B-111365, OCTOBER 27, 1953, 33 COMP. GEN. 192

B-111365, OCTOBER 27, 1953, 33 COMP. GEN. 192

COMPENSATION - REDUCTION - RESTORATION - BACK PAY RIGHTS - PREFERENCE ELIGIBLE EMPLOYEES A DEMOTED EMPLOYEE WHO IS RESTORED TO FORMER POSITION AFTER A SUCCESSFUL APPEAL UNDER THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, WHICH GIVE SPECIAL PREFERENCE TO VETERANS IN CONNECTION WITH DEMOTIONS, SUSPENSIONS, DISCHARGES AND APPEALS BUT DOES NOT AUTHORIZE BACK PAY, IS NOT ENTITLED TO THE DIFFERENCE IN PAY BETWEEN THE TWO POSITIONS FOR THE PERIOD OF THE DEMOTION UNDER THE BACK PAY PROVISIONS OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, WHICH AUTHORIZES BACK PAY UPON RESTORATION TO DUTY AFTER ERRONEOUS REMOVAL, SUSPENSION, OR FURLOUGH WITHOUT PAY.

COMPTROLLER GENERAL WARREN TO CAPTAIN S. L. ANDERSON, DEPARTMENT OF THE AIR FORCE, OCTOBER 27, 1953:

BY LETTER DATED SEPTEMBER 28, 1953, THE DEPARTMENT OF THE AIR FORCE FORWARDED HERE FOR CONSIDERATION YOUR 5TH ENDORSEMENT DATED APRIL 28, 1953, FILE REFERENCE NECF) ALD/MW, AND RELATED PAPERS, REQUESTING THAT THE QUESTION IN THE BASIC COMMUNICATION, DATED APRIL 28, 1953, CONCERNING THE PROPRIETY OF THE PROPOSED PAYMENT TO MR. CHARLES G. G. GROUP, REPRESENTING THE DIFFERENCE BETWEEN THE AMOUNT PAID TO HIM AS GRADE GS-9, FOR THE PERIOD OCTOBER 26, 1952, THROUGH FEBRUARY 14, 1953, AND THE AMOUNT HE WOULD HAVE EARNED AS A GS-12, HAD HE NOT BEEN DEMOTED TO THE FORMER GRADE AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE.

THE RECORD SHOWS THAT MR. GROUP WAS RESTORED BY THE DEPARTMENT OF THE AIR FORCE EFFECTIVE FEBRUARY 15, 1953, TO THE HIGHER RATING AS A RESULT OF AN APPEAL TO THE CIVIL SERVICE COMMISSION CONCERNING HIS DEMOTION. THE COMMISSION HELD THAT CERTAIN PROCEDURAL REQUIREMENTS OF SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, 58 STAT. 390, HAD NOT BEEN COMPLIED WITH IN EFFECTING HIS DEMOTION, AND IT THEREFORE ORDERED THE DEPARTMENT TO RESTORE HIM TO HIS FORMER GRADE AS OF THE DATE OF DEMOTION--- WHICH ORDER WAS COMPLIED WITH.

IT IS WELL SETTLED THAT AN EMPLOYEE IS ENTITLED ONLY TO THE COMPENSATION OF THE POSITION TO WHICH HE IS APPOINTED, REGARDLESS OF THE DUTIES AND RESPONSIBILITIES ASSIGNED HIM AND WHETHER THE APPOINTMENT RESULTS FROM ADMINISTRATIVE ERROR OR INADVERTENCE. SEE PRICE V. UNITED STATE, 80 F.1SUPP, 542, AND CASES CITED THEREIN.

SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, SUPRA, GIVES SPECIAL PREFERENCE TO VETERANS IN THE WAY OF PRIOR NOTICE IN CONNECTION WITH THEIR DISCHARGE, SUSPENSION FOR MORE THAN 30 DAYS, FURLOUGH WITHOUT PAY, REDUCTION IN RANK OR COMPENSATION, OR DEBARMENT FOR FUTURE APPOINTMENT. ALSO, AS AMENDED BY THE ACT OF AUGUST 4, 1947, 61 STAT. 723, IT GRANTS TO SUCH PREFERENCE ELIGIBLES CERTAIN RIGHTS OF APPEAL TO THE CIVIL SERVICE COMMISSION FROM ADVERSE ADMINISTRATIVE ACTIONS AND PROVIDES FOR MANDATORY COMPLIANCE WITH CORRECTIVE ACTION RECOMMENDED BY THE COMMISSION. HOWEVER, THE STATUTE CONTAINS NO PROVISION, EXPRESS OR IMPLIED, WHICH WOULD SERVE TO OBLIGATE THE SALARY APPROPRIATION FOR THE COMPENSATION LOST BY AN EMPLOYEE WHO IS DISCHARGED, SUSPENDED, FURLOUGHED, OR REDUCED IN RANK OR COMPENSATION AND WHO THEREAFTER, AS A CONSEQUENCE OF APPEAR, IS REINSTATED OR RESTORED TO HIS FORMER POSITION, RANK, OR RATE OF COMPENSATION. COMP. GEN. 620; 28 ID. 489.

WITH REGARD TO STATUTORY AUTHORITY PROVIDING FOR THE REIMBURSEMENT OF AN EMPLOYEE FOR COMPENSATION LOST AS THE RESULT OF AN ERRONEOUS ADMINISTRATIVE ACTION, THERE IS FOR CONSIDERATION THE PROVISIONS OF THE ACT OF AUGUST 24, 1912, 5 U.S.C. 652, AS AMENDED BY PUBLIC LAW 623, APPROVED JUNE 10, 1948, 62 STAT. 354. HOWEVER, THE "BACK PAY" PROVISIONS OF THAT ACT ARE RESTRICTED IN SCOPE TO SITUATIONS INVOLVING ERRONEOUS REMOVAL OR SUSPENSION WITHOUT PAY. THEY DO NOT PROVIDE FOR THE SITUATION SUCH AS IS HERE INVOLVED, NAMELY, THAT OF A DEMOTION. THUS, IT WAS HELD IN DECISION OF SEPTEMBER 28, 1948, 28 COMP. GEN. 200, AS FOLLOWS (QUOTING FROM THE SYLLABUS):

A DEMOTION OR REDUCTION IN GRADE OR COMPENSATION MAY NOT BE REGARDED AS A REMOVAL OR A SUSPENSION WITHOUT PAY FROM THE SERVICE WITHIN THE PURVIEW OF SECTION 6 OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, SO AS TO ENTITLE AN EMPLOYEE WHO HAD BEEN IMPROPERLY DEMOTED OR REDUCED TO THE BENEFITS OF THE "BACK PAY" PROVISIONS OF SECTION 6 (B) OF SAID ACT UPON COMPLIANCE WITH THE CONDITIONS PRESCRIBED THEREIN.

IN LIGHT OF THE FOREGOING, AND SINCE THIS OFFICE IS NOT AWARE OF ANY LAW AUTHORIZING "BACK PAY" IN THE CASE OF A DEMOTION AND SUBSEQUENT RESTORATION TO THE HIGHER POSITION, EVEN AS TO A PREFERENCE ELIGIBLE, YOU ARE ADVISED THAT THE PAYMENT PROPOSED ON THE SUBMITTED VOUCHER IS NOT AUTHORIZED.

THE VOUCHER AND ACCOMPANYING PAPERS WILL BE RETAINED IN THE FILES OF THIS OFFICE.