B-125237, OCT. 12, 1955

B-125237: Oct 12, 1955

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WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE IN THE RATE OF COMPENSATION YOU HAVE RECEIVED AS ELECTRIC WELDER AND THE COMPENSATION YOU WOULD HAVE EARNED AS ENGINEERING MATERIALS AND EQUIPMENT INSPECTOR FROM THE DATE OF YOUR DEMOTION TO THE POSITION OF ELECTRIC WELDER ON OCTOBER 6. IT NOW APPEARS THAT YOU ARE OF THE BELIEF THAT YOUR REDUCTION IN COMPENSATION RESULTING FROM A DEMOTION ON THE DATE INDICATED IS COVERED BY OFFICE DECISION. ALTHOUGH YOU ARE A VETERAN. YOU WERE ADVISED THAT THE REGIONAL OFFICE WAS UNABLE TO ACCEPT AN APPEAL FROM YOU AT THAT TIME. YOU STATE THAT YOU HAVE APPEALED YOUR CASE SEVERAL TIMES THROUGH OFFICIAL CHANNELS. YOU STATE THAT AS YET YOU HAVE NOT BEEN RESTORED TO THE POSITION FROM WHICH YOU WERE DEMOTED.

B-125237, OCT. 12, 1955

TO MR. HARRY L. PARKER:

YOUR LETTER OF JULY 9, 1955, REQUESTS REVIEW OF OFFICE SETTLEMENT DATED DECEMBER 9, 1953, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE IN THE RATE OF COMPENSATION YOU HAVE RECEIVED AS ELECTRIC WELDER AND THE COMPENSATION YOU WOULD HAVE EARNED AS ENGINEERING MATERIALS AND EQUIPMENT INSPECTOR FROM THE DATE OF YOUR DEMOTION TO THE POSITION OF ELECTRIC WELDER ON OCTOBER 6, 1947, AS AN EMPLOYEE OF THE NORFOLK NAVAL SHIPYARD.

IT NOW APPEARS THAT YOU ARE OF THE BELIEF THAT YOUR REDUCTION IN COMPENSATION RESULTING FROM A DEMOTION ON THE DATE INDICATED IS COVERED BY OFFICE DECISION, B-121568, DATED MAY 4, 1955, SO AS TO ENTITLE YOU TO ADDITIONAL COMPENSATION FOR THE PERIOD INVOLVED.

THE RECORDS OF OUR OFFICE SHOW THAT, ALTHOUGH YOU ARE A VETERAN, YOU DID NOT APPEAL THE ADVERSE ACTION EFFECTIVE OCTOBER 6, 1947, TO THE REGIONAL DIRECTOR OF THE FOURTH UNITED STATES CIVIL SERVICE REGION UNTIL AUGUST 3, 1953, AND THAT, AS A RESULT THEREOF, UNDER DATE OF AUGUST 6, 1953, YOU WERE ADVISED THAT THE REGIONAL OFFICE WAS UNABLE TO ACCEPT AN APPEAL FROM YOU AT THAT TIME. IN YOUR LETTER DATED JULY 9, 1955, YOU STATE THAT YOU HAVE APPEALED YOUR CASE SEVERAL TIMES THROUGH OFFICIAL CHANNELS, AND, IN PARAGRAPH 4 THEREOF, YOU STATE THAT AS YET YOU HAVE NOT BEEN RESTORED TO THE POSITION FROM WHICH YOU WERE DEMOTED.

THE OFFICE DECISION REFERRED TO IN YOUR LETTER, B-121568, DATED MAY 4, 1955, 34 COMP. GEN. 568, INVOLVED TWO EMPLOYEES WHO WERE SEPARATED FROM THE SERVICE, AND WOULD NOT BE APPLICABLE IN YOUR CASE WHICH INVOLVED A DEMOTION. THE DECISION TO WHICH YOU PRESUMABLY INTENDED TO REFER IS THAT OF MAY 3, 1955, B-121070, 34 COMP. GEN. 561, WHICH HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

"A DEMOTED EMPLOYEE WHO IS ORDERED RETROACTIVELY RESTORED TO HIS FORMER POSITION AFTER A SUCCESSFUL APPEAL UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, IS ENTITLED TO COMPENSATION FOR THE PERIOD OF THE UNJUSTIFIED DEMOTION PURSUANT TO THE AMENDATORY ACT OF AUGUST 4, 1947, COMPUTED ON THE BASIS OF THE AMOUNT WHICH WOULD HAVE BEEN EARNED FOR THE PERIOD IN THE GRADE FROM WHICH DEMOTED. 33 COMP. GEN. 192 AND 28 COMP. GEN. 489, MODIFIED.'

IT WILL BE NOTED THAT OUR DECISION OF MAY 3, 1955, IS PREDICATED UPON A RESTORATION TO DUTY IN ACCORDANCE WITH THE ORDER OF THE CIVIL SERVICE COMMISSION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED. THE DECISION IN THE UNITED STATES COURT OF CLAIMS, WHICH OUR DECISION FOLLOWS, ALSO ARE PREDICATED UPON THE SAME FACTOR. HENCE, SINCE YOU HAVE NOT BEEN RESTORED TO YOUR FORMER POSITION PURSUANT TO AN ORDER OF THE CIVIL SERVICE COMMISSION, THERE IS NO BASIS FOR ALLOWANCE OF ADDITIONAL COMPENSATION FROM THE TIME OF YOUR DEMOTION ON OCTOBER 6, 1947.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM MUST BE SUSTAINED.

YOU ARE ADVISED THAT OUR OFFICE MAY NOT UNDERTAKE TO ANSWER YOUR QUESTION AS TO WHAT EFFECT YOUR RESIGNATION WOULD HAVE ON RECOVERING YOUR FORMER POSITION SINCE ANY FURTHER PROCEEDINGS IN THE MATTER WOULD APPEAR TO BE FOR CONSIDERATION BY THE PROPER UNITED STATES COURT.