B-132363, SEPTEMBER 3, 1957, 37 COMP. GEN. 160

B-132363: Sep 3, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

PURSUANT TO THE PROVISIONS OF THE ACT OF 10 JUNE 1948 AN EMPLOYEE IS SUSPENDED WHILE INVESTIGATION IS BEING CONDUCTED WITH A VIEW TOWARD HIS REMOVAL. HE ASKS FOR AND IS GRANTED ANNUAL LEAVE IN LIEU OF NON-PAY STATUS DURING THE PERIOD COVERED BY THE SUSPENSION. REMOVAL ACTION IS EFFECTED. THE SUSPENSION AND REMOVAL ACTIONS ARE FOUND TO BE UNWARRANTED. THE EMPLOYEE'S RESTORATION TO DUTY WITH RETROACTIVE PAY IS ORDERED. IT IS ASSUMED THAT UPON RESTORATION TO DUTY THE ANNUAL LEAVE GRANTED IN LIEU OF NON-PAY STATUS DURING THE PERIOD OF SUSPENSION MAY BE RESTORED TO HIS CREDIT. CONFIRMATION OF THIS VIEW IS REQUESTED. YOUR DECISION IS ALSO REQUESTED AS TO THE PROPRIETY OF RESTORING CREDIT FOR ANNUAL LEAVE GRANTED IN LIEU OF NON-PAY STATUS DURING THE PERIOD OF SUSPENSION IN THE ABOVE EXAMPLE IF THE INVESTIGATION HAD DISCLOSED NO BASIS FOR REMOVAL ACTION AND IF UPON APPEAL THE SUSPENSION ACTION WAS FOUND TO BE UNWARRANTED.

B-132363, SEPTEMBER 3, 1957, 37 COMP. GEN. 160

COMPENSATION - REMOVALS AND SUSPENSIONS FROM THE SERVICE - PERIODS OF ANNUAL OR ENFORCED LEAVE INCIDENT TO REMOVAL - LEAVE RECREDIT UNDER THE PROVISIONS OF 5 U.S.C. 652 (A) AND 5 U.S.C. 863, RELATING TO UNWARRANTED SUSPENSIONS AND REMOVALS FROM THE SERVICE, PERIODS OF ANNUAL LEAVE OR ENFORCED LEAVE INCIDENT TO THE CONTEMPLATED REMOVAL OF EMPLOYEES FROM THE SERVICE MAY BE CONSIDERED AS PERIODS IN LIEU OF SUSPENSION SO AS TO ENTITLE THE EMPLOYEES ON RESTORATION, PURSUANT TO EITHER MANDATE OF THE CIVIL SERVICE COMMISSION OR ADMINISTRATIVE ACTION, TO COMPENSATION AND RECREDIT OF LEAVE, SUBJECT TO THE MAXIMUM ACCUMULATION RESTRICTION IN THE ANNUAL AND SICK LEAVE ACT OF 1951.

TO THE SECRETARY OF THE ARMY, SEPTEMBER 3, 1957:

ON JUNE 24, 1957, THE ASSISTANT SECRETARY OF THE ARMY PRESENTED FOR OUR CONSIDERATION THE QUESTION OF THE PROPRIETY OF ADMINISTRATIVELY RESTORING ANNUAL LEAVE CHARGED TO EMPLOYEES INCIDENT TO CERTAIN ADVERSE PERSONNEL ACTIONS UNDER PUBLIC LAW 623, JUNE 10, 1948, 5 U.S.C. 652.

THE LETTER OF THE ASSISTANT SECRETARY READS, IN PART AS FOLLOWS:

FOR EXAMPLE, PURSUANT TO THE PROVISIONS OF THE ACT OF 10 JUNE 1948 AN EMPLOYEE IS SUSPENDED WHILE INVESTIGATION IS BEING CONDUCTED WITH A VIEW TOWARD HIS REMOVAL. HE ASKS FOR AND IS GRANTED ANNUAL LEAVE IN LIEU OF NON-PAY STATUS DURING THE PERIOD COVERED BY THE SUSPENSION. UPON COMPLETION OF THE INVESTIGATION, REMOVAL ACTION IS EFFECTED. SUBSEQUENTLY, UPON APPEAL, THE SUSPENSION AND REMOVAL ACTIONS ARE FOUND TO BE UNWARRANTED, AND THE EMPLOYEE'S RESTORATION TO DUTY WITH RETROACTIVE PAY IS ORDERED. IT IS ASSUMED THAT UPON RESTORATION TO DUTY THE ANNUAL LEAVE GRANTED IN LIEU OF NON-PAY STATUS DURING THE PERIOD OF SUSPENSION MAY BE RESTORED TO HIS CREDIT. CONFIRMATION OF THIS VIEW IS REQUESTED.

YOUR DECISION IS ALSO REQUESTED AS TO THE PROPRIETY OF RESTORING CREDIT FOR ANNUAL LEAVE GRANTED IN LIEU OF NON-PAY STATUS DURING THE PERIOD OF SUSPENSION IN THE ABOVE EXAMPLE IF THE INVESTIGATION HAD DISCLOSED NO BASIS FOR REMOVAL ACTION AND IF UPON APPEAL THE SUSPENSION ACTION WAS FOUND TO BE UNWARRANTED.

THE DEPARTMENT IS ALSO CONFRONTED WITH SIMILAR SITUATIONS WHERE IMMEDIATE ACTION IS REQUIRED TO PLACE AN EMPLOYEE IN A NON-PAY STATUS WHILE AN INVESTIGATION IS CONDUCTED OR OTHER ACTION IS TAKEN WITH A VIEW TOWARD EFFECTING THE EMPLOYEE'S REMOVAL FROM SERVICE. WHERE SUSPENSION ACTION IS NOT FEASIBLE EITHER BECAUSE OF THE NATURE OF THE INVESTIGATION OR THE TIME ELEMENT INVOLVED, THE EMPLOYEE IS PLACED ON ENFORCED ANNUAL LEAVE PENDING COMPLETION OF THE INVESTIGATION OR OTHER CONSIDERATION. IF COMPLETION OF THE INVESTIGATION DISCLOSED NO BASIS FOR REMOVAL, THE EMPLOYEE IS RESTORED TO A DUTY STATUS AND THE MATTER IS DROPPED. IN SUCH CASE INFORMATION IS REQUESTED AS TO THE PROPRIETY OF RECREDITING THE PERIOD OF ENFORCED ANNUAL LEAVE TO THE EMPLOYEE'S CREDIT.

ON THE OTHER HAND COMPLETION OF THE INVESTIGATION MAY RESULT IN THE EMPLOYEE'S REMOVAL FROM SERVICE. IF UPON APPEAL THE REMOVAL ACTION IS FOUND UNWARRANTED AND THE EMPLOYEE IS RESTORED TO DUTY WITH RETROACTIVE PAY, INFORMATION IS REQUESTED AS TO THE PROPRIETY OF RECREDITING TO THE EMPLOYEE'S ACCOUNT THE PERIOD OF ENFORCED ANNUAL LEAVE GRANTED PRIOR TO THE EFFECTIVE DATE OF REMOVAL.

THE SITUATIONS PRESENTED INVOLVE SUBSECTIONS 6 (B) (1) AND 6 (B) (2) OF PUBLIC LAW 623, 5 U.S.C. 652 (B) (1) AND (B) (2), AUTHORIZING COMPENSATION FOR PERIODS OF UNWARRANTED REMOVAL OR SUSPENSION UNDER THE LLOYD- LAFOLLETTE ACT, 5 U.S.C. 652 (A), AND SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, 5 U.S.C. 863. THE BASIC QUESTION IS WHETHER PERIODS OF GRANTED OR ENFORCED LEAVE INCIDENT TO THE CONTEMPLATED REMOVAL OF THE EMPLOYEES CAN BE CONSIDERED AS PERIODS OF SUSPENSION WITHIN THE CONTEMPLATION OF PUBLIC LAW 623 THUS, ENTITLING EMPLOYEES UPON RESTORATION TO COMPENSATION FOR THE PERIODS, WITHOUT A CHARGE OF ANNUAL LEAVE. THE QUESTION IS ANSWERED IN THE AFFIRMATIVE. SEE 36 COMP. GEN. 779, OVERRULING 31 COMP. GEN. 38; MCTIERNAN V. UNITED STATES, 135 C.1CLS. 82; TAYLOR V. UNITED STATES, 131 C.1CLS. 387. COMPARE 36 COMP. GEN 738; 32 ID. 284. NO DISTINCTION NEED BE DRAWN BETWEEN RESTORATIONS UNDER MANDATE OF THE CIVIL SERVICE COMMISSION AND THOS ADMINISTRATIVELY INITIATED.

CONSEQUENTLY, IN THE SITUATIONS PRESENTED IN THE ASSISTANT SECRETARY'S LETTER, IF THE EMPLOYEES REFERRED TO ARE OTHERWISE ENTITLED TO THE BENEFITS OF PUBLIC LAW 623, THE ANNUAL LEAVE CHARGED DURING THE PERIODS OF THEIR SUSPENSIONS OR ENFORCED LEAVE MAY BE RESTORED, SUBJECT TO THE MAXIMUM ACCUMULATION RESTRICTIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2062. UNDER PUBLIC LAW 623, LEAVE WILL NOT ACCRUE DURING PERIODS OF SUSPENSION.