B-143652, AUG. 26, 1960

B-143652: Aug 26, 1960

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WHICH WAS DENIED BY OUR SETTLEMENT DATED JULY 15. IT WAS NECESSARY TO EFFECT YOUR SEPARATION FOR DISQUALIFICATION. YOU REGISTERED A PROTEST WITH THE CIVIL SERVICE COMMISSION WHICH OBTAINED MEDICAL INFORMATION ESTABLISHING THAT YOU WERE MEDICALLY ACCEPTABLE FOR THE POSITION OF MACHINE OPERATOR. A POSITION SUBSEQUENTLY BECAME AVAILABLE AT THE INSTALLATION AND YOU WERE RE EMPLOYED AS A MACHINE OPERATOR EFFECTIVE JANUARY 26. YOU WERE GIVEN THE OPPORTUNITY TO PRESENT EVIDENCE ON YOUR BEHALF PRIOR TO YOUR SEPARATION. THAT OUR STATEMENT IN OUR SETTLEMENT THAT YOU DID NOT PRESENT EVIDENCE PRIOR TO YOUR SEPARATION IS INCORRECT. CONCERNING THE DISABILITY FOR WHICH YOU WERE DISCHARGED PRIOR TO YOUR SEPARATION ON JULY 1.

B-143652, AUG. 26, 1960

TO MR. ROBERT E. LEE:

YOUR LETTER OF JULY 19, 1960, REQUESTS RECONSIDERATION OF YOUR CLAIM FOR CREDIT TO YOUR GOVERNMENT SERVICE FOR TIME LOST AND FOR REIMBURSEMENT OF SALARY FROM JULY 1, 1957, TO JANUARY 26, 1959, WHICH WAS DENIED BY OUR SETTLEMENT DATED JULY 15, 1960.

YOU RECEIVED A CAREER APPOINTMENT ON OCTOBER 29, 1956, SUBJECT TO A ONE YEAR PROBATIONARY PERIOD ENDING OCTOBER 29, 1957, AS A MACHINE OPERATOR AT THE U.S. NAVAL ORDNANCE PLANT, FOREST PARK, ILLINOIS. SUBSEQUENTLY, ON THE BASIS OF INFORMATION RECEIVED FROM THE CIVIL SERVICE COMMISSION, THE INSTALLATION CHANGED YOUR PHYSICAL CAPACITY STATUS RECORD FROM NP (NO PHYSICAL LIMITATIONS) TO NHM (NO HAZARDOUS MACHINERY) AND TEMPORARILY DETAILED YOU TO NONHAZARDOUS WORK FOR YOUR PROTECTION AND THAT OF OTHERS. AS NO SUITABLE POSITION OF A NONHAZARDOUS NATURE BECAME AVAILABLE TO WHICH YOU COULD BE ASSIGNED ON A PERMANENT BASIS, IT WAS NECESSARY TO EFFECT YOUR SEPARATION FOR DISQUALIFICATION.

YOU REGISTERED A PROTEST WITH THE CIVIL SERVICE COMMISSION WHICH OBTAINED MEDICAL INFORMATION ESTABLISHING THAT YOU WERE MEDICALLY ACCEPTABLE FOR THE POSITION OF MACHINE OPERATOR. A POSITION SUBSEQUENTLY BECAME AVAILABLE AT THE INSTALLATION AND YOU WERE RE EMPLOYED AS A MACHINE OPERATOR EFFECTIVE JANUARY 26, 1959.

THE CIVIL SERVICE COMMISSION REGULATIONS IN EFFECT AT THE TIME OF YOUR SEPARATION DID NOT PROVIDE A FORMAL RIGHT OF APPEAL FOR PROBATIONARY EMPLOYEES. YOU WERE GIVEN THE OPPORTUNITY TO PRESENT EVIDENCE ON YOUR BEHALF PRIOR TO YOUR SEPARATION. YOU STATE IN YOUR LETTER OF JULY 19, 1960, THAT OUR STATEMENT IN OUR SETTLEMENT THAT YOU DID NOT PRESENT EVIDENCE PRIOR TO YOUR SEPARATION IS INCORRECT, AND THAT YOU PRESENTED A LETTER FROM THE DEPARTMENT OF THE ARMY TO YOU DATED JUNE 12, 1957, CONCERNING THE DISABILITY FOR WHICH YOU WERE DISCHARGED PRIOR TO YOUR SEPARATION ON JULY 1, 1957. OUR STATEMENT WAS BASED ON THE REPORT SENT TO US BY THE U.S. NAVAL ORDNANCE PLANT, WHICH STATES THAT YOU PRESENTED THE LETTER TO THEM ON JULY 8, 1957, AND THAT YOU WERE INFORMED BY A LETTER OF JULY 8, 1957, THAT THE INFORMATION IN THE LETTER HAD BEEN REVIEWED BUT THAT IT DID NOT PROVIDE A BASIS FOR RESCINDING THE SEPARATION ACTION. VIEW OF THE FACT THAT THE LETTER FROM THE DEPARTMENT OF THE ARMY IS DATED JUNE 12, 1957, IT IS POSSIBLE THAT YOU PRESENTED THE LETTER PRIOR TO YOUR SEPARATION. HOWEVER, THIS DOES NOT AFFECT THE OUTCOME OF YOUR CLAIM SINCE PROBATIONARY EMPLOYEES ARE NOT ENTITLED TO THE BENEFIT OF THE BACK PAY PROVISIONS OF THE ACT OF AUGUST 24, 1912, 37 STAT. 555, AS AMENDED, 5 U.S.C. 652.

SECTION 6 (B) (1) OF THE ACT PROVIDES FOR PAYMENT OF BACK PAY TO PERSONS REMOVED OR SUSPENDED WITHOUT PAY FROM THE CLASSIFIED CIVIL SERVICE UNDER SECTION 6 (A) OF THE ACT, WHO, UPON APPEAL TO PROPER AUTHORITY, ARE REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT THE REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED. SECTION 6 (B) (2) OF THE ACT PROVIDES FOR PAYMENT OF BACK PAY TO PERMANENT OR INDEFINITE PREFERENCE ELIGIBLES DISCHARGED, SUSPENDED, OR FURLOUGHED UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, 58 STAT. 390, AS AMENDED, 5 U.S.C. 863.

BY ITS TERMS 5 U.S.C. 863 APPLIES ONLY TO PERSONS WHO HAVE THE STATUS OF A PERMANENT OR INDEFINITE ELIGIBLE WHO HAS COMPLETED A PROBATIONARY OR TRIAL PERIOD EMPLOYED IN THE CIVIL SERVICE. A PROBATIONARY EMPLOYEE IS NOT IN THE CLASSIFIED CIVIL SERVICE WITHIN THE MEANING OF THE PROVISIONS OF 5 U.S.C. 652. 35 COMP. GEN. 96. CONSEQUENTLY, A PROBATIONARY EMPLOYEE IS NOT ENTITLED TO THE PROTECTION OF THE REMOVAL PROCEDURES PROVIDED UNDER 5 U.S.C. 863 OR 5 U.S.C. 652 (A) AND, THEREFORE, IS NOT ENTITLED TO THE BENEFIT OF THE BACK PAY PROVISIONS OF 5 U.S.C. 652. CONSEQUENTLY, OUR SETTLEMENT OF JULY 15, 1960, WHICH DISALLOWED YOUR CLAIM IS CORRECT AND MUST BE SUSTAINED.