B-134042, DECEMBER 30, 1957, 37 COMP. GEN. 441

B-134042: Dec 30, 1957

Additional Materials:

Contact:

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

 

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

CIVILIAN PERSONNEL - INVOLUNTARY LEAVES OF ABSENCE - SEPARATION FROM SERVICE - MORE THAN THIRTY DAYS AN OVERSEAS PREFERENCE-ELIGIBLE EMPLOYEE WHO WAS IN AN ANNUAL LEAVE STATUS FOR MORE THAN FOUR MONTHS FROM THE DATE OF NOTICE OF TERMINATION OF SERVICES UNTIL REMOVAL AND WHO. WAS ORDERED RESTORED TO AN ACTIVE DUTY STATUS DURING THE ENTIRE ADVANCE NOTICE PERIOD DUE TO THE PROCEDURAL IRREGULARITY IN PLACING HIM IN AN INVOLUNTARY ANNUAL LEAVE STATUS DURING THE 30-DAY NOTICE PERIOD. ALTHOUGH THE REMOVAL ACTION WAS UPHELD. ADVANCE NOTICE OF MORE THAN 30 DAYS IS GIVEN OR. THE DATE OF REMOVAL IS POSTPONED FOR AVAILABILITY OF THE GRIEVANCE PROCEDURES. SHOULD BE REIMBURSED FOR THE TOTAL ANNUAL LEAVE HE WAS ADMINISTRATIVELY CHARGED INCIDENT TO HIS SEPARATION FROM SERVICE.

B-134042, DECEMBER 30, 1957, 37 COMP. GEN. 441

CIVILIAN PERSONNEL - INVOLUNTARY LEAVES OF ABSENCE - SEPARATION FROM SERVICE - MORE THAN THIRTY DAYS AN OVERSEAS PREFERENCE-ELIGIBLE EMPLOYEE WHO WAS IN AN ANNUAL LEAVE STATUS FOR MORE THAN FOUR MONTHS FROM THE DATE OF NOTICE OF TERMINATION OF SERVICES UNTIL REMOVAL AND WHO, ON APPEAL TO THE CIVIL SERVICE COMMISSION, WAS ORDERED RESTORED TO AN ACTIVE DUTY STATUS DURING THE ENTIRE ADVANCE NOTICE PERIOD DUE TO THE PROCEDURAL IRREGULARITY IN PLACING HIM IN AN INVOLUNTARY ANNUAL LEAVE STATUS DURING THE 30-DAY NOTICE PERIOD, ALTHOUGH THE REMOVAL ACTION WAS UPHELD, HAS A RIGHT UNDER 5 U.S.C. 863 TO AN ACTIVE DUTY STATUS FOR ONLY 30 DAYS, NOTWITHSTANDING THAT, IN THE EXERCISE OF ADMINISTRATIVE DISCRETION, ADVANCE NOTICE OF MORE THAN 30 DAYS IS GIVEN OR, AFTER AN ADVERSE DECISION, THE DATE OF REMOVAL IS POSTPONED FOR AVAILABILITY OF THE GRIEVANCE PROCEDURES; THEREFORE, THE EMPLOYEE MAY NOT RECEIVE A LUMP SUM PAYMENT FOR LEAVE SUBSEQUENT TO THE 30-DAY NOTICE PERIOD.

TO THE SECRETARY OF THE ARMY, DECEMBER 30, 1957:

YOUR LETTER OF OCTOBER 8, 1957, REQUESTS OUR DECISION WHETHER, UPON THE FACTS HEREAFTER RELATED, MR. JAMES B. CASH, A FORMER PREFERENCE ELIGIBLE EMPLOYEE OF THE DEPARTMENT OF THE ARMY, HEADQUARTERS, FAR EAST COMMAND, SHOULD BE REIMBURSED FOR THE TOTAL ANNUAL LEAVE HE WAS ADMINISTRATIVELY CHARGED INCIDENT TO HIS SEPARATION FROM SERVICE.

ON SEPTEMBER 6, 1955, MR. CASH WAS NOTIFIED OF THE PROPOSED TERMINATION OF HIS EMPLOYMENT WITH THE FAR EAST COMMAND AND WAS PLACED IN AN ANNUAL LEAVE STATUS. EFFECTIVE FEBRUARY 17, 1956, AFTER BEING RESTORED TO AN ACTIVE DUTY STATUS JANUARY 29, 1956, FOR RETURN TRAVEL TO THE UNITED STATES, HE WAS REMOVED FROM THE ROLLS. HE APPEALED TO THE CIVIL SERVICE COMMISSION. THE BOARD OF APPEALS AND REVIEW OF THE COMMISSION UPHELD THE REMOVAL ACTION BUT FOUND A "PROCEDURAL IRREGULARITY" IN THAT MR. CASH WAS PLACED ON "INVOLUNTARY ANNUAL LEAVE BETWEEN THE TIME HE WAS GIVEN NOTICE OF THE INTENTION TO DISCHARGE HIM AND THE DATE OF HIS ACTUAL DISCHARGE ON FEBRUARY 17, 1956.' THEREFORE, THE BOARD RECOMMENDED THAT THE RECORDS OF THE DEPARTMENT OF THE ARMY, HEADQUARTERS FAR EAST COMMAND, BE AMENDED "TO SHOW THAT MR. CASH WAS RETAINED IN AN ACTIVE DUTY STATUS DURING THE ENTIRE ADVANCE NOTICE PERIOD.'

THE VIEW EXPRESSED BY YOUR OFFICE IS THAT THE LUMP-SUM LEAVE PAYMENT RESULTING FROM THE CORRECTIVE ACTION SHOULD BE LIMITED TO THE LEAVE OF THE 30 DAYS' ADVANCE NOTICE REQUIRED BY THE VETERANS' PREFERENCE ACT, EXCLUDING FROM CONSIDERATION THE PERIOD OF LEAVE SUBSEQUENT THERETO BUT PRIOR TO THE EMPLOYEE'S TRAVEL TO THE UNITED STATES. IN SUPPORT OF THAT VIEW YOU EXPLAIN THAT THE REMOVAL OF MR. CASH, AS IS TYPICAL OF THE SEPARATION OF A PREFERENCE ELIGIBLE SERVING OVERSEAS, WAS PROCESSED IN THREE PHASES, NAMELY:

1. THE FIRST PHASE CONSISTS OF THE REGULAR 30-DAY NOTICE PERIOD REQUIRED BY THE VETERANS' PREFERENCE ACT. DURING THIS PERIOD THE EMPLOYEE REPLIES TO THE ADVANCE NOTICE, AND FINAL DECISION IS RENDERED. IN THE CASE UNDER CONSIDERATION MR. CASH WAS CARRIED ON ANNUAL LEAVE WITHOUT HIS CONSENT DURING THIS PERIOD. * * *

2. THE SECOND PHASE BEGINS AT THE END OF THE REQUIRED 30-DAY ADVANCE NOTICE WHEN REMOVAL DECISION HAS BEEN MADE. THIS PHASE CONSISTS OF AN INDETERMINATE PERIOD OF TIME DURING WHICH THE EMPLOYEE MUST AWAIT AVAILABLE TRANSPORTATION, OR DURING WHICH HE MAY REMAIN IN THE COMMAND ON A VOLUNTARY BASIS WHILE AWAITING DISPOSITION OF A GRIEVANCE FILED AS A RESULT OF THE DECISION TO EFFECT HIS SEPARATION. IN THIS REGARD THE DEPARTMENT'S REGULATIONS IN EFFECT AT THE TIME OF MR. CASH'S SEPARATION PROVIDED AS FOLLOWS: "IN THE CASE OF A UNITED STATES CITIZEN EMPLOYEE SERVING OVERSEAS, THE EMPLOYEE MAY ELECT TO REMAIN IN THE OVERSEA THEATER UNTIL THE HIGHEST ECHELON OF REVIEW IN THE OVERSEA COMMAND HAS RENDERED A DECISION IN HIS CASE * * *.' RETENTION IN A DUTY STATUS DURING THE SECOND PHASE IS INAPPROPRIATE, SINCE FINAL REMOVAL DECISION HAS ALREADY BEEN MADE. HOWEVER, THE INDIVIDUAL MUST BE RETAINED ON THE DEPARTMENT'S ROLLS AS AN EMPLOYEE NOT ONLY TO RECEIVE LOGISTICS SUPPORT BUT ALSO TO COMPLY WITH LOCAL IMMIGRATION LAWS AND AGREEMENTS WITH FOREIGN COUNTRIES WHICH MAKE IT IMPOSSIBLE FOR AN EMPLOYEE TO REMAIN IN THE OVERSEA AREA AFTER THE EFFECTIVE DATE OF HIS SEPARATION. SINCE MR. CASH ELECTED TO REMAIN IN THE COMMAND DURING THE PERIOD REQUIRED TO PROCESS HIS GRIEVANCE, THE SECOND PHASE IN HIS CASE EXTENDED FROM 7 OCTOBER 1955 UNTIL 29 JANUARY 1956. DURING THIS PERIOD HE WAS CARRIED ON ANNUAL LEAVE.

3. THE THIRD PHASE CONSISTS OF AN INDETERMINATE PERIOD OF TIME WHEN THE EMPLOYEE IS IN A DUTY STATUS WHILE TRAVELING BETWEEN THE OVERSEA COMMAND AND THE POINT OF HIRE. FINAL SEPARATION IS EFFECTED ON THE ACT OR CONSTRUCTIVE DATE OF ARRIVAL AT THE POINT OF HIRE. IN THE SPECIFIC CASE UNDER CONSIDERATION, MR. CASH WAS CARRIED IN A DUTY STATUS FROM 29 JANUARY TO 17 FEBRUARY 1956, WHILE TRAVELING BETWEEN THE OVERSEA COMMAND AND HIS PLACE OF RESIDENCE. REMOVAL ACTION WAS AFFECTED ON 17 FEBRUARY 1956, THE CONSTRUCTIVE DATE OF ARRIVAL AT HIS RESIDENCE.

SECTION 14 OF THE VETERANS' PREFERENCE ACT (5 U.S.C. 863), UNDER WHICH MR. CASH WAS REMOVED, PROVIDES THAT NO PREFERENCE ELIGIBLE SHALL BE DISCHARGED, SUSPENDED FOR MORE THAN 30 DAYS, FURLOUGHED WITHOUT PAY, REDUCED IN RANK OR COMPENSATION, OR DEBARRED FROM FUTURE APPOINTMENT EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE AND FOR REASONS GIVEN IN WRITING, AND THE PERSON WHOSE DISCHARGE, SUSPENSION FOR MORE THAN 30 DAYS, FURLOUGH WITHOUT PAY, OR REDUCTION IN RANK OR COMPENSATION IS SOUGHT "SHALL HAVE AT LEAST 30 DAYS' ADVANCE WRITTEN NOTICE," STATING ANY AND ALL REASONS, SPECIFICALLY AND IN DETAIL, FOR ANY SUCH PROPOSED ACTION.

THE FINDING OF THE BOARD OF APPEALS AND REVIEW THAT A "PROCEDURAL IRREGULARITY" HAD OCCURRED IS PREDICATED UPON THE DECISIONS OF THE COURT OF CLAIMS IN TAYLOR V. UNITED STATES, 131 C.1CLS. 387; AND KENNY V. UNITED STATES, 134 C.1CLS. 442, THE LATTER BEING SPECIFICALLY REFERRED TO BY THE BOARD. THE COURT, IN THE TAYLOR CASE, VOIDED A REGULATION OF THE CIVIL SERVICE COMMISSION WHICH PROVIDED FOR THE PLACING OF A PREFERENCE ELIGIBLE IN AN ANNUAL LEAVE STATUS DURING THE 30-DAY NOTICE PERIOD. DOING SO THE COURT SAID:

* * * THE ACT SAYS THAT "NO PERMANENT OR INDEFINITE PREFERENCE ELIGIBLE * * * SHALL BE DISCHARGED * * * AND THE PERSON WHOSE DISCHARGE * * * IS SOUGHT SHALL HAVE AT LEAST 30 DAYS' ADVANCE WRITTEN NOTICE.' THIS MEANS, WE THINK, THAT HE SHALL HAVE 30 DAYS' NOTICE IN ADVANCE OF HIS DISCHARGE, WHICH MEANS IN ADVANCE OF HIS BEING SEPARATED FROM THE PAYROLL. THE REGULATION OF THE CIVIL SERVICE COMMISSION QUOTED ABOVE WOULD DEPRIVE THE PREFERENCE ELIGIBLE OF THIS RIGHT. IT WOULD PERMIT HIS SEPARATION FROM THE PAYROLL EO INSTANTI. THIS IS IN CONFLICT WITH THE ACT AND IS, THEREFORE, INVALID.

WE ARE OF THE OPINION THAT PLAINTIFF IS ENTITLED TO RECOVER HIS SALARY FOR THIS 30 DAYS.

SECTION 14 OF THE VETERANS' PREFERENCE ACT IS RECOGNIZED AS CONFERRING UPON A PREFERENCE ELIGIBLE A RIGHT TO 30 DAYS' ADVANCE NOTICE OF AN ADVERSE ACTION. INCIDENT THERETO IS THE RIGHT TO REMAIN IN AN ACTIVE DUTY STATUS. IN THE TAYLOR CASE AND THE RELATED CASES WHICH FOLLOWED IT, NAMELY, KENNY V. UNITED STATES, SUPRA, AND ARMAND V. UNITED STATES, 136 C.1CLS. 339, DECIDED JULY 12, 1956, THE COURT RECOGNIZED THE RIGHT TO AN ACTIVE DUTY STATUS AS CONTINUING MERELY FOR THE PERIOD OF REQUIRED NOTICE- -- 30 DAYS. A BASIS IS NOT APPARENT FOR CONSIDERING THAT RIGHT AS EXTENDING BEYOND THE REQUIRED NOTICE PERIOD, UNTIL THE REMOVAL OF THE EMPLOYEE FROM THE ROLLS, NOTWITHSTANDING THAT, IN THE EXERCISE OF ADMINISTRATIVE DISCRETION, ADVANCE NOTICE FOR MORE THAN 30 DAYS IS GIVEN OR, AFTER REACHING AN ADVERSE DECISION, THE DATE OF REMOVAL FROM THE ROLLS IS POSTPONED TO ENABLE THE EMPLOYEE TO AVAIL HIMSELF OF GRIEVANCE PROCEDURES.

IN THE ABSENCE OF A JUDICIAL DECISION RECOGNIZING THE RIGHT OF A PREFERENCE ELIGIBLE TO REMAIN IN AN ACTIVE DUTY STATUS BEYOND THE PERIOD OF NOTICE REQUIRED BY SECTION 14 OF THE VETERANS' PREFERENCE ACT, WE CONCUR IN THE POSITION OF YOUR OFFICE THAT MR. CASH IS ENTITLED TO A LUMP- SUM PAYMENT ONLY FOR THE LEAVE CHARGED TO HIM DURING THE 30 DAY ADVANCE NOTICE PERIOD.