B-131200, APRIL 25, 1957, 36 COMP. GEN. 738

B-131200: Apr 25, 1957

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OFFICERS AND EMPLOYEES - REMOVALS OR SUSPENSIONS - NONSENSITIVE POSITION RESTORATION - LEAVE RECREDIT AN EMPLOYEE WHO WAS GRANTED ANNUAL LEAVE DURING A SECURITY SUSPENSION OR REMOVAL. WHO IS DETERMINED TO HAVE HELD A NONSENSITIVE POSITION IN ACCORDANCE WITH A SUPREME COURT DECISION IN COLE V. PROVIDED THE AMOUNT OF SALARY RECEIVED FROM THE PERIOD OF LEAVE IS DEDUCTED FROM THE BACK PAY DUE THE EMPLOYEE AND THE LEAVE RECREDITED DOES NOT CAUSE THE EMPLOYEE'S LEAVE ACCOUNT TO EXCEED THE STATUTORY LIMITATION. PROVIDED THE AMOUNT OF SALARY RECEIVED FOR THE PERIOD OF LEAVE IS DEDUCTED FROM THE AMOUNT OF BACK PAY OTHERWISE DUE. WAS NOT APPLICABLE TO NONSENSITIVE POSITIONS AND. WAS NOT IN FACT UNDER THE 1950 ACT BUT BECAUSE RIGHTS OF THE EMPLOYEE HAD BEEN VIOLATED.

B-131200, APRIL 25, 1957, 36 COMP. GEN. 738

OFFICERS AND EMPLOYEES - REMOVALS OR SUSPENSIONS - NONSENSITIVE POSITION RESTORATION - LEAVE RECREDIT AN EMPLOYEE WHO WAS GRANTED ANNUAL LEAVE DURING A SECURITY SUSPENSION OR REMOVAL, UNDER THE ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1, AND WHO IS DETERMINED TO HAVE HELD A NONSENSITIVE POSITION IN ACCORDANCE WITH A SUPREME COURT DECISION IN COLE V. YOUNG, 351 U.S. 536, SHOULD NOT BY PENALIZED ON RESTORATION TO DUTY FOR ADMINISTRATIVE ERROR IN THE APPLICATION OF THE 1950 ACT, AND, THEREFORE, THE EMPLOYEE MAY BE RECREDITED WITH ANNUAL LEAVE, PROVIDED THE AMOUNT OF SALARY RECEIVED FROM THE PERIOD OF LEAVE IS DEDUCTED FROM THE BACK PAY DUE THE EMPLOYEE AND THE LEAVE RECREDITED DOES NOT CAUSE THE EMPLOYEE'S LEAVE ACCOUNT TO EXCEED THE STATUTORY LIMITATION. B-129528, NOVEMBER 2, 1956, MODIFIED.

TO THE SECRETARY OF THE NAVY, APRIL 25, 1957:

ON MARCH 19, 1957, THE ASSISTANT SECRETARY OF THE NAVY REQUESTED OUR DECISION WHETHER LEAVE WITH PAY TAKEN BY AN EMPLOYEE SUSPENDED FROM DUTY UNDER THE ACT OF AUGUST 25, 1950, 64 STAT. 476, 5 U.S.C. 22-1, MAY BE CREDITED TO HIS ACCOUNT AFTER HIS RESTORATION TO DUTY IN COMPLIANCE WITH THE DECISION OF THE UNITED STATES SUPREME COURT IN THE CASE OF COLE V. YOUNG, 351 U.S. 536, PROVIDED THE AMOUNT OF SALARY RECEIVED FOR THE PERIOD OF LEAVE IS DEDUCTED FROM THE AMOUNT OF BACK PAY OTHERWISE DUE.

STATED BRIEFLY, THE DECISION IN COLE V. YOUNG, HELD THAT THE ACT OF AUGUST 3, 1950, WAS NOT APPLICABLE TO NONSENSITIVE POSITIONS AND, ACCORDINGLY, ANY ORDERED RESTORATION FOLLOWING A PERIOD OF UNAUTHORIZED REMOVAL OR SUSPENSION PURPORTEDLY MADE UNDER THE ACT OF AUGUST 3, 1950, WAS NOT IN FACT UNDER THE 1950 ACT BUT BECAUSE RIGHTS OF THE EMPLOYEE HAD BEEN VIOLATED, UNDER OTHER STATUTES SUCH AS SECTION 14 OF THE VETERANS PREFERENCE ACT OR THE ACT OF JUNE 10, 1948, 5 U.S.C. 863.

IN DECISION B-129528, NOVEMBER 2, 1956, WE HELD THAT IN CASES IN WHICH THE SUSPENSION UNDER THE ACT OF AUGUST 3, 1950, WAS DETERMINED TO BE UNAUTHORIZED BY REASON OF THE DECISION IN COLE V. YOUNG, AS INVOLVING A NONSENSITIVE POSITION, THE AGREEMENT TO RECREDIT ANNUAL LEAVE WAS NOT AUTHORIZED AS SUCH AGREEMENT WAS BASED ON THE DISCRETION VESTED IN THE HEAD OF THE AGENCY UNDER THE 1950 ACT. HOWEVER, UPON FURTHER CONSIDERATION, WHILE THE RESTORATION IN SUCH A CASE MUST BE BASED ON SOME OTHER STATUTE THAN THE 1950 ACT, SUCH AS THE VETERANS PREFERENCE ACT, OR THE ACT OF JUNE 10, 1948, IT IS FELT THAT THE EMPLOYEE SHOULD NOT BE PENALIZED BY THE ADMINISTRATIVE ERROR IN ATTEMPTING TO APPLY THE 1950 ACT, AND, ACCORDINGLY, OUR OFFICE WILL NOT OBJECT TO THE RECREDITING OF ANY ANNUAL LEAVE GRANTED UNDER AN AGREEMENT PURPORTING TO BE IN ACCORDANCE WITH THE 1950 ACT WHEN IT IS DETERMINED THAT THE POSITION IS A NONSENSITIVE ONE IN ACCORDANCE WITH THE DECISION IN COLE V. YOUNG, PROVIDED, OF COURSE, THAT THE AMOUNT OF THE SALARY RECEIVED FOR THE PERIOD OF LEAVE IS DEDUCTED FROM THE AMOUNT OF BACK PAY OTHERWISE DUE AND THE LEAVE RECREDITED DOES NOT CAUSE THE EMPLOYEE'S LEAVE ACCOUNT TO EXCEED THE STATUTORY LIMITATION. THE DECISION B-129528 OF NOVEMBER 2, 1956, IS MODIFIED ACCORDINGLY.