B-98452, FEBRUARY 6, 1951, 30 COMP. GEN. 342

B-98452: Feb 6, 1951

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PRIMARILY IS CONCERNED WITH CHARGES ARISING OUT OF AN EMPLOYEE'S CONDUCT. WAS NOT A "SUSPENSION FROM THE SERVICE" WITHIN THE MEANING OF THE ACT SO AS TO ENTITLE THE EMPLOYEE UPON RESTORATION TO DUTY TO COMPENSATION FOR THE PERIOD HE WAS CARRIED IN A LEAVE WITHOUT PAY STATUS. 1951: REFERENCE IS MADE TO LETTER OF SEPTEMBER 27. AN EMPLOYEE OF THE PEARL HARBOR NAVAL SHIPYARD IS ENTITLED TO COMPENSATION UNDER THE ACT OF JUNE 10. FOR A PERIOD DURING WHICH HE WAS CARRIED IN A LEAVE WITHOUT PAY STATUS WITHOUT HIS PERMISSION. IT IS REPORTED THAT THE EMPLOYEE INVOLVED WAS GIVEN A PHYSICAL EXAMINATION ON SEPTEMBER 25. THE EMPLOYEE WAS CARRIED IN A LEAVE WITH PAY STATUS UNTIL HIS AVAILABLE LEAVE WAS EXHAUSTED.

B-98452, FEBRUARY 6, 1951, 30 COMP. GEN. 342

COMPENSATION - SUSPENSION PENDING DISABILITY RETIREMENT PROCEEDINGS - RESTORATION TO DUTY THE TERM "SUSPENSION FROM THE SERVICE" AS USED IN THE BACK-PAY PROVISIONS OF THE ACT OF JUNE 10, 1948, PRIMARILY IS CONCERNED WITH CHARGES ARISING OUT OF AN EMPLOYEE'S CONDUCT, AND THEREFORE THE INVOLUNTARY PLACING OF AN EMPLOYEE ON LEAVE WITHOUT PAY PENDING ACTION ON A DISABILITY RETIREMENT APPLICATION ADMINISTRATIVELY FILED FOR THE EMPLOYEE, PURSUANT TO THE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT, WAS NOT A "SUSPENSION FROM THE SERVICE" WITHIN THE MEANING OF THE ACT SO AS TO ENTITLE THE EMPLOYEE UPON RESTORATION TO DUTY TO COMPENSATION FOR THE PERIOD HE WAS CARRIED IN A LEAVE WITHOUT PAY STATUS.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, FEBRUARY 6, 1951:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 27, 1950, FROM THE UNDERSECRETARY OF THE NAVY, REQUESTING A DECISION AS TO WHETHER, UNDER THE FACTS AND CIRCUMSTANCES HEREINBELOW RELATED, AN EMPLOYEE OF THE PEARL HARBOR NAVAL SHIPYARD IS ENTITLED TO COMPENSATION UNDER THE ACT OF JUNE 10, 1948, 62 STAT. 354, AMENDING THE ACT OF AUGUST 24, 1912, 5 U.S.C. 652, FOR A PERIOD DURING WHICH HE WAS CARRIED IN A LEAVE WITHOUT PAY STATUS WITHOUT HIS PERMISSION.

IT IS REPORTED THAT THE EMPLOYEE INVOLVED WAS GIVEN A PHYSICAL EXAMINATION ON SEPTEMBER 25, 1949, BECAUSE HE HAD COMPLAINED OF DIFFICULTY IN PERFORMING HIS ASSIGNED DUTIES. THE PHYSICIAN WHO CONDUCTED THE PHYSICAL EXAMINATION, A SHIPYARD MEDICAL OFFICER, RECOMMENDED THAT THE EMPLOYEE BE RETIRED, AND UPON REFUSAL OF THE EMPLOYEE TO FILE APPLICATION FOR DISABILITY RETIREMENT, THE SHIPYARD, ON OCTOBER 4, 1949, FILED SUCH AN APPLICATION FOR HIM AS PERMITTED UNDER APPLICABLE REGULATIONS, INFRA. THE EMPLOYEE WAS CARRIED IN A LEAVE WITH PAY STATUS UNTIL HIS AVAILABLE LEAVE WAS EXHAUSTED, AT WHICH TIME HE REQUESTED THAT HE BE RETURNED TO LIGHT DUTY. HOWEVER, THAT REQUEST WAS REFUSED UPON A FURTHER RECOMMENDATION OF THE MEDICAL OFFICER THAT THE EMPLOYEE BE CONTINUED IN A NON-DUTY STATUS AS A PRECAUTIONARY MEASURE TO PROTECT HIS HEALTH AND TO SAFEGUARD THE SHIPYARD AGAINST POSSIBLE LIABILITY. SUBSEQUENTLY, UNDER DATE OF DECEMBER 6, 1949, THE CIVIL SERVICE COMMISSION DISAPPROVED THE APPLICATION FOR DISABILITY RETIREMENT AND, AS A CONSEQUENCE THEREOF, THE EMPLOYEE WAS RESTORED TO DUTY EFFECTIVE DECEMBER 22, 1949. HE NOW CLAIMS COMPENSATION FOR THE PERIOD HE WAS CARRIED IN A LEAVE WITHOUT PAY STATUS FROM NOVEMBER 14, 1949, THROUGH DECEMBER 21, 1949.

THE PRIMARY QUESTION PRESENTED IS STATED AS FOLLOWS:

DID THE PLACING OF MR. GALAZA IN A LEAVE-WITHOUT-PAY STATUS AGAINST THE EMPLOYEE'S WILL, BECAUSE OF A BELIEF THAT HE WAS PHYSICALLY INCAPABLE OF PERFORMING HIS DUTIES SAFELY, CONSTITUTE A SUSPENSION WITHOUT PAY FOR CAUSE, TO PROMOTE THE EFFICIENCY OF THE SERVICE, WITHIN THE ACT OF 10 JUNE 1948?

THE PERTINENT PROVISIONS OF THE ACT OF AUGUST 24, 1912, AS AMENDED, BY THE ACT OF JUNE 10, 1948 (SECTIONS 6 (A) AND 6 (B) (1) (, 5 U.S.C. 652, ARE AS FOLLOWS:

(A) NO PERSON IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES SHALL BE REMOVED OR SUSPENDED WITHOUT PAY THEREFROM EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF SUCH SERVICE AND FOR REASONS GIVEN IN WRITING. ANY PERSON WHOSE REMOVAL OR SUSPENSION WITHOUT PAY IS SOUGHT SHALL (1) HAVE NOTICE OF THE SAME AND OF ANY CHARGES PREFERRED AGAINST HIM; (2) BE FURNISHED WITH A COPY OF SUCH CHARGES; (3) BE ALLOWED A REASONABLE TIME FOR FILING A WRITTEN ANSWER TO SUCH CHARGES, WITH AFFIDAVITS; AND (4) BE FURNISHED AT THE EARLIEST PRACTICABLE DATE WITH A WRITTEN DECISION ON SUCH ANSWER.

* * * THIS SUBSECTION SHALL APPLY TO A PERSON WITHIN THE PURVIEW OF SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, ONLY IF HE SO ELECTS.

(B) (1) 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.

AT THE OUTSET, IT MAY BE POINTED OUT THAT THE FILING OF A DISABILITY RETIREMENT APPLICATION FOR THE EMPLOYEE BY THE SHIPYARD, BECAUSE OF THE REFUSAL OF THE EMPLOYEE TO DO SO, WAS IN ACCORDANCE WITH INSTRUCTIONS OF THE CIVIL SERVICE COMMISSION CONTAINED IN CHAPTER R5.48 OF THE FEDERAL PERSONNEL MANUAL. ALSO, IN CHAPTER S1-8 OF THE SAME PUBLICATION IT IS STATED THAT, IF SUCH AN APPLICATION BE FILED, NO ACTION SHOULD BE TAKEN TO SEPARATE THE EMPLOYEE UNTIL THE CIVIL SERVICE COMMISSION HAS DETERMINED WHETHER THE EMPLOYEE IS ENTITLED TO DISABILITY RETIREMENT ON THE BASIS OF SUCH APPLICATION AND IF NECESSARY TO GRANT SUCH EMPLOYEE LEAVE WITHOUT PAY PENDING ACTION ON THE CLAIM FOR DISABILITY RETIREMENT.

THE TERM "SUSPENSION FROM THE SERVICE" AS USED IN SECTIONS 6 (A) AND 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, SUPRA, PRIMARILY IS CONCERNED WITH CHARGES ARISING OUR OF AN EMPLOYEE'S CONDUCT. IN THE INSTANT CASE, THE SHIPYARD MERELY WAS FOLLOWING THE INSTRUCTIONS AND REGULATIONS OF THE CIVIL SERVICE COMMISSION ISSUED FOR THE PURPOSE OF CARRYING OUT THE PROVISIONS OF A DIFFERENT STATUTE, NAMELY, THE CIVIL SERVICE RETIREMENT ACT. THE ACTION IN REFUSING TO PERMIT THE EMPLOYEE TO WORK WAS NOT PREDICATED UPON CHARGES, BUT WAS TO PROTECT BOTH THE EMPLOYEE AND THE UNITED STATES AS PREVIOUSLY INDICATED.

ACCORDINGLY, UNDER THE STATED FACTS AND CIRCUMSTANCES, IT IS CONCLUDED THAT THE PLACING OF THE EMPLOYEE INVOLVED ON LEAVE WITHOUT PAY WAS NOT A "SUSPENSION FROM THE SERVICE" WITHIN THE MEANING OF THOSE WORDS AS USED IN SECTIONS 6 (A) AND 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, SUPRA. SPECIFICALLY, THEREFORE, THE QUESTION HEREINBEFORE QUOTED IS ANSWERED IN THE NEGATIVE, THUS RENDERING UNNECESSARY ANY CONSIDERATION OF OTHER QUESTIONS PRESENTED IN THE LETTER.