B-145599, JUN. 23, 1961

B-145599: Jun 23, 1961

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YOU WERE REQUIRED TO USE THAT AMOUNT OF LEAVE COVERING THE PERIOD DECEMBER 25. THE INFORMATION REVEALS THAT YOU WERE ISSUED A NOTICE OF REDUCTION IN FORCE ON DECEMBER 3. WHICH WAS MAILED TO YOU AT YOUR ADDRESS IN WASHINGTON. THAT NOTICE WAS RECEIVED IN WASHINGTON. A DATE ON WHICH YOU WERE IN A PAY AND DUTY STATUS AFTER HAVING BEEN CONSTRUCTIVELY RESTORED TO SUCH STATUS UNDER THE DIRECTION OF THE CIVIL SERVICE COMMISSION. AFTER TWO WEEKS IN A DUTY STATUS YOU WERE PLACED IN A LEAVE OF ABSENCE STATUS. YOU SAY THAT PLACING YOU ON INVOLUNTARY ANNUAL LEAVE DURING THE 30 DAY PERIOD PRIOR TO YOUR SEPARATION IN A REDUCTION IN FORCE ACTION WAS TANTAMOUNT TO REMOVAL AND IN SUPPORT OF YOUR CONTENTION YOU CITE B 130906.

B-145599, JUN. 23, 1961

TO MR. CHARLES S. GEORGE:

THIS REFERS TO YOUR REGISTERED LETTER NO. 299410 OF APRIL 28, 1961, REQUESTING REVIEW OF OUR SETTLEMENT OF APRIL 24, 1961, WHICH DISALLOWED YOUR CLAIM FOR AN AMOUNT REPRESENTING THE VALUE OF 112 HOURS OF ANNUAL LEAVE AT $9,700 PER ANNUM. YOU WERE REQUIRED TO USE THAT AMOUNT OF LEAVE COVERING THE PERIOD DECEMBER 25, 1959, THROUGH JANUARY 15, 1960, EXCLUDING DECEMBER 25, 1959, AND JANUARY 1, 1960, DURING THE ADVANCE NOTICE PERIOD OF YOUR REDUCTION IN FORCE, EFFECTIVE JANUARY 15, 1960, AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, HEADQUARTERS USARJ/6LC, OFFICE OF THE JUDGE ADVOCATE, APO 343.

THE INFORMATION REVEALS THAT YOU WERE ISSUED A NOTICE OF REDUCTION IN FORCE ON DECEMBER 3, 1959, WHICH WAS MAILED TO YOU AT YOUR ADDRESS IN WASHINGTON, D.C. THAT NOTICE WAS RECEIVED IN WASHINGTON, D.C., ON DECEMBER 8, 1959, A DATE ON WHICH YOU WERE IN A PAY AND DUTY STATUS AFTER HAVING BEEN CONSTRUCTIVELY RESTORED TO SUCH STATUS UNDER THE DIRECTION OF THE CIVIL SERVICE COMMISSION. AFTER TWO WEEKS IN A DUTY STATUS YOU WERE PLACED IN A LEAVE OF ABSENCE STATUS.

YOU SAY THAT PLACING YOU ON INVOLUNTARY ANNUAL LEAVE DURING THE 30 DAY PERIOD PRIOR TO YOUR SEPARATION IN A REDUCTION IN FORCE ACTION WAS TANTAMOUNT TO REMOVAL AND IN SUPPORT OF YOUR CONTENTION YOU CITE B 130906, DATED JULY 25, 1957, 37 COMP. GEN. 55. THE ACTION TAKEN IN 37 COMP. GEN. 55 WAS BASED ON SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, 58 STAT. 390, 5 U.S.C. 863, AND NOT ON SECTION 12 OF THAT ACT.

REDUCTIONS IN FORCE FALL UNDER SECTION 12 OF THE VETERANS PREFERENCE ACT OF 1944, 58 STAT. 390, 5 U.S.C. 861, AND ARE TO BE MADE "IN ACCORDANCE WITH CIVIL SERVICE COMMISSION REGULATIONS WHICH SHALL GIVE DUE EFFECT TO TENURE OF EMPLOYMENT, MILITARY PREFERENCE, LENGTH OF SERVICE, AND EFFICIENCY RATINGS.' THE REQUIREMENTS OF SECTION 14 OF THE ACT (5 U.S.C. 863), REGARDING REMOVALS FOR CAUSE, ARE NOT FOR CONSIDERATION IN REDUCTION IN FORCE ACTIONS, EVEN THOUGH PREFERENCE ELIGIBLES BE INVOLVED. SEE ASHLEY V. ROSS, UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT 1951, 191 F.2D 655. ADDITIONALLY, IN THE ASHELY CASE THE DECISION SPECIFICALLY POINTS OUT THAT UNDER SECTION 12 THE CONGRESS MADE "NO MENTION OF THE THIRTY DAYS WITH PAY.' THE COURT NOTED THAT THE EMPLOYEES HAD NOT RECEIVED THIRTY DAY NOTICE PERIODS "WITH PAY.' INSTEAD THE EMPLOYEES HAD BEEN ALLOWED SEVEN DAYS' ACTIVE DUTY, THE REMAINDER OF THE NOTICE PERIOD BEING IN A NONPAY FURLOUGH STATUS.

SECTION 6, CHAPTER R-3, PAGES 25 AND 27 OF THE FEDERAL PERSONNEL MANUAL CONCERNING REDUCTIONS IN FORCE PROVIDES THAT AN EMPLOYEE WHO IS TO BE SEPARATED FROM THE ROLLS IN A REDUCTION IN FORCE SHALL BE GIVEN A NOTICE IN WRITING AT LEAST 30 DAYS IN ADVANCE OF THE EFFECTIVE DATE OF THE ACTION, AND IF POSSIBLE, THE EMPLOYEE SHALL BE RETAINED ON ACTIVE DUTY DURING THE NOTICE PERIOD, BUT MAY BE PLACED ON ANNUAL LEAVE, WITH OR WITHOUT HIS CONSENT, OR LEAVE WITHOUT PAY WITH HIS CONSENT, OR IN A NONPAY LEAVE STATUS IN AN EMERGENCY WHEN THERE IS A LACK OF WORK OR A LACK OF FUNDS FOR ALL OR PART OF THE NOTICE PERIOD.

SINCE YOUR CLAIM WOULD COME UNDER SECTION 12 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, WHICH MAKES NO PROVISION FOR A 30 DAY ADVANCE NOTICE PERIOD, AND FURTHER SINCE YOUR SEPARATION WAS MADE IN ACCORDANCE WITH THAT SECTION OF THE ACT AND THE CIVIL SERVICE REGULATIONS PROMULGATED PURSUANT THERETO THERE IS NO AUTHORITY FOR THE PAYMENT OF ANY ADDITIONAL AMOUNT. THEREFORE, THE ACTION TAKEN IN OUR OFFICE SETTLEMENT OF APRIL 24, 1961, IS SUSTAINED.