B-122019, DECEMBER 17, 1954, 34 COMP. GEN. 296

B-122019, DECEMBER 17, 1954, 34 COMP. GEN. 296

COMPENSATION - SUSPENSION FROM DUTY - COMPENSATION FOR PERIOD OF UNJUSTIFIED SUSPENSION - EXCEPTED POSITIONS NON-VETERAN EMPLOYEE WHO HELD EXCEPTED APPOINTMENT OF INDEFINITE TENURE UNDER SCHEDULE A OF THE CIVIL SERVICE RULES MAY NOT BE CONSIDERED TO HAVE BEEN IN THE CLASSIFIED CIVIL SERVICE WITHIN THE CONTEMPLATION OF THE ACT OF AUGUST 24, 1912, SO AS TO BE ENTITLED TO SALARY FOR INTERIM BETWEEN SUSPENSION FROM DUTY BECAUSE OF DISQUALIFICATION AND SUBSEQUENT RESTORATION PURSUANT TO SUCCESSFUL ADMINISTRATIVE APPEAL.

COMPTROLLER GENERAL CAMPBELL TO LOIS O. JENNINGS, DECEMBER 17, 1954:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 9, 1954, AND ENCLOSURES, REQUESTING REVIEW OF OFFICE SETTLEMENT DATED OCTOBER 7, 1954, WHICH, FOR THE REASONS STATED THEREIN, DISALLOWED YOUR CLAIM FOR COMPENSATION ALLEGED TO BE DUE YOU AS A FORMER EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, TWENTIETH AIR FORCE, APO 239, DURING THE PERIOD FEBRUARY 3 TO JULY 22, 1953, LESS LEAVE COMPENSATION AND TRAVEL TIME DISCUSSED BELOW.

ORDINARILY, EMPLOYEES ARE NOT ENTITLED TO THEIR REGULAR SALARY DURING A PERIOD OF ABSENCE FROM DUTY EXCEPT WHEN THEY ARE ON APPROVAL LEAVE WITH PAY OR AS PROVIDED UNDER OTHER STATUTORY AUTHORITY. IN THAT RESPECT THE RECORD SHOWS YOU WERE PAID FOR 56 HOURS OF ANNUAL LEAVE DUE YOU, PLUS 16 HOURS OF "ADMINISTRATIVE LEAVE," DURING THE PAY PERIOD ENDING MARCH 7, 1953, AND FOR YOUR TRAVEL TIME RETURNING FROM OVERSEAS TO THE UNITED STATES, MARCH 18 TO 21, 1953, COVERING PARTS OF THE PERIOD IN QUESTION.

REGARDING YOUR OVERSEAS POSITION CLASSIFICATION AS PERSONNEL ASSISTANT, GS-201-7, PARAGRAPH 2 OF YOUR EMPLOYMENT AGREEMENT INFORMED YOU "1THIS IS AN EXCEPTED APPOINTMENT OF INDEFINITE TENURE UNDER SCHEDULE A OF THE CIVIL SERVICE RULES, AND DOES NOT CONFER COMPETITIVE STATUS WITHIN THE FEDERAL CIVIL SERVICE, UNLESS OTHERWISE SPECIFIED ON THE STANDARD FORM 50, NOTIFICATION OF PERSONNEL ION.' THE COPIES OF SUCH FORMS IN YOUR CASE CONTAIN INFORMATION TO THE SAME EFFECT. REGARDING THE MATTER WHEREBY YOU FIRST WERE REMOVED FROM THAT POSITION BECAUSE OF "DISQUALIFICATION," PARAGRAPH 12 OF YOUR AGREEMENT SPECIFIED IN PART THAT CONFIRMATION OF YOUR APPOINTMENT WAS "SUBJECT TO VERIFICATION OF YOUR EXPERIENCE AND TRAINING RECORD.' AS TO THAT ASPECT OF YOUR CLAIM, IT IS THE RESPONSIBILITY OF THE CIVIL SERVICE COMMISSION TO DETERMINE WHETHER A PARTICULAR POSITION IS OR SHOULD BE IN THE COMPETITIVE SERVICE OR WHETHER AN EMPLOYEE HAS A COMPETITIVE STATUS OR HAD SUFFICIENT QUALIFYING EXPERIENCE AND TRAINING AT THE TIME OF APPOINTMENT TO A PARTICULAR POSITION. HOWEVER, YOU WERE ADVISED CORRECTLY IN THE SETTLEMENT OF OCTOBER 7, 1954, THAT THE COMPENSATION OR ,BACK PAY" BENEFITS OF THE ACT OF AUGUST 24, 1912, AS AMENDED JUNE 10, 1948, PUBLIC LAW 623, 62 STAT. 354, 5 U.S.C. 652, SO FAR AS THEY RELATE TO NONVETERANS, ARE CONFINED TO PERSONS "IN THE CLASSIFIED CIVIL SERVICE," DEFINED IN CIVIL SERVICE RULE I, PAGE Z1-207 OF THE FEDERAL PERSONNEL MANUAL, AND IN THE ACT OF MARCH 27, 1922, 5 U.S.C. 679. RESPECTING YOUR COMPLAINTS CONCERNING THE ABOLISHMENT OF YOUR FORMER POSITION OR THE AVAILABILITY OF OTHER POSITIONS OVERSEAS, PARAGRAPH 4 OF YOUR AGREEMENT STIPULATED THAT THE EXACT LOCALITY OF YOUR STATION, THE UNIT OR GROUP TO WHICH ASSIGNED, OR TRANSFERS WITHIN THE THEATRE ARE MATTERS SOLELY WITHIN THE DISCRETION OF THE EMPLOYING COMMAND.

THEREFORE, REGARDLESS OF THE FACT THAT YOU WERE REEMPLOYED TEMPORARILY AND RESTORED TO DUTY STATUS AT THE BOLLING AIR FORCE BASE, WASHINGTON, D.C., FOR THE PERIOD JULY 22 TO AUGUST 23, 1953--- WHICH THE RECORD SHOWS WAS FOR PURPOSES OF REDUCTION IN FORCE PROCEDURES--- NO AMOUNT OTHER THAN THE LEAVE AND TRAVEL TIME PAID APPEARS TO BE DUE FOR THE PERIOD FEBRUARY 3 TO JULY 22, 1953, DURING WHICH YOU PERFORMED NO SERVICE AND WERE IN A LEAVE WITHOUT PAY STATUS. IT MAY BE STATED FURTHER THAT THIS OFFICE KNOWS OF NO OTHER STATUTE OR REGULATION WHEREBY YOU WOULD BE ENTITLED TO REGULAR SALARY FOR THE PERIOD OF YOUR CLAIM, AND THE OUTCOME OF YOUR GRIEVANCE APPEALS THROUGH ADMINISTRATIVE CHANNELS WOULD NOT AFFECT THE SETTLEMENT ACTION IN YOUR CASE. HENCE, I HAVE TO ADVISE THAT YOUR CLAIM PROPERLY WAS FOR DISALLOWANCE, AND UPON REVIEW THE SETTLEMENT OF OCTOBER 7, 1954, HEREBY IS SUSTAINED.

WHILE THE ABOVE CONSTITUTES THE FINAL ACTION THIS OFFICE MAY TAKE BASED UPON THE PRESENT RECORD IN YOUR CASE, YOU ARE PRIVILEGED TO FILE SUIT IN THE UNITED STATES COURT OF CLAIMS, WASHINGTON, C., FOR SUCH AMOUNT AS YOU BELIEVE IS DUE YOU; HOWEVER, IN THE CASE OF HOMER B. CHOLLAR V. UNITED STATES (C.1CLS. NO. 517-53, DECIDED NOVEMBER 30, 1954/--- INVOLVING FACTS AND CIRCUMSTANCES SIMILAR TO THOSE IN YOUR CASE--- THE COURT OF CLAIMS HELD THAT AN "EXCEPTED" EMPLOYEE WHO WAS REEMPLOYED AFTER A SUCCESSFUL APPEAL OF HIS DISMISSAL WAS NOT ENTITLED TO BE PAID SALARY FOR THE INTERIM PERIOD, SINCE HE WAS NOT ENTITLED TO BENEFIT OF THE ACT OF AUGUST 24, 1912, AS AMENDED.