERIOD OF DISCHARGE BE CONSIDERED AS A SUSPENSION.

B-117675, JANUARY 15, 1954, 33 COMP. GEN. 295

COMPENSATION - PERIOD BETWEEN SEPARATION WITHOUT CAUSE AND REINSTATEMENT - PERIOD OF DISCHARGE REGARDED AS SUSPENSION A DISCHARGED PREFERENCE ELIGIBLE EMPLOYEE WHO, UPON APPEAL TO THE CIVIL SERVICE COMMISSION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, IS ORDERED RETROACTIVELY RESTORED TO DUTY, BUT WITH A RECOMMENDATION THAT A PORTION OF THE PERIOD INVOLVED IN THE DISCHARGE BE REGARDED AS A SUSPENSION, IS NOT ENTITLED TO COMPENSATION FOR THE PERIOD OF SUSPENSION UNDER BACK PAY PROVISIONS OF SECTION 6 (B) (2) OF THE ACT OF JUNE 10, 1948.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 15, 1954:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 9, 1953, REQUESTING TO BE ADVISED AS TO WHAT EFFECT, IF ANY, THERE WOULD BE UPON THE PAY PROVISIONS OF THE ACT OF JUNE 10, 1948, 62 STAT. 354, SHOULD THE COMMISSION, AFTER CONSIDERATION OF AN APPEAL UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, 58 STAT. 390, AS AMENDED, WHEN A DISCHARGE IS FOUND UPON ITS MERITS TO BE TOO DRASTIC, RECOMMEND THAT, IN RESTORING THE AFFECTED EMPLOYEE RETROACTIVELY, A PORTION OF THE PERIOD BE REGARDED AS A PERIOD OF SUSPENSION.

WHAT GIVES RISE TO THE QUESTION IS THE SETTLEMENT MADE IN ANSWER TO QUESTION 6 IN THE DECISION OF MAY 20, 1953, B-114083, AS FOLLOWS:

WHERE RETROACTIVE RESTORATION IS RECOMMENDED UPON THE MERITS OF THE CASE, AND AFFIRMATIVE ADMINISTRATIVE ACTION IS TAKEN TO COMPLY THEREWITH, UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1948, IT FOLLOWS THAT THE AFFECTED EMPLOYEE IS ENTITLED TO BACK PAY FOR THE ENTIRE PERIOD OF REMOVAL. COMP. GEN. 26; ID. 209; 32 ID. 210. * * * IT WOULD SEEM THAT UNLESS THE COMMISSION IN ITS FINDING IN A CASE WHOULD RECOMMEND THAT A PART OF A REMOVAL PERIOD BE REGARDED AS A SUSPENSION THERE WOULD BE NO AUTHORITY FOR AN ADMINISTRATIVE OFFICE TO DO SO.

IN RESPECT OF THAT STATEMENT YOUR LETTER STATES:

IT IS IMPLIED IN THE ABOVE DECISION THAT IF THE COMMISSION RECOMMENDED A RETROACTIVE RESTORATION TO DUTY OF A PREFERENCE ELIGIBLE IN CONNECTION WITH A SECTION 14 APPEAL OF A DISCHARGE AND THAT A PART OF THE PERIOD OF DISCHARGE BE CONSIDERED AS A SUSPENSION, IT WOULD RESULT IN A REDUCTION OF BACK PAY TO THE EXTENT OF THE SUSPENSION.

IN LIGHT OF THE FOREGOING YOU SAY THAT THE COMMISSION NOW HAS UNDER CONSIDERATION THE ADVISABILITY OF RECOMMENDING APPROPRIATE PERIODS OF SUSPENSIONS IN SUCH CASES WHERE THE OUTRIGHT DISCHARGE OF AN EMPLOYEE IS FOUND UPON ITS MERITS TO BE TOO DRASTIC AND A SUSPENSION WOULD HAVE BEEN WARRANTED, BUT THAT THERE WOULD BE NO PARTICULAR ADVANTAGE IN THE COMMISSION'S SO DOING IF COMPENSATION IS PAID FOR THE ENTIRE PERIOD ORIGINALLY INVOLVED IN THE DISCHARGE. THEREFORE, THE QUESTION POSED BY YOU IS "WHETHER A RECOMMENDATION FOR A (PERIOD OF) SUSPENSION IN SUCH A CASE WOULD RESULT IN A REDUCTION OF THE COMPENSATION TO A RESTORED EMPLOYEE IN VIEW OF THE BROAD PROVISIONS OF THE ACT OF JUNE 10, 1948.'

SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED BY THE ACT OF AUGUST 4, 1947, 61 STAT. 723, PROVIDES THAT IT SHALL BE MANDATORY UPON THE ADMINISTRATIVE OFFICER TO TAKE "SUCH CORRECTIVE ACTION AS THE COMMISSION FINALLY RECOMMENDS.' IN VIEW OF THE QUOTED PART OF THIS AMENDATORY ACT THE COMMISSION HAS THE AUTHORITY TO DETERMINE WHAT CONSTITUTES PROPER "CORRECTIVE ACTION" AND THE ADMINISTRATIVE OFFICER IS REQUIRED TO COMPLY WITH ITS FINDINGS AND RECOMMENDATIONS IN THE MATTER. THEREFORE, WHERE A DETERMINATION IS MADE BY THE COMMISSION UPON THE MERITS OF A CASE THAT THE PROPER ACTION WAS TO SUSPEND THE EMPLOYEE WITHOUT PAY FOR A SPECIFIED PERIOD INSTEAD OF TO DISCHARGE HIM FROM THE SERVICE, IT WOULD BE NECESSARY FOR THE ADMINISTRATIVE OFFICE TO AMEND HIS RECORD TO SHOW A SUSPENSION. UNDER SUCH CIRCUMSTANCES THE EMPLOYEE THEN WOULD NOT BE ENTITLED TO COMPENSATION FOR THE SUSPENDED PERIOD UNDER THE PROVISIONS OF SECTION 6 (B) 2) OF THE ACT OF JUNE 10, 1948, BECAUSE, UPON SUCH COMMISSION'S FINDINGS AND RECOMMENDATION IN THE CASE, THE ERRONEOUS DISCHARGE WOULD BE CONSIDERED A JUSTIFIED SUSPENSION FOR SUCH PERIOD AS DISTINGUISHED FROM AN UNJUSTIFIED SUSPENSION. ACCORDINGLY, THE QUESTION PRESENTED IN YOUR SUBMISSION IS ANSWERED IN THE AFFIRMATIVE.

HOWEVER, IT IS SUGGESTED THAT THE WORDING OF THE RECOMMENDATION CONTEMPLATED IN SUCH A CASE AS SET FORTH IN YOUR LETTER BE CHANGED TO SHOW DEFINITELY THAT THE PERIOD TO BE REGARDED AS A SUSPENSION RUNS FROM THE DATE THE ADMINISTRATIVE OFFICE TOOK THE ADVERSE ACTION. THAT IS NECESSARY BECAUSE ONLY THE AMOUNTS, IF ANY, EARNED FROM OTHER EMPLOYMENT DURING THE BALANCE OF THE PERIOD CONSIDERED AS AN UNJUSTIFIED OR UNWARRANTED DISCHARGE ARE REQUIRED TO BE DEDUCTED FROM THE COMPENSATION OTHERWISE DUE THE EMPLOYEE UPON RESTORATION TO DUTY UNDER THE PROVISIONS OF SECTION 6 (B) (2) OF THE ACT OF JUNE 10, 1948.