B-121757, MARCH 16, 1955, 34 COMP. GEN. 442

B-121757, MARCH 16, 1955, 34 COMP. GEN. 442

OFFICERS AND EMPLOYEES - SEPARATION BY REDUCTION IN FORCE - TEMPORARY EMPLOYMENT IN SAME POSITION - LEAVE, ETC., RIGHTS, UPON RESTORATION AN EMPLOYEE WHO WAS REEMPLOYED UNDER A TEMPORARY APPOINTMENT IN THE SAME POSITION FROM WHICH HE WAS SEPARATED BY REDUCTION IN FORCE, AND WHO WAS ORDERED BY THE CIVIL SERVICE COMMISSION TO BE RESTORED TO HIS FORMER POSITION RETROACTIVE TO DATE OF SEPARATION, IS CONSIDERED TO HAVE RENDERED SERVICE IN THE SAME POSITION AS THE ONE OCCUPIED PRIOR TO SEPARATION AND IS NOT PRECLUDED BY THE BACK PAY ACT OF AUGUST 24, 1912, FROM HAVING LEAVE CREDITED FOR THE PERIOD OF TEMPORARY EMPLOYMENT. AN EMPLOYEE WHO WAS REEMPLOYED UNDER A TEMPORARY APPOINTMENT IN THE SAME POSITION FROM WHICH HE WAS SEPARATED BY REDUCTION IN FORCE, AND WHO WAS ORDERED TO BE RESTORED TO HIS FORMER POSITION RETROACTIVE TO DATE OF SEPARATION PURSUANT TO A CIVIL SERVICE COMMISSION DECISION WHICH REGARDED THE EMPLOYEE AS RETAINING THE SAME STATUS AS WHEN IMPROPERLY REMOVED, MAY HAVE MILITARY LEAVE WHICH WAS DENIED BECAUSE OF HIS TEMPORARY APPOINTMENT SUBSTITUTED FOR ANNUAL LEAVE AND LEAVE WITHOUT PAY.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO MRS. MURIEL B. SCOTT, DEPARTMENT OF COMMERCE, MARCH 16, 1955:

YOUR LETTER OF OCTOBER 11, 1954, TRANSMITS A VOUCHER WITH SUPPORTING PAPERS IN FAVOR OF RICHARD HELLMAN AND REQUESTS A DECISION WHETHER YOU ARE AUTHORIZED TO CERTIFY THE VOUCHER FOR PAYMENT.

THE VOUCHER IS STATED IN THE GROSS AMOUNT OF $1,206.36, PURPORTING TO COVER THE AMOUNT DUE IN GRADE-GS-14 AS BACK PAY UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, FOR THE PERIOD JULY 1, 1953, THROUGH AUGUST 1, 1954. MR. HELLMAN WAS RESTORED TO DUTY ON AUGUST 2, 1954, AS A RESULT OF HIS APPEAL TO THE CIVIL SERVICE COMMISSION OF HIS SEPARATION BY REDUCTION IN FORCE EFFECTIVE JUNE 30, 1953, FROM THE POSITION OF BUSINESS ECONOMIST, GS 14, $9,800 PER ANNUM, WITH THE NATIONAL PRODUCTION AUTHORITY.

FROM THE RECORDS SUBMITTED IT APPEARS THAT EFFECTIVE AUGUST 3, 1953, FOLLOWING THE REDUCTION-IN-FORCE REMOVAL, MR. HELLMAN WAS REEMPLOYED UNDER A 30-DAY TEMPORARY APPOINTMENT AT THE SAME GRADE AND SALARY AS BEFORE. WAS PAID A LUMP SUM FOR 184 HOURS OF ANNUAL LEAVE COMPUTED OVER THE PERIOD JULY 1 THROUGH CLOSE OF BUSINESS JULY 31, 1953, AND CREDITED IN THE TEMPORARY POSITION WITH 24 HOURS OF UNLIQUIDATED ANNUAL LEAVE, PLUS 505 HOURS OF PREVIOUSLY ACCRUED SICK LEAVE. BY SUCCESSIVE PERSONNEL ACTIONS THE TEMPORARY APPOINTMENT WAS EXTENDED THROUGH AUGUST 1, 1954, DURING WHICH MR. HELLMAN EARNED 104 HOURS' SICK LEAVE AND 208 HOURS' ANNUAL LEAVE. HE USED 88 HOURS' SICK LEAVE AND 160 HOURS' ANNUAL LEAVE. ALSO, IT IS SHOWN THAT MR. HELLMAN'S APPEAL OF THE REDUCTION-IN-FORCE ACTION TO THE CIVIL SERVICE COMMISSION WAS SUSTAINED BY DECISION OF THE BOARD OF APPEALS AND REVIEW DATED JULY 23, 1954. IN THAT DECISION THE DEPARTMENT OF COMMERCE WAS ADVISED THAT IT WAS NECESSARY TO TAKE CORRECTIVE ACTION TO EFFECT MR. HELLMAN'S RESTORATION "TO THE POSITION FROM WHICH SEPARATED OR TO ONE OF EQUIVALENT GRADE AND PAY, WITHOUT LOSS OF TENURE, RETROACTIVE TO JULY 1, 1953.' THE RESTORATION TO THE EMPLOYEE'S FORMER POSITION, BUSINESS ECONOMIST, GS 14, $9,800 PER ANNUM, WAS ACCOMPLISHED ON AUGUST 2, 1954.

THE NATIONAL PRODUCTION AUTHORITY WAS ABOLISHED OCTOBER 1, 1953, AND ITS EMPLOYEES, RECORDS, C., WERE TRANSFERRED TO THE BUSINESS AND DEFENSE SERVICES ADMINISTRATION, OFFICE OF THE SECRETARY, DEPARTMENT OF COMMERCE.

THE COPY OF THE DECISION OF THE CIVIL SERVICE COMMISSION FIRST SUBMITTED WITH THE VOUCHER INDICATED THAT THE GROUND OF THE APPEAL AND THE BASIS UPON WHICH IT WAS SUSTAINED WAS THAT THE APPELLANT WAS ENTITLED ON THE DATE OF THE REDUCTION IN FORCE TO DISPLACE ANOTHER EMPLOYEE WITH LOWER RETENTION STANDING WHO OCCUPIED A CONTINUING POSITION IN GRADE GS-13. HOWEVER, UNDER DATE OF DECEMBER 1, 1954, YOU SUBMITTED A CERTIFIED COPY OF AN AMENDED FINDING OF THE BOARD OF APPEALS AND REVIEW, CIVIL SERVICE COMMISSION, DATED NOVEMBER 24, 1954. THIS AMENDED FINDING SETS FORTH AN ADDITIONAL REASON FOR THE ORIGINAL RECOMMENDATION FOR RESTORATION TO GRADE GS-14, NAMELY, THAT THE APPELLANT'S POSITION IN GRADE GS-14 HAD NOT ACTUALLY BEEN ABOLISHED BUT CONTINUED ACTIVE, THE APPELLANT HAVING SERVED IN THE SAME JOB ON A TEMPORARY BASIS FOR A CONSIDERABLE PERIOD OF TIME SUBSEQUENT TO HIS SEPARATION BY REDUCTION IN FORCE.

SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948 ( PUBLIC LAW 623), 62 STAT. 355, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(3) ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY IN A REDUCTION IN FORCE WHO, AFTER AN APPEAL TO PROPER AUTHORITY, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION, FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED OR SUSPENDED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD * * *. (ITALICS SUPPLIED).

DURING THE PERIOD JULY 1 THROUGH AUGUST 2, 1953, THE EMPLOYEE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH REMOVED. IN VIEW THEREOF, AND SINCE THE EMPLOYEE APPEARS TO HAVE BEEN REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT HIS REMOVAL WAS UNJUSTIFIED OR UNWARRANTED, HE IS ENTITLED TO BACK SALARY FOR SUCH PERIOD UNDER THE QUOTED PROVISIONS OF SECTION 6 (B) (3) OF THE ABOVE STATUTE. FROM SUCH BACK SALARY THERE SHOULD BE DEDUCTED THE GROSS AMOUNT OF THE LUMP-SUM PAYMENT FOR LEAVE, AND THE LEAVE REPRESENTED THEREBY MAY BE RECREDITED TO THE EMPLOYEE, SUBJECT, OF COURSE, TO THE MAXIMUM PERMITTED BY STATUTE. COMP. GEN. 162. ALSO, THE USUAL ADJUSTMENTS FOR RETIREMENT DEDUCTIONS AND INCOME TAX WITHHOLDING SHOULD BE MADE. B-121164, DECEMBER 1, 1954.

UNDER THE AMENDED DECISION OF THE CIVIL SERVICE COMMISSION, THE EMPLOYEE ON AND AFTER AUGUST 3, 1953, IS TO BE CONSIDERED AS HAVING RENDERED SERVICE IN THE SAME POSITION AS THE ONE HE OCCUPIED PRIOR TO THE PURPORTED SEPARATION BY REDUCTION IN FORCE. THEREFORE, IT IS APPARENT THAT FROM AUGUST 3, 1953, TO AUGUST 2, 1954, INCLUSIVE, THERE IS NOT INVOLVED ANY "PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED OR SUSPENDED" SO AS TO PERMIT APPLICATION OF SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS AMENDED. THAT SECTION NOT BEING FOR APPLICATION TO SUCH PERIOD, IT FOLLOWS THAT THE CREDITING OF LEAVE EARNED ON AND AFTER AUGUST 3, 1953, IS NOT PRECLUDED IF WITHIN THE MAXIMUM LIMITATION OTHERWISE PROVIDED BY LAW. COMPARE DECISION OF DECEMBER 1, 1954, B 121164.

YOU FURTHER INQUIRE WHETHER MILITARY LEAVE WITH PAY MAY BE SUBSTITUTED FOR A PERIOD OF NAVAL RESERVE TRAINING DUTY FROM JUNE 14 THROUGH JUNE 25, 1954, WHICH MILITARY LEAVE WAS DENIED AT THE TIME BECAUSE THE EMPLOYEE WAS SERVING UNDER A TEMPORARY APPOINTMENT. IN ACCORDANCE WITH THE DECISION OF THE CIVIL SERVICE COMMISSION THE EMPLOYEE IS TO BE REGARDED AS RETAINING THE SAME STATUS HE HAD WHEN IMPROPERLY REMOVED FROM THE SERVICE, NAMELY, THAT OF AN INDEFINITE APPOINTEE. HENCE, THE EMPLOYEE IS ENTITLED TO HAVE MILITARY LEAVE SUBSTITUTED FOR THE ANNUAL LEAVE AND LEAVE WITHOUT PAY PREVIOUSLY CHARGED. CF. 26 COMP. GEN. 610; 27 ID. 78.

WE DO NOT AGREE WITH THE STATEMENT IN YOUR LETTER INDICATING THE BELIEF THAT AUGUST 2, 1954, RATHER THAN JULY 1, 1953, IS TO BE CONSIDERED AS THE EFFECTIVE DATE OF RESTORATION. THE OPINION HERE IS THAT THE ADMINISTRATIVE RECORDS SHOULD BE COMPLETELY REVISED, INCLUDING A RESCISSION OF THE ADVERSE ADMINISTRATIVE ACTION AND A RESTORATION TO THE ROLLS RETROACTIVELY AS OF THE EFFECTIVE DATE OF THE ADVERSE ACTION, TO ACCORD WITH THE RECOMMENDATION OF THE CIVIL SERVICE COMMISSION. SEE SECTION 19 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED BY THE ACT OF JUNE 22, 1948, 5 U.S.C. 868, AND CF. 28 COMP. GEN. 489, RELATIVE TO SIMILAR PROVISIONS IN SECTION 14 OF THE SAME ACT AS AMENDED, 5 U.S.C. 863.

YOUR SPECIFIC QUESTION RELATIVE TO THE LEAVE TO BE CREDITED TO THE EMPLOYEE IN CONNECTION WITH HIS RESTORATION IS BELIEVED TO BE ANSWERED BY THE FOREGOING DISCUSSION.

A VOUCHER PREPARED IN ACCORDANCE WITH THIS DECISION MAY BE CERTIFIED FOR PAYMENT. THE VOUCHER AND ATTACHMENTS SUBMITTED WITH YOUR LETTER ARE HEREWITH RETURNED.