B-131683, MAY 23, 1957, 36 COMP. GEN. 779

B-131683: May 23, 1957

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OFFICERS AND EMPLOYEES - UNJUSTIFIED REMOVAL OR SUSPENSION FROM SERVICE RECREDIT OF ANNUAL LEAVE ON RESTORATION FEDERAL EMPLOYEES WHO HAVE COMPETITIVE CIVIL SERVICE STATUS AND VETERANS PREFERENCE AND WHO ARE RESTORED TO DUTY AFTER PERIODS OF UNJUSTIFIED OR UNWARRANTED REMOVAL OR SUSPENSION FROM THE SERVICE PURSUANT TO 5 U.S.C. 652 (B) ARE ENTITLED TO RECREDIT OF ANNUAL LEAVE WHICH THEY WERE ADMINISTRATIVELY REQUIRED TO TAKE DURING THE REMOVAL OR SUSPENSION PERIOD. PROVIDED THAT THE MAXIMUM ACCUMULATION RESTRICTION OF THE ANNUAL AND SICK LEAVE ACT OF 1951 IS OBSERVED. 31 COMP. A PREFERENCE ELIGIBLE EMPLOYEE WHOSE INVOLUNTARY ANNUAL LEAVE STATUS AND LEAVE-WITHOUT-PAY STATUS WERE FOUND TO BE UNJUSTIFIED AND UNWARRANTED BY ADMINISTRATIVE REINSTATEMENT TO DUTY UNDER 5 U.S.C. 652 (B) IS ENTITLED TO BACK PAY FOR THE PERIOD.

B-131683, MAY 23, 1957, 36 COMP. GEN. 779

OFFICERS AND EMPLOYEES - UNJUSTIFIED REMOVAL OR SUSPENSION FROM SERVICE RECREDIT OF ANNUAL LEAVE ON RESTORATION FEDERAL EMPLOYEES WHO HAVE COMPETITIVE CIVIL SERVICE STATUS AND VETERANS PREFERENCE AND WHO ARE RESTORED TO DUTY AFTER PERIODS OF UNJUSTIFIED OR UNWARRANTED REMOVAL OR SUSPENSION FROM THE SERVICE PURSUANT TO 5 U.S.C. 652 (B) ARE ENTITLED TO RECREDIT OF ANNUAL LEAVE WHICH THEY WERE ADMINISTRATIVELY REQUIRED TO TAKE DURING THE REMOVAL OR SUSPENSION PERIOD, PROVIDED THAT THE MAXIMUM ACCUMULATION RESTRICTION OF THE ANNUAL AND SICK LEAVE ACT OF 1951 IS OBSERVED. 31 COMP. GEN. 38, OVERRULED. A PREFERENCE ELIGIBLE EMPLOYEE WHOSE INVOLUNTARY ANNUAL LEAVE STATUS AND LEAVE-WITHOUT-PAY STATUS WERE FOUND TO BE UNJUSTIFIED AND UNWARRANTED BY ADMINISTRATIVE REINSTATEMENT TO DUTY UNDER 5 U.S.C. 652 (B) IS ENTITLED TO BACK PAY FOR THE PERIOD, LESS THE AMOUNT RECEIVED IN PAYMENT FOR ANNUAL LEAVE AND AMOUNTS EARNED THROUGH OTHER EMPLOYMENT, AND TO RECREDIT OF ANNUAL LEAVE.

TO THE ATTORNEY GENERAL, MAY 23, 1957:

ON APRIL 29, 1957, YOUR REFERENCE A-3, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, TRANSMITTED HERE THE RECORD IN THE CASE OF MR. ELLIS W. SLACK OF THE TAX DIVISION OF YOUR DEPARTMENT AND ASKED WHETHER UNDER ALL THE CIRCUMSTANCES MR. SLACK IS ENTITLED TO BACK PAY AND, IF SO, TO WHAT DATE AND WHETHER HE MAY BE CREDITED WITH ANY LEAVE FOR THE PERIOD INVOLVED.

THE RECORD SHOWS THAT MR. SLACK, WHO HAS COMPETITIVE CIVIL SERVICE STATUS AND VETERANS PREFERENCE, HAD WRITTEN CHARGES DATED NOVEMBER 30, 1955, PREFERRED AGAINST HIM. ON DECEMBER 1, 1955, HE WAS ADMINISTRATIVELY PLACED ON ANNUAL LEAVE PENDING FINAL DECISION IN HIS CASE. THE ANNUAL LEAVE EXPIRED MARCH 14, 1956. PRIOR THERETO ARRANGEMENTS WERE MADE BY YOUR DEPARTMENT, WITH THE CONSENT OF MR. SLACK'S COUNSEL WHO INSISTED SUCH ARRANGEMENTS BE WITHOUT PREJUDICE TO HIS RIGHT TO RECEIVE BACK PAY, TO PLACE MR. SLACK IN A LEAVE-WITHOUT PAY STATUS AT THE TERMINATION OF HIS ANNUAL LEAVE. THE LEAVE-WITHOUT PAY STATUS WAS CONTINUED FOR THE ENTIRE PERIOD INVOLVED, MARCH 15, 1956, TO THE DATE OF MR. SLACK'S RESTORATION TO DUTY ON MARCH 29, 1957, BECAUSE OF DISMISSAL OF CHARGES.

UNDER THE CIRCUMSTANCES HERE INVOLVED, IT APPEARS THAT THE PERIOD OF ANNUAL LEAVE, DECEMBER 1, 1955 TO MARCH 14, 1956, AS WELL AS THE PERIOD OF LEAVE WITHOUT PAY, MARCH 15, 1956 TO MARCH 28, 1957, INCLUSIVE, MAY BE VIEWED AS COMING WITHIN THE PURVIEW OF THE PROVISIONS OF SECTION 652 (B) (2) 5 U.S.C., ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, WHICH READS IN PERTINENT PART 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 * * * 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. * * *

ACCORDINGLY, WE HOLD THAT PROPER BASIS EXISTS FOR RECREDITING THE EMPLOYEE WITH THE AMOUNT OF ANNUAL LEAVE HE WAS REQUIRED TO TAKE DECEMBER 1, 1955 TO MARCH 14, 1956, INCLUSIVE, SUBJECT TO THE MAXIMUM ACCUMULATION RESTRICTIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED. COMP. GEN. 162; DECISION OF AUGUST 11, 1935, B-122843. THE DECISION OF AUGUST 20, 1951, 31 COMP. GEN. 38 AND ALL OTHER DECISIONS INCONSISTENT WITH THE FOREGOING ARE NO LONGER TO BE FOLLOWED. SEE 32 COMP. GEN. 284; TAYLOR V. UNITED STATES, 131 C.1CLS. 387; AND MCTIERNAN V. UNITED STATES, C.1CLS. NO. 184-52, DECIDED MAY 1, 1956. IT IS TO BE NOTED THAT THE STATUTE SPECIFICALLY PRECLUDES THE ACCUMULATION OF LEAVE DURING THE PERIOD FOR WHICH COMPENSATION IS ALLOWABLE THEREUNDER.

IT FOLLOWS THAT MR. SLACK, WHOSE ANNUAL LEAVE STATUS AND LEAVE WITHOUT- PAY STATUS WERE FOUND UNJUSTIFIED AND UNWARRANTED BY THE ADMINISTRATIVE REINSTATEMENT TO DUTY ON MARCH 29, 1957, IS ENTITLED TO BACK PAY FOR THE PERIOD DECEMBER 1, 1955, TO DATE OF REINSTATEMENT, MARCH 29, 1957, LESS THE AMOUNT RECEIVED IN PAYMENT FOR ANNUAL LEAVE AND AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT, IN ACCORDANCE WITH THE ABOVE QUOTED PROVISION OF LAW. CF. 36 COMP. GEN. 220.

YOUR QUESTIONS ARE ANSWERED ACCORDINGLY, AND THE PAPERS TRANSMITTED ARE RETURNED AS REQUESTED.