B-128314, AUG. 10, 1956

B-128314, AUG. 10, 1956

TO THE SECRETARY OF THE NAVY:

IN LETTER OF JUNE 1956 THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT) REQUESTED OUR DECISION AS TO WHETHER MR. LEE E. HOFFLER, A PREFERENCE ELIGIBLE EMPLOYEE OF THE NAVY, IS UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED ENTITLED TO BACK PAY FOR THE DIFFERENCE BETWEEN THE RATE OF COMPENSATION ATTACHED TO THE POSITION FROM WHICH HE WAS SEPARATED (AS A RESULT OF AN ADMINISTRATIVE ERROR) AND THE RATE OF THE LOWER GRADE POSITION, FOR WHICH POSITION THE EMPLOYEE HAD APPLIED AND TO WHICH HE WAS APPOINTED EFFECTIVE THE FIRST DAY OF BUSINESS FOLLOWING THE EFFECTIVE DATE OF HIS SEPARATION.

THE EMPLOYEE WAS INFORMED IN NOTICE OF SEPARATION DATED JUNE 10, 1954, THAT BECAUSE OF A REDUCTION IN FORCE HIS ACTIVE SERVICE AS A HELPER PIPEFITTER AT THE RATE OF $1.54 PER HOUR WOULD BE TERMINATED EFFECTIVE JULY 16, 1954. HE WAS ADVISED OF HIS RIGHT TO EXAMINE THE RETENTION RECORDS APPLICABLE TO HIS CASE AND OF HIS RIGHT TO APPEAL TO THE DIRECTOR, THIRD U.S. CIVIL SERVICE REGION, IF HE FELT HIS SEPARATION WAS IMPROPER. HE DID NOT AVAIL HIMSELF OF EITHER OF THOSE RIGHTS. PRIOR TO HIS ACTUAL SEPARATION THE EMPLOYEE APPLIED AND WAS SELECTED FOR A POSITION AS A WASHMAN AT THE RATE OF $1.15 PER HOUR, EFFECTIVE JULY 19, 1954. SUBSEQUENTLY, THE EMPLOYEE BROUGHT TO THE ATTENTION OF THE APPROPRIATE ADMINISTRATIVE OFFICIALS FACTS WHICH INDICATED HE WOULD NOT HAVE BEEN SEPARATED WITH THE RESULTING LOSS OF COMPENSATION BUT FOR AN ADMINISTRATIVE ERROR IN THE PREPARATION OF THE RETENTION REGISTER ON WHICH THE EMPLOYEE'S NAME APPEARED. THE ERROR WAS IMMEDIATELY CORRECTED AND THE EMPLOYEE WAS RESTORED TO HIS FORMER POSITION EFFECTIVE FEBRUARY 21, 1955.

UPON THE FACTS STATED TWO QUESTIONS ARE PRESENTED FOR DECISION AS FOLLOWS:

1. IS A PREFERENCE ELIGIBLE EMPLOYEE, DEMOTED (SHOULD READ "SEPARATED") AS A RESULT OF AN ADMINISTRATIVE ERROR CONTRARY TO THE PROVISIONS OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, AND SUBSEQUENTLY RESTORED BY THE AGENCY, ENTITLED TO BACK PAY FOR THE PERIOD OF THE ERRONEOUS DEMOTION (SHOULD BE "SEPARATION"), AND

2. WOULD IT MAKE A DIFFERENCE IF THE AGENCY'S ACTION IS GIVEN RETROACTIVE EFFECT?

YOUR LETTER REFERS TO THIS CASE AS AN "ERRONEOUS DEMOTION" BUT IT IS IMPORTANT THAT A SHARP DISTINCTION BE DRAWN FACTUALLY BETWEEN A DEMOTION IN A REDUCTION-IN-FORCE ACTION AND A SEPARATION IN A REDUCTION-IN-FORCE ACTION. IN THE FORMER CASE, THE EMPLOYEE IS NOTIFIED OF THE REDUCTION-IN- FORCE ACTION AND GIVEN A CHOICE OF SEPARATION OR A POSITION AT A LOWER GRADE OR RATE OF COMPENSATION. THE LATTER SITUATION RESULTS FROM AN ADMINISTRATIVE NOTIFICATION OF SEPARATION BECAUSE OF A REDUCTION IN FORCE WITHOUT AN OPTION OF ACCEPTING A POSITION AT A REDUCED RATE OF PAY. THE INSTANT CASE THE EMPLOYEE WAS GIVEN A NOTICE OF SEPARATION WITHOUT ANY OPTION TO ACCEPT A POSITION AT A REDUCED RATE OF COMPENSATION. ALTHOUGH THE EMPLOYEE WAS ABLE TO QUALIFY FOR AN AVAILABLE POSITION AT A LOWER RATE OF PAY AT THE TIME OF HIS SEPARATION, IT WAS NOT OFFERED TO HIM AS A PART OF THE REDUCTION-IN-FORCE NOTIFICATION.

SECTION 12 OF THE VETERANS' PREFERENCE ACT OF 1944, 58 STAT. 387, AS AMENDED AUGUST 4, 1947, 61 STAT. 723, 5 U.S.C. 862, PROVIDES:

"IN ANY REDUCTION IN PERSONNEL IN ANY CIVILIAN SERVICE OF ANY FEDERAL AGENCY, COMPETING EMPLOYEES SHALL BE RELEASED IN ACCORDANCE WITH CIVIL SERVICE COMMISSION REGULATIONS WHICH SHALL GIVE DUE EFFECT TO TENURE OF EMPLOYMENT, MILITARY PREFERENCE, LENGTH OF SERVICE, AND EFFICIENCY RATINGS: * * *"

IT IS ADMITTED THAT THE SEPARATION OF THE EMPLOYEE IN THIS CASE RESULTED FROM A FAILURE TO ADHERE TO THE CIVIL SERVICE REGULATIONS PERTAINING TO RETENTION LISTS. SECTION 6 (B) (3) OF THE LLOYD LAFOLLETTE ACT OF AUGUST 24, 1912, AS AMENDED JUNE 10, 1948, 62 STAT. 354, 5 U.S.C. 652, PROVIDES:

"ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY IN A REDUCTION IN FORCE WHO, AFTER AN APPEAL TO PROPER AUTHORITY, 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. * * *"

AS INDICATED IN OUR DECISION, 34 COMP. GEN. 478, THERE IS NO REQUIREMENT IN THE 1948 ACT FOR A FORMAL APPEAL FROM A NOTICE OF SEPARATION. IN THAT CASE WE HELD THAT AN ORAL INQUIRY REGARDING THE PROPRIETY OF THE REDUCTION -IN-FORCE NOTICE QUALIFIED AS "AN APPEAL TO PROPER AUTHORITY" WITHIN THE MEANING OF THE 1948 ACT. SIMILARLY, IN THIS CASE, IT IS OUR OPINION THAT THE EMPLOYEE'S ACTION IN BRINGING FACTS TO THE ATTENTION OF THE PROPER OFFICIALS WHICH INDICATED HE HAD BEEN ERRONEOUSLY SEPARATED CONSTITUTED AN APPEAL WITHIN CONTEMPLATION OF THE 1948 ACT. THEREFORE, THE EMPLOYEE HAS MET THE REQUIREMENTS OF THE 1948 ACT AND IS ENTITLED TO BACK PAY FOR THE PERIOD OF HIS UNJUSTIFIED SEPARATION, NAMELY, JULY 19, 1954, TO FEBRUARY 21, 1955, COMPUTED IN ACCORDANCE WITH THE 1948 ACT.

IN ANSWER TO THE SECOND QUESTION PRESENTED OUR VIEW IS THAT FOR BACK PAY PURPOSES IT IS IMMATERIAL WHETHER THE AGENCY'S ACTION IS GIVEN RETROACTIVE EFFECT.