B-144272, NOV. 4, 1960

B-144272, NOV. 4, 1960

TO MR. G. ZEBERLEIN:

ON OCTOBER 17, 1960, THE ASSISTANT COMPTROLLER, DEPARTMENT OF THE NAVY, FORWARDED TO US YOUR LETTERS OF OCTOBER 4, 1960, COMP:LDC:MS 7200/1, REQUESTING OUR ADVANCE DECISIONS UPON THE PROPRIETY OF GRANTING BACK PAY AND RECREDITING ANNUAL AND SICK LEAVE TO MESSRS. SANTIAGO GONZALEZ, FRANK J. GOBOURNE, VICTOR E. EVANS, ERASMO ARCHER, ROBERT O. BARCENAS, AND CLARENCE E. GOODING.

THE MANNER IN WHICH THE CASES HAVE BEEN PRESENTED TO OUR OFFICE NECESSITATES OUR MAKING SEVERAL ASSUMPTIONS BEFORE A DECISION CAN BE RENDERED IN THE MATTER. OUR DECISION HERE IS LIMITED TO THE FACTS REPORTED AND TO THE ASSUMPTIONS THAT FOLLOW:

(1) WE ASSUME THAT THE INDIVIDUALS INVOLVED ARE NOT IN A PROBATIONARY STATUS OR OTHERWISE INELIGIBLE FOR BACK PAY BENEFITS UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652. SEE NADELHAFT V. UNITED STATES, 132 CT.CL. 316.

(2) WE ASSUME THAT THESE EMPLOYEES HAVE IN FACT BEEN RESTORED TO DUTY, ON THE GROUND THAT THEIR REMOVALS WERE UNJUSTIFIED OR UNWARRANTED.

(3) WE ASSUME THAT PROPER ADJUSTMENTS WILL BE MADE FOR THE AMOUNTS RECEIVED AS LUMP-SUM PAYMENTS AND FOR ANY EARNINGS REALIZED BY THE EMPLOYEES FROM OUTSIDE EMPLOYMENT DURING THE PERIOD OF THEIR SEPARATIONS, AND THAT NO LEAVE WILL BE CONSIDERED AS HAVING ACCRUED DURING THE SEPARATIONS.

IT MAY BE THAT SOME OF THE EMPLOYEES DID NOT OBTAIN OTHER EMPLOYMENT DURING THEIR SEPARATIONS. IN SUCH EVENT IN DETERMINING THE BACK PAY DUE THE CASE OF SCHWARTZ V. UNITED STATES, CT. CL. 513-57, DECIDED MARCH 2, 1960, SHOULD BE CONSIDERED BY YOUR OFFICE.

VOUCHERS COVERING THE PROPOSED PAYMENTS WERE NOT PRESENTED WITH YOUR REQUEST FOR DECISIONS. ORDINARILY, THE VOUCHER INVOLVED MUST ACCOMPANY THE REQUEST FOR A DECISION. 1 COMP. GEN. 376; 22 ID. 588. HOWEVER, THE REQUIREMENT FOR VOUCHERS IN THIS PARTICULAR PRESENTATION WILL BE WAIVED IN ORDER TO AVOID DELAY AND AS IT APPEARS THE CLAIMS REPRESENTED BY THE PROPOSED PAYMENTS ARE ACTUALLY BEFORE YOU FOR CONSIDERATION.

INASMUCH AS ALL OF THE CASES HERE INVOLVED PRESENT THE SAME QUESTION FOR DECISION WE WILL CONSIDER THE CASE OF SANTIAGO GONZALEZ AND WHAT IS DECIDED REGARDING HIS CASE WILL APPLY EQUALLY TO THE OTHER EMPLOYEES INVOLVED.

YOU SAY THAT MR. GONZALEZ WAS SEPARATED ON FEBRUARY 29, 1960, FROM HIS EMPLOYMENT AT THE NAVAL STATION AT RODMAN BY DISPLACEMENT ORDERS ISSUED BY THE CANAL ZONE CIVILIAN PERSONNEL COORDINATING BOARD. APPARENTLY, THE SEPARATION WAS OCCASIONED BY THE FACT THAT MR. GONZALEZ FAILED TO PASS A WRITTEN EXAMINATION PRESCRIBED BY THE NAVAL STATION. IT NOW HAS BEEN ADMINISTRATIVELY DETERMINED THAT THE SEPARATION SHOULD NOT HAVE BEEN MADE AND THAT THOSE EMPLOYEES ON THE ROLLS AS OF JANUARY 19, 1960, WHO WERE INVOLUNTARILY TERMINATED BECAUSE OF THEIR FAILURE TO PASS THE WRITTEN EXAMINATIONS SHOULD BE RECOMMENDED FOR CONVERSION TO CANAL ZONE MERIT SYSTEM STATUS. THE BASIS FOR THAT DETERMINATION IS THAT THE ARMY, AIR FORCE, THE PANAMA CANAL COMPANY, AND THE CANAL ZONE GOVERNMENT HAVE NOT DECLINED TO RECOMMEND EMPLOYEES FOR SUCH CONVERSION SOLELY ON THE BASIS OF THEIR FAILING A WRITTEN TEST. MOREOVER, WITH SPECIFIC REFERENCE TO NAVY DEPARTMENT EMPLOYEES, WE UNDERSTAND THAT THE PRACTICE OF THE NAVY HAS NOT BEEN UNIFORM IN THAT HEADQUARTERS OF THE 15TH NAVAL DISTRICT AND ACTIVITIES SERVICED BY THAT HEADQUARTERS DID NOT REQUIRE A WRITTEN TEST AND RECOMMENDATION WAS MADE FOR CONVERSION OF ALL EMPLOYEES.

PUBLIC LAW 85-550, 72 STAT. 405, GOVERNS THE WAGE AND EMPLOYMENT PRACTICES OF THE GOVERNMENT OF THE UNITED STATES IN THE CANAL ZONE. SECTION 3 (B) (2) OF THAT ACT PROVIDES AS FOLLOWS:

THE PRESIDENT IS AUTHORIZED, TO THE EXTENT HE DEEMS APPROPRIATE---

"/2) TO EXTEND TO ANY EMPLOYEE, WHETHER OR NOT SUCH EMPLOYEE IS A CITIZEN OF THE UNITED STATES, THE SAME RIGHTS AND PRIVILEGES AS ARE PROVIDED BY APPLICABLE LAWS AND REGULATIONS FOR CITIZENS OF THE UNITED STATES EMPLOYED IN THE COMPETITIVE CIVIL SERVICE OF THE GOVERNMENT OF THE UNITED STATES.'

UNDER THE AUTHORITY OF THAT ACT, THE SECRETARY OF THE ARMY PROMULGATED REGULATIONS WHICH ARE DESIGNED TO EFFECT THE EQUATION BETWEEN RIGHTS AFFORDED CIVIL SERVICE EMPLOYEES AND EMPLOYEES OF THE UNITED STATES IN THE CANAL ZONE.

REGARDING BACK PAY RIGHTS, WE DIRECT YOUR ATTENTION SPECIFICALLY TO 24 FR. 354, SECTION 208.1 (D), WHICH PROVIDES THAT:

"THE PROVISIONS OF SECTION 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS AMENDED (5 U.S.C. 652 (B) (1) (, SHALL BE APPLICABLE TO ANY PERSON WHOSE REMOVAL OR SUSPENSION UNDER SECTION 208.2 (A) IS DETERMINED TO HAVE BEEN UNJUSTIFIED OR UNWARRANTED AFTER REVIEW IN ACCORDANCE WITH PROCEDURES OF THE EMPLOYING AGENCY.'

NAVY CIVILIAN PERSONNEL INSTRUCTIONS 45.6-4A PROVIDES IN PERTINENT PART:

"WHEN A DETERMINATION IS MADE BY PROPER APPOINTING OR REVIEWING AUTHORITY THAT A SUSPENSION OR REMOVAL ACTION WAS UNJUSTIFIED OR UNWARRANTED ON THE BASIS OF PROCEDURE OR MERIT, THE EMPLOYEE IS ENTITLED TO BACK PAY UNDER PUBLIC LAW 623 (OF THE 80TH CONGRESS) FOR THE TIME HE WAS SUSPENDED OR REMOVED FROM EMPLOYMENT. * * *"

THE OFFICE OF INDUSTRIAL RELATIONS OF THE DEPARTMENT OF THE NAVY HAS DETERMINED THAT MR. GONZALEZ SHOULD NOT HAVE BEEN REMOVED FROM HIS POSITION BECAUSE THE REQUIREMENT THAT A WRITTEN TEST BE PASSED CANNOT BE REGARDED AS A CRITERION FOR MEASURING SUITABILITY. THEREFORE, IF OTHERWISE PROPER, BACK PAY IN THE PROPER AMOUNT MAY BE PAID MR. GONZALEZ.

REGARDING THE RECREDIT OF LEAVE, OUR OFFICE HAS AUTHORIZED THE RECREDIT OF ANNUAL AND SICK LEAVE OF CIVIL SERVICE EMPLOYEES WHEN THERE HAS BEEN UNJUSTIFIED REMOVAL AND SUBSEQUENT RESTORATION BY PROPER AUTHORITY. SEE, FOR EXAMPLE, 39 COMP. GEN. 154, 36 COMP. GEN. 779, ID. 738. THEREFORE, IN VIEW OF THE FACT THAT GOVERNMENT EMPLOYEES IN THE CANAL ZONE HAVE BEEN AFFORDED GENERALLY THE SAME RIGHTS AS EMPLOYEES IN THE FEDERAL CIVIL SERVICE SYSTEM, THE LEAVE IN QUESTION MAY BE RECREDITED TO MR. GONZALEZ, PROVIDED, SO FAR AS THE ANNUAL LEAVE IS CONCERNED, A PROPER ADJUSTMENT WILL BE MADE CONCERNING THE LUMP-SUM PAYMENT.