B-144176, OCT. 19, 1960

B-144176: Oct 19, 1960

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THE RECORD SHOWS THAT YOU ARE A VETERAN AND THAT EFFECTIVE MAY 14. YOU WERE PROMOTED FROM SECURITY SPECIALIST TO INVESTIGATOR AND YOU WERE SERVING IN THAT CAPACITY WHEN YOU WERE REACHED IN A REDUCTION-IN FORCE ACTION ON OCTOBER 10. AT THAT TIME WERE ADVISED OF YOUR RIGHT TO APPEAL IN WRITING TO THE CIVIL SERVICE COMMISSION WITHIN TEN DAYS FROM RECEIPT OF THE NOTICE. YOU HAVE MAINTAINED THROUGHOUT PRESENTMENT OF YOUR CLAIM THAT YOUR FAILURE TO APPEAL HAS NO BEARING ON PROPER SETTLEMENT OF THE MATTER. RIGHTS OF ENTITLEMENT TO BACK SALARY INCIDENT TO REDUCTION-IN-FORCE ARE GOVERNED BY THE ACT OF JUNE 10. IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION.

B-144176, OCT. 19, 1960

TO MR. WILLIAM M. DONNELLY:

ON SEPTEMBER 23, 1960, YOU REQUESTED REVIEW OF THE SETTLEMENT OF OUR OFFICE OF SEPTEMBER 2, 1960, WHICH DISALLOWED YOUR CLAIM FOR THE PAYMENT OF SALARY ALLEGEDLY DUE BECAUSE OF YOUR WRONGFUL SEPARATION FROM YOUR FORMER POSITION WITH THE NATIONAL PRODUCTION AUTHORITY, DEPARTMENT OF COMMERCE.

THE RECORD SHOWS THAT YOU ARE A VETERAN AND THAT EFFECTIVE MAY 14, 1951, YOU RECEIVED AN INDEFINITE APPOINTMENT WITH THE NATIONAL PRODUCTION AUTHORITY AS A SECURITY SPECIALIST. EFFECTIVE JUNE 8, 1952, YOU WERE PROMOTED FROM SECURITY SPECIALIST TO INVESTIGATOR AND YOU WERE SERVING IN THAT CAPACITY WHEN YOU WERE REACHED IN A REDUCTION-IN FORCE ACTION ON OCTOBER 10, 1952. YOU RECEIVED YOUR ORIGINAL NOTICE OF REDUCTION-IN-FORCE ON AUGUST 26, 1952, AND AT THAT TIME WERE ADVISED OF YOUR RIGHT TO APPEAL IN WRITING TO THE CIVIL SERVICE COMMISSION WITHIN TEN DAYS FROM RECEIPT OF THE NOTICE. THE RECORD SHOWS THAT YOU DID NOT AVAIL YOURSELF OF YOUR RIGHT TO APPEAL.

YOU HAVE MAINTAINED THROUGHOUT PRESENTMENT OF YOUR CLAIM THAT YOUR FAILURE TO APPEAL HAS NO BEARING ON PROPER SETTLEMENT OF THE MATTER. CANNOT AGREE WITH THAT POSITION. RIGHTS OF ENTITLEMENT TO BACK SALARY INCIDENT TO REDUCTION-IN-FORCE ARE GOVERNED BY THE ACT OF JUNE 10, 1948, 62 STAT. 354, 5 U.S.C. 652. THAT ACT AMENDED SECTION 6 OF THE ACT OF AUGUST 24, 1912, AND PROVIDES IN PERTINENT PART AS FOLLOWS:

"ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY IN A REDUCTION IN FORCE WHO, AFTER AN APPEAL TO PROPER AUTHORITY, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION, FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED OR SUSPENDED, 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. * * *"

THE AWARD OF BACK SALARY UNDER THE STATUTE IS CONTINGENT UPON RESTORATION AFTER A FINDING THAT THE REMOVAL FROM THE POSITION WAS UNJUSTIFIED OR UNWARRANTED. REGARDING THE AUTHORITY OF OUR OFFICE IN THIS MATTER, WE POINT OUT THAT ALTHOUGH THE GENERAL ACCOUNTING OFFICE CAN AND DOES ENTERTAIN CLAIMS FILED AGAINST THE GOVERNMENT IF FILED WITHIN 10 YEARS FROM THE TIME THEY ACCRUE, THE CIVIL SERVICE COMMISSION AND THE EMPLOYING AGENCY RATHER THAN OUR OFFICE ARE CHARGED WITH THE DUTY OF DETERMINING WHETHER REMOVALS ARE UNJUSTIFIED OR UNWARRANTED AND OF DIRECTING RESTORATION.

THE REQUIREMENTS OF THE STATUTE IN THAT REGARD NOT HAVING BEEN MET, OUR PREVIOUS ACTION IN DISALLOWING YOUR CLAIM IS SUSTAINED.