B-112693, OCT. 10, 1957

B-112693, OCT. 10, 1957

TO MRS. BERTHA KEELER:

WE HAVE COMPLETED OUR INVESTIGATION OF THE PROPRIETY OF YOUR HAVING BEEN CHARGED LEAVE WITHOUT PAY FOR 43 HOURS DURING THE PERIOD MAY 13 26, 1951, WHILE YOU WERE EMPLOYED BY THE FEDERAL HOUSING ADMINISTRATION. AS YOU KNOW, YOUR VIEWS AND THOSE OF THE ADMINISTRATIVE OFFICE CONCERNING YOUR REPORTED ABSENCE ON THE DAYS IN QUESTION (MAY 17, 1951, 5 HOURS; MAY 18, 1951, 8 HOURS; MAY 22, 1951, 8 HOURS; MAY 23, 1951, 6 HOURS; MAY 24, 1951, 8 HOURS; AND MAY 25, 1951, 8 HOURS) ARE CONTRADICTORY.

WHILE WE HAVE DEVOTED CONSIDERABLE TIME AND EFFORT IN ATTEMPTING TO DETERMINE ALL OF THE FACTS AND CIRCUMSTANCES INVOLVED, OUR INVESTIGATION HAS NOT RESULTED IN ANY CONCLUSIVE FINDINGS CONCERNING THE DISPUTED FACTS IN YOUR CASE. THIS, WE BELIEVE, WAS DUE PRIMARILY TO TWO FACTORS: FIRST, THE PERTINENT ADMINISTRATIVE RECORDS WHICH MAY HAVE RELATED TO THE LEAVE- WITHOUT-PAY CHARGE SHOWN ON YOUR TIME AND ATTENDANCE REPORTS HAVE LONG SINCE BEEN DESTROYED AND, SECONDLY, THE VARIOUS PERSONS WHO AT THE TIME MAY HAVE POSSESSED KNOWLEDGE BEARING UPON THE FACT OF YOUR PRESENCE FOR OR ABSENCE FROM DUTY ON THOSE DAYS WERE EITHER UNAVAILABLE FOR QUESTIONING OR BECAUSE OF THE LONG LAPSE OF TIME DO NOT NOW REMEMBER PERTINENT FACTS AND CIRCUMSTANCES IN THE CASE.

DURING THE INVESTIGATION WE ENDEAVORED TO WORK CLOSELY WITH YOU AND INVESTIGATE ANY LEADS YOU MIGHT HAVE HAD WHICH WOULD TEND TO ESTABLISH YOUR PRESENCE ON THE JOB DURING THE PERIODS INVOLVED, YET WE REGRET TO SAY THAT WE HAVE BEEN UNSUCCESSFUL IN OBTAINING ANY SUBSTANTIALLY CLEAR EVIDENCE IN THIS REGARD. WE HAVE LEARNED OF NO ADDITIONAL FACTS WHICH WE BELIEVE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE TIME AND ATTENDANCE REPORT OF THE ADMINISTRATIVE OFFICE. WE THEREFORE DO NOT FEEL WARRANTED IN MODIFYING OUR PREVIOUS ACTION ON YOUR CLAIM. WE ARE FURNISHING THE SENATE PERMANENT SUBCOMMITTEE ON INVESTIGATIONS A COPY OF THIS LETTER, TOGETHER WITH A COPY OF OUR REPORT OF INVESTIGATION IN THE MATTER.

IN A RECENT DISCUSSION OF YOUR CASE WITH A REPRESENTATIVE OF OUR OFFICE YOU INDICATED THAT YOU HAD ADDITIONAL DOCUMENTS AND INFORMATION IN YOUR POSSESSION WHICH MIGHT HAVE BEEN HELPFUL IN OUR INVESTIGATION BUT THAT YOU WITHHELD THE INFORMATION AND DOCUMENTS FOR VARIOUS REASONS. YOU ALSO RAISED THE QUESTION IN THAT DISCUSSION AS TO WHETHER A FULL 30-DAY SEPARATION NOTICE WAS GIVEN YOU PRIOR TO YOUR SEPARATION FROM THE FEDERAL HOUSING ADMINISTRATION. WE UNDERSTAND THAT YOU APPEALED YOUR SEPARATION TO THE CIVIL SERVICE COMMISSION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 AS AMENDED AND THAT THE CIVIL SERVICE COMMISSION SUSTAINED THE SEPARATION ACTION TAKEN.

THE STATUTORY REQUIREMENT IS FOR A FULL 30 DAYS ADVANCE NOTICE OF PROPOSED SEPARATION. STRINGER V. UNITED STATES, 117 C.CLS. 30, 48. WE UNDERSTAND THE NOTICE IN YOUR CASE WAS DATED APRIL 23, 1951, AND THE SEPARATION ACTION WAS EFFECTIVE MAY 27, 1951. THERE ARE COURT DECISIONS TO THE EFFECT THAT, WHERE AN EMPLOYEE IS INVOLUNTARILY PLACED ON LEAVE DURING THE 30-DAY NOTICE PERIOD REQUIRED UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT, SHE IS ENTITLED TO RECOVER COMPENSATION FOR SUCH LEAVE PERIOD. SEE TAYLOR V. UNITED STATES, 131 C.CLS. 387; KENNY V. UNITED STATES, 134 C.CLS. 442, AND ARMAND V. UNITED STATES, C.CLS. 1-52 DECIDED JULY 12, 1956. HOWEVER, THE RULE ENUNCIATED IN THE CITED DECISIONS WOULD NOT APPLY UNLESS THE EMPLOYEE IS INVOLUNTARILY PLACED IN A LEAVE STATUS. IF THE LEAVE CHARGE IS DUE TO THE VOLUNTARY ACTION OF THE EMPLOYEE IN ABSENTING HERSELF FROM DUTY, NO RECOVERY COULD BE HAD. SEE O-BRIEN V. UNITED STATES, C.CLS. 30-55, DECIDED MAY 8, 1957. SEE, ALSO, OUR DECISION OF JULY 25, 1957, B 130906. A COPY OF THAT DECISION IS ENCLOSED.