B-125562, OCTOBER 28, 1955, 35 COMP. GEN. 250

B-125562, OCTOBER 28, 1955, 35 COMP. GEN. 250

COMPENSATION - DISCHARGES AND DISMISSALS - COMPENSATION FOR PERIOD BETWEEN SEPARATION AND REINSTATEMENT - LEAVE-WITHOUT-PAY STATUS AN EMPLOYEE WHO WAS SEPARATED FROM THE SERVICE BECAUSE OF HAVING TAKEN LEAVE WITHOUT PAY IN EXCESS OF ONE YEAR AND WHO WAS ORDERED RESTORED TO THE LEAVE-WITHOUT-PAY STATUS BECAUSE THE EMPLOYING AGENCY FAILED TO FOLLOW THE PROCEDURAL REQUIREMENTS OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, WHICH PROVIDES A 30-DAY ADVANCE NOTICE OF THE PROPOSED SEPARATION ORDER, IS NOT ENTITLED TO BACK PAY UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED, WHICH CONTEMPLATES SITUATIONS WHERE AN EMPLOYEE IS DEPRIVED OF COMPENSATION BY THE ERRONEOUS REMOVAL.

TO SAMUEL LANGERMAN, OCTOBER 28, 1955:

YOUR LETTER OF AUGUST 18, 1955, REQUESTS RECONSIDERATION OF MR. HARRY O. SEEBER'S CLAIM FOR COMPENSATION COVERING A PERIOD OF LEAVE WITHOUT PAY FROM HIS POSITION AT THE UNITED STATES POST OFFICE IN PHOENIX, ARIZONA.

THE RECORD SHOWS THAT MR. SEEBER WAS IN A LEAVE WITHOUT PAY STATUS FROM DECEMBER 1952 UNTIL JANUARY 18, 1954, WHEN HE WAS SEPARATED FROM THE SERVICE BECAUSE OF HAVING TAKEN LEAVE WITHOUT PAY IN EXCESS OF ONE YEAR. MR. SEEBER APPEALED THE SEPARATION ACTION TO THE CIVIL SERVICE COMMISSION AND THE DIRECTOR OF THE TENTH CIVIL SERVICE REGION RULED THAT HE BE RESTORED TO DUTY EFFECTIVE JANUARY 18, 1954, BASED ON THE FAILURE OF THE POST OFFICE DEPARTMENT TO COMPLY WITH THE PROCEDURAL REQUIREMENT OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 863, WHICH REQUIRES A 30-DAY ADVANCE NOTICE OF THE PROPOSED SEPARATION ACTION. FURTHER, ON MARCH 26, 1954, THE POSTMASTER WAS INSTRUCTED TO RESTORE MR. SEEBER TO THE ROLLS IN A LEAVE WITHOUT PAY STATUS RETROACTIVE TO JANUARY 18, 1954.

THE CLAIM WAS DISALLOWED BY OFFICE SETTLEMENT DATED APRIL 27, 1955, FOR THE REASON THAT MR. SEEBER WAS PLACED IN A LEAVE WITHOUT PAY STATUS PURSUANT TO HIS OWN REQUEST. IT WAS NOT A DISCIPLINARY ACTION BY THE ADMINISTRATIVE OFFICE AND THEREFORE DID NOT CONSTITUTE A DISCHARGE, SUSPENSION, OR FURLOUGH WITHOUT PAY SO AS TO ENTITLE HIM TO COMPENSATION FOR THE PERIODS HE WAS CARRIED TO A LEAVE WITHOUT PAY STATUS. YOUR REQUEST RECONSIDERATION OF THE SETTLEMENT APPARENTLY ON THE BASIS OF OUR DECISION OF MAY 4, 1955, 34 COMP. GEN. 568, WHICH HELD THAT EMPLOYEES WHO ARE RESTORED TO DUTY BY ORDER OF THE CIVIL SERVICE COMMISSION BECAUSE THE EMPLOYING AGENCY FAILED TO FOLLOW THE PROCEDURAL REQUIREMENTS OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, ARE ENTITLED TO THE BACK PAY BENEFITS OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652, FOR THE PERIODS OF UNJUSTIFIED OR UNWARRANTED REMOVAL.

THE BACK PAY PROVISIONS OF THE 1912 ACT, AS AMENDED, CONTEMPLATE SITUATIONS IN WHICH AN EMPLOYEE IS DEPRIVED OF COMPENSATION BY VIRTUE OF THE UNWARRANTED ADMINISTRATIVE ACTION IN REMOVING HIM FROM THE ROLLS. THE DETERMINATION OF THE CIVIL SERVICE COMMISSION WAS DIRECTED SOLELY TO THE MATTER OF THE PROCEDURAL REQUIREMENTS SURROUNDING MR. SEEBER'S SEPARATION AND HAD NO BEARING UPON THE PROPRIETY OF HIS LEAVE WITHOUT-PAY STATUS. SINCE MR. SEEBER WAS IN A LEAVE-WITHOUT-PAY STATUS AT THE TIME OF HIS UNJUSTIFIED REMOVAL AND WAS RESTORED TO THE SAME LEAVE-WITHOUT-PAY STATUS BY THE COMMISSION, HE WAS NOT DEPRIVED OF ANY COMPENSATION BY THE ERRONEOUS REMOVAL PROCEDURE OF THE ADMINISTRATIVE OFFICE.

ACCORDINGLY, THE SETTLEMENT OF APRIL 27, 1955, MUST BE, AND IS SUSTAINED.