B-124176, MAY 2, 1956
Highlights
ARE NOT APPLICABLE TO YOU BECAUSE. AT THE TIME YOU WERE SUSPENDED. YOU WERE NOT EMPLOYED "IN THE CLASSIFIED CIVIL SERVICE.'. ARE APPLICABLE ONLY TO PERSONS "IN THE CLASSIFIED CIVIL SERVICE" AS EXPRESSLY PROVIDED THEREIN. IT IS INAPPLICABLE TO YOU REGARDLESS OF THE REASON FOR YOUR SUSPENSION FROM SERVICE IN 1954. WHILE YOUR ATTORNEY RECEIVED SOME CORRESPONDENCE FROM THE PHILADELPHIA QUARTERMASTER DEPOT INDICATING FAVORABLE ACTION WAS BEING TAKEN UPON YOUR CLAIM. THE FILE CLEARLY SHOWS SUCH FAVORABLE RECOMMENDATION WAS OVERRULED BY HIGHER AUTHORITY IN THE DEPARTMENT OF THE ARMY. ANY QUESTION AS WHETHER YOU "SHOULD BE REINSTATED IN GOOD STANDING" IS NOT A MATTER FOR DETERMINATION BY THE GENERAL ACCOUNTING OFFICE.
B-124176, MAY 2, 1956
TO MR. CHARLES KUSHIN:
YOUR LETTER OF APRIL 16, 1956, REQUESTS RECONSIDERATION OF OUR DECISION OF DECEMBER 27, 1955, AND OTHER MATTERS PERTAINING TO YOUR SUSPENSION FROM SERVICE AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY IN 1954.
IN OUR DECISION WE ADVISED YOU THAT THE COMPENSATION BENEFITS OF THE GENERAL LAW, 5 U.S.C. 652, ARE NOT APPLICABLE TO YOU BECAUSE, AT THE TIME YOU WERE SUSPENDED, YOU WERE NOT EMPLOYED "IN THE CLASSIFIED CIVIL SERVICE.' OUR LETTER OF JUNE 27, 1955, ADVISED YOU TO THE SAME EFFECT AND SET FORTH THE DETAILED PROVISIONS OF THE CITED LAW TOGETHER WITH CITATIONS TO PERTINENT COURT DECISIONS IN SIMILAR CASES. REPETITION HERE OF SUCH AUTHORITIES WOULD SERVE NO USEFUL PURPOSE.
YOU APPARENTLY OVERLOOK THE ESSENTIAL POINT THAT AT THE TIME OF YOUR SUSPENSION YOU HAD ONLY AN "INDEFINITE APPOINTMENT" UNDER CIVIL SERVICE REGULATION 2.115, 5 C.F.R. 2.115. SUBSECTION (A) OF THAT REGULATION (1954 SUPPLEMENT) PROVIDED "PERSONS GIVEN SUCH APPOINTMENTS DO NOT THEREBY ACQUIRE A PERMANENT CIVIL SERVICE STATUS.' IN OTHER WORDS, PERSONS GIVEN INDEFINITE APPOINTMENTS UNDER THIS SECTION DO NOT ACQUIRE A COMPETITIVE STATUS. IN ACCORDANCE WITH CIVIL SERVICE RULE 1, CITED IN OUR LETTER OF DECEMBER 27,"A COMPETITIVE STATUS SHALL BE ACQUIRED BY PROBATIONAL APPOINTMENT THROUGH COMPETITIVE EXAMINATION, OR MAY BE GRANTED BY STATUTE, EXECUTIVE ORDER, OR THE CIVIL SERVICE RULES.' IT HAS BEEN REPEATEDLY HELD THAT THE PROVISIONS OF THE BACK PAY ACT OF 1948, 5 U.S.C. 652, ARE APPLICABLE ONLY TO PERSONS "IN THE CLASSIFIED CIVIL SERVICE" AS EXPRESSLY PROVIDED THEREIN. HENCE, IT IS INAPPLICABLE TO YOU REGARDLESS OF THE REASON FOR YOUR SUSPENSION FROM SERVICE IN 1954.
WHILE YOUR ATTORNEY RECEIVED SOME CORRESPONDENCE FROM THE PHILADELPHIA QUARTERMASTER DEPOT INDICATING FAVORABLE ACTION WAS BEING TAKEN UPON YOUR CLAIM, THE FILE CLEARLY SHOWS SUCH FAVORABLE RECOMMENDATION WAS OVERRULED BY HIGHER AUTHORITY IN THE DEPARTMENT OF THE ARMY. MOREOVER, WE KNOW OF NO PROVISION OF LAW OR REGULATION WHICH WOULD REIMBURSE YOU FOR YOUR EXPENDITURES FOR LEGAL ADVICE, OR FOR LOST "TIME AND HEALTH" AS YOU ALLEGE. FURTHER, ANY QUESTION AS WHETHER YOU "SHOULD BE REINSTATED IN GOOD STANDING" IS NOT A MATTER FOR DETERMINATION BY THE GENERAL ACCOUNTING OFFICE, BUT, PRIMARILY, IS FOR CONSIDERATION BY THE DEPARTMENT OF THE ARMY OR BY THE CIVIL SERVICE COMMISSION.
WE RECOGNIZE THAT UPON DISMISSAL OF THE INDICTMENT YOUR SUSPENSION MIGHT BE REGARDED AS HAVING BEEN UNJUSTIFIED BUT, IN THE CIRCUMSTANCES AND IN VIEW OF THE RESTRICTED COVERAGE OF THE LAW, 5 U.S.C. 652, WE HAVE NO ALTERNATIVE OTHER THAN TO AFFIRM OUR DECISIONS OF JUNE 27 AND DECEMBER 27, 1955, IN YOUR CASE.