B-156237, APR. 20, 1965, 44 COMP. GEN. 634

B-156237: Apr 20, 1965

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WAS ORDERED RETROACTIVELY RESTORED TO A LOWER POSITION HE HAD HELD PRIOR TO PROMOTION TO THE POSITION FROM WHICH REMOVED MAY. ON THE BASIS THAT THE POSITION TO WHICH HE SHOULD HAVE BEEN REASSIGNED IN THE FIRST INSTANCE EXISTED AT THE TIME OF REMOVAL. A NOTICE OF PROPOSED ADVERSE ACTION OF REMOVAL FOR TRANSPORTING AN UNAUTHORIZED PERSON IN A GOVERNMENT VEHICLE DURING WORKING HOURS AND FOR MISCONDUCT OFF DUTY RESULTING IN NUMEROUS ARRESTS WAS MAILED TO AN EMPLOYEE OF YOUR AGENCY. YOU POINT OUT THAT AFTER DUE CONSIDERATION OF THE CHARGES AND THE EMPLOYEE'S REPLY THERETO HE WAS NOTIFIED ON APRIL 29. WAS MAILED TO HIM. THE EMPLOYEE WAS ADMINISTRATIVELY NOTIFIED BY LETTER DATED JANUARY 18. WERE NOT OF A NATURE SERIOUS ENOUGH TO REQUIRE REMOVAL AND (B) A DEMOTION TO THE POSITION OF LABORER.

B-156237, APR. 20, 1965, 44 COMP. GEN. 634

COMPENSATION - REMOVALS, SUSPENSIONS, ETC. - BACK PAY - RATE PAYABLE A VETERANS' PREFERENCE EMPLOYEE WHO, AFTER APPEAL OF A REMOVAL ACTION, WAS ORDERED RETROACTIVELY RESTORED TO A LOWER POSITION HE HAD HELD PRIOR TO PROMOTION TO THE POSITION FROM WHICH REMOVED MAY, ON THE BASIS THAT THE POSITION TO WHICH HE SHOULD HAVE BEEN REASSIGNED IN THE FIRST INSTANCE EXISTED AT THE TIME OF REMOVAL, RECEIVE BACK PAY FOR THE PERIOD OF SEPARATION AT THE RATE FOR THE LOWER POSITION TO WHICH RESTORED RATHER THAN AT THE RATE OF THE POSITION FROM WHICH REMOVED.

TO THE ACTING ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, APRIL 20, 1965:

YOUR LETTER OF FEBRUARY 26, 1965, POINTS OUT THAT ON MARCH 6, 1964, A NOTICE OF PROPOSED ADVERSE ACTION OF REMOVAL FOR TRANSPORTING AN UNAUTHORIZED PERSON IN A GOVERNMENT VEHICLE DURING WORKING HOURS AND FOR MISCONDUCT OFF DUTY RESULTING IN NUMEROUS ARRESTS WAS MAILED TO AN EMPLOYEE OF YOUR AGENCY, TRUCK DRIVER WB-4. FURTHER, YOU POINT OUT THAT AFTER DUE CONSIDERATION OF THE CHARGES AND THE EMPLOYEE'S REPLY THERETO HE WAS NOTIFIED ON APRIL 29, 1964, THAT HE WOULD BE SEPARATED FROM THE SERVICE. A NOTIFICATION OF PERSONNEL ACTION, DATED MAY 8, 1964, REMOVING THE EMPLOYEE EFFECTIVE MAY 23, 1964, WAS MAILED TO HIM. HE APPEALED THE REMOVAL ACTION AND AFTER A HEARING THEREON CONDUCTED IN ACCORDANCE WITH THE PROCEDURES PRESCRIBED BY YOUR ADMINISTRATION AND THE CIVIL SERVICE COMMISSION, THE EMPLOYEE WAS ADMINISTRATIVELY NOTIFIED BY LETTER DATED JANUARY 18, 1965, THAT (A) THE CHARGES, AS PROVED, WERE NOT OF A NATURE SERIOUS ENOUGH TO REQUIRE REMOVAL AND (B) A DEMOTION TO THE POSITION OF LABORER, WC-2, COMPARABLE TO THE POSITION HE HELD PRIOR TO HIS PROMOTION TO TRUCK DRIVER, WB-4, WOULD BE SUBSTITUTED FOR THE REMOVAL ACTION RETROACTIVE TO THE DATE OF REMOVAL. WE UNDERSTAND HE WAS RESTORED TO DUTY, BASED THEREON, SOMETIME IN JANUARY 1965.

YOUR DOUBT IN THE MATTER CONCERNS WHETHER THE ADMINISTRATIVE ACTION CHANGING THE REMOVAL TO DEMOTION CAN BE MADE RETROACTIVELY EFFECTIVE THUS ENTITLING THE EMPLOYEE TO BE COMPENSATED FOR THE PERIOD OF REMOVAL AT THE LOWER SALARY RATE OR WHETHER HE IS ENTITLED TO BACK PAY FOR SAID PERIOD AT THE SALARY RATE OF THE POSITION FROM WHICH REMOVED. WE NOTE FROM THE RECORD SUBMITTED BY YOU THAT THE EMPLOYEE IS A VETERAN. YOUR QUESTION WILL BE ANSWERED ON THAT BASIS.

5 U.S.C. 652 (B) (2), COVERING VETERANS, IS APPLICABLE IN THIS MATTER. IT READS AS FOLLOWS:

(2) ANY PERSON WHO IS DISCHARGED, SUSPENDED, OR FURLOUGHED WITHOUT PAY, UNDER SECTION 863 OF THIS TITLE, 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.

IN CERTAIN DECISIONS OF OUR OFFICE, I.E., B-105222, DECEMBER 12, 1951; 32 COMP. GEN. 449, AND IN THE CASE OF PECHETTE V. UNITED STATES, 145 CT.CL. 189, INVOLVING REDUCTION IN FORCE MATTERS COVERED BY 5 U.S.C. 652 (B) (3/- -- THE LANGUAGE OF WHICH IS SIMILAR TO THAT QUOTED ABOVE--- IT HAS BEEN HELD THAT WHERE ANOTHER POSITION EXISTED AT THE TIME OF SEPARATION TO WHICH THE EMPLOYEE WAS ENTITLED UNDER THE RETENTION PREFERENCE REGULATIONS HE SHOULD HAVE BEEN REASSIGNED THERETO IN THE FIRST INSTANCE AND, THEREFORE, IS PROPERLY RESTORABLE TO SUCH LOWER GRADE AND ENTITLED TO BACK PAY AT THE LOWER RATE.

SINCE YOUR AGENCY HAS NOW ADMINISTRATIVELY DETERMINED, IN THIS CASE, THAT THE PROPER ACTION SHOULD HAVE BEEN A DEMOTION TO A POSITION FORMERLY HELD, FROM THE BEGINNING OF THE ADVERSE ACTION, THE ABOVE CITED DECISIONS ARE FOR APPLICATION. THUS, THE EMPLOYEE MAY BE PAID FOR THE PERIOD OF SEPARATION AT THE RATE OF THE POSITION TO WHICH RESTORED. YOUR QUESTION IS ANSWERED ACCORDINGLY.