B-28964, SEPTEMBER 30, 1942, 22 COMP. GEN. 291

B-28964: Sep 30, 1942

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OFFICERS AND EMPLOYEES - EFFECTIVE DATE OF SEPARATION FROM SERVICE WHERE AN EMPLOYEE WAS INVOLUNTARILY SEPARATED FROM SERVICE BY THE ADMINISTRATIVE OFFICE UNDER THE ERRONEOUS ASSUMPTION THAT THE FIELD OFFICE HAD RECOMMENDED SUCH SEPARATION. HE IS ENTITLED TO COMPENSATION FOR SERVICES ACTUALLY RENDERED. 1942: I HAVE YOUR LETTER OF SEPTEMBER 11. AS FOLLOWS: YOUR DECISION IS RESPECTFULLY REQUESTED REGARDING THE DISPOSITION OF SITUATIONS ARISING IN THIS OFFICE AS A RESULT OF ERRONEOUS ISSUANCE OF PERSONNEL ACTION INSTRUMENTS. THIS OFFICE IS FULLY AWARE OF THE GENERAL RULES WHICH GOVERN IN THOSE CASES INVOLVING ERROR IN ESTABLISHING THE EFFECTIVE DATE OF VOLUNTARY SEPARATION. SUCH RULES ARE RECOGNIZED AS NECESSARY AND DESIRABLE AS THEY GOVERN VOLUNTARY SUBMITTAL OF A RESIGNATION AND ACCEPTANCE THEREOF BY A QUALIFIED AUTHORITY.

B-28964, SEPTEMBER 30, 1942, 22 COMP. GEN. 291

OFFICERS AND EMPLOYEES - EFFECTIVE DATE OF SEPARATION FROM SERVICE WHERE AN EMPLOYEE WAS INVOLUNTARILY SEPARATED FROM SERVICE BY THE ADMINISTRATIVE OFFICE UNDER THE ERRONEOUS ASSUMPTION THAT THE FIELD OFFICE HAD RECOMMENDED SUCH SEPARATION, BUT THE EMPLOYEE DID NOT IN FACT RECEIVE NOTICE OF THE ADMINISTRATIVE ACTION, AND CONTINUED TO WORK, FOR SOME TIME AFTER THE EFFECTIVE DATE STATED IN THE SEPARATION INSTRUMENT, HE IS ENTITLED TO COMPENSATION FOR SERVICES ACTUALLY RENDERED--- AT LEAST TO THE DATE HE RECEIVED OFFICIAL NOTICE OF SUCH ADMINISTRATIVE ACTION. AS A GENERAL RULE WHEN AN AUTHORIZED SEPARATION OF AN EMPLOYEE, BY RESIGNATION OR OTHERWISE, BECOMES AN ACCOMPLISHED FACT, IT CANNOT THEREAFTER BE RESCINDED BY ADMINISTRATIVE ACTION EVEN THOUGH THE SEPARATING OFFICER ACTED ON MISINFORMATION OR UNDER AN ERRONEOUS ASSUMPTION, BUT THE SEPARATION DOES NOT BECOME EFFECTIVE UNLESS AND UNTIL THE EMPLOYEE RECEIVES PROPER NOTICE THEREOF.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, SEPTEMBER 30, 1942:

I HAVE YOUR LETTER OF SEPTEMBER 11, 1942, AS FOLLOWS:

YOUR DECISION IS RESPECTFULLY REQUESTED REGARDING THE DISPOSITION OF SITUATIONS ARISING IN THIS OFFICE AS A RESULT OF ERRONEOUS ISSUANCE OF PERSONNEL ACTION INSTRUMENTS. THIS OFFICE IS FULLY AWARE OF THE GENERAL RULES WHICH GOVERN IN THOSE CASES INVOLVING ERROR IN ESTABLISHING THE EFFECTIVE DATE OF VOLUNTARY SEPARATION, HOLDING THAT A VALID SEPARATION INSTRUMENT MAY NOT BE RESCINDED AFTER THE EFFECTIVE DATE OF SEPARATION HAS PASSED. SUCH RULES ARE RECOGNIZED AS NECESSARY AND DESIRABLE AS THEY GOVERN VOLUNTARY SUBMITTAL OF A RESIGNATION AND ACCEPTANCE THEREOF BY A QUALIFIED AUTHORITY. BUT, IT IS FELT, SERIOUS INJUSTICE MAY RESULT FROM APPLICATION OF THIS PRINCIPLE WHEN INVOLUNTARY SEPARATION IS EFFECTED BY A PERSONNEL OFFICE IN ERROR. THE FOLLOWING CASE IS SUBMITTED FOR YOUR CONSIDERATION AND DECISION AS TO THE DEPARTMENT'S AUTHORITY TO REMEDY THE ERROR BY CANCELLING THE ACTION.

A FIELD EMPLOYEE HAD NOT BEEN PERFORMING SATISFACTORY WORK DURING THE TRIAL PERIOD AND HIS SUPERVISORY OFFICER DIRECTED AN INQUIRY TO BUREAU HEADQUARTERS IN WASHINGTON AS TO THE DEPARTMENT'S INTERNAL PROCEDURES FOR EFFECTING SEPARATION IN SUCH CASES. THIS INQUIRY WAS INADVERTENTLY AND ERRONEOUSLY INTERPRETED BY THE BUREAU CHIEF AS A RECOMMENDATION FOR THE EMPLOYEE'S DISCHARGE AND AN OFFICIAL REQUEST WAS MADE TO THIS OFFICE THAT THE SEPARATION BE EFFECTED WITHOUT PREJUDICE. A DISCHARGE INSTRUMENT WAS THEREFORE PREPARED, TO BE EFFECTIVE ON THE DATE OF THE INITIAL INQUIRY FROM THE FIELD STATION AND COPIES WERE DISTRIBUTED TO THE EMPLOYEE AND THE STATION INVOLVED.

AS A RESULT OF THIS ACTION IT WAS DISCOVERED THAT NO ACTION HAD BEEN TAKEN TO SUSPEND THE EMPLOYEE FROM DUTY, THAT THE EMPLOYING STATION HAD NOT RECOMMENDED DISCHARGE AND THAT, UNDER CLOSE SUPERVISION AND INSTRUCTION, THE EMPLOYEE'S PERFORMANCE HAD IMPROVED TO THE EXTENT THAT THE EMPLOYING STATION DID NOT WISH TO TERMINATE HIS SERVICES. SINCE THE DISCHARGE INSTRUMENT WAS ISSUED BEARING AN EFFECTIVE DATE OF APRIL 4, 1942 (DATE OF ORIGINAL COMMUNICATION) AND THE EMPLOYEE WAS NOT REMOVED FROM SERVICE AT THAT TIME, THERE IS NO AUTHORITY FOR PAYING HIM FOR SERVICES RENDERED DURING THE SUBSEQUENT PERIOD OF TWO MONTHS UNLESS THIS OFFICE CAN RESCIND THE ORIGINAL INSTRUMENT.

THE PERTINENT FACTORS IN THIS CASE MAY BE SUMMARIZED AS FOLLOWS: (1) NO OFFICIAL RECOMMENDATION WAS MADE BY THE EMPLOYING OFFICE TO SEPARATE THE EMPLOYEE; (2) THE LOCAL BUREAU OFFICE REQUESTED SUCH ACTION IN ERROR; (3) NO ACTION WAS TAKEN TO SUSPEND THE EMPLOYEE PRIOR TO BELATED RECEIPT OF THE DISCHARGE NOTICE AS A RESULT OF WHICH THE EMPLOYEE WAS IN ACTIVE DUTY STATUS FOR TWO MONTHS AFTER THE DISCHARGE DATE; AND, (4) THE EMPLOYING OFFICE DOES NOT NOW WISH TO EFFECT THE SEPARATION.

IT IS FELT IN THIS OFFICE THAT THE PRESENT DIFFICULTY COULD BE RESOLVED BY CANCELLING THE DISCHARGE ON THE GROUND THAT IT WAS VOID AB INITIO, THAT NO OFFICIAL RECOMMENDATION HAD EVER BEEN MADE FOR THE ACTION TAKEN AND THAT IT WAS NEVER EFFECTIVE IN FACT SINCE THE EMPLOYEE WAS NOT REMOVED FROM DUTY ON THE EFFECTIVE DATE OF THE DISCHARGE. YOUR DECISION ON THIS INTERPRETATION IS RESPECTFULLY SOLICITED.

THE GENERAL QUESTION INVOLVED IN THIS MATTER, HOWEVER, IS MORE DIFFICULT TO DETERMINE. MAY THE EMPLOYING DEPARTMENT REVOKE OR AMEND AN ACTION WHICH WAS PALPABLY EFFECTED IN ERROR AND BOTH PARTIES CONTINUED TO ACT IN GOOD FAITH? THIS GENERAL PROBLEM, ALTHOUGH NOT FREQUENT, RECURS OFTEN ENOUGH TO WARRANT THE PRESENT INQUIRY. IT IS THE CONSIDERED OPINION OF THIS OFFICE THAT SOME REMEDY SHOULD BE AVAILABLE TO CORRECT ADMINISTRATIVE ERROR SUCH AS THAT INDICATED ABOVE, ESPECIALLY WHEN THERE IS OBJECTIVE EVIDENCE OF CONTINUED GOOD FAITH ON THE PART OF THE EMPLOYEE, ESPECIALLY UNDER PRESENT CIRCUMSTANCES WHEN AN EMPLOYEE MAY NOT BE OFFICIALLY ADVISED OF AN ACTION UNTIL AFTER ITS EFFECTIVE DATE.

IT HAS BEEN STATED AS A GENERAL RULE THAT "WHEN AN AUTHORIZED SEPARATION, BY RESIGNATION OR OTHERWISE, BECOMES AN ACCOMPLISHED FACT IT CANNOT THEREAFTER BE RESCINDED OR SET ASIDE BY ADMINISTRATIVE ACTION.' ( QUOTING FROM THE DECISION OF NOVEMBER 3, 1941, 21 COMP. GEN. 403, 406--- ITALICS SUPPLIED.) COMPARE 22 COMP. GEN. 47, WHEREIN AN EXCEPTION TO THE GENERAL RULE WAS STATED TO EFFECTUATE THE PURPOSES OF A PAR STATUTE ( ACT OF APRIL 7, 1942, 56 STAT. 200). HOWEVER, THE SEPARATION OF AN EMPLOYEE DOES NOT BECOME EFFECTIVE UNLESS AND UNTIL THE EMPLOYEE RECEIVES PROPER NOTICE THEREOF. 26 COMP. DEC. 804; 17 COMP. GEN. 488; 21 ID. 517. COMPARE 20 COMP. GEN. 321. ACCORDINGLY, IF THE FIELD EMPLOYEE WHOSE CASE IS PRESENTED IN YOUR LETTER, SUPRA, DID NOT IN FACT RECEIVE NOTICE OF THE ADMINISTRATIVE ACTION PURPORTING TO SEPARATE HIM FROM THE SERVICE AND CONTINUED TO WORK, HE IS ENTITLED TO BE PAID THE COMPENSATION EARNED FOR SERVICES ACTUALLY RENDERED--- AT LEAST TO THE DATE HE RECEIVED OFFICIAL NOTICE OF SUCH ADMINISTRATIVE ACTION.

REFERRING TO THE GENERAL QUESTION IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, THE ABOVE-STATED GENERAL RULE THAT A SEPARATION ONCE EFFECTIVE MAY NOT BE RESCINDED BY ADMINISTRATIVE ACTION, IS APPLICABLE WHEN THE SEPARATION IS A LEGAL ONE; AND IN THIS CONNECTION, IT MAY BE STATED THAT IF THE SEPARATING ACTION IS TAKEN BY THE OFFICER HAVING AUTHORITY TO TAKE IT, THE FACT THAT HE ACTED ON MISINFORMATION OR UNDER AN ERRONEOUS ASSUMPTION DOES NOT AFFECT THE LEGALITY OF THE SEPARATION. SUCH AN ACTION MAY BE RESCINDED AT ANY TIME BEFORE IT IS CONSUMMATED BY THE GIVING OF OFFICIAL NOTICE THEREOF TO THE EMPLOYEE, BUT NOT THEREAFTER.