B-124938, JAN. 6, 1956

B-124938: Jan 6, 1956

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WHITE: REFERENCE IS MADE TO YOUR LETTER OF JULY 20. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT IT DID NOT APPEAR THAT YOU WERE "IN THE CLASSIFIED CIVIL SERVICE" OF THE UNITED STATES WITHIN THE MEANING OF THE PERTINENT PROVISIONS OF THE ACT OF AUGUST 24. YOUR LETTER PROTESTS THAT YOU WERE NOT GIVEN THE PROPER 30-DAY ADVANCE NOTICE OF YOUR SEPARATION AS REQUIRED BY SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944. YOU WERE GIVEN AN INDEFINITE APPOINTMENT EFFECTIVE ON MARCH 1. UNDER THE REGULATIONS YOU WERE NOT ALLOWED CREDIT THEREFOR TOWARD COMPLETION OF THE TRIAL OR PROBATIONARY PERIOD BY THE ADMINISTRATIVE AGENCY. ALLEGED TO HAVE BEEN RETROACTIVELY EFFECTIVE TO MARCH 1. UNDER WHICH ADMINISTRATIVE ACTION WAS TAKEN.

B-124938, JAN. 6, 1956

TO MR. THADDEAUS L. WHITE:

REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1955, REQUESTING FURTHER CONSIDERATION OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JUNE 23, 1954, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE COMPENSATION COVERING A PERIOD OF ALLEGED IMPROPER SEPARATION FROM THE SERVICE UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1948, 62 STAT. 354, AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT IT DID NOT APPEAR THAT YOU WERE "IN THE CLASSIFIED CIVIL SERVICE" OF THE UNITED STATES WITHIN THE MEANING OF THE PERTINENT PROVISIONS OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, SUPRA, ON THE DATE OF YOUR SEPARATION FROM THE SERVICE, SEPTEMBER 28, 1951. ALSO, YOUR LETTER PROTESTS THAT YOU WERE NOT GIVEN THE PROPER 30-DAY ADVANCE NOTICE OF YOUR SEPARATION AS REQUIRED BY SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED.

THE RECORDS SHOW THAT UNDER THE PROVISIONS OF SECTION 2.115 OF THE CIVIL SERVICE REGULATIONS, 5 C.F.R., AND THE REGULATIONS REFERRED TO THEREIN, YOU WERE GIVEN AN INDEFINITE APPOINTMENT EFFECTIVE ON MARCH 1, 1951--- "SUBJECT TO SATISFACTORY COMPLETION OF A TRIAL PERIOD OF ONE (1) YEAR.' SINCE YOUR PRIOR SERVICE DID NOT IMMEDIATELY PRECEDE SAID APPOINTMENT, UNDER THE REGULATIONS YOU WERE NOT ALLOWED CREDIT THEREFOR TOWARD COMPLETION OF THE TRIAL OR PROBATIONARY PERIOD BY THE ADMINISTRATIVE AGENCY. WITH RESPECT TO THE PURPORTED AMENDMENT OF YOUR APPOINTMENT UNDER DATE OF AUGUST 14, 1953, ALLEGED TO HAVE BEEN RETROACTIVELY EFFECTIVE TO MARCH 1, 1951, SECTION 8 OF THE AIR FORCE INSTRUCTIONS DATED FEBRUARY 9, 1953, UNDER WHICH ADMINISTRATIVE ACTION WAS TAKEN, PROVIDES THAT SUCH RETROACTIVE PERSONNEL ACTIONS WILL HAVE NO RETROACTIVE EFFECT ON PAY MATTERS. THE INSTRUCTIONS CONCUR WITH OUR RULING IN 32 COMP. GEN. 310, 315.

MOREOVER, UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 9835, DATED MARCH 21, 1947, APPOINTMENTS MADE THEREAFTER LOOKING TO THE ACQUISITION OF A COMPETITIVE STATUS ARE SUBJECT TO INVESTIGATION. SUCH INVESTIGATION MAY BE BEGUN AT ANY TIME WITHIN 18 MONTHS FROM THE DATE OF APPOINTMENT. WHILE SUBSECTION (A) OF SECTION 6 OF THE ACT OF JUNE 10, 1948, ACCORDS THE PROTECTION OF THAT ACT TO A ,PERSON IN THE CLASSIFIED CIVIL SERVICE," IT HAS BEEN HELD BY THE COURTS THAT A PERSON IS NOT WITHIN THE "CLASSIFIED CIVIL SERVICE," UNDER SUBSECTION (A) OF THE ACT,"SO LONG AS HIS APPOINTMENT IS PROBATIONARY AND (OR) SUBJECT TO INVESTIGATION.' SEE IRVING NADELHAFT V. UNITED STATES, C.CLS. NO. 209-53, DECIDED JUNE 7, 1955, AND THE COURT CASES CITED THEREIN. ACCORDINGLY, ON THE BASIS OF THE RECORD AVAILABLE HERE, IT DOES NOT APPEAR YOU WERE "IN THE CLASSIFIED CIVIL SERVICE" ON SEPTEMBER 28, 1951, WITHIN THE MEANING OF THE 1948 STATUTE AND, THEREFORE, YOU ARE NOT ENTITLED TO COMPENSATION FOR THE PERIOD OF YOUR SEPARATION FROM THE SERVICE UNDER THE PROVISIONS OF SUBSECTION (B) (1) OF THAT STATUTE.

CONCERNING THE VIEWS EXPRESSED IN YOUR LETTER OF JULY 20 RELATIVE TO YOUR RIGHTS AS A VETERAN, IT MUST BE SAID THAT SINCE YOU WERE SERVING A PROBATIONARY PERIOD AT THE TIME OF YOUR REMOVAL THE BENEFITS PROVIDED BY SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, WERE NOT APPLICABLE TO YOU ON THE DATE OF YOUR SEPARATION. CF. KIRKPATRICK V. GRAY, 198 F.2D 533, CERTIORARI DENIED, 344 U.S. 880.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS CORRECT AND UPON REVIEW MUST BE AND IS SUSTAINED.