B-144919, APR. 1, 1970

B-144919, APR. 1, 1970

COMPENSATION--REMOVALS, SUSPENSIONS, ETC.--RESTORATION REQUIREMENTS- RULE CLAIM FOR BACK PAY FROM MAR. 5 TO NOV. 19, 1961, BY RETIRED MEMBER, SEPARATED FROM CIVIL SERVICE ON MAR. 5 UNDER 5 U.S.C. 62 (1958 ED.) FOR HOLDING TWO POSITIONS AND REQUIRED TO REPAY CIVILIAN SALARY, IS DENIED SINCE SEPARATION WAS PROPER AT TIME AND SUBSEQUENT FAVORABLE CORRECTION OF MILITARY RECORDS AND PRIVATE RELIEF LEGISLATION DID NOT CHANGE REMOVAL'S ORIGINAL NATURE. MOREOVER, ATTEMPTED DUTY RESTORATION, NOV. 20, WAS VOLUNTARILY REFUSED BY EMPLOYEE, ALTHOUGH REMOVAL WAS NOT UNJUSTIFIED OR UNWARRANTED UNDER 5 U.S.C. 652, REPEALED BY ACT OF MAR. 30, 1966, 5 U.S.C. 5596. SEE B-144919, FEB. 23, 1961, CITED.

TO MR. JOSE FUENTES:

YOUR LETTER OF FEBRUARY 20, 1970, MAKES CLAIM FOR COMPENSATION DURING THE PERIOD MARCH 5, 1961, TO NOVEMBER 19, 1961, WHEN YOU WERE REMOVED FROM CIVILIAN SERVICE WITH THE HOUSING AND HOME FINANCE AGENCY (NOW DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT) UNDER CIRCUMSTANCES AS HEREINAFTER RELATED.

OUR DECISION, B-144919, DATED FEBRUARY 23, 1961, HELD TO THE EFFECT THAT YOUR MILITARY RETIREMENT AS A REGULAR ARMY WARRANT OFFICER PRECLUDED YOU UNDER THE PROVISIONS OF THE ACT OF JULY 31, 1894, FROM HOLDING THE CIVILIAN OFFICE TO WHICH YOU WERE APPOINTED ON NOVEMBER 3, 1955. IN VIEW THEREOF YOU WERE REGARDED AS NOT ENTITLED TO THE SALARY PAID TO YOU FROM NOVEMBER 3, 1955, UNTIL THE DATE OF YOUR REMOVAL FROM THE SERVICE ON MARCH 4, 1961. SUBSEQUENT CORRECTION OF YOUR MILITARY RECORD PURSUANT TO SPECIAL ORDERS DATED SEPTEMBER 25, 1961, AND THE ENACTMENT OF PRIVATE LAW 87-649 OF OCTOBER 15, 1962, RESULTED FINALLY IN THE CONCLUSION THAT YOU WERE ENTITLED TO RETAIN SUCH SALARY.

THE RECORD INDICATES THAT AN ATTEMPT WAS MADE TO RESTORE YOU TO EMPLOYMENT EFFECTIVE NOVEMBER 20, 1961. HOWEVER, THIS WAS NOT ACCOMPLISHED BECAUSE YOU HAD VOLUNTARILY SECURED OTHER EMPLOYMENT IN MID- 1961 WITH THE PUERTO RICO URBAN RENEWAL AND HOUSING CORPORATION WHICH YOU ELECTED TO RETAIN. YOU NOW CLAIM BACK PAY FOR THE PERIOD MARCH 5, 1961, THE DATE OF YOUR REMOVAL, TO NOVEMBER 20, 1961, THE DATE YOU WOULD OTHERWISE HAVE BEEN REEMPLOYED BY THE HOUSING AND HOME FINANCE AGENCY.

THE ONLY STATUTE AUTHORIZING BACK PAY BECAUSE OF REMOVAL FROM THE SERVICE DURING THE PERIOD OF YOUR CLAIM WAS THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652 (SINCE REPEALED AND SUPERSEDED BY THE ACT OF MARCH 30, 1966, 80 STAT. 94). UNDER THE FORMER STATUTE AN EMPLOYEE IN THE CLASSIFIED CIVIL SERVICE OR AN EMPLOYEE WITH VETERANS PREFERENCE WAS ENTITLED TO BACK PAY IF REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL WAS UNJUSTIFIED OR UNWARRANTED. THAT STATUTE ALSO PROVIDED THAT THE BACK PAY WOULD BE REDUCED BY AMOUNTS EARNED THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD.

YOUR REMOVAL FROM THE SERVICE ON MARCH 4, 1961, WAS REQUIRED BY LAW AS INTERPRETED BY OUR DECISIONS AND IS NOT TO BE REGARDED AS UNJUSTIFIED OR UNWARRANTED AS PROVIDED BY THE STATUTE REFERRED TO ABOVE. IN OTHER WORDS, YOUR SEPARATION WAS PROPER AT THE TIME AND THE SUBSEQUENT ACTION IN CORRECTING YOUR MILITARY RECORD OR THE ENACTMENT OF PRIVATE RELIEF LEGISLATION IN YOUR FAVOR DID NOT CHANGE THE ORIGINAL NATURE OF YOUR REMOVAL. ACCORDINGLY, YOUR CLAIM FOR BACK PAY MUST BE DENIED. WE NOTE THAT EVEN IF YOUR CLAIM HAD BEEN FOR ALLOWANCE UNDER 5 U.S.C. 652, THERE WOULD HAVE BEEN FOR DEDUCTION THE SALARY YOU EARNED IN THE PUERTO RICO URBAN RENEWAL AND HOUSING CORPORATION DURING THE PERIOD INVOLVED.