B-126431, FEB. 1, 1956

B-126431, FEB. 1, 1956

TO MR. CLIFTON G. HALL, ACTING CHIEF, ACCOUNTING OPERATIONS BRANCH OFFICE OF THE SECRETARY, DEPARTMENT OF COMMERCE:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15, 1955, FORWARDING TO OUR CLAIMS DIVISION FOR DIRECT SETTLEMENT THE CLAIM OF HILARY H. KENDRICK FOR THE SALARY DUE HIM FOR THE PERIOD FROM MAY 27, 1953, TO JULY 26, 1955. THE CLAIM ARISES AS A RESULT OF HIS RETROACTIVE RESTORATION EFFECTIVE JULY 27, 1955, TO A POSITION AS CRIMINAL INVESTIGATOR, GS-13, UNDER THE BUREAU OF FOREIGN COMMERCE. HE HAD BEEN SEPARATED FROM HIS PRIOR POSITION OF INVESTIGATOR (GENERAL), GS-13, ON MAY 26, 1953, IN A REDUCTION IN FORCE BY THE NATIONAL PRODUCTION AUTHORITY. MR. KENDRICK WAS RESTORED PURSUANT TO A DECISION OF THE CIVIL SERVICE COMMISSION'S BOARD OF APPEALS AND REVIEW.

THE RECORD SHOWS THAT UPON HIS SEPARATION FROM THE NATIONAL PRODUCTION AUTHORITY HE WAS PAID A LUMP SUM FOR 560 HOURS' ANNUAL LEAVE (COVERING THE PERIOD MAY 27 TO SEPTEMBER 1, 1953) WHICH INCLUDED 480 HOURS' ACCUMULATED ANNUAL LEAVE CREDIT FROM THE LEAVE YEAR 1952. THE NATIONAL PRODUCTION AUTHORITY WAS ABOLISHED ON OCTOBER 1, 1953, BUT MR. KENDRICK OBTAINED EMPLOYMENT ON OCTOBER 28, 1953, WITH THE BUREAU OF FOREIGN COMMERCE AS AN INVESTIGATOR (GENERAL) AT TOP OF GRADE GS-12 IN WHICH POSITION HE SERVED UNTIL RESTORED TO GRADE GS-13. UPON HIS RESTORATION TO GS-13, YOU SAY A PERIODIC STEP INCREASE WAS APPLIED TO HIS SALARY RATE EFFECTIVE JULY 27, 1955, WHICH NORMALLY WOULD HAVE BEEN EARNED BY HIM EFFECTIVE AUGUST 1, 1954, HAD HE ACTUALLY SERVED THE REQUIRED 18 MONTHS IN THAT GRADE FROM THE DATE OF HIS LAST STEP INCREASE. SUCH ADJUSTMENTS IN HIS GS-13 SALARY RATE APPEAR TO HAVE BEEN PROPERLY MADE IN ACCORDANCE WITH OUR DECISIONS AT 28 COMP. GEN. 563 AND 32 COMP. GEN. 390, CITED IN YOUR LETTER.

WHILE A PAYROLL VOUCHER DID NOT ACCOMPANY YOUR LETTER, WE UNDERSTOOD THAT IT WILL BE YOUR RESPONSIBILITY OR THAT OF OTHER CERTIFYING OFFICERS OF THE OFFICE OF THE SECRETARY OF COMMERCE TO MAKE THE PROPER CORRECTIONS AND ADJUSTMENTS IN MR. KENDRICK'S PAY AND LEAVE RECORDS, IN ACCORDANCE WITH SECTION 6 (B) (3) OF THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, 62 STAT. 354, 5 U.S.C. 652 (B) (3). THAT PROVISION OF THE ACT GOVERNS WHEN AN EMPLOYEE IS RESTORED TO DUTY AFTER AN APPEAL OF HIS UNJUSTIFIED OR UNWARRANTED REMOVAL FROM SERVICE IN A REDUCTION IN FORCE, SUCH AS OCCURRED IN THIS CASE. THE ACT PROVIDES THAT SUCH RESTORED EMPLOYEE---

"* * * SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL * * * FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED * * * LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD.'

THE LEAVE SITUATION IN THIS CASE IS SIMILAR TO THAT CONSIDERED IN OUR DECISION OF JULY 14, 1952, B-109375, 32 COMP. GEN. 22, WHICH HELD THAT AN EMPLOYEE WHO WAS PAID A LUMP SUM PURSUANT TO THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, FOR HIS ANNUAL LEAVE CREDIT AT THE TIME OF HIS ERRONEOUS SEPARATION IS REQUIRED TO REFUND THE LUMP-SUM LEAVE PAYMENT, EVEN THOUGH THE AMENDED PROVISIONS OF THE APPLICABLE LEAVE ACT AT THE TIME OF RESTORATION PRECLUDES RECREDITING THE EMPLOYEE'S LEAVE ACCOUNT WITH ALL THE ANNUAL LEAVE COVERED BY THE LUMP SUM PAYMENT. UNDER SECTION 203 (C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, THIS EMPLOYEE WAS ENTITLED AT THE END OF THE LAST PAY PERIOD OF 1952 TO CARRY OVER HIS ACCUMULATED LEAVE CREDIT OF 480 HOURS (60 DAYS), FOR USE IN 1953 OR SUBSEQUENT YEARS. ANY LEAVE ACCRUED AND UNUSED DURING 1953, AND ANY ACCRUALS THEREAFTER NOT USED DURING THE INTERIM EMPLOYMENT BECAME FORFEITED IN ACCORDANCE WITH SECTION 203 (C) OF THE 1951 LEAVE ACT. THE CONTINUOUS SERVICE CREDIT REQUIRED BY PUBLIC LAW 623 AND THE PROVISIONS OF SECTION 208 (A) OF THE 1951 LEAVE ACT, AS AMENDED JULY 2, 1953, 67 STAT. 137, WOULD SAVE TO THE EMPLOYEE'S CREDIT ONLY THE ACCUMULATED 480 HOURS "UNTIL USED" WITHIN THE MEANING OF SAID SECTION 208 (A), AS AMENDED. SEE 32 COMP. GEN. 22, 132, 162, AND 390; AND B-121164 DATED DECEMBER 1, 1954, IN THE CASE OF AARON M. ROSENTHAL SUBMITTED BY ANOTHER CERTIFYING OFFICER OF YOUR OFFICE.

MR. KENDRICK'S RESTORATION AND THREE DAYS' SERVICE, JULY 27 TO 29,DURING THE PAY PERIOD ENDING JULY 30, EFFECTED A CONTINUITY OF EMPLOYMENT ENTITLING HIM TO ACCRUE A PRO RATA CREDIT OF TWO HOURS' ANNUAL LEAVE DURING THOSE THREE DAYS IN ACCORDANCE WITH SECTION 30.207 OF THE LEAVE REGULATIONS ADDED BY THE CIVIL SERVICE COMMISSION, EFFECTIVE UPON PUBLICATION IN THE FEDERAL REGISTER JULY 22, 1955 (20 F.R. 5254).

THE FOREGOING APPEARS TO SUPPLY THE INFORMATION DESIRED BY YOU CONCERNING THE EMPLOYEE'S ANNUAL LEAVE ACCOUNT.

MR. KENDRICK'S CLAIM FOR BACK PAY WILL BE SETTLED BY OUR CLAIMS DIVISION.