B-133887, JUN. 10, 1963
Highlights
DAVIS' CLAIM WAS DISALLOWED BY OFFICE SETTLEMENT DATED AUGUST 23. WHICH WAS SUSTAINED UPON REVIEW IN A DECISION TO MRS. YOU ARE ADVISED THAT NO NEW STATUTORY PROVISIONS HAVE BEEN ENACTED CONCERNING BACK PAY. DAVIS WOULD NOT HAVE A CLAIM COGNIZABLE THEREUNDER. EVEN IF THE ACT WERE OTHERWISE APPLICABLE. SINCE SHE WAS SEPARATED PRIOR TO THE COMPLETION OF HER ONE-YEAR TRIAL OR PROBATIONARY PERIOD AND THUS WAS NOT IN THE COMPETITIVE CIVIL SERVICE WITHIN THE MEANING OF THAT ACT. IS NOT PRECLUDED BECAUSE AN EMPLOYEE IS NOT IN THE CLASSIFIED CIVIL SERVICE. REINSTATEMENT OR RESTORATION OF THE EMPLOYEE IS NECESSARY BY THE HEAD OF THE AGENCY CONCERNED. THE FACT THAT SHE MAY HAVE AT SOME SUBSEQUENT PERIOD BEEN EMPLOYED BY ANOTHER GOVERNMENT AGENCY IS IMMATERIAL.
B-133887, JUN. 10, 1963
TO MR. CHARLES E. WILSON:
ON APRIL 22, 1963, YOU PRESENTED TO US, AS ATTORNEY FOR MRS. ELSIE DAVIS, A CLAIM FOR RETROACTIVE COMPENSATION ARISING FROM HER SEPARATION BY THE DEPARTMENT OF THE NAVY IN 1951.
MRS. DAVIS' CLAIM WAS DISALLOWED BY OFFICE SETTLEMENT DATED AUGUST 23, 1957, COPY ENCLOSED, WHICH WAS SUSTAINED UPON REVIEW IN A DECISION TO MRS. DAVIS DATED OCTOBER 28, 1957, COPY ENCLOSED.
YOU ARE ADVISED THAT NO NEW STATUTORY PROVISIONS HAVE BEEN ENACTED CONCERNING BACK PAY. IN REGARD TO THE BACK PAY PROVISIONS OF SECTION 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, MRS. DAVIS WOULD NOT HAVE A CLAIM COGNIZABLE THEREUNDER, EVEN IF THE ACT WERE OTHERWISE APPLICABLE, SINCE SHE WAS SEPARATED PRIOR TO THE COMPLETION OF HER ONE-YEAR TRIAL OR PROBATIONARY PERIOD AND THUS WAS NOT IN THE COMPETITIVE CIVIL SERVICE WITHIN THE MEANING OF THAT ACT. FURTHER, WHILE PAYMENT OF BACK PAY BECAUSE OF AN IMPROPER SEPARATION UNDER THE ACT OF AUGUST 26, 1950, CH. 803, 64 STAT. 476, AS AMENDED, 5 U.S.C. 22-1, IS NOT PRECLUDED BECAUSE AN EMPLOYEE IS NOT IN THE CLASSIFIED CIVIL SERVICE, NEVERTHELESS, REINSTATEMENT OR RESTORATION OF THE EMPLOYEE IS NECESSARY BY THE HEAD OF THE AGENCY CONCERNED.
THE DEPARTMENT OF THE NAVY REPORTS THAT MRS. DAVIS HAS NEVER BEEN REINSTATED OR RESTORED TO DUTY WITHIN THE MEANING OF THE ACT OF AUGUST 26, 1950. THE FACT THAT SHE MAY HAVE AT SOME SUBSEQUENT PERIOD BEEN EMPLOYED BY ANOTHER GOVERNMENT AGENCY IS IMMATERIAL. THEREFORE, OUR DECISION OF OCTOBER 28, 1957, SUSTAINING THE DISALLOWANCE OF MRS. DAVIS' CLAIM, IS AFFIRMED.