B-97600, SEPTEMBER 21, 1950, 30 COMP. GEN. 114

B-97600: Sep 21, 1950

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AN EMPLOYEE ERRONEOUSLY SEPARATED FROM THE SERVICE AND LATER REINSTATED IS ENTITLED TO BE PAID COMPENSATION FOR THE PERIOD OF REMOVAL AT THE RATE FIXED BY LAW OR REGULATION FOR THE POSITION OCCUPIED ON THE DATE OF SEPARATION. EVEN THOUGH THE EMPLOYEE WAS IN A NON-PAY STATUS ON THAT DATE. 1950: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18. IT IS STATED THAT MRS. WEATHERSBY WAS SEPARATED FROM THE SERVICE FOR INEFFICIENCY (UNSATISFACTORY EFFICIENCY RATING) ON JUNE 23. FOLLOWING AN APPEAL OF AN UNSATISFACTORY EFFICIENCY RATING THE BOARD OF REVIEW RAISED THE RATING TO " FAIR" AND THE EMPLOYEE WAS RESTORED TO DUTY ON AUGUST 1. THE EMPLOYEE'S LAST DAY ON DUTY WAS FEBRUARY 15. SHE WAS CARRIED IN A PAY STATUS (ADVANCED SICK AND ANNUAL LEAVE) AT HER OWN REQUEST BECAUSE OF SICKNESS FROM FEBRUARY 16.

B-97600, SEPTEMBER 21, 1950, 30 COMP. GEN. 114

COMPENSATION - DISCHARGES, SUSPENSIONS, ETC. - ACT OF JUNE 10, 1948 UNDER SECTION 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, FIXING THE RATE OF COMPENSATION TO BE PAID AN EMPLOYEE FOR A PERIOD OF UNJUSTIFIED SUSPENSION OR SEPARATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION, AN EMPLOYEE ERRONEOUSLY SEPARATED FROM THE SERVICE AND LATER REINSTATED IS ENTITLED TO BE PAID COMPENSATION FOR THE PERIOD OF REMOVAL AT THE RATE FIXED BY LAW OR REGULATION FOR THE POSITION OCCUPIED ON THE DATE OF SEPARATION, EVEN THOUGH THE EMPLOYEE WAS IN A NON-PAY STATUS ON THAT DATE.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, SEPTEMBER 21, 1950:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18, 1950, TRANSMITTING A PAY ROLL VOUCHER IN FAVOR OF MRS. DORA F. WEATHERSBY FOR THE PERIOD JUNE 24 THROUGH JULY 31, 1950, AND REQUESTING DECISION AS TO THE PROPRIETY OF PAYMENT THEREOF UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, 62 STAT. 354-356, IN THE CIRCUMSTANCES HEREINAFTER SET FORTH.

IT IS STATED THAT MRS. WEATHERSBY WAS SEPARATED FROM THE SERVICE FOR INEFFICIENCY (UNSATISFACTORY EFFICIENCY RATING) ON JUNE 23, 1950. FOLLOWING AN APPEAL OF AN UNSATISFACTORY EFFICIENCY RATING THE BOARD OF REVIEW RAISED THE RATING TO " FAIR" AND THE EMPLOYEE WAS RESTORED TO DUTY ON AUGUST 1, 1950. THE EMPLOYEE'S LAST DAY ON DUTY WAS FEBRUARY 15, 1950, AND SHE WAS CARRIED IN A PAY STATUS (ADVANCED SICK AND ANNUAL LEAVE) AT HER OWN REQUEST BECAUSE OF SICKNESS FROM FEBRUARY 16, 1950, TO MAY 5, 1950, AT 12:15 P.M. SHE WAS PLACED IN A LEAVE-WITHOUT-PAY STATUS EFFECTIVE AT 1 P.M., MAY 5, 1950, ON ACCOUNT OF TERMINATION OF ADVANCED SICK AND ANNUAL LEAVE, AND SHE WAS REMOVED FROM SUCH STATUS AT CLOSE OF BUSINESS ON JUNE 23, 1950, BECAUSE OF REMOVAL FROM THE ROLLS OF THE VETERANS ADMINISTRATION FOR UNSATISFACTORY SERVICE.

IN YOUR LETTER IT IS FURTHER STATED THAT THE LEAVE-WITHOUT-PAY STATUS, MAY 5 TO JUNE 23, 1950, WAS GRANTED AT THE EMPLOYEE'S OWN REQUEST, AND WAS NOT AT ADMINISTRATIVE DIRECTION. YOUR DOUBT IN THE MATTER ARISES FROM THE FACT THAT, ON THE DATE FINALLY SEPARATED, THE EMPLOYEE WAS NOT IN RECEIPT OF ANY COMPENSATION. SECTION 6 (B) (1) OF THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, 62 STAT. 355, PROVIDES:

ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY UNDER SUBSECTION (A) WHO, AFTER FILING A WRITTEN ANSWER TO THE CHARGES AS PROVIDED UNDER SUCH SUBSECTION OR AFTER ANY FURTHER APPEAL TO PROPER AUTHORITY AFTER RECEIPT OF AN ADVERSE DECISION ON THE ANSWER, 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, 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. A DECISION WITH RESPECT TO ANY APPEAL TO PROPER AUTHORITY UNDER THIS PARAGRAPH SHALL BE MADE AT THE EARLIEST PRACTICABLE DATE.

THE QUOTED SECTION FIXES THE RATE OF COMPENSATION FOR THE PERIOD OF UNJUSTIFIED SUSPENSION OR SEPARATION "AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION," WHICH LANGUAGE, IF LITERALLY CONSTRUED, WOULD LEAD TO THE CONCLUSION THAT, AS THE EMPLOYEE IN A LEAVE-WITHOUT PAY STATUS DID NOT RECEIVE ANY COMPENSATION ON THE DATE OF REMOVAL OR SUSPENSION, NO COMPENSATION COULD BE PAID FOR THE PERIOD OF REMOVAL OR SUSPENSION. HOWEVER, SUCH A CONCLUSION WOULD BE INCONSISTENT WITH THE PROVISION IN THE SAID SECTION THAT, FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE, THE EMPLOYEE "SHALL BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD.' IT IS THE EVIDENT INTENT OF THE CONGRESS THAT THE EMPLOYEE BE PAID FOR THE PERIOD OF UNJUSTIFIED REMOVAL OR SUSPENSION, THE ONLY QUESTION BEING THE RATE OF COMPENSATION TO BE USED. THE ONLY LAWFUL RATE IS THE RATE OF COMPENSATION FIXED BY LAW OR REGULATION FOR THE POSITION OCCUPIED BY THE CLAIMANT AND IN EFFECT ON THE DATE OF SEPARATION ON SUSPENSION, NOTWITHSTANDING THE EMPLOYEE MAY HAVE BEEN IN A NON-PAY STATUS ON THAT DATE. CF. 25 COMP. GEN. 169; 28 ID. 336. IT APPEARS FROM THE COPIES OF THE PERSONNEL RECORDS ENCLOSED BY YOU THAT THE EMPLOYEE INVOLVED OCCUPIED A POSITION IN GS-4 AT THE SALARY RATE OF $3,035 PER ANNUM, AND, ACCORDINGLY, THE PAY ROLL VOUCHER, IF OTHERWISE CORRECTLY COMPUTED AT THAT RATE, MAY BE PAID.