B-123357, JUN. 6, 1955

B-123357: Jun 6, 1955

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WHO THEREAFTER WAS RESTORED TO DUTY IN HIS POSITION. MAY HAVE THE LEAVE SO USED RECREDITED TO HIS LEAVE ACCOUNT. THE EMPLOYEE WAS SUSPENDED BY THE COMMANDING OFFICER FOR SECURITY REASONS. THAT IS. THE PROCEDURES ADMINISTRATIVELY FOLLOWED IN THE CASE ARE STATED TO HAVE BEEN DRAWN IN PART FROM NCPI 29 AND IN PART FROM NCPI 45. THERE APPEAR TO HAVE BEEN DEPARTURES FROM THE PROCEDURES PRESCRIBED UNDER THE REGULATIONS FOR EFFECTUATING BOTH OF THE ACTS. SINCE THE EMPLOYEE WAS RESTORED TO ACTIVE DUTY BY THE COMMANDING OFFICER AFTER SATISFACTORY CLEARANCE. THE ONLY REGULATION THAT NOW APPEARS MATERIAL IS NCPI 29.2-9H/2). WILL BE RESTORED TO DUTY ONLY AT THE DIRECTION OF THE SECRETARY OF THE NAVY.

B-123357, JUN. 6, 1955

TO THE HONORABLE SECRETARY OF THE NAVY:

THE ASSISTANT SECRETARY'S LETTER OF MARCH 18, 1955, REQUESTS OUR DECISION WHETHER THE ANNUAL LEAVE USED BY AN EMPLOYEE INCIDENT TO A SUSPENSION IN THE INTERESTS OF NATIONAL SECURITY, WHO THEREAFTER WAS RESTORED TO DUTY IN HIS POSITION, MAY HAVE THE LEAVE SO USED RECREDITED TO HIS LEAVE ACCOUNT.

THE EMPLOYEE WAS SUSPENDED BY THE COMMANDING OFFICER FOR SECURITY REASONS, APPARENTLY UNDER NAVAL CIVILIAN PERSONNEL INSTRUCTION 29, RELATING TO THE ACT OF AUGUST 6, 1950, PUBLIC LAW 733, AND EXECUTIVE ORDER NO. 10450, DATED APRIL 27, 1953, AS AMENDED, THAT IS, GOVERNING CHARGES, REMOVALS, AND OTHER ACTIONS UNDER THE EMPLOYEE SECURITY PROGRAM. THE PROCEDURES ADMINISTRATIVELY FOLLOWED IN THE CASE ARE STATED TO HAVE BEEN DRAWN IN PART FROM NCPI 29 AND IN PART FROM NCPI 45, THE LATTER RELATING PRIMARILY TO THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652. ALSO, THERE APPEAR TO HAVE BEEN DEPARTURES FROM THE PROCEDURES PRESCRIBED UNDER THE REGULATIONS FOR EFFECTUATING BOTH OF THE ACTS. HOWEVER, SINCE THE EMPLOYEE WAS RESTORED TO ACTIVE DUTY BY THE COMMANDING OFFICER AFTER SATISFACTORY CLEARANCE, THE ONLY REGULATION THAT NOW APPEARS MATERIAL IS NCPI 29.2-9H/2). THAT SECTION OF THE REGULATIONS ROVIDES:

"EMPLOYEES SUSPENDED BY HEADS OF ACTIVITIES UNDER PUBLIC LAW 733, 81ST CONGRESS, WILL BE RESTORED TO DUTY ONLY AT THE DIRECTION OF THE SECRETARY OF THE NAVY, DESPITE THE FACT THAT THE ACTIVITY MAY HAVE MADE A FAVORABLE DECISION FOLLOWING SUSPENSION.'

IN THE LIGHT OF THAT PROVISION, NO ACTION WITH REGARD TO THE QUESTION OF RECREDITING THE EMPLOYEE'S ANNUAL LEAVE MAY BE TAKEN UNDER THE FACTS AND CIRCUMSTANCES OF THIS CASE UNTIL HIS REEMPLOYMENT IS RATIFIED OR APPROVED BY THE SECRETARY OF THE NAVY. SHOULD SUCH RATIFICATION OR APPROVAL BE GIVEN, IT IS OUR VIEW THAT THE ESSENTIAL FACTS IN THIS CASE ARE SUFFICIENTLY ANALOGOUS TO THOSE CONSIDERED IN OUR DECISION, 32 COMP. GEN. 284, AS TO WARRANT THE CONCLUSION THAT ANNUAL LEAVE USED BY THE EMPLOYEE DURING THE PERIOD OF HIS SUSPENSION MAY, IN YOUR DISCRETION, BE RECREDITED TO THE EXTENT OF THAT TO WHICH HE WOULD HAVE BEEN ENTITLED AT THE END OF THE 1954 LEAVE YEAR HAD THE SUSPENSION NOT OCCURRED.