B-126358, FEB. 23, 1956

B-126358, FEB. 23, 1956

TO MR. JOSEPH M. EGAN:

YOUR RECENT LETTER REQUESTS REVIEW OF OUR SETTLEMENT OF NOVEMBER 16, 1955, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE RATE OF COMPENSATION YOU HAVE RECEIVED AS MECHANIC'S HELPER AND THAT YOU WOULD HAVE EARNED AS CANCELING MACHINE MECHANIC DURING THE PERIOD OF YOUR DEMOTION TO THE LATTER POSITION, FROM MAY 1, 1943, TO FEBRUARY 23, 1944, AS AN EMPLOYEE OF THE UNITED STATES POST OFFICE, NEW YORK, NEW YORK.

IT APPEARS THAT YOU ARE OF THE BELIEF THAT YOUR REDUCTION IN COMPENSATION RESULTING FROM THE DEMOTION DURING THE PERIOD INDICATED IS COVERED BY OUR DECISION, B-121070, DATED MAY 3, 1955, SO AS TO ENTITLE YOU TO ADDITIONAL COMPENSATION FOR THE PERIOD.

THE RECORD FAILS TO SHOW THAT YOU APPEALED THE ADVERSE ACTION EITHER ADMINISTRATIVELY OR TO THE REGIONAL OFFICE OF THE UNITED STATES CIVIL SERVICE COMMISSION, OR THAT YOUR REPROMOTION ON FEBRUARY 23, 1944, TO THE POSITION OF CANCELING MACHINE MECHANIC WAS THE RESULT OF ANY PROTEST OR APPEAL BY YOU. ON THE CONTRARY, IT APPEARS THAT YOU WERE REDUCED IN GRADE PURSUANT TO YOUR REQUEST CONTAINED IN LETTER DATED APRIL 27, 1943, TO MR. ALBERT GOLDMAN, POSTMASTER, NEW YORK, NEW YORK, A COPY OF WHICH IS ON FILE IN OUR OFFICE. SPECIFICALLY YOU STATED IN YOUR LETTER,"I RESPECTFULLY REQUEST TO BE TRANSFERRED TO MY FORMER POSITION OF CANCELING MACHINE MECHANIC'S HELPER AT THE GENERAL POST OFFICE, N.Y. MY PRESENT POSITION OF CANCELING MACHINE MECHANIC IS INDEFINITE AT MADISON SQUARE POST OFFICE.'

THE OFFICE DECISION REFERRED TO IN YOUR LETTER, B-121070, DATED MAY 3, 1955, 34 COMP. GEN. 561, HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

"A DEMOTED EMPLOYEE WHO IS ORDERED RETROACTIVELY RESTORED TO HIS FORMER POSITION AFTER A SUCCESSFUL APPEAL UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, IS ENTITLED TO COMPENSATION FOR THE PERIOD OF THE UNJUSTIFIED DEMOTION PURSUANT TO THE AMENDATORY ACT OF AUGUST 4, 1947, COMPUTED ON THE BASIS OF THE AMOUNT WHICH WOULD HAVE BEEN EARNED FOR THE PERIOD IN THE GRADE FROM WHICH DEMOTED. 33 COMP. GEN. 192 AND 28 COMP. GEN. 489, MODIFIED.'

OUR DECISION OF MAY 3, 1955, IS PREDICATED UPON RESTORATION OF THE EMPLOYEE CONCERNED TO HIS FORMER POSITION IN ACCORDANCE WITH AN ORDER OF THE UNITED STATES CIVIL SERVICE COMMISSION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED. THE DECISIONS IN THE UNITED STATES COURT OF CLAIMS, WHICH OUR DECISION FOLLOWS, ALSO ARE PREDICATED UPON THE SAME FACTOR. THE DECISION RELATED TO AN ENTIRELY DIFFERENT FACTUAL SITUATION FROM THAT PRESENT IN YOUR CASE. ACCORDINGLY, THERE IS NO BASIS FOR THE ALLOWANCE OF ANY ADDITIONAL COMPENSATION TO YOU UNDER THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED.

FURTHER, THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, A COPY OF WHICH IS ENCLOSED, PROVIDES THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM "SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.' YOUR CLAIM WAS NOT RECEIVED HERE WITHIN TEN YEARS FROM THE DATE IT FIRST ACCRUED AND, EVEN IF OTHERWISE VALID, IT COULD NOT NOW BE PROPERLY CONSIDERED BY OUR OFFICE.

IN THE LIGHT OF THE FOREGOING, THE DISALLOWANCE OF YOUR CLAIM IS CORRECT AND MUST BE AND IS SUSTAINED.