B-127508, MAY 31, 1963

B-127508: May 31, 1963

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DURING WHICH YOU WERE SUSPENDED FROM YOUR EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY. THE CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT OF JANUARY 5. THAT ACTION WAS SUSTAINED BY OUR DECISION OF MAY 4. AT THE REQUEST OF YOUR CONGRESSMAN THE MATTER AGAIN WAS REVIEWED ON OCTOBER 16. OUR CONCLUSION WAS THE SAME. THE CLAIM WAS DISALLOWED FOR THE REASON THAT THE ACT OF AUGUST 24. WHICH AUTHORIZES THE PAYMENT OF COMPENSATION TO EMPLOYEES FOR PERIODS OF UNJUSTIFIED REMOVAL OR SUSPENSION IS LIMITED BY ITS TERMS TO PERSONS IN THE CLASSIFIED CIVIL SERVICE AND YOU WERE NOT IN SUCH SERVICE AT THE TIME OF YOUR SUSPENSION. THAT YOU WERE ELIGIBLE TO BE A CAREER EMPLOYEE AND THAT YOU ATTAINED SUCH STATUS WITHIN A SHORT TIME AFTER YOUR WERE RESTORED TO DUTY.

B-127508, MAY 31, 1963

TO MRS. ROSIE B. ADAMS:

THIS REFERS TO YOUR LETTER OF MAY 21, 1963, REQUESTING A FURTHER REVIEW OF YOUR CLAIM FOR COMPENSATION FOR THE PERIOD SEPTEMBER 4, 1954, THROUGH JANUARY 10, 1955, DURING WHICH YOU WERE SUSPENDED FROM YOUR EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY.

THE CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT OF JANUARY 5, 1956, AND THAT ACTION WAS SUSTAINED BY OUR DECISION OF MAY 4, 1956, B- 127508, TO YOU. AT THE REQUEST OF YOUR CONGRESSMAN THE MATTER AGAIN WAS REVIEWED ON OCTOBER 16, 1956, AND OUR CONCLUSION WAS THE SAME.

THE CLAIM WAS DISALLOWED FOR THE REASON THAT THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, WHICH AUTHORIZES THE PAYMENT OF COMPENSATION TO EMPLOYEES FOR PERIODS OF UNJUSTIFIED REMOVAL OR SUSPENSION IS LIMITED BY ITS TERMS TO PERSONS IN THE CLASSIFIED CIVIL SERVICE AND YOU WERE NOT IN SUCH SERVICE AT THE TIME OF YOUR SUSPENSION.

YOU SAY YOU HAD MORE THAN SEVEN YEARS LONGEVITY AT THE TIME OF THE SUSPENSION, THAT YOU WERE ELIGIBLE TO BE A CAREER EMPLOYEE AND THAT YOU ATTAINED SUCH STATUS WITHIN A SHORT TIME AFTER YOUR WERE RESTORED TO DUTY. CONSEQUENTLY, YOU EXPRESS THE OPINION THAT A REVIEW OF THE "TRUE FACTS" WILL DISCLOSE THAT AN INJUSTICE HAS BEEN SHOWN YOU.

THERE APPEARS TO BE NO DISPUTE AS TO THE FACTS. ON AND PRIOR TO SEPTEMBER 4, 1954, YOU WERE SERVING IN A NONCOMPETITIVE INDEFINITE STATUS AS MILITARY PAY CLERK AT FORT GEORGE G. MEADE, MARYLAND. ON THAT DATE YOU WERE REMOVED FROM YOUR POSITION BY ADMINISTRATIVE ACTION. ON JANUARY 11, 1955, FOLLOWING A DETERMINATION BY THE DEPARTMENT OF THE ARMY THAT YOUR REMOVAL WAS UNJUSTIFIED, YOU WERE RESTORED TO THE POSITION. ON JANUARY 23, YOU ACQUIRED A STATUS IN THE CLASSIFIED CIVIL SERVICE. YOU ARE A NONVETERAN.

IN OUR DECISION B-83635, DATED JULY 19, 1949, 29 COMP. GEN. 29, WE HELD, QUOTING FROM THE SYLLABUS:

"THE TERM "CLASSIFIED CIVIL SERVICE" AS USED IN SECTION 6 (A) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, RESPECTING THE REMOVAL OR SUSPENSION WITHOUT PAY OF PERSONS IN THE CLASSIFIED SERVICE, HAS REFERENCE TO EMPLOYEES WHO HAVE A COMPETITIVE STATUS AND WHO ALSO ARE OCCUPYING POSITIONS IN THE COMPETITIVE SERVICE, AND, THEREFORE, NON- VETERAN EMPLOYEES WHO ARE RESTORED TO DUTY AFTER A PERIOD OF UNJUSTIFIED REMOVAL OR SUSPENSION ARE ENTITLED, UNDER SECTION 6 (B) (1) OF THE ACT, TO COMPENSATION FOR SUCH PERIOD, PROVIDED THE EMPLOYEES WERE OCCUPYING POSITIONS IN THE COMPETITIVE SERVICE AT THE TIME OF REMOVAL.'

IN OUR DECISION B-140969, B-141249, DATED FEBRUARY 1, 1962, WE HELD, ALSO QUOTING FROM THE SYLLABUS:

"THE ONLY AUTHORITY FOR THE PAYMENT OF BACK PAY TO NONVETERAN EMPLOYEES WHO ARE ERRONEOUSLY REMOVED OR SUSPENDED FROM THE SERVICE IN OTHER THAN SECURITY CASES IS THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, UNDER WHICH BENEFITS ARE CONFINED TO PERSONS IN THE CLASSIFIED CIVIL SERVICE * * *.'

IN OUR DECISION TO YOU OF MAY 4, 1956, WE QUOTED FROM THE OPINION OF THE UNITED STATES COURT OF CLAIMS IN THE CASE OF ROBERT BROWN V. UNITED STATES, 122 CT.CL. 361, IN WHICH A SIMILAR CONCLUSION WAS REACHED.

WHILE IT MAY BE THAT YOU WERE ELIGIBLE FOR A CLASSIFIED CIVIL SERVICE STATUS AT THE TIME OF YOUR REMOVAL FROM THE POSITION THE FACT REMAINS THAT YOU DID NOT HAVE SUCH STATUS AT THAT TIME AND THEREFORE YOU WERE NOT ENTITLED TO THE BACK PAY UNDER THE PROVISIONS OF THE CITED STATUTE.