B-147216, DEC. 7, 1961

B-147216: Dec 7, 1961

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DURING WHICH YOU WERE ON LEAVE FROM THE POSTAL SERVICE. YOUR VIEW IS THAT THE FAILURE OF THE POSTAL AUTHORITIES TO PROMPTLY RESTORE YOU TO DUTY WAS TANTAMOUNT TO A SUSPENSION AND. PROVIDES AS FOLLOWS: "/2) ANY PERSON WHO IS DISCHARGED. IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH DISCHARGE. OR FURLOUGH WAS UNJUSTIFIED OR UNWARRANTED. OR FURLOUGH FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS DISCHARGED. SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD.'. IT DOES NOT APPEAR FROM THE RECORD BEFORE US THAT YOU WERE ADMINISTRATIVELY SUSPENDED ON CHARGES OR THAT THERE WAS ANY HEARING SOUGHT OR APPEAL MADE BY YOU EITHER TO THE POST OFFICE DEPARTMENT OR TO THE CIVIL SERVICE COMMISSION CONCERNING YOUR LEAVE OF ABSENCE.

B-147216, DEC. 7, 1961

TO MR. ANDERSON FOY:

WE CONSTRUE YOUR LETTER OF SEPTEMBER 11, 1961, AS A REQUEST FOR REVIEW OF OUR OFFICE SETTLEMENT OF MARCH 24, 1958, WHICH DISALLOWED YOUR CLAIM FOR SALARY FOR THE PERIOD SEPTEMBER 1 THROUGH DECEMBER 28, 1954, DURING WHICH YOU WERE ON LEAVE FROM THE POSTAL SERVICE. YOUR VIEW IS THAT THE FAILURE OF THE POSTAL AUTHORITIES TO PROMPTLY RESTORE YOU TO DUTY WAS TANTAMOUNT TO A SUSPENSION AND, THEREFORE, CONSTITUTED AN ADVERSE ACTION UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED.

SECTION 6 (B) (2) OF THE ACT OF JUNE 10, 1948, 62 STAT. 354, PROVIDES AS FOLLOWS:

"/2) ANY PERSON WHO IS DISCHARGED, SUSPENDED, OR FURLOUGHED WITHOUT PAY, UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, WHO, AFTER ANSWERING THE REASONS ADVANCED FOR SUCH DISCHARGE, SUSPENSION, OR FURLOUGH OR AFTER AN APPEAL TO THE CIVIL SERVICE COMMISSION, AS PROVIDED UNDER SUCH SECTION, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH DISCHARGE, SUSPENSION, OR FURLOUGH WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH DISCHARGE, SUSPENSION, OR FURLOUGH FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS DISCHARGED, SUSPENDED, OR FURLOUGHED, 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.'

IT DOES NOT APPEAR FROM THE RECORD BEFORE US THAT YOU WERE ADMINISTRATIVELY SUSPENDED ON CHARGES OR THAT THERE WAS ANY HEARING SOUGHT OR APPEAL MADE BY YOU EITHER TO THE POST OFFICE DEPARTMENT OR TO THE CIVIL SERVICE COMMISSION CONCERNING YOUR LEAVE OF ABSENCE. THUS, THERE HAS BEEN NO FINDING THAT YOU WERE RESTORED TO DUTY ON THE GROUNDS THAT A SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED. THE COMPTROLLER GENERAL OF THE UNITED STATES IS NOT AUTHORIZED BY LAW TO CONSIDER APPEALS IN SUCH CASES EXCEPT AS TO OFFICERS OR EMPLOYEES OF THE GENERAL ACCOUNTING OFFICE.

THEREFORE, OUR CLAIMS DIVISION SETTLEMENT OF MARCH 24, 1958, WAS PREMATURE AND MAY BE DISREGARDED BY THE DEPARTMENT AND BY THE CIVIL SERVICE COMMISSION, SHOULD THOSE AGENCIES CONSIDER YOUR ALLEGED DELAYED RESTORATION AN ADVERSE ACTION NOT PROPERLY RESOLVED UNDER THE PROCEDURES ESTABLISHED FOR SECTION 14 APPEALS.

WE SUGGEST THAT YOU COMMUNICATE EITHER WITH THE POST OFFICE DEPARTMENT OR THE UNITED STATES CIVIL SERVICE COMMISSION AS OUR OFFICE MAY TAKE NO FURTHER ACTION UNDER THE ABOVE-QUOTED ACT IN THE ABSENCE OF A FINDING BY AN AUTHORIZED BODY THAT PLACING AND KEEPING YOU ON LEAVE WAS AN ADVERSE ACTION WITHIN THE PURVIEW OF SECTION 14 OF THE VETERANS PREFERENCE ACT.