B-81369, NOVEMBER 26, 1948, 28 COMP. GEN. 333

B-81369, NOVEMBER 26, 1948, 28 COMP. GEN. 333

OFFICERS AND EMPLOYEES - SUSPENSION OR REMOVAL - RESTORATION UNDER SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, PROVIDING THAT A PERSON ERRONEOUSLY REMOVED OR SUSPENDED WITHOUT PAY IN A REDUCTION IN FORCE AND SUBSEQUENTLY REINSTATED IS TO BE DEEMED AS HAVING RENDERED SERVICE FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE DURING THE PERIOD OF REMOVAL OR SUSPENSION, AN EMPLOYEE IS NOT ENTITLED TO AN ADJUSTMENT IN LEAVE ACCRUALS FOR ANNUAL LEAVE TAKEN DUE TO THE NOTICE OF REDUCTION IN FORCE FOR THE PERIOD IMMEDIATELY PRIOR TO DATE OF REMOVAL; NEITHER MAY THE EMPLOYEE BE GIVEN CREDIT FOR LEAVE ACCRUALS DURING THE PERIOD OF REMOVAL OR SUSPENSION. UNDER SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, PROVIDING THAT A PERSON ERRONEOUSLY REMOVED OR SUSPENDED WITHOUT PAY IN A REDUCTION IN FORCE AND SUBSEQUENTLY REINSTATED IS ENTITLED TO BE PAID "COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION," THERE SHOULD NOT BE INCLUDED IN THE COMPUTATION OF THE AMOUNT OF COMPENSATION DUE AN EMPLOYEE WHO WAS REINSTATED IN SEPTEMBER 1948 AFTER HAVING BEEN ERRONEOUSLY SEPARATED ON JUNE 30, 1948, DUE TO REDUCTION IN FORCE, ANY CREDIT FOR THE PAY INCREASE GRANTED ON JULY 3, 1948, BY THE POSTAL RATE REVISION AND THE FEDERAL EMPLOYEES SALARY ACT OF 1948. THE COMPENSATION PAYABLE UNDER SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, TO AN EMPLOYEE WHO WAS REINSTATED AFTER HAVING BEEN ERRONEOUSLY REMOVED DUE TO REDUCTION IN FORCE SHOULD BE COMPUTED OVER THE ENTIRE PERIOD DURING WHICH REMOVED AT THE RATE RECEIVED ON THE DATE OF REMOVAL, BUT THERE IS TO BE DEDUCTED THEREFROM THE LUMP SUM PAID FOR ACCUMULATED AND CURRENT ACCRUED LEAVE, INCLUDING THE AMOUNT OF TAX WITHHELD FROM SUCH LUMP-SUM PAYMENT, THE ANNUAL LEAVE REPRESENTED BY THE LUMP SUM BEING FOR RECREDITING TO THE EMPLOYEE'S LEAVE ACCOUNT. IN THE ABSENCE OF ANY DETERMINATION TO THE CONTRARY BY THE CIVIL SERVICE COMMISSION, AND IN THE LIGHT OF THE "BACK PAY" PROVISIONS OF SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, THE PERIOD DURING WHICH AN EMPLOYEE ERRONEOUSLY WAS REMOVED FROM THE SERVICE DUE TO A REDUCTION IN FORCE WOULD BE FOR COUNTING FOR RETIREMENT PURPOSES, AND THERE SHOULD BE DEDUCTED FROM THE COMPENSATION PAYABLE FOR THE PERIOD OF ERRONEOUS REMOVAL THE APPLICABLE PERCENTAGE RETIREMENT DEDUCTIONS.

COMPTROLLER GENERAL WARREN TO BETTY E. JOHNSON, DEPARTMENT OF COMMERCE, NOVEMBER 26, 1948:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 29, 1948, REQUESTING DECISION UPON SEVERAL QUESTIONS ARISING IN CONNECTION WITH A VOUCHER PRESENTED TO YOU FOR CERTIFICATION. THE VOUCHER WHICH YOU SUBMIT IS IN FAVOR OF HAROLD F. BEACH, AND IS FOR COMPENSATION COVERING THE PERIOD OF SEPARATION FROM SERVICE PURSUANT TO THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, 62 STAT. 355. YOUR LETTER STATES THE FACTS, AS FOLLOWS:

1. MR. BEACH WAS EMPLOYED IN THE OFFICE OF SMALL BUSINESS, BUREAU OF FOREIGN AND DOMESTIC COMMERCE, AND RECEIVED NOTICE OF PROPOSED SEPARATION BY REDUCTION OF FORCE DATED MAY 1, 1948, ON ACCOUNT OF BUDGETARY LIMITATIONS. HE WAS ADVISED THAT HIS ACTIVE SERVICE WOULD BE TERMINATED AT THE CLOSE OF BUSINESS MAY 15, 1948, AND SUBSEQUENT TO THAT DATE WOULD BE CARRIED IN A LEAVE STATUS WITH OR WITHOUT PAY, DEPENDING UPON THE ANNUAL LEAVE TO HIS CREDIT, UNTIL JUNE 30, 1948, AT WHICH TIME HE WOULD BE SEPARATED AND GIVEN LUMP SUM PAYMENT FOR ANY ANNUAL LEAVE REMAINING TO HIS CREDIT.

2. HIS LAST DAY OF DUTY WAS MAY 14, 1948; HE WAS PLACED ON ANNUAL LEAVE COMMENCING MAY 17, 1948 THROUGH JUNE 30, 1948, AT WHICH TIME HE WAS SEPARATED; AND LUMP SUM PAYMENT WAS MADE FOR 212 HOURS OF ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE COVERING THE PERIOD JULY 1, 1948 THROUGH THE CLOSE OF 4 HOURS ON AUGUST 9, 1948.

3. MR. BEACH APPEALED TO THE PERSONNEL OPERATIONS OFFICER OF THE DEPARTMENT OF COMMERCE, AND IT WAS DETERMINED THAT THERE WERE OTHER PERSONS OF LESSER RETENTION RIGHTS OCCUPYING POSITIONS WHICH MR. BEACH WAS QUALIFIED TO FILL, AND THAT HIS SEPARATION WAS, THEREFORE, UNWARRANTED. HE WAS REINSTATED IN THE OFFICE OF INTERNATIONAL TRADE, BUREAU OF FOREIGN AND DOMESTIC COMMERCE, EFFECTIVE SEPTEMBER 1, 1948.

4. MR. BEACH HAS MADE AFFIDAVIT CERTIFYING THAT DURING THE PERIOD OF HIS ABSENCE FROM DUTY WITH THE OFFICE OF SMALL BUSINESS, DEPARTMENT OF COMMERCE, HE EARNED NO INCOME THROUGH OTHER EMPLOYMENT.

THE VOUCHER COVERS PERIOD FROM JULY 1, 1948 TO AUGUST 31, 1948, AT THE RATE COVERED IN THE FEDERAL EMPLOYEES PAY ACT OF 1946, P.L. 390, FROM JULY 1 TO 10, 1948, LESS 5 PERCENT RETIREMENT, AND POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948, P.L. 900, FROM JULY 11 TO AUGUST 31, 1948, LESS 6 PERCENT RETIREMENT. IN ADDITION, DEDUCTION FOR THE GROSS AMOUNT OF LUMP SUM HAS BEEN MADE ON THE VOUCHER AND HIS LEAVE AGAIN RECREDITED WITH 359 HOURS ANNUAL LEAVE, WHICH INCLUDES 212 HOURS FOR WHICH LUMP SUM WAS PAID, 112 HOURS LEAVE CHARGED FROM JUNE 11 TO 30, 1948, AND 35 HOURS FOR LEAVE ACCRUING FROM JULY 1 TO AUGUST 30, 1948.

UNDER THE FOREGOING STATEMENT OF FACTS YOU PRESENT FOR DECISION THE FOLLOWING STATED QUESTIONS:

1. INASMUCH AS P.L. 623, SEC. 6 (B) (3), STATED THAT "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. A DECISION WITH RESPECT TO ANY APPEAL TO PROPER AUTHORITY UNDER THIS PARAGRAPH SHALL BE MADE AT THE EARLIEST PRACTICABLE DATE., " SHOULD PAYMENT BE MADE FOR THE ENTIRE PERIOD AT THE P.L. 390 RATE?

(A) IF ANSWER TO QUESTION ONE (1) IS IN THE AFFIRMATIVE, SHALL RETIREMENT DEDUCTION BE MADE AT THE RATE OF 6 PERCENT EFFECTIVE JULY 11, 1948?

2. ARE WE CORRECT IN PROCESSING PAYMENT FROM JULY 1 THROUGH AUGUST 31, 1948, OR SHOULD PAYMENT BE MADE FOR THE PERIOD CLOSE OF 4 HOURS AUGUST 9 THROUGH AUGUST 31, 1948?

(A) IF PAYMENT MADE ONLY FROM CLOSE OF 4 HOURS ON AUGUST 9 THROUGH AUGUST 31, 1948, SHALL IT BE AT THE P.L. 390 OR P.L. 900 RATE?

(B) IF REPLY TO QUESTION 2 (A) MAKES PAYMENT AT THE P.L. 390 RATE, SHOULD RETIREMENT DEDUCTIONS BE AT 6 PERCENT?

(C) IF PAYMENT SHOULD BE MADE ONLY FROM CLOSE OF 4 HOURS AUGUST 9 THROUGH AUGUST 31, 1948, SHOULD RETIREMENT DEDUCTION BE MADE FOR THE PERIOD COVERED BY THE LUMP SUM AND AT WHAT RATE?

3. ARE WE CORRECT IN RECREDITING THE EMPLOYEE'S LEAVE ACCOUNT WITH LEAVE CHARGED JUNE 11 TO JUNE 30, 1948, INASMUCH AS HE WAS FORCED TO TAKE LEAVE ON ACCOUNT OF REDUCTION OF FORCE?

4. ARE WE CORRECT IN CREDITING EMPLOYEE'S LEAVE ACCOUNT WITH LEAVE ACCRUED FROM JULY 1 TO AUGUST 31, 1948? IN THIS CONNECTION, IT WILL BE NOTED FROM THE ABOVE QUOTATION FROM P.L. 623 THAT "EXCEPT THE ACCUMULATION OF LEAVE" THE EMPLOYEE IS DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD. ACCUMULATION OF LEAVE AS APPLIED BY THE CIVIL SERVICE REGULATIONS IS DEFINED "THE UNUSED LEAVE REMAINING TO THE CREDIT OF AN EMPLOYEE AT THE CLOSE OF ANY CALENDAR YEAR.' IT IS ASSUMED THAT THIS PROVISION DOES NOT PREVENT THE CREDITING OF ACCRUED LEAVE AS ALSO DEFINED BY THE CIVIL SERVICE REGULATIONS " THE PART OF THE LEAVE FOR THE CURRENT YEAR WHICH AN EMPLOYEE HAS EARNED TO DATE AND HAS NOT USED.'

AS THE RELIEF GRANTED BY THAT PART OF THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, QUOTED IN YOUR QUESTION NO. 1, RELATES SOLELY TO THE PERIOD OF SUSPENSION OR REMOVAL, THE EMPLOYEE IS ENTITLED TO NO ADJUSTMENT IN PAY OR LEAVE ACCRUALS FOR THE PERIOD PRIOR TO THE DATE OF HIS REMOVAL, JUNE 30, 1948. THE FACT THAT THE LEAVE TAKEN IMMEDIATELY PRIOR TO JUNE 30, 1948, MAY HAVE BEEN DUE TO THE NOTICE OF REDUCTION IN FORCE IS NOT MATERIAL; NEITHER MAY HE BE GIVEN ANY CREDIT FOR LEAVE ACCRUALS DURING THE PERIOD OF SUSPENSION OR SEPARATION, AS THE STATUTE SPECIFICALLY EXCEPTS FROM THE BENEFITS SO CONFERRED "THE ACCUMULATION OF LEAVE.'

WITH RESPECT TO THE RATE OF COMPENSATION FOR THE PERIOD OF SEPARATION, THE STATUTE RESTRICTS SUCH PAYMENTS TO THE "RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION.' ACCORDINGLY, THERE SHOULD NOT BE INCLUDED IN THE COMPUTATION OF THE AMOUNT DUE ANY CREDIT FOR THE PAY INCREASE GRANTED BY THE POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948, PUBLIC LAW 900, 62 STAT. 1267.

AS THE PERIOD OF SEPARATION ACTUALLY EXTENDED FROM JULY 1, 1948, TO AUGUST 31, 1948, INCLUSIVE, THE COMPENSATION SHOULD BE COMPUTED OVER THAT ENTIRE PERIOD, BUT THERE SHOULD BE DEDUCTED THEREFROM THE LUMP SUM PAID TO THE EMPLOYEE FOR 212 HOURS OF ACCUMULATED LEAVE, INCLUDING THE AMOUNT OF TAX WITHHELD FROM THE LUMP-SUM LEAVE PAYMENT. OF COURSE, UPON SUCH DEDUCTION, THE LEAVE REPRESENTED THEREBY IS FOR RECREDITING TO HIS ACCOUNT.

AS THE EMPLOYEE ALSO IS DEEMED, UNDER THE PROVISIONS OF PUBLIC LAW 623, TO HAVE RENDERED SERVICE DURING THE PERIOD OF SEPARATION, IT WOULD SEEM TO FOLLOW--- IN THE ABSENCE OF ANY DETERMINATION TO THE CONTRARY BY THE CIVIL SERVICE COMMISSION, THE AGENCY VESTED BY LAW TO DETERMINE CREDITED SERVICE UNDER THE CIVIL RETIREMENT LAW--- THAT SUCH PERIOD WOULD BE FOR COUNTING FOR RETIREMENT PURPOSES, IN VIEW OF WHICH THERE SHOULD BE DEDUCTED THEREFROM FOR RETIREMENT PURPOSES FIVE PERCENT OF THE COMPENSATION UP TO AND INCLUDING JULY 10, 1948, AND SIX PERCENT THEREAFTER.

THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.

AS THE VOUCHER SUBMITTED BY YOU IS NOT COMPUTED IN ACCORDANCE WITH THE FOREGOING, IT MAY NOT BE CERTIFIED FOR PAYMENT IN ITS PRESENT FORM.