B-130445, FEB. 12, 1957

B-130445: Feb 12, 1957

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THE DISALLOWANCE WAS FOR THE REASONS THAT THE UNITED STATES CIVIL SERVICE COMMISSION FOUND NO PROCEDURAL DEFECT IN THE ADMINISTRATIVE ACTION AND THAT THERE WAS NO PROVISION OF LAW PRIOR TO THE ACT OF AUGUST 4. UNDER THOSE CIRCUMSTANCES IT WAS CONCLUDED THAT YOUR REASSIGNMENT TO A GRADE GS-11 POSITION WAS PROPER AND LAWFUL. IT APPEARS FROM THE RECORD THAT YOU WERE GIVEN A REDUCTION IN FORCE NOTICE MAY 16. YOU WERE PLACED ON LEAVE WITHOUT PAY JULY 1 TO JULY 28. THEREAFTER YOU WERE TENDERED AND ACCEPTED A POSITION IN GRADE GS-11 JULY 29. UPON ACCEPTANCE BY YOU OF THE GRADE GS-11 POSITION YOUR APPEAL TO THE CIVIL SERVICE COMMISSION WAS CANCELED BY THAT AGENCY. YOUR REQUEST FOR REVIEW PRESENTS ARGUMENTS DISPUTING THE CORRECTNESS OF THE ADMINISTRATIVE AND COMMISSION ACTIONS CONTENDING THAT YOUR VETERANS PREFERENCE RIGHTS WERE VIOLATED.

B-130445, FEB. 12, 1957

TO MR. JOHN HENRY BAYNEY:

YOUR LETTER OF DECEMBER 17, 1956, REQUESTS REVIEW OF OUR SETTLEMENT OF NOVEMBER 27, 1956, DISALLOWING YOUR CLAIM FOR COMPENSATION FOR A PERIOD OF LEAVE WITHOUT PAY AND LOSS OF SALARY DUE TO REDUCTION IN GRADE AS AN EMPLOYEE OF THE TREASURY DEPARTMENT, BUREAU OF FEDERAL SUPPLY (NOW GENERAL SERVICES ADMINISTRATION) FOR THE PERIOD FROM JUNE 30, 1947, TO SEPTEMBER 17, 1949.

THE DISALLOWANCE WAS FOR THE REASONS THAT THE UNITED STATES CIVIL SERVICE COMMISSION FOUND NO PROCEDURAL DEFECT IN THE ADMINISTRATIVE ACTION AND THAT THERE WAS NO PROVISION OF LAW PRIOR TO THE ACT OF AUGUST 4, 1947, 61 STAT. 723 PERMITTING PAYMENT OF SALARY COVERING A PERIOD OF SUSPENSION OR LEAVE WITHOUT PAY. UNDER THOSE CIRCUMSTANCES IT WAS CONCLUDED THAT YOUR REASSIGNMENT TO A GRADE GS-11 POSITION WAS PROPER AND LAWFUL.

IT APPEARS FROM THE RECORD THAT YOU WERE GIVEN A REDUCTION IN FORCE NOTICE MAY 16, 1947, AND APPEALED THAT ADMINISTRATIVE ACTION TO THE CIVIL SERVICE COMMISSION. YOU WERE PLACED ON LEAVE WITHOUT PAY JULY 1 TO JULY 28, 1947, AND THEREAFTER YOU WERE TENDERED AND ACCEPTED A POSITION IN GRADE GS-11 JULY 29, 1947. UPON ACCEPTANCE BY YOU OF THE GRADE GS-11 POSITION YOUR APPEAL TO THE CIVIL SERVICE COMMISSION WAS CANCELED BY THAT AGENCY.

YOUR REQUEST FOR REVIEW PRESENTS ARGUMENTS DISPUTING THE CORRECTNESS OF THE ADMINISTRATIVE AND COMMISSION ACTIONS CONTENDING THAT YOUR VETERANS PREFERENCE RIGHTS WERE VIOLATED. NO ORDER OF THE CIVIL SERVICE COMMISSION HAS BEEN ISSUED FOR YOUR RESTORATION TO ANY GOVERNMENT POSITION AS A RESULT OF THE REDUCTION IN FORCE OR THE LEAVE WITHOUT PAY AND THERE HAS BEEN NO FINDING THAT THE TENDERING OF THE GRADE GS-11 POSITION VIOLATED ANY OF YOUR RIGHTS. OUR OFFICE IS NOT IN A POSITION TO REVIEW ADMINISTRATIVE PERSONNEL ACTIONS OF THE NATURE HERE INVOLVED, THAT BEING A FUNCTION OF THE CIVIL SERVICE COMMISSION. THE COMMISSION HAVING FOUND NO ERROR IN PROCEDURE AND YOU HAVING PROPERLY BEEN OFFERED AND ACCEPTED A POSITION IN GRADE GS-11 THERE IS NOTHING BEFORE THIS OFFICE WHICH WOULD WARRANT ANY ALLOWANCE UPON THE CLAIM SUBMITTED.

FURTHERMORE, THE REDUCTION IN FORCE ACTION, THE PERIOD OF LEAVE WITHOUT PAY, AND THE TENDER AND ACCEPTANCE OF THE GS-11 POSITION JULY 29, 1947, ALL TOOK PLACE PRIOR TO THE AMENDMENT OF SECTION 14 OF THE VETERANS PREFERENCE ACT BY THE ACT OF AUGUST 4, 1947, 61 STAT. 723, AND ALSO PRIOR TO THE ACT OF JUNE 10, 1948, 62 STAT. 354. PRIOR TO THE ENACTMENT OF THOSE STATUTES THERE WAS NO AUTHORITY TO MAKE ANY SALARY PAYMENTS FOR PERIODS OF LEAVE WITHOUT PAY HOWEVER UNJUSTIFIED. NEITHER WAS THERE ANY AUTHORITY TO PAY COMPENSATION AT A RATE GREATER THAN THAT PROVIDED BY THE CLASSIFICATION ACT, THEN CONTROLLING, FOR THE GRADE IN WHICH AN EMPLOYEE'S POSITION WAS ALLOCATED. CF. 29 COMP. GEN. 107, 34 ID. 561. THE 1947 AMENDMENT TO THE VETERANS PREFERENCE ACT WAS NOT RETROACTIVE IN EFFECT AND COULD CONFER NO RIGHTS REGARDING SITUATIONS ARISING BEFORE ITS EFFECTIVE DATE.

ACCORDINGLY, UPON REVIEW THE SETTLEMENT IS FOUND TO BE CORRECT AND MUST BE SUSTAINED.