B-128462, SEP. 13, 1961

B-128462: Sep 13, 1961

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THE RESTORATION WAS ORDERED BY THE REGIONAL DIRECTOR OF THE FIFTH U.S. THIS SEPARATION WAS BROUGHT ABOUT BY A LETTER OF CHARGES AND RESTORATION WAS EFFECTED BY ORDER OF THE CHAIRMAN OF THE BOARD OF APPEALS AND REVIEW. WAS RESTORED TO DUTY JUNE 5. THIS OPERATION WAS BROUGHT ABOUT BY A LETTER OF CHARGES AND RESTORATION WAS EFFECTED BY THE CHAIRMAN OF THE BOARD OF APPEALS AND REVIEW. PROVIDES AS FOLLOWS: "ANY PERSON WHO IS DISCHARGED. IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH DISCHARGE. OR FURLOUGH WAS UNJUSTIFIED OR UNWARRANTED. OR FURLOUGH FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS DISCHARGED. SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD.'.

B-128462, SEP. 13, 1961

TO MR. JAMES A. CAMPBELL, NATIONAL PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES:

YOUR LETTER OF AUGUST 18, 1961, SUBMITS ON BEHALF OF DR. LEMUEL HALL A CLAIM FOR ANNUAL AND SICK LEAVE CREDITS ALLEGEDLY EARNED BY DOCTOR HALL INCIDENT TO HIS POSITION OF CHAPLAIN, VETERANS ADMINISTRATION HOSPITAL, OTEEN, NORTH CAROLINA, IN THE FOLLOWING CIRCUMSTANCES.

1. SEPARATED DECEMBER 31, 1954, RESTORED DECEMBER 13, 1955. THIS SEPARATION RESULTED FROM A LETTER OF CHARGES. THE RESTORATION WAS ORDERED BY THE REGIONAL DIRECTOR OF THE FIFTH U.S. CIVIL SERVICE DISTRICT.

2. SEPARATED MAY 11, 1956, AND RESTORED APRIL 22, 1957. THIS SEPARATION WAS BROUGHT ABOUT BY A LETTER OF CHARGES AND RESTORATION WAS EFFECTED BY ORDER OF THE CHAIRMAN OF THE BOARD OF APPEALS AND REVIEW, U.S. CIVIL SERVICE COMMISSION, WASHINGTON, D.C.

3. SEPARATED APRIL 9, 1958, AND WAS RESTORED TO DUTY JUNE 5, 1959. THIS OPERATION WAS BROUGHT ABOUT BY A LETTER OF CHARGES AND RESTORATION WAS EFFECTED BY THE CHAIRMAN OF THE BOARD OF APPEALS AND REVIEW, U.S. CIVIL SERVICE COMMISSION, WASHINGTON, D.C.

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), WHICH WE REGARD AS APPLICABLE TO EACH OF THE ABOVE REMOVALS, PROVIDES AS FOLLOWS:

"ANY PERSON WHO IS DISCHARGED, SUSPENDED, OR FURLOUGHED WITHOUT PAY, UNDER SECTION 863 OF THIS TITLE, 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.'

THE PURPORTED CLAIMS UNDER YOUR ITEMS 1 AND 2 WERE CONSIDERED IN OUR OFFICE SETTLEMENT OF JUNE 18, 1958, AND DOCTOR HALL WAS THEN ADVISED AS FOLLOWS:

"THE BACK PAY PROVISIONS OF THE ACT APPROVED JUNE 10, 1948, SUPRA, EXPRESSLY EXCEPT THE ACCUMULATION OF LEAVE DURING ANY PERIOD OF REMOVAL CONSIDERED HEREIN. (SEE 36 COMP. GEN. 779.)

IN SUPPORT OF DOCTOR HALL'S CLAIM, YOU REFER TO OUR DECISION IN 35 COMP. GEN. 121, AND TO THE CASE OF HABICHT V. UNITED STATES, CT.CL. NO. 102-55, DECIDED JUNE 7, 1961, WHEREIN THE ACCRUAL OF LEAVE WAS ALLOWED DURING PERIODS OF REMOVAL FROM THE SERVICE. HOWEVER, WE POINT OUT THAT A DIFFERENT ACT WAS INVOLVED IN THOSE CASES, NAMELY THE ACT OF AUGUST 23, 1950, 64 STAT. 476, 5 U.S.C. 22-1, WHICH DOES NOT CONTAIN ANY PROHIBITION AGAINST ACCRUAL OF LEAVE SUCH AS THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948. IN THE CIRCUMSTANCES, THEREFORE, OUR OFFICE SETTLEMENT OF JUNE 18, 1958, WHICH DISALLOWED DOCTOR HALL'S CLAIM FOR ALLEGED LEAVE CREDITS SPECIFIED UNDER ITEMS 1 AND 2 MUST BE AND IS HEREBY SUSTAINED. FOR THE SAME REASON, THE CLAIM FOR LEAVE CREDITS REFERRED TO IN ITEM 3, WHICH HAS NOT BEEN HERETOFORE CONSIDERED BY OUR OFFICE, MUST