B-127039, MARCH 16, 1956, 35 COMP. GEN. 520

B-127039: Mar 16, 1956

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LEAVES OF ABSENCE - ANNUAL - RECREDIT OF PRIOR ACCRUED LEAVE - LEAVE REQUIRED TO BE TAKEN DURING SUSPENSION FROM SERVICE AN EMPLOYEE WHO IS REQUIRED TO TAKE ANNUAL LEAVE DURING TWO PERIODS OF SUSPENSION FOR SECURITY REASONS UNDER THE ACT OF AUGUST 26. REQUESTS OUR DECISION WHETHER AN EMPLOYEE UPON HIS RESTORATION TO DUTY AFTER A SUSPENSION FOR SECURITY REASONS MAY BE RECREDITED WITH ANNUAL LEAVE HE WAS REQUIRED TO TAKE BETWEEN TWO PERIODS OF SUSPENSION EFFECTED UNDER THE PROVISIONS OF PUBLIC LAW 733. WHETHER IT WOULD HAVE ANY EFFECT ON THE AMOUNT OF LEAVE WHICH COULD BE CARRIED FORWARD AT THE END OF THE LEAVE YEAR. EMPLOYEE "A" WAS SUSPENDED FOR SECURITY REASONS JULY 21. HE WAS . HE WAS GIVEN A STATEMENT OF THE REASONS AND "RESUSPENDED ON SECURITY GROUNDS.'.

B-127039, MARCH 16, 1956, 35 COMP. GEN. 520

LEAVES OF ABSENCE - ANNUAL - RECREDIT OF PRIOR ACCRUED LEAVE - LEAVE REQUIRED TO BE TAKEN DURING SUSPENSION FROM SERVICE AN EMPLOYEE WHO IS REQUIRED TO TAKE ANNUAL LEAVE DURING TWO PERIODS OF SUSPENSION FOR SECURITY REASONS UNDER THE ACT OF AUGUST 26, 1950, MAY, UPON RESTORATION TO DUTY, BE RECREDITED WITH THE ENFORCED LEAVE WITH PAY PROVIDED THE LEAVE, IF IN EXCESS OF 30 DAYS, DOES NOT EXCEED THE CEILING CARRIED FORWARD IN THE YEAR OF SUSPENSION.

TO THE SECRETARY OF THE ARMY, MARCH 16, 1956:

YOUR LETTER OF FEBRUARY 16, 1956, REQUESTS OUR DECISION WHETHER AN EMPLOYEE UPON HIS RESTORATION TO DUTY AFTER A SUSPENSION FOR SECURITY REASONS MAY BE RECREDITED WITH ANNUAL LEAVE HE WAS REQUIRED TO TAKE BETWEEN TWO PERIODS OF SUSPENSION EFFECTED UNDER THE PROVISIONS OF PUBLIC LAW 733, AND IF RECREDITED, WHETHER IT WOULD HAVE ANY EFFECT ON THE AMOUNT OF LEAVE WHICH COULD BE CARRIED FORWARD AT THE END OF THE LEAVE YEAR.

EMPLOYEE "A" WAS SUSPENDED FOR SECURITY REASONS JULY 21, 1954. ON AUGUST 20, 1954, HE WAS ,RETURNED TO DUTY FOLLOWING SUSPENSION AND PLACED IN AN ANNUAL LEAVE STATUS" PENDING RECEIPT OF AN APPROPRIATE STATEMENT OF THE REASONS IN SUPPORT OF THE SECURITY SUSPENSION. ON OCTOBER 4, 1954, HE WAS GIVEN A STATEMENT OF THE REASONS AND "RESUSPENDED ON SECURITY GROUNDS.' HIS CASE WAS ULTIMATELY RESOLVED FAVORABLY AND HE WAS RETURNED TO DUTY APRIL 7, 1955,"WITH RETROACTIVE COMPENSATION FOR BOTH PERIODS OF SUSPENSION, NAMELY, FROM 21 JULY THROUGH 19 AUGUST 1954 AND FROM 4 OCTOBER 1954 TO 6 APRIL 1955.' YOU SAY THAT IF AN APPROPRIATE STATEMENT OF REASONS HAD ACCOMPANIED THE ORIGINAL ACTION THE SUSPENSION WOULD HAVE BEEN CONTINUOUS FROM JULY 21, 1954, TO APRIL 6, 1955. ACCORDINGLY, YOU EXPRESS THE VIEW THAT EMPLOYEE "A" HERE SHOULD BE TREATED IN THE SAME MANNER AS THOSE EMPLOYEES WHO ARE GRANTED ANNUAL LEAVE DURING PERIODS OF SUSPENSION UNDER PUBLIC LAW 733, 32 COMP. GEN. 284.

PUBLIC LAW 733, APPROVED AUGUST 26, 1950, 64 STAT. 476-477, 5 U.S.C. 22- 1, PROVIDES IN PERTINENT PART AS FOLLOWS:

* * * PROVIDED FURTHER, THAT ANY PERSON WHOSE EMPLOYMENT IS SO SUSPENDED OR TERMINATED UNDER THE AUTHORITY OF SAID SECTIONS MAY, IN THE DISCRETION OF THE AGENCY HEAD CONCERNED, BE REINSTATED OR RESTORED TO DUTY, AND IF SO REINSTATED OR RESTORED SHALL BE ALLOWED COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUCH SUSPENSION OR TERMINATION IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH SUSPENSION OR TERMINATION, AT THE RATE HE WAS RECEIVING ON THE DATE OF SUSPENSION OR TERMINATION, AS APPROPRIATE, AND THE INTERIM NET EARNINGS OF SUCH PERSON: * * *

WHILE THE ABOVE STATUTE AUTHORIZES COMPENSATION ONLY FOR THE PERIOD OF SUSPENSION OR TERMINATION IT WOULD APPEAR IN THIS CASE THAT THE PERIOD OF ENFORCED ANNUAL LEAVE WAS FOR THE PROTECTION OF THE GOVERNMENT AND TO ALL INTENTS AND PURPOSES THE EMPLOYEE SUFFERED THE SAME LOSS OF COMPENSATION OR ANNUAL LEAVE AS THOUGH IT HAD BEEN INCLUDED IN THE PERIOD OF SUSPENSION. IN THE CIRCUMSTANCES, OUR OFFICE WOULD NOT BE REQUIRED TO OBJECT TO RECREDITING THE ENFORCED LEAVE WITH PAY TO THE EMPLOYEE'S LEAVE ACCOUNT FOR THE LEAVE YEAR 1955. THE UNDERSTANDING STATED IN YOUR LETTER THAT,"IF EMPLOYEE A WERE RECREDITED LEAVE AS INDICATED ABOVE, HE COULD CARRY FORWARD TO 1955 ONLY 30 DAYS OR THE AMOUNT HE CARRIED FORWARD TO 1954, WHICHEVER IS LARGER," IS CORRECT.