B-146590, AUG. 16, 1961

B-146590: Aug 16, 1961

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YOUR ATTORNEY POINTED OUT THAT FOR THE PERIOD OF YOUR REMOVAL FROM THE SERVICE YOU WOULD HAVE EARNED ANNUAL LEAVE AND THAT DURING THE LATTER PART OF THAT PERIOD YOUR SALARY RATE WAS HIGHER. TWO FACTORS WHICH HE SAYS WERE NOT REFLECTED IN THE COMPUTATION STATEMENT OF BACK PAY. YOU WERE A DISTRIBUTION CLERK. UPON A FINDING BY THE COMMISSION THAT YOUR SEPARATION WAS PROCEDURALLY DEFECTIVE. ADMINISTRATIVE ACTION WAS TAKEN TO CANCEL YOUR SEPARATION. YOU WERE RESTORED TO DUTY RETROACTIVE TO FEBRUARY 9. THE RECORD SHOWS THAT YOU ARE NOT A VETERANS PREFERENCE ELIGIBLE. AS FOLLOWS: "/B) (1) ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY * * * WHO * * * IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED.

B-146590, AUG. 16, 1961

TO MR. GEORGE H. NICHOLS:

ON JULY 25, 1961, YOUR ATTORNEY POINTED OUT THAT FOR THE PERIOD OF YOUR REMOVAL FROM THE SERVICE YOU WOULD HAVE EARNED ANNUAL LEAVE AND THAT DURING THE LATTER PART OF THAT PERIOD YOUR SALARY RATE WAS HIGHER, TWO FACTORS WHICH HE SAYS WERE NOT REFLECTED IN THE COMPUTATION STATEMENT OF BACK PAY.

THE RECORD SHOWS THAT AT THE TIME OF YOUR SEPARATION, NAMELY, FEBRUARY 9, 1960, YOU WERE A DISTRIBUTION CLERK, PFS-4, STEP 5, $4,595 PER ANNUM AT THE POST OFFICE AT AKRON, OHIO. YOU APPEALED YOUR SEPARATION TO THE UNITED STATES CIVIL SERVICE COMMISSION. UPON A FINDING BY THE COMMISSION THAT YOUR SEPARATION WAS PROCEDURALLY DEFECTIVE, ADMINISTRATIVE ACTION WAS TAKEN TO CANCEL YOUR SEPARATION. ON AUGUST 18, 1960, YOU WERE RESTORED TO DUTY RETROACTIVE TO FEBRUARY 9, 1960. YOU ACTUALLY RETURNED TO DUTY AUGUST 22, 1960. THEREUPON, YOU FILED CLAIM FOR BACK PAY COVERING THE PERIOD OF YOUR SEPARATION, NAMELY, FEBRUARY 9 TO AUGUST 22, 1960. THE RECORD SHOWS THAT YOU ARE NOT A VETERANS PREFERENCE ELIGIBLE.

THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, THE STATUTE AUTHORIZING BACK PAY IN YOUR CASE, READS IN PERTINENT PART, AS FOLLOWS:

"/B) (1) ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY * * * WHO * * * 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 * * * AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD. * * *"

OUR SETTLEMENT OF JANUARY 31, 1961, ALLOWED YOUR CLAIM FOR THE FOREGOING PERIOD AT THE RATE YOU WERE RECEIVING ON THE DATE OF SEPARATION, $4,595 PER ANNUM. THAT ACTION WAS IN ACCORD WITH THE FIRST UNDERLINED PORTION OF THE APPLICABLE LAW QUOTED ABOVE. WE CONSISTENTLY HAVE RULED THAT WITHIN- GRADE SALARY ADVANCEMENTS AND GENERAL SALARY INCREASES, HAVING EFFECTIVE DATES SUBSEQUENT TO THE DATE OF REMOVAL OR SUSPENSION, CANNOT BE CONSIDERED IN THE COMPUTATION OF BACK PAY. 35 COMP. GEN. 121; 35 ID. AT PAGE 243, AND CASES CITED; GREEN V. UNITED STATES, 124 CT.CL. 186; O-BRIEN V. UNITED STATES, 124 ID. 655; JEFFREY V. UNITED STATES, 127 ID. 231. THEREFORE, OUR SETTLEMENT OF JANUARY 31, 1961, IS CORRECT.

CONCERNING THE EARNING OF ANNUAL LEAVE DURING A PERIOD OF REMOVAL, WE DIRECT YOUR ATTENTION TO THE SECOND UNDERLINED PORTION OF THE ABOVE QUOTED STATUTE. THE LANGUAGE THEREOF PROVIDES THAT THE PERIOD OF REMOVAL IS CONSIDERED AS SERVICE FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE. IN THAT REGARD WE ALSO CONSISTENTLY HAVE RULED THAT SINCE THE STATUTE SPECIFICALLY EXCLUDES THE ACCUMULATION OF LEAVE BY AN EMPLOYEE DURING THE PERIOD OF REMOVAL THERE IS NO AUTHORITY FOR CREDITING YOU WITH THE ACCRUAL OF ANY LEAVE DURING SUCH PERIOD. B 140798, JUNE 29, 1961, 29 COMP. GEN. 107, 110.

THEREFORE, WE FIND NO BASIS FOR A FURTHER ALLOWANCE IN YOUR CASE AND OUR SETTLEMENT OF JANUARY 31, 1961, IS SUSTAINED.