B-109787, JUNE 9, 1952, 31 COMP. GEN. 654

B-109787, JUNE 9, 1952, 31 COMP. GEN. 654

COMPENSATION - SUSPENSION PENDING DISABILITY RETIREMENT PROCEEDINGS - RESTORATION TO DUTY THE BACK PAY PROVISIONS OF THE ACT OF JUNE 10, 1948, WHICH AUTHORIZE THE PAYMENT OF COMPENSATION TO AN EMPLOYEE WHO HAS BEEN REMOVED OR SUSPENDED FROM THE SERVICE--- UPON RESTORATION OR REINSTATEMENT ON THE GROUNDS THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED- - ARE CONCERNED PRIMARILY WITH THOSE CASES WHERE CHARGES ARISE OUT OF AN EMPLOYEE'S CONDUCT, AND THEREFORE, AN EMPLOYEE WHO IS PLACED ON LEAVE WITHOUT PAY PENDING ACTION ON A DISABILITY RETIREMENT APPLICATION IS NOT ENTITLED, UPON RESTORATION TO DUTY, TO THE BENEFITS OF SAID ACT, EVEN THOUGH THE EMPLOYEE MAY HAVE BEEN SEPARATED FROM THE SERVICE IN ERROR PRIOR TO ACTION BY THE CIVIL SERVICE COMMISSION ON HIS REQUEST FOR RETIREMENT.

COMPTROLLER GENERAL WARREN TO FRANK BERTINO, JR. JUNE 9, 1952:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 18, 1952, ACKNOWLEDGED BY LETTER DATED MAY 14, REQUESTING FURTHER CONSIDERATION OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED FEBRUARY 26, 1952, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION ALLEGED TO BE DUE FOR A PERIOD OF UNEMPLOYMENT FROM YOUR POSITION AS A POSTAL TRANSPORTATION CLERK, DISTRICT 3, SECOND DIVISION, NEW YORK, NEW YORK. YOUR CLAIM WAS DISALLOWED UPON THE BASIS THAT YOUR SEPARATION FROM THE SERVICE AND SUBSEQUENT RESTORATION INCIDENT TO THE DISALLOWANCE BY THE CIVIL SERVICE COMMISSION OF A VOLUNTARY REQUEST FOR RETIREMENT BECAUSE OF TOTAL DISABILITY DID NOT ENTITLE YOU TO THE BENEFITS OF THE BACK PAY PROVISIONS OF THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, 62 STAT. 354.

THE RECORDS OF THE GENERAL ACCOUNTING OFFICE SHOW THAT BY NOTIFICATION OF PERSONNEL ACTION DATED MARCH 22, 1951, AS CORRECTED BY NOTIFICATION DATED APRIL 5, 1951, YOU WERE SEPARATED FROM THE SERVICE EFFECTIVE MARCH 31, 1951, PURSUANT TO YOUR CLAIM FOR RETIREMENT BECAUSE OF TOTAL DISABILITY. THE LAST DAY OF PAY WAS SHOWN TO BE MARCH 13, 1951. THE CIVIL SERVICE COMMISSION DID NOT APPROVE YOUR CLAIM FOR RETIREMENT AND NOTIFICATION DATED JULY 24, 1951, CANCELED THE PRIOR NOTIFICATIONS OF SEPARATION, RETROACTIVELY EFFECTIVE, AND RESTORED YOU TO YOUR FORMER POSITION EFFECTIVE JULY 18, 1951. BY LETTER DATED SEPTEMBER 13, 1951, THE POSTMASTER GENERAL REPORTED THAT THE PERIOD OF YOUR ABSENCE EXTENDING FROM MARCH 31 THROUGH JULY 17, 1951, HAS BEEN TREATED AS LEAVE WITHOUT PAY.

YOUR ORIGINAL CLAIM FOR BACK PAY FOR THE ENTIRE PERIOD AND YOUR PRESENT CLAIM EXTENDING FROM THE TIME YOU REQUESTED REEMPLOYMENT, MAY 17, 1951, UNTIL YOU WERE RESTORED TO DUTY ON JULY 18, 1951, IS BASED UPON THE PROPOSITION THAT YOU SHOULD NOT HAVE BEEN SEPARATED PENDING ACTION BY THE CIVIL SERVICE COMMISSION UPON YOUR REQUEST FOR RETIREMENT DUE TO DISABILITY BUT THAT YOU SHOULD HAVE BEEN RETAINED IN A DUTY STATUS AND THEREFORE, THAT YOU ARE ENTITLED TO BACK PAY UNDER PUBLIC LAW 623.

THE PERTINENT PROVISIONS OF SECTION 6 (A) AND 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY PUBLIC LAW 623, 5 U.S.C. 652, AUTHORIZING THE PAYMENT OF COMPENSATION UPON RESTORATION OR REINSTATEMENT OF AN EMPLOYEE UPON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED, PRIMARILY IS CONCERNED WITH CHARGES ARISING OUT OF AN EMPLOYEE'S CONDUCT. SEE 30 COMP. GEN. 342. THEREFORE, THE BENEFITS OF PUBLIC LAW 623 DO NOT EXTEND TO COVER YOUR PERIOD OF UNEMPLOYMENT BROUGHT ABOUT PRIMARILY BECAUSE OF A VOLUNTARY APPLICATION FOR RETIREMENT DUE TO DISABILITY, IRRESPECTIVE OF WHETHER THE ADMINISTRATIVE OFFICE MAY HAVE BEEN IN ERROR IN SEPARATING YOU FROM THE SERVICE PRIOR TO APPROVAL OF YOUR REQUEST FOR RETIREMENT BY THE CIVIL SERVICE COMMISSION.

IN THE ABSENCE OF COVERAGE BY PUBLIC LAW 623, THE DISPOSITION OF YOUR CLAIM IS CONTROLLED BY THE PROVISIONS OF SECTION 3678, REVISED STATUTES, WHICH RESTRICT THE PAYMENT OF APPROPRIATED MONEY TO THE OBJECTS FOR WHICH THEY ARE MADE. THAT IS TO SAY, AN APPROPRIATION AVAILABLE FOR PERSONAL SERVICES IS NOT AVAILABLE FOR THE PAYMENT OF COMPENSATION TO AN EMPLOYEE FOR ANY PERIOD DURING WHICH NO PERSONAL SERVICES ARE RENDERED IF THE EMPLOYEE IS NOT ENTITLED TO AND WAS NOT GRANTED LEAVE WITH PAY. THIS IS TRUE IRRESPECTIVE OF THE REASONS FOR THE FAILURE TO RENDER SERVICES. IS NOT DISPUTED THAT NO SERVICES WERE RENDERED BY YOU DURING THE PERIOD INVOLVED OR THAT NO SERVICES WERE RENDERED BY YOU DURING THE PERIOD INVOLVED OR THAT NO LEAVE WITH PAY WAS DUE; THEREFORE, THERE IS NO AUTHORITY FOR THE PAYMENT OF COMPENSATION DURING THE PERIOD WHEN YOU DID NOT RENDER ANY SERVICES.