B-53541, MARCH 4, 1946, 25 COMP. GEN. 620

B-53541: Mar 4, 1946

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE EFFECTIVE DATE OF RESTORATION IS THE DATE ON WHICH THE ADMINISTRATIVE RESTORATION ACTUALLY IS EFFECTED. WHERE A PREFERENCE-ELIGIBLE EMPLOYEE ENTITLED TO THE BENEFITS OF THE VETERANS' PREFERENCE ACT OF 1944 WAS DISCHARGED AND PAID A LUMP SUM PURSUANT TO THE ACT OF DECEMBER 21. THE AMOUNT OF SUCH LEAVE IS TO BE RECREDITED UPON RESTORATION FOLLOWING AN APPEAL TO THE CIVIL SERVICE COMMISSION PURSUANT TO SECTION 14 OF THE FORMER ACT IS FOR COMPUTATION UNDER THE LATTER ACT. SICK LEAVE MAY BE RECREDITED ONLY IF THE PERIOD BETWEEN DISCHARGE AND RESTORATION WAS LESS THAN THE BREAK-IN-SERVICE PERIOD PRESCRIBED BY THE ANNUAL AND SICK LEAVE REGULATIONS. A PREFERENCE ELIGIBLE EMPLOYEE RESTORED TO DUTY AFTER AN APPEAL TO THE CIVIL SERVICE COMMISSION PURSUANT TO SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 RESPECTING HIS SUSPENSION OR FURLOUGH WITHOUT PAY IS ENTITLED TO THE RECREDIT OF ALL ANNUAL AND SICK LEAVE STANDING TO HIS CREDIT AT THE TIME OF SUCH SUSPENSION OR FURLOUGH.

B-53541, MARCH 4, 1946, 25 COMP. GEN. 620

DISCHARGE, SUSPENSION, REDUCTION IN RANK OR COMPENSATION ETC., OF PREFERENCE-ELIGIBLE EMPLOYEES - RIGHTS UPON RESTORATION SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, REQUIRING THAT THE CIVIL SERVICE COMMISSION, AFTER INVESTIGATION AND CONSIDERATION OF AN APPEAL, PURSUANT TO SAID SECTION, BY A PREFERENCE-ELIGIBLE EMPLOYEE FROM AN ADMINISTRATIVE DISCHARGE, SUSPENSION, FURLOUGH WITHOUT PAY OR REDUCTION IN RANK OR COMPENSATION,"SHALL SUBMIT ITS FINDINGS AND RECOMMENDATION TO THE PROPER ADMINISTRATIVE OFFICER," VESTS NO AUTHORITY IN EITHER THE CIVIL SERVICE COMMISSION OR THE ADMINISTRATIVE AGENCY CONCERNED TO RESTORE THE EMPLOYEE TO DUTY AS OF THE DATE OF SUCH ADMINISTRATIVE DISCHARGE, ETC.; INSTEAD, THE EFFECTIVE DATE OF RESTORATION IS THE DATE ON WHICH THE ADMINISTRATIVE RESTORATION ACTUALLY IS EFFECTED. WHERE A PREFERENCE-ELIGIBLE EMPLOYEE ENTITLED TO THE BENEFITS OF THE VETERANS' PREFERENCE ACT OF 1944 WAS DISCHARGED AND PAID A LUMP SUM PURSUANT TO THE ACT OF DECEMBER 21, 1944, FOR THE ANNUAL LEAVE TO HIS CREDIT, THE AMOUNT OF SUCH LEAVE IS TO BE RECREDITED UPON RESTORATION FOLLOWING AN APPEAL TO THE CIVIL SERVICE COMMISSION PURSUANT TO SECTION 14 OF THE FORMER ACT IS FOR COMPUTATION UNDER THE LATTER ACT; HOWEVER, SICK LEAVE MAY BE RECREDITED ONLY IF THE PERIOD BETWEEN DISCHARGE AND RESTORATION WAS LESS THAN THE BREAK-IN-SERVICE PERIOD PRESCRIBED BY THE ANNUAL AND SICK LEAVE REGULATIONS. INASMUCH AS A SUSPENSION FROM DUTY OR FURLOUGH WITHOUT PAY CONSTITUTES NEITHER A SEPARATION FROM SERVICE NOR A BREAK IN SERVICE WITHIN THE MEANING OF THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, AND THE ANNUAL AND SICK LEAVE REGULATIONS, A PREFERENCE ELIGIBLE EMPLOYEE RESTORED TO DUTY AFTER AN APPEAL TO THE CIVIL SERVICE COMMISSION PURSUANT TO SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 RESPECTING HIS SUSPENSION OR FURLOUGH WITHOUT PAY IS ENTITLED TO THE RECREDIT OF ALL ANNUAL AND SICK LEAVE STANDING TO HIS CREDIT AT THE TIME OF SUCH SUSPENSION OR FURLOUGH. IN THE CASE OF A PREFERENCE-ELIGIBLE EMPLOYEE WHO, FOLLOWING A DISCHARGE FROM THE FEDERAL SERVICE AND APPEAL THEREOF TO THE CIVIL SERVICE COMMISSION PURSUANT TO SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, WAS ADMINISTRATIVELY RESTORED TO DUTY MORE THAN 30 DAYS AFTER THE DATE OF HIS DISCHARGE, THE WAITING PERIOD PRESCRIBED BY REGULATIONS FOR WITHIN- GRADE SALARY ADVANCEMENTS BEGINS TO RUN FROM THE DATE OF RESTORATION, AND NO PRIOR SERVICE OR ANY PORTION OF THE TIME ELAPSING BETWEEN THE DATE OF DISCHARGE AND THE DATE OF RESTORATION MAY BE INCLUDED THEREIN. A PREFERENCE-ELIGIBLE EMPLOYEE WHO, FOLLOWING AN APPEAL TO THE CIVIL SERVICE COMMISSION PURSUANT TO SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, WAS ADMINISTRATIVELY RESTORED TO DUTY AFTER A PERIOD OF SUSPENSION OR FURLOUGH WITHOUT PAY IN EXCESS OF 30 DAYS MAY, UNDER THE REGULATIONS GOVERNING WITHIN-GRADE SALARY ADVANCEMENTS, COUNT ONLY 30 DAYS OF THE PERIOD FOR WITHIN-GRADE SALARY-ADVANCEMENT PURPOSES. AN EMPLOYEE WHO, AFTER BEING REDUCED IN COMPENSATION, WAS RESTORED TO HIS FORMER RATE OF COMPENSATION FOLLOWING AN APPEAL TO THE CIVIL SERVICE COMMISSION PURSUANT TO SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 IS TO BE REGARDED AS HAVING RECEIVED AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE WITHIN-GRADE SALARY ADVANCEMENT STATUTES AND REGULATIONS THEREUNDER, AND, THEREFORE, THE WAITING PERIOD FOR THE NEXT SUCH ADVANCEMENT BEGINS TO RUN FROM THE DATE OF RESTORATION. WHERE A PREFERENCE-ELIGIBLE EMPLOYEE, AFTER DISCHARGE BUT BEFORE RESTORATION TO DUTY FOLLOWING AN APPEAL TO THE CIVIL SERVICE COMMISSION PURSUANT TO SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, ACCEPTED A POSITION IN ANOTHER FEDERAL AGENCY, RESTORATION OF LEAVE CREDITS, AS WELL AS STATUTORY WITHIN-GRADE SALARY ADVANCEMENT RIGHTS ARE FOR DETERMINATION THE SAME AS THOUGH THE RESTORATION WAS WITHOUT ANY INTERVENING EMPLOYMENT. RULES SET FORTH HEREIN RESPECTING THE WITHIN-GRADE PROMOTION AND LEAVE RIGHTS OF PREFERENCE-ELIGIBLE EMPLOYEES WHO ARE RESTORED TO DUTY FOLLOWING AN APPEAL TO THE CIVIL SERVICE COMMISSION PURSUANT TO SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 RESPECTING THEIR DISCHARGE, SUSPENSION, FURLOUGH WITHOUT PAY OR REDUCTION IN RANK OR COMPENSATION ARE FOR APPLICATION UPON RESTORATION IN REDUCTION IN FORCE CASES.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 4, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 25, 1945, AS FOLLOWS:

THE COMMISSION DESIRES TO SUBMIT FOR YOUR DECISION CERTAIN QUESTIONS RELATING TO THE ADMINISTRATION OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944. THIS SECTION READS:

" NO PERMANENT OR INDEFINITE PREFERENCE ELIGIBLE, WHO HAS COMPLETED A PROBATIONARY OR TRIAL PERIOD EMPLOYED IN THE CIVIL SERVICE, OR IN ANY ESTABLISHMENT, AGENCY, BUREAU, ADMINISTRATION, PROJECT, OR DEPARTMENT, HEREINBEFORE REFERRED TO SHALL BE DISCHARGED, SUSPENDED FOR MORE THAN THIRTY DAYS, FURLOUGHED WITHOUT PAY, REDUCED IN RANK OR COMPENSATION, OR DEBARRED FOR FUTURE APPOINTMENT EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE AND FOR REASONS GIVEN IN WRITING, AND THE PERSON WHOSE DISCHARGE, SUSPENSION FOR MORE THAN THIRTY DAYS, FURLOUGH WITHOUT PAY, OR REDUCTION IN RANK OR COMPENSATION IS SOUGHT SHALL HAVE AT LEAST THIRTY DAYS' ADVANCE WRITTEN NOTICE (EXCEPT WHERE THERE IS REASONABLE CAUSE TO BELIEVE THE EMPLOYEE TO BE GUILTY OF A CRIME FOR WHICH A SENTENCE OF IMPRISONMENT CAN BE IMPOSED), STATING ANY AND ALL REASONS, SPECIFICALLY AND IN DETAIL, FOR ANY SUCH PROPOSED ACTION; SUCH PREFERENCE ELIGIBLE SHALL BE ALLOWED A REASONABLE TIME FOR ANSWERING THE SAME PERSONALLY AND IN WRITING, AND FOR FURNISHING AFFIDAVITS IN SUPPORT OF SUCH ANSWER, AND SHALL HAVE THE RIGHT TO APPEAL TO THE CIVIL SERVICE COMMISSION FROM AN ADVERSE DECISION OF THE ADMINISTRATIVE OFFICER SO ACTING, SUCH APPEAL TO BE MADE IN WRITING WITHIN A REASONABLE LENGTH OF TIME AFTER THE DATE OF RECEIPT OF NOTICE OF SUCH ADVERSE DECISION: PROVIDED, THAT SUCH PREFERENCE ELIGIBLE SHALL HAVE THE RIGHT TO MAKE A PERSONAL APPEARANCE OR AN APPEARANCE THROUGH A DESIGNATED REPRESENTATIVE, IN ACCORDANCE WITH SUCH REASONABLE RULES AND REGULATIONS AS MAY BE ISSUED BY THE CIVIL SERVICE COMMISSION; AFTER INVESTIGATION AND CONSIDERATION OF THE EVIDENCE SUBMITTED, THE CIVIL SERVICE COMMISSION SHALL SUBMIT ITS FINDINGS AND RECOMMENDATIONS TO THE PROPER ADMINISTRATIVE OFFICER AND SHALL SEND COPIES OF THE SAME TO THE APPELLANT OR TO HIS DESIGNATED REPRESENTATIVE: PROVIDED FURTHER, THAT THE CIVIL SERVICE COMMISSION MAY DECLARE ANY SUCH PREFERENCE ELIGIBLE WHO MAY HAVE BEEN DISMISSED OR FURLOUGHED WITHOUT PAY TO BE ELIGIBLE FOR THE PROVISIONS OF SECTION 15 HEREOF.'

IT WILL BE NOTED THAT AFTER ADJUDICATING AN APPEAL UNDER SECTION 14 THE COMMISSION IS REQUIRED TO SUBMIT ITS "FINDINGS AND RECOMMENDATIONS" TO THE PROPER ADMINISTRATIVE OFFICER. THE SECTION DOES NOT DEFINE OR LIMIT THE NATURE OR EXTENT OF THE "FINDINGS AND RECOMMENDATIONS.' IN ACTUAL PRACTICE THE COMMISSION'S ACTION, WHERE IT HAS FOUND IN AN APPEAL UNDER SECTION 14 THAT THE REMOVAL, SUSPENSION, FURLOUGH OR DEMOTION WAS UNWARRANTED, HAS BEEN TO RECOMMEND TO THE EMPLOYING AGENCY THAT THE EMPLOYEE BE RESTORED TO THE POSITION FROM WHICH REMOVED, SUSPENDED, FURLOUGHED OR DEMOTED. IN CONNECTION WITH SUCH RECOMMENDATIONS QUESTIONS HAVE BEEN RAISED BY EMPLOYING AGENCIES AND BY THE COMMISSION'S REGIONAL OFFICES AS TO WHETHER THE EMPLOYING AGENCIES MAY RESCIND THE ORIGINAL ACTION AND RESTORE THE EMPLOYEE AS OF THE DATE OF SUCH REMOVAL, SUSPENSION, FURLOUGH OR DEMOTION OR WHETHER THE RESTORATION MAY BE MADE ONLY AS OF THE DATE SUCH RESTORATION IS ACTUALLY EFFECTED.

IT WILL BE NOTED FURTHER THAT THE BENEFITS OF SECTION 14 ARE AVAILABLE TO PREFERENCE ELIGIBLE EMPLOYEES IN THE CLASSIFIED SERVICE, THE UNCLASSIFIED SERVICE AND THE CIVIL SERVICE OF THE DISTRICT OF COLUMBIA. WITH RESPECT TO POSITIONS UNDER CIVIL SERVICE RULES OR WAR SERVICE REGULATIONS, REINSTATEMENTS ARE PROVIDED FOR BY CIVIL SERVICE RULE IX AND REEMPLOYMENTS BY WAR SERVICE REGULATION VIII. WITH RESPECT TO OTHER POSITIONS RULE IX AND REGULATION VIII WOULD NOT BE APPLICABLE. THIS IS THE REASON THE COMMISSION HAS ADOPTED THE PRACTICE OF RECOMMENDING ,RESTORATION" IN APPEALS UNDER SECTION 14 FROM DISCHARGES.

WITH RESPECT TO THE EFFECTIVE DATE OF RESTORATION THE COMMISSION HAS IN MIND YOUR DECISIONS THAT WHEN AN AUTHORIZED SEPARATION OF AN EMPLOYEE BECOMES AN ACCOMPLISHED FACT IT CANNOT BE RESCINDED BY ADMINISTRATIVE ACTION. MORE SPECIFICALLY, IN YOUR DECISION B-28964 OF SEPTEMBER 30, 1942, (22 COMP. GEN. 291) YOU REFERRED TO PREVIOUS DECISIONS CITING THE GENERAL RULE AND ALSO TO EXCEPTIONS TO THE GENERAL RULE TO EFFECTUATE THE PURPOSES OF A PARTICULAR STATUTE AND IN CASES WHERE AN EMPLOYEE DOES NOT RECEIVE PROPER NOTICE OF SEPARATION. THE EXCEPTION CONCERNING SPECIAL SITUATIONS REQUIRED BY REASON OF A SPECIFIC STATUTE HAD TO DO WITH A STATUTE PROVIDING FOR THE PAYMENT OF ACCRUED ANNUAL LEAVE TO EMPLOYEES WHO ENTERED THE ARMED FORCES FROM CIVILIAN POSITIONS AND THE PRINCIPLE STATED IN THAT EXCEPTION DOES NOT APPEAR APPLICABLE TO RESTORATIONS UNDER SECTION 14. ON THE OTHER HAND, THE EXCEPTION RELATING TO IMPROPER NOTICE MAY BE APPLICABLE IN APPEALS UNDER SECTION 14 WHERE IT IS FOUND THAT THE EMPLOYEE DID NOT RECEIVE THE NOTICE REQUIRED BY SECTION 14 AND THAT THE REMOVAL WAS THEREFORE ILLEGAL.

IN MOST APPEALS UNDER SECTION 14 INVOLVING DISMISSALS THERE WILL ORDINARILY BE A BREAK IN SERVICE OF MORE THAN THIRTY DAYS FROM THE DATE OF DISCHARGE TO THE DATE OF RESTORATION. SIMILAR SITUATIONS ARISE IN CASES OF SUSPENSIONS FOR MORE THAN THIRTY DAYS, FURLOUGHS WITHOUT PAY AND REDUCTIONS IN RANK OR COMPENSATION. MANY QUESTIONS ARISE IN CASES OF SUCH RESTORATIONS, SUCH AS THE CREDITING OF PRIOR UNUSED ACCUMULATED SICK LEAVE TO PREFERENCE ELIGIBLES AFTER RESTORATIONS, THE ACCRUAL OF ANNUAL AND SICK LEAVE DURING THE PERIODS OF DISCHARGE, SUSPENSIONS AND FURLOUGHS, WHETHER THERE IS A BEGINNING OF A NEW WITHIN GRADE SALARY ADVANCEMENT PERIOD IN CASES OF DISCHARGES OR THE ELAPSED TIME BETWEEN THE DISCHARGES AND RESTORATIONS MAY BE CREDITED TOWARD SALARY ADVANCEMENT PERIODS, WHETHER THE ELAPSED TIME BETWEEN EXTENDED SUSPENSIONS, FURLOUGHS OR DEMOTIONS AND RESTORATIONS MAY BE CREDITED TOWARD SALARY ADVANCEMENT PERIODS, THE REFUNDS REQUIRED OF PREFERENCE ELIGIBLES UNDER THE LANE ACT IN CASES OF DISCHARGES AND SITUATIONS IN WHICH A PREFERENCE ELIGIBLE IS RESTORED AS THE RESULT OF AN APPEAL UNDER SECTION 14 BUT HE HAD IN THE INTERIM, FROM SOMETIME AFTER SEPARATION UNTIL SOMETIME PRIOR TO RESTORATION, SERVED IN A FEDERAL POSITION IN ANOTHER GOVERNMENT AGENCY.

WITH PARTICULAR REFERENCE TO CASES OF REDUCTIONS IN RANK OR COMPENSATION IT IS NOTED THAT IN YOUR DECISION B-48158, DATED APRIL 2, 1945, (24 COMP. GEN. 709) YOU EXPRESSED A SERIOUS DOUBT AS TO THE APPLICABILITY OF THE PROVISIONS OF SECTION 14 TO REALLOCATIONS OF FIELD POSITIONS DOWNWARD BY DEPARTMENTS AND AGENCIES, WHERE THE OCCUPANTS OF SUCH POSITIONS ARE PREFERENCE ELIGIBLES AND THE ADMINISTRATIVE ACTIONS ARE BASED SOLELY UPON DUTIES AND RESPONSIBILITIES WHICH HAVE NOTHING TO DO WITH THE ABILITY, THE EFFICIENCY, CHARACTER OR CONDUCT OF THE OCCUPANT. IN THIS CONNECTION, YOU STATED THAT THERE IS NOTHING IN ANY OF THE REGULATIONS ISSUED BY THE COMMISSION UNDER THE STATUTE WHICH MAY BE SAID TO RELATE SPECIFICALLY TO THE ADMINISTRATIVE ALLOCATION DOWNWARD OF A FIELD POSITION OCCUPIED BY A VETERAN AND THAT WHEN THE TERM,"REDUCED IN RANK OR COMPENSATION" IS CONSIDERED IN CONNECTION WITH THE CONTEXT OF THE ENTIRE SECTION OF THE STATUTE IN WHICH IT APPEARS--- PARTICULARLY THE CATEGORY OF ACTIONS MENTIONED THEREIN, OF WHICH A REDUCTION IN RANK OR COMPENSATION IS ONE, AND THE STATED REQUIREMENTS IN TAKING SUCH ACTIONS--- IT WOULD SEEM DIFFICULT TO CONCLUDE THAT THE WORD "REDUCED" AS USED IN THE STATUTE HAS APPLICATION TO OTHER THAN AN ADMINISTRATIVE ACTION PERSONAL TO THE EMPLOYEE BECAUSE OF SOMETHING HE HAS DONE OR HAS FAILED TO DO. HOWEVER, IT IS UNNECESSARY TO DETERMINE THAT POINT AT THIS TIME, BECAUSE THE CASE IS FOR DISPOSITION UPON OTHER GROUNDS.

ON THE OTHER HAND, IN YOUR DECISION B-50806, OF JULY 20, 1945, (25 COMP. GEN. 82) YOU APPEAR TO HAVE HELD THAT THE SEPARATION OF A PREFERENCE ELIGIBLE IN A REDUCTION IN FORCE WHICH HAS NOTHING TO DO WITH HIS ABILITY, EFFICIENCY, CHARACTER OR CONDUCT AND IS NOT PERSONAL TO THE EMPLOYEE, IS WITHIN THE SCOPE OF SECTION 14.

AS THE COMMISSION SEES IT, A REALLOCATION OF A POSITION DOWNWARD BASED SOLELY ON ITS DUTIES AND RESPONSIBILITIES IS NOT PER SE AN ACTION AGAINST THE OCCUPANT OF A POSITION. HOWEVER, THE REALLOCATION DOES EFFECT THE OCCUPANT. IN SUCH AN INSTANCE THE OCCUPANT HAS, IN FACT, BEEN REDUCED IN RANK AND COMPENSATION AND SECTION 14 PROVIDES THAT IF THE EMPLOYEE CONCERNED IS A PREFERENCE ELIGIBLE HE SHALL BE ENTITLED TO THE BENEFITS OF THE SECTION. THE COMMISSION DOES NOT BELIEVE IT CAN MAINTAIN THE POSITION THAT IT WILL NOT ENTERTAIN AN APPEAL UNDER SECTION 14 FROM AN EMPLOYEE WHO HAS SUFFERED A REDUCTION IN RANK OR COMPENSATION MERELY BECAUSE SUCH REDUCTION IN RANK OR COMPENSATION RESULTED FROM AN ALLOCATION OF HIS POSITION. THE LANGUAGE OF SECTION 14 SEEMS BROAD ENOUGH TO INCLUDE REDUCTIONS IN RANK OR COMPENSATION RESULTING FROM REALLOCATION OF POSITIONS AND THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT TO INDICATE ANY RESTRICTION AS TO THE TYPES OF REDUCTIONS IN RANK AND COMPENSATION FROM WHICH APPEALS WOULD LIE.

THE COMMISSION HAS ACCORDINGLY HELD THAT AN ALLOCATION OR REALLOCATION OF A FIELD POSITION BY ADMINISTRATIVE ACTION WHICH RESULTS IN A REDUCTION IN GRADE IS A REDUCTION IN RANK WITHIN THE MEANING OF SECTION 14 AND HAS ENTERTAINED APPEALS IN SUCH CASES. THIS CONSTRUCTION ON THE PART OF THE COMMISSION IS CONSIDERED TO BE IN ACCORDANCE WITH THE LETTER AND SPIRIT OF THE LAW WHICH WAS DESIGNED TO SAFEGUARD THE RIGHTS OF PREFERENCE ELIGIBLES AND PROVIDE A RIGHT OF APPEAL TO A TRIBUNAL OUTSIDE OF THE EMPLOYING AGENCY.

IN THE LIGHT OF THE FOREGOING DISCUSSION, THE COMMISSION WOULD APPRECIATE YOUR DECISIONS ON THE FOLLOWING QUESTIONS:

1. MAY THE COMMISSION RECOMMEND RESTORATION AND AUTHORIZE AGENCIES TO RESCIND ADVERSE ACTIONS OF DISCHARGES, SUSPENSIONS FOR MORE THAN THIRTY DAYS, FURLOUGHS WITHOUT PAY AND REDUCTIONS IN RANK OR COMPENSATION SO THAT THE PREFERENCE ELIGIBLE IS RESTORED AS OF THE EFFECTIVE DATE OF SUCH ADVERSE DECISIONS, OR MUST THE RESTORATIONS BE EFFECTED AS OF THE EFFECTIVE DATE OF SUCH RESTORATIONS?

2. IN THE EVENT OF RESTORATION WHAT IS THE STATUS OF THE RESTORED EMPLOYEE WITH RESPECT TO ANNUAL AND SICK LEAVE?

3. IN THE EVENT OF RESTORATION FOLLOWING DISCHARGE, PARTICULARLY WHERE THERE HAS BEEN AN EXTENDED BREAK IN SERVICE PRIOR TO RESTORATION, DOES THE EMPLOYEE BEGIN A NEW WITHIN GRADE SALARY ADVANCEMENT PERIOD OR MAY THE ELAPSED TIME BETWEEN THE DISCHARGE AND RESTORATION BE CREDITED FOR WITHIN- GRADE SALARY ADVANCEMENT PURPOSES UPON RESTORATION?

4. IN THE EVENT OF RESTORATION FOLLOWING AN EXTENDED PERIOD OF SUSPENSION, FURLOUGH OR DEMOTION, MAY THE ELAPSED TIME BETWEEN THE SUSPENSION, FURLOUGH OR DEMOTION AND RESTORATION BE CREDITED FOR WITHIN- GRADE SALARY ADVANCEMENT PURPOSES UPON RESTORATION?

5. WHAT ADJUSTMENT SHOULD BE MADE WITH RESPECT TO REFUND OR PAYMENTS MADE UNDER THE LANE ACT UPON RESTORATION OF THE EMPLOYEE TO HIS FORMER POSITION?

6. HOW ARE THE FOREGOING SITUATIONS AFFECTED IF IN THE INTERIM BETWEEN DISCHARGE AND RESTORATION THE EMPLOYEE HAD HAD SERVICE IN ANOTHER GOVERNMENT AGENCY?

7. ARE YOUR ANSWERS TO THE FOREGOING APPLICABLE ALSO TO RESTORATIONS UPON RECOMMENDATIONS OF THE COMMISSION IN REDUCTION IN FORCE CASES?

IT IS SETTLED THAT, WHEN AN AUTHORIZED SEPARATION FROM SERVICE HAS BECOME AN ACCOMPLISHED FACT, IT CANNOT THEREAFTER BE RESCINDED OR SET ASIDE BY ADMINISTRATIVE ACTION. 22 COMP. GEN. 291, AND THE CASES CITED THEREIN. LIKEWISE, A SUSPENSION FROM DUTY, OR AN ADMINISTRATIVE FURLOUGH WITHOUT PAY, MAY NOT BE RESCINDED RETROACTIVELY. FURTHERMORE, IT CONSISTENTLY HAS BEEN HELD BY THE ACCOUNTING OFFICERS THAT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, COMPENSATION MAY NOT BE PAID AN EMPLOYEE FOR THE PERIOD COVERED BY AN AUTHORIZED SUSPENSION DURING WHICH NO DUTY IS PERFORMED REGARDLESS OF WHETHER THE EMPLOYEE SUBSEQUENTLY IS RETURNED TO DUTY, EXCEPT THAT, IN CASES OF UNJUSTIFIED SUSPENSIONS, THE ANNUAL LEAVE TO THE CREDIT OF THE EMPLOYEE AT THE DATE OF SUSPENSION MAY BE SUBSTITUTED FOR A CORRESPONDING PERIOD OF THE SUSPENSION. 6 COMP. GEN. 534; 9 ID. 284. THE FOREGOING PRINCIPLES ARE FOR APPLICATION REGARDLESS OF THE FACT THAT IN EFFECTING SUCH SEPARATIONS FROM SERVICE OR SUSPENSIONS FROM DUTY, THE ADMINISTRATIVE OFFICE HAD NOT COMPLIED FULLY WITH ALL STATUTORY OR REGULATORY PROVISIONS RESPECTING SUCH ACTIONS. 6 COMP. GEN. 534, SUPRA; 10 ID. 478.

IT IS NOTED THAT THE FIRST PROVISO IN SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, 58 STAT. 390, QUOTED IN YOUR LETTER, SUPRA, SPECIFICALLY PROVIDES THAT UPON APPEAL BY A PREFERENCE ELIGIBLE TO THE CIVIL SERVICE COMMISSION FROM AN ADVERSE DECISION BY AN ADMINISTRATIVE OFFICER CONCERNING MATTERS WITHIN THE PURVIEW OF THE SAID SECTION 14, THE CIVIL SERVICE COMMISSION, AFTER INVESTIGATION AND CONSIDERATION OF THE EVIDENCE PRESENTED,"SHALL SUBMIT ITS FINDINGS AND RECOMMENDATIONS TO THE PROPER ADMINISTRATIVE OFFICER.' THUS, IT WILL BE SEEN THAT THE SAID SECTION 14 VESTS NO AUTHORITY EITHER IN THE CIVIL SERVICE COMMISSION OR THE PARTICULAR DEPARTMENT OR ESTABLISHMENT CONCERNED TO RESTORE TO DUTY A DISCHARGED OR SUSPENDED PREFERENCE ELIGIBLE AS OF THE DATE OF DISCHARGE OR SUSPENSION. ACCORDINGLY, AND IN CONSONANCE WITH THE PRINCIPLES HEREINBEFORE REFERRED TO, YOU ARE ADVISED THAT, WITH RESPECT TO RESTORATIONS TO DUTY FOLLOWING ADMINISTRATIVE ACTIONS OF THE CHARACTER MENTIONED IN QUESTION 1, THE EFFECTIVE DATES THEREOF ARE THE DATES ON WHICH THE RESTORATIONS ACTUALLY ARE EFFECTED. SECTION 1 OF PUBLIC LAW 525, APPROVED DECEMBER 21, 1944, 58 STAT. 845, PROVIDES, INTER ALIA, THAT WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT "IS SEPARATED FROM THE SERVICE," HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. THEREFORE, WHEN A PREFERENCE ELIGIBLE IS DISCHARGED FROM THE FEDERAL SERVICE HE IS ENTITLED TO A LUMP-SUM PAYMENT FOR THE ANNUAL LEAVE STANDING TO HIS CREDIT AT THE DATE OF DISCHARGE AND A DETERMINATION OF THE AMOUNT OF SUCH LEAVE TO BE RECREDITED TO HIM UPON RESTORATION WOULD BE GOVERNED BY THE PROVISIONS OF THE SAID ACT OF DECEMBER 21, 1944. SICK LEAVE TO THE CREDIT OF SUCH A PREFERENCE ELIGIBLE COULD BE RECREDITED TO HIS ACCOUNT UPON RESTORATION TO DUTY ONLY IN THE EVENT THE PERIOD ELAPSING BETWEEN DATE OF DISCHARGE AND DATE OF RESTORATION WAS LESS THAN 30 DAYS (EXTENDED TO 90 DAYS, EFFECTIVE MARCH 1, 1946, 11 F.R. 2149). SEE 24 COMP. GEN. 659 (ANSWER TO QUESTION 8); SECTIONS 1.1 (G), 4.8, AND 4.9, OF THE CURRENT LEAVE REGULATIONS. SINCE A SUSPENSION FROM DUTY OR A FURLOUGH WITHOUT PAY CONSTITUTES NEITHER A SEPARATION FROM SERVICE NOR A BREAK IN SERVICE WITHIN THE MEANING OF THOSE TERMS AS USED IN PUBLIC LAW 525 AND THE SAID LEAVE REGULATIONS, A PREFERENCE ELIGIBLE RESTORED TO DUTY AFTER A PERIOD OF SUSPENSION OR FURLOUGH WITHOUT PAY WOULD BE ENTITLED TO THE RECREDIT OF ALL ANNUAL AND SICK LEAVE STANDING TO HIS CREDIT AT THE TIME OF THE SUSPENSION OR FURLOUGH. GENERALLY, NO CHANGE IN AN EMPLOYEE'S STATUS FOR LEAVE PURPOSES RESULTS FROM HIS REDUCTION IN RATING OR COMPENSATION AND, THEREFORE, NO ADJUSTMENT RESPECTING ANNUAL AND SICK LEAVE CREDITS WOULD APPEAR TO BE REQUIRED UPON RESTORATION TO HIS FORMER POSITION. QUESTION 2 IS ANSWERED ACCORDINGLY.

SECTION 2 OF EXECUTIVE ORDER 8882, SEPTEMBER 3, 1941, PRESCRIBING THE PERIODS TO BE CREDITED AS SERVICE FOR PURPOSES OF THE WITHIN-GRADE SALARY ADVANCEMENT AUTHORIZED BY THE ACT OF AUGUST 1, 1941, 55 STAT. 613, PROVIDES:

IN COMPUTING THE PERIODS OF SERVICE REQUIRED BY THE SAID SECTION 7 FOR WITHIN-GRADE ADVANCEMENTS THERE SHALL BE CREDITED TO SUCH SERVICE:

(A) CONTINUOUS CIVILIAN EMPLOYMENT IN ANY BRANCH, EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, AGENCY, OR CORPORATION OF THE FEDERAL GOVERNMENT OR IN THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA.

(B) TIME ELAPSING ON ANNUAL, SICK, OR OTHER LEAVE WITH PAY.

(C) TIME ELAPSING IN A NON-PAY STATUS (INCLUDING BREAK IN SERVICE) NOT EXCEEDING THIRTY DAYS WITHIN ANY ONE TIME PERIOD OF EIGHTEEN OR THIRTY MONTHS, AS THE CASE MAY BE.

(D) SERVICE RENDERED PRIOR TO ABSENCE ON FURLOUGH OR LEAVE WITHOUT PAY WHERE SUCH ABSENCE IS IN EXCESS OF THIRTY DAYS BUT NOT EXCEEDING ONE YEAR.

ASSUMING THAT QUESTION 3 HAS REFERENCE TO A CASE WHERE THE TIME ELAPSING BETWEEN THE DATE OF DISCHARGE AND THE DATE OF RESTORATION TO DUTY EXCEEDS 30 DAYS, THE PRESCRIBED PERIOD FOR THE WITHIN-GRADE SALARY ADVANCEMENT WOULD BEGIN TO RUN FROM THE DATE OF RESTORATION AND NO PRIOR SERVICE OR ANY PORTION OF THE TIME ELAPSING BETWEEN THE DATE OF DISCHARGE AND THE DATE OF RESTORATION MAY BE INCLUDED. SEE 22 COMP. GEN. 1104.

WHERE A PREFERENCE ELIGIBLE IS RESTORED TO DUTY FOLLOWING AN EXTENDED PERIOD OF SUSPENSION OR FURLOUGH (ASSUMED TO BE IN EXCESS OF 30 DAYS), ONLY 30 DAYS OF THE PERIOD OF SUCH NONPAY STATUS MAY BE INCLUDED IN COMPUTING THE WAITING PERIOD FOR WITHIN-GRADE SALARY ADVANCEMENT PURPOSES. SEE 21 COMP. GEN. 313, 316, ID. 791, 797; AND 23 ID. 617. WITH RESPECT TO RESTORATIONS AFTER DEMOTIONS, IT MAY BE STATED THAT, GENERALLY, A RESTORATION IN COMPENSATION AFTER A REDUCTION OR DEMOTION IS AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE SAID ACT OF AUGUST 1, 1941, AND THEREFORE, THE WAITING PERIOD FOR THE WITHIN-GRADE SALARY ADVANCEMENT BEGINS FROM THE DATE OF RESTORATION. 21 COMP 285; ID. 326. HOWEVER, THE FACT THAT AN EMPLOYEE HAS BEEN REDUCED IN SALARY DURING THE PRESCRIBED WAITING PERIOD DOES NOT STOP THE RUNNING OF THE PERIOD FROM THE LAST ,EQUIVALENT INCREASE IN COMPENSATION.' HENCE, WHERE AN EMPLOYEE'S PROMOTABLE PERIOD TERMINATES DURING THE PERIOD OF DEMOTION HE WOULD BE ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT IN THE POSITION TO WHICH DEMOTED. QUESTION 4 IS ANSWERED ACCORDINGLY.

AS STATED IN THE ANSWER TO QUESTION 2, SUPRA, OF ALL THE VARIOUS ADMINISTRATIVE ACTIONS REFERRED TO IN YOUR LETTER ONLY ONE OF THEM--- THAT IS,"DISCHARGE"--- WOULD REQUIRE A CONSIDERATION OF THE PROVISIONS OF PUBLIC LAW 525, APPROVED DECEMBER 21, 1944, AND DETERMINATIONS RESPECTING THE AMOUNT OF THE LUMP-SUM PAYMENTS TO BE REFUNDED UPON RESTORATION TO DUTY WOULD BE GOVERNED BY THE EXPRESS PROVISIONS OF THAT STATUTE. QUESTION 5 IS ANSWERED ACCORDINGLY.

WITH REFERENCE TO QUESTION 6, IT MAY BE STATED THAT, GENERALLY, DETERMINATIONS RESPECTING RESTORATION OF LEAVE CREDITS AND COMPUTATION OF THE PRESCRIBED WAITING PERIODS FOR WITHIN-GRADE SALARY ADVANCEMENTS IN CASES WHERE A PREFERENCE ELIGIBLE, AFTER DISCHARGE BUT BEFORE RESTORATION TO DUTY, ACCEPTS A POSITION IN ANOTHER FEDERAL AGENCY, WOULD BE GOVERNED BY THE SAME STATUTORY AND REGULATORY PROVISIONS FOR APPLICATION IN CASES OF DISCHARGE AND RESTORATION WITHOUT ANY INTERVENING EMPLOYMENT IN ANOTHER FEDERAL AGENCY. THE SPECIFIC RIGHTS AND BENEFITS ACCRUING TO A PREFERENCE ELIGIBLE UNDER THE CIRCUMSTANCES MENTIONED WOULD DEPEND UPON THE FACTS INVOLVED IN EACH PARTICULAR CASE. CONSEQUENTLY, IN THE ABSENCE OF ADDITIONAL FACTS ILLUSTRATIVE OF THE CIRCUMSTANCES CONTEMPLATED BY THE QUESTION, A MORE DETAILED DISCUSSION THEREOF DOES NOT APPEAR WARRANTED.