B-113066, FEBRUARY 5, 1953, 32 COMP. GEN. 356

B-113066, FEBRUARY 5, 1953, 32 COMP. GEN. 356

DISCHARGES AND DISMISSALS - APPEALS BASED ON PROCEDURAL DEFECTS - RESTORATION TO DUTY - COMPENSATION FOR PERIOD OF REMOVAL AN EMPLOYEE WHO, AFTER REMOVAL FROM THE SERVICE, WAS RESTORED TO DUTY BECAUSE OF ERRONEOUS PROCEDURAL STEPS BUT THE ERRONEOUS PROCEDURE WAS CURED BY SUBSEQUENT ACTION IN REMOVING THE EMPLOYEE UPON A PROPER CHARGE IS NOT TO BE CONSIDERED AS HAVING BEEN REMOVED BY AN UNJUSTIFIED OR UNAUTHORIZED ACTION WITHIN THE MEANING OF THE ACT OF JUNE 10, 1948, AND THEREFORE, THE EMPLOYEE IS NOT ENTITLED TO COMPENSATION FOR THE PERIOD OF SUSPENSION BETWEEN THE ORIGINAL REMOVAL AND THE RESTORATION TO DUTY.

ACTING COMPTROLLER GENERAL FISHER TO THE SECRETARY OF THE NAVY, FEBRUARY 5, 1953:

REFERENCE IS MADE TO THE LETTER OF DECEMBER 3, 1952, SIGNED AT YOUR DIRECTION BY THE JUDGE ADVOCATE GENERAL OF THE NAVY, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED UPON THE VOUCHER THEREWITH TRANSMITTED IN THE NET AMOUNT OF $632.72, IN FAVOR OF WESTLEY W. PARRISH.

THE PROPOSED PAYMENT REPRESENTS COMPENSATION FOR THE PERIOD FEBRUARY 14, 1952, TO MAY 20, 1952. IT APPEARS FROM THE ENCLOSURES ACCOMPANYING THE SUBMISSION THAT MR. PARRISH WAS REMOVED FEBRUARY 13, 1952, ON A CHARGE THAT HE FALSIFIED FACTS WITH RESPECT TO HIS APPLICATION FOR SICK LEAVE. ON APPEAL TO THE CHIEF, BUREAU OF SHIPS, IT WAS DETERMINED THAT THIS CHARGE COULD NOT BE SUSTAINED AND HIS RESTORATION WAS ORDERED MAY 20, 1952, RETROACTIVELY EFFECTIVE FEBRUARY 13, 1952. HOWEVER, THE DECISION DIRECTING HIS RESTORATION ALSO FOUND THAT THE EMPLOYEE COULD HAVE BEEN CHARGED WITH EXCESSIVE UNAUTHORIZED ABSENCE. SUCH A CHARGE WAS SUBSEQUENTLY PLACED AGAINST MR. PARRISH, APPARENTLY COVERING IN PART THE SAME PERIOD AS INVOLVED IN THE ORIGINAL CHARGE, AND HE WAS REMOVED FROM THE PAY ROLL JULY 15, 1952.

IN 29 COMP. GEN. 209, AT PAGE 210, IT WAS STATED BY THIS OFFICE:

* * * WHERE AN EMPLOYEE IS RESTORED TO DUTY AFTER A REMOVAL, SUSPENSION, OR FURLOUGH WITHOUT PAY SOLELY BECAUSE OF THE FAILURE OF THE ADMINISTRATIVE OFFICE TO FOLLOW THE PROCEDURAL STEPS PRESCRIBED BY STATUTE OR REGULATION, AND IMMEDIATELY THEREAFTER THE PROCEDURAL DEFECT IS CORRECTED AND THE ADVERSE ACTION AGAINST THE EMPLOYEE AGAIN INITIATED WITH THE RESULT THAT IT BECOMES FINAL AND BINDING UPON THE EMPLOYEE, IT IS NOT CONSIDERED THAT THERE HAS BEEN A RESTORATION TO DUTY UPON THE GROUNDS THAT THE REMOVAL, SUSPENSION, OR FURLOUGH WITHOUT PAY WAS UNJUSTIFIED OR UNWARRANTED WITHIN THE MEANING OF THE ACT OF JUNE 10, 1948. THE SECOND ACTION RESULTING IN A PROPER REMOVAL, SUSPENSION, OR FURLOUGH WITHOUT PAY OF AN EMPLOYEE MUST BE REGARDED AS INDICATING THAT SUCH ACTION WAS JUSTIFIED AND WARRANTED IN THE FIRST INSTANCE. * * *

AS IT APPEARS THAT, WHILE THE ORIGINAL REMOVAL WAS BASED ON ERRONEOUS GROUNDS, SUCH DEFECT WAS CURED BY THE SUBSEQUENT ACTION IN REMOVING THIS EMPLOYEE UPON A PROPER CHARGE, IT CANNOT BE STATED THAT THE EMPLOYEE'S REMOVAL WAS UNJUSTIFIED OR UNAUTHORIZED WITHIN THE MEANING OF THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, 62 STAT. 354, AND PAYMENT FOR THE PERIOD OF SEPARATION, FEBRUARY 14, 1952, TO MAY 25, 1952, IS NOT AUTHORIZED. THE VOUCHER IS RETURNED HEREWITH.