B-127986, JUNE 4, 1956, 35 COMP. GEN. 676

B-127986: Jun 4, 1956

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COMPENSATION - DISCHARGES AND DISMISSALS - COMPENSATION FOR PERIOD BETWEEN SEPARATION WITHOUT CAUSE AND REINSTATEMENT - RATE AT WHICH PAYABLE - INCLUSION OF STATUTORY INCREASES AN EMPLOYEE WHO WAS ORDERED BY THE CIVIL SERVICE COMMISSION TO BE RESTORED TO DUTY RETROACTIVELY TO DATE OF SEPARATION FROM SERVICE ON MAY 16. IS CONSIDERED TO HAVE BEEN IN THE SERVICE ON JUNE 28. THE BACK PAY TO WHICH THE EMPLOYEE IS ENTITLED. LORE WAS ADMINISTRATIVELY REMOVED FROM HIS POSITION AS ATTORNEY ADVISOR GS-13 AT A SALARY OF $8. HE WAS RESTORED MAY 7. 960) HE WAS ACTUALLY IN RECEIPT OF AT DATE OF SEPARATION. PROVIDES: (2) ANY PERSON WHO IS DISCHARGED. IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH DISCHARGE.

B-127986, JUNE 4, 1956, 35 COMP. GEN. 676

COMPENSATION - DISCHARGES AND DISMISSALS - COMPENSATION FOR PERIOD BETWEEN SEPARATION WITHOUT CAUSE AND REINSTATEMENT - RATE AT WHICH PAYABLE - INCLUSION OF STATUTORY INCREASES AN EMPLOYEE WHO WAS ORDERED BY THE CIVIL SERVICE COMMISSION TO BE RESTORED TO DUTY RETROACTIVELY TO DATE OF SEPARATION FROM SERVICE ON MAY 16, 1955, IS CONSIDERED TO HAVE BEEN IN THE SERVICE ON JUNE 28, 1955, THE DATE OF ENACTMENT OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955; AND, THEREFORE, THE BACK PAY TO WHICH THE EMPLOYEE IS ENTITLED, PURSUANT TO 5 U.S.C. 652 (B) (2), SHOULD INCLUDE THE RETROACTIVE INCREASE FROM ITS EFFECTIVE DATE, MARCH 13, 1955, TO THE DATE OF RESTORATION TO DUTY.

TO W. P. GLENDENING, FEDERAL TRADE COMMISSION, JUNE 4, 1956:

YOUR LETTER OF MAY 18, 1956, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER THEREWITH TRANSMITTED IN FAVOR OF HARRY T. LORE IN THE GROSS AMOUNT OF $778.80, LESS RETIREMENT DEDUCTIONS, FEDERAL TAX, AND GROUP LIFE INSURANCE, OR A NET OF $593.57.

MR. LORE WAS ADMINISTRATIVELY REMOVED FROM HIS POSITION AS ATTORNEY ADVISOR GS-13 AT A SALARY OF $8,960, EFFECTIVE THE CLOSE OF BUSINESS MAY 16, 1955. HE APPEALED TO THE CIVIL SERVICE COMMISSION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, 5 U.S.C. 863 AND, ON APRIL 26, 1956, THE CIVIL SERVICE COMMISSION DIRECTED HIS RESTORATION TO DUTY AS OF THE DATE FOLLOWING THE DATE OF HIS REMOVAL. HE WAS RESTORED MAY 7, 1956, RETROACTIVELY TO MAY 17, 1955, WITH BACK COMPENSATION AT THE RATE ($8,960) HE WAS ACTUALLY IN RECEIPT OF AT DATE OF SEPARATION. MR. LORE CLAIMS THAT THE ORDER OF THE CIVIL SERVICE COMMISSION RESTORING HIM TO DUTY RETROACTIVELY PLACED HIM IN THE SERVICE BEFORE JUNE 28, 1955, AND THUS QUALIFIED HIM UNDER SECTION 10 OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955, 69 STAT. 179, 5 U.S.C. 1113 NOTE, FOR THE RETROACTIVE INCREASE AUTHORIZED BY THAT ACT FROM MARCH 13, 1955, INCLUDING THE PERIOD OF SEPARATION. THE VOUCHER HERE IN QUESTION COVERS THE COMPENSATION INCREASE CLAIMED.

SECTION 10 OF THE ACT OF JUNE 28, 1955, 69 STAT. 179, PROVIDES IN PART AS FOLLOWS:

SEC. 10 (A) RETROACTIVE COMPENSATION OR SALARY SHALL BE PAID BY REASON OF THIS ACT ONLY IN THE CASE OF AN INDIVIDUAL IN THE SERVICE OF THE UNITED STATES (INCLUDING SERVICE IN THE ARMED FORCES OF THE UNITED STATES) OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA ON THE DATE OF ENACTMENT OF THIS ACT, * * *

SECTION 6 (B) (2) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 355, 5 U.S.C. 652 (B) (2), PROVIDES:

(2) ANY PERSON WHO IS DISCHARGED, SUSPENDED, OR FURLOUGHED WITHOUT PAY, UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, WHO, AFTER ANSWERING THE REASONS ADVANCED FOR SUCH DISCHARGE, SUSPENSION, OR FURLOUGH OR AFTER AN APPEAL TO THE CIVIL SERVICE COMMISSION, AS PROVIDED UNDER SUCH SECTION, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH DISCHARGE, SUSPENSION, OR FURLOUGH WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH DISCHARGE, SUSPENSION, OR FURLOUGH FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS DISCHARGED, SUSPENDED, OR FURLOUGHED, 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.

IN VIEW OF THE PROVISIONS OF SECTION 6 (B) (2) REQUIRING THE PERIOD OF SUSPENSION OR SEPARATION TO COUNT AS SERVICE FOR ALL PURPOSES, EXCEPT THE ACCUMULATION OF LEAVE, IT FOLLOWS THAT MR. LORE MUST BE CONSIDERED AS HAVING BEEN IN THE SERVICE ON JUNE 28, 1955. THEREFORE, HE IS ENTITLED TO THE RETROACTIVE INCREASE FROM ITS EFFECTIVE DATE MARCH 13, 1955. CF. 35 COMP. GEN. 241.

IF OTHERWISE CORRECT, THE VOUCHER MAY BE CERTIFIED FOR PAYMENT.