B-99582, FEBRUARY 18, 1952, 31 COMP. GEN. 396

B-99582, FEBRUARY 18, 1952, 31 COMP. GEN. 396

COMPENSATION - DISCHARGES, SUSPENSIONS, ETC. - ACT OF JUNE 10, 1948 - RESTORATION TO DUTY REQUIREMENT AN EMPLOYEE WHO SUCCESSFULLY APPEALED, UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, HIS SEPARATION IN A REDUCTION IN FORCE, AND WHO DECLINED TO ACCEPT A POSITION ADMINISTRATIVELY OFFERED FOR THE REASON THAT THE POSITION WAS NOT THE GRADE TO WHICH HE WAS ENTITLED UNDER THE CIVIL SERVICE COMMISSION'S RECOMMENDATION FOR HIS RESTORATION TO DUTY, MAY NOT BE CONSIDERED AS HAVING BEEN RESTORED TO DUTY WITHIN THE MEANING OF THE "BACK PAY" PROVISIONS OF SECTION 6 (B) (2) OF THE ACT OF JUNE 10, 1948, SO AS TO BE ENTITLED TO COMPENSATION FOR THE PERIOD OF IMPROPER REMOVAL.

COMPTROLLER GENERAL WARREN TO JOHN JAY COLE, FEBRUARY 18, 1952:

REFERENCE IS MADE TO YOUR UNDATED LETTER, POSTMARKED DECEMBER 4, 1951, REQUESTING REVIEW OF THE SETTLEMENT OF SEPTEMBER 27, 1951, WHICH DISALLOWED YOUR CLAIM, AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, TRANSPORTATION CORPS, FOR COMPENSATION SUBSEQUENT TO AUGUST 25, 1949, THE DATE OF YOUR SEPARATION FROM SERVICE BECAUSE OF A REDUCTION IN FORCE. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOU DID NOT MEET THE RESTORATION TO DUTY REQUIREMENT OF THE BACK-PAY PROVISIONS OF THE ACT OF JUNE 10, 1948, 62 STAT. 354--- IT HAVING BEEN REPORTED THAT YOU DECLINED A POSITION ADMINISTRATIVELY OFFERED. YOU CONTEND THAT YOU WERE RESTORED TO DUTY,"ON PAPER," AND THAT YOUR REFUSAL OF THE POSITION ADMINISTRATIVELY OFFERED WAS JUSTIFIED, SAID OFFER NOT BEING IN ACCORDANCE WITH THE RECOMMENDATIONS OF THE CIVIL SERVICE COMMISSION IN YOUR CASE.

THE STATUTORY AUTHORITY FOR THE PAYMENT OF COMPENSATION TO AN EMPLOYEE FOR A PERIOD OF IMPROPER REMOVAL FROM SERVICE IS THE ACT OF JUNE 10, 1948, SUPRA.SECTION 6 (B) (2) OF THE ACT, 62 STAT. 354 APPLICABLE TO CASES OF PREFERENCE ELIGIBLES, PROVIDES AS FOLLOWS:

ANY PERSON WHO IS DISCHARGED, SUSPENDED, OR FURLOUGHED WITHOUT PAY, UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, 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 * * *.

IN A DECISION OF THIS OFFICE, 28 COMP. GEN. 200, THE RIGHT CREATED BY THE ABOVE-QUOTED ACT WAS CONSIDERED, AND IT WAS STATED THEREIN:

THE CONGRESS ESTABLISHED, BY SAID ACT OF JUNE 10, 1948, THREE CONDITIONS UNDER WHICH THE NEW RIGHT IS TO VEST: (1) THE EMPLOYEE MUST BE REMOVED OR SUSPENDED WITHOUT PAY, (2) HE MUST MAKE ANSWER TO THE CHARGES OR REASONS PROFFERED FOR THE ACTION, OR APPEAL TO PROPER AUTHORITY, AND (3) HE MUST BE REINSTATED OR RESTORED ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED. THE RIGHT IN ELIGIBLE CASES WILL THUS VEST CONTINGENTLY UPON THE REMOVAL OR SUSPENSION, AND ABSOLUTELY UPON THE REINSTATEMENT OR RESTORATION.

THE RECORD DISCLOSES THAT EFFECTIVE APRIL 24, 1948, YOU WERE ADMINISTRATIVELY REDUCED IN RANK AND SALARY, FROM WHICH ACTION YOU APPEALED UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, TO THE CIVIL SERVICE COMMISSION. ON AUGUST 25, 1949, YOU WERE SEPARATED IN A REDUCTION IN FORCE, WHICH ACTION YOU ALSO APPEALED UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT. IN CONNECTION WITH YOUR APPEAL FROM THE DEMOTION, THE CIVIL SERVICE COMMISSION RECOMMENDED YOUR RESTORATION TO THE GRADE FROM WHICH DEMOTED FROM THE EFFECTIVE DATE OF THE DEMOTION, APRIL 24, 1948, TO THE DATE OF YOUR SEPARATION, AUGUST 25, 1949, LEAVING THE QUESTION OF THE PROPRIETY OF YOUR SEPARATION STILL OPEN. IN VIEW OF THAT RECOMMENDATION AND THE FACT THAT YOU HAD BEEN SEPARATED, THE DEPARTMENT OF THE ARMY MODIFIED ITS RECORDS TO SHOW YOU AS AN OCCUPANT OF THE GRADE FROM WHICH YOU HAD BEEN DEMOTED FOR THE PERIOD APRIL 24, 1948, TO AUGUST 25, 1949. THAT ACTION CANNOT BE CONSIDERED AS HAVING EFFECTUATED A RESTORATION "TO DUTY" SUBSEQUENT TO AUGUST 25, 1949, DATE OF SEPARATION, SO AS TO BRING YOU WITHIN THE PURVIEW OF THE ACT OF JUNE 10, 1948.

ACTING UPON YOUR APPEAL FROM SEPARATION THE CIVIL SERVICE COMMISSION RECOMMENDED YOUR RESTORATION TO DUTY. THAT RECOMMENDATION DID NOT OF ITSELF, WITHOUT FURTHER ADMINISTRATIVE ACTION, HAVE THE EFFECT OF RESTORING YOU TO DUTY. PURSUANT TO THE RECOMMENDATION OF THE COMMISSION THE DEPARTMENT OF THE ARMY OFFERED YOU A POSITION WHICH YOU DECLINED AS NOT OF THE GRADE TO WHICH YOU WERE ENTITLED UNDER THE RECOMMENDATION. SUBSEQUENT TO YOUR REFUSAL NO FURTHER ADMINISTRATIVE ACTION APPEARS TO HAVE BEEN TAKEN IN YOUR CASE.

IT THUS APPEARS, ASIDE FROM THE QUESTION OF WHETHER A PAPER RESTORATION AS CLAIMED BY YOU WOULD CONSTITUTE A RESTORATION TO DUTY WITHIN THE MEANING OF THE ACT OF JUNE 10, 1948, THAT THE RECORD IN YOUR CASE DOES NOT DISCLOSE A RESTORATION TO DUTY FOLLOWING SEPARATION, AS A RESULT OF APPEAL TO THE CIVIL SERVICE COMMISSION.

AS TO THE QUESTION OF THE PROPRIETY OF THE ADMINISTRATIVE ACTION WITH REGARD TO THE POSITION OFFERED YOU, YOU ARE ADVISED THAT THE MATTER IS NOT WITHIN THE PURVIEW OF THIS OFFICE, BUT EXCLUSIVELY FOR CONSIDERATION BY THE CIVIL SERVICE COMMISSION.

SINCE YOU WERE NOT RESTORED TO DUTY SUBSEQUENT TO SEPARATION, AS THE RESULT OF APPEAL TO THE COMMISSION, IT MUST BE CONCLUDED THAT A RIGHT TO BACK PAY FOR A PERIOD OF IMPROPER REMOVAL DID NOT VEST UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1948, AND CONSEQUENTLY, THE DISALLOWANCE OF YOUR CLAIM BY THE SETTLEMENT OF SEPTEMBER 27, 1951, WAS PROPER.