B-132673, AUG. 22, 1957

B-132673: Aug 22, 1957

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WE HAVE FURTHER CONSIDERED YOUR CLAIM FOR COMPENSATION FROM SEPTEMBER 26. THE DATE WHEN YOU WERE INITIALLY SEPARATED AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY. WHEN A SECOND TERMINATION ACTION WAS PROCESSED AFTER YOUR RESTORATION ON JANUARY 30. THE CLAIM IS ASSERTED UNDER THE ACT OF AUGUST 24. YOU WERE SEPARATED WITHIN A YEAR OF YOUR APPOINTMENT. IT MAY BE MENTIONED THAT THE PROBATIONARY OR TRIAL PERIOD OF FEDERAL EMPLOYEES IS ONE YEAR AND NOT THREE MONTHS AS STATED IN YOUR LETTER. AT THE TIME OF YOUR SEPARATION YOU WERE A TEMPORARY OR. YOU WERE NOT IN THE CLASSIFIED SERVICE SO AS TO BE ENTITLED TO THE BENEFITS OF PUBLIC LAW 623. THAT WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE.

B-132673, AUG. 22, 1957

TO MR. PETER TAFARELLA:

AS REQUESTED IN YOUR LETTER OF JULY 7, 1957, WE HAVE FURTHER CONSIDERED YOUR CLAIM FOR COMPENSATION FROM SEPTEMBER 26, 1956, THE DATE WHEN YOU WERE INITIALLY SEPARATED AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, TO FEBRUARY 8, 1957, WHEN A SECOND TERMINATION ACTION WAS PROCESSED AFTER YOUR RESTORATION ON JANUARY 30, 1957, WITHOUT A RETURN TO DUTY, THE FIRST SEPARATION BEING ADMINISTRATIVELY CONSIDERED AS TECHNICALLY INCORRECT.

THE CLAIM IS ASSERTED UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED BY PUBLIC LAW 623, APPROVED JUNE 10, 1948, 5 U.S.C. 652, AUTHORIZING COMPENSATION FOR PERIODS OF UNJUSTIFIED OR UNWARRANTED REMOVAL OF PERSONS IN THE CLASSIFIED, OR COMPETITIVE, CIVIL SERVICE. HOWEVER, IN THE EMPLOYMENT INVOLVED YOU DID NOT ACQUIRE THE STATUS OF A PERSON IN THE CLASSIFIED CIVIL SERVICE.

ON JUNE 18, 1956, YOU RECEIVED A TEMPORARY APPOINTMENT PENDING ESTABLISHMENT OF A CIVIL SERVICE REGISTER. YOU WERE SEPARATED WITHIN A YEAR OF YOUR APPOINTMENT. IT MAY BE MENTIONED THAT THE PROBATIONARY OR TRIAL PERIOD OF FEDERAL EMPLOYEES IS ONE YEAR AND NOT THREE MONTHS AS STATED IN YOUR LETTER. AT THE TIME OF YOUR SEPARATION YOU WERE A TEMPORARY OR, AT BEST, A PROBATIONARY APPOINTEE. IN EITHER CASE, UNDER CIVIL SERVICE RULES AND REGULATION, YOU WERE NOT IN THE CLASSIFIED SERVICE SO AS TO BE ENTITLED TO THE BENEFITS OF PUBLIC LAW 623. THUS, THE DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATIONS, CPR P1.8-2, IN DESCRIBING THE EMPLOYEES ELIGIBLE FOR RETROACTIVE COMPENSATION FOR PERIODS OF UNJUSTIFIED SUSPENSION OR REMOVAL, GOES ON TO STATE: ,EXCEPT THOSE SERVING UNDER ANY TYPE OF TEMPORARY APPOINTMENT AND THOSE CURRENTLY SERVING PROBATIONARY OR TRIAL PERIODS.' SEE NADELHAFT V. UNITED STATES, 132 C.CLS. 316; CHELLAR V. UNITED STATES, 130 C.CLS. 338; BAILEY V. RICHARDSON, 182 F.2D 46.

CONSEQUENTLY, WE MUST ADVISE YOU THAT WE VIEW OUR PRIOR ACTION OF JUNE 24, 1957, WHICH DISALLOWED YOUR CLAIM, AS CORRECT, AND THAT WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE.