B-98093, OCTOBER 3, 1950, 30 COMP. GEN. 137

B-98093, OCTOBER 3, 1950, 30 COMP. GEN. 137

UNAUTHORIZED SEPARATION OF VETERAN FROM EXCEPTED POSITION - RESTORATION; COMPENSATION FOR PERIOD OF SEPARATION IN VIEW OF THE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION PURSUANT TO THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, REQUIRING EMPLOYEES IN EXCEPTED POSITIONS TO SERVE CONTINUOUSLY FOR ONE YEAR BEFORE BEING SUBJECT TO SECTION 14 OF THE ACT, THE IMPROPER SEPARATION OF A VETERAN FROM AN EXCEPTED POSITION PRIOR TO THE COMPLETION OF A YEAR OF CONTINUOUS SERVICE THEREIN IS NOT A SEPARATION MADE UNDER SECTION 14 SO AS TO ENTITLE SUCH AN EMPLOYEE UPON RESTORATION TO HIS POSITION TO COMPENSATION UNDER SECTION 6 (B) (2) OF THE ACT OF JUNE 10, 1948, FOR THE PERIOD OF SEPARATION.

COMPTROLLER GENERAL WARREN TO B. D. MCKINNEY, OCTOBER 3, 1950:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14, 1950, REQUESTING REVIEW OF OFFICE SETTLEMENT OF APRIL 26, 1950, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION ALLEGED TO BE DUE UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1948, 62 STAT. 354, AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY DURING A PERIOD OF IMPROPER SEPARATION FROM THE SERVICE FROM AUGUST 15, 1949, TO JANUARY 22, 1950, IT APPEARING THAT YOU WERE RESTORED TO DUTY AS A RESULT OF AN APPEAL TO PROPER AUTHORITY.

YOUR CLAIM WAS DISALLOWED UPON THE GROUND THAT THE ACT OF JUNE 10, 1948, WHICH AMENDED THE ACT OF AUGUST 24, 1912, 5 U.S.C. 652, WAS NOT APPLICABLE IN YOUR CASE SINCE YOU WERE SERVING IN AN EXCEPTED POSITION NOT IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES. HOWEVER, IN YOUR REQUEST FOR REVIEW, YOU NOW INDICATE THAT SINCE YOU ARE A VETERAN YOU ARE ENTITLED TO COMPENSATION FOR THE PERIOD OF YOUR SEPARATION UNDER THAT PORTION OF THE ACT OF JUNE 10, 1948, WHICH PROVIDES FOR PAYMENT OF COMPENSATION, UNDER CERTAIN CIRCUMSTANCES, TO EMPLOYEES SUSPENDED OR REMOVED FROM THE SERVICE UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, REGARDLESS OF WHETHER SUCH EMPLOYEES ARE IN THE CLASSIFIED CIVIL SERVICE.

THE PERTINENT PROVISIONS OF THE ACT OF JUNE 10, 1948, 62 STAT. 355, ARE AS FOLLOWS:

SEC. 6 (A) NO PERSON IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES SHALL BE REMOVED OR SUSPENDED WITHOUT PAY THEREFROM EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF SUCH SERVICE AND FOR REASONS GIVEN IN WRITING. ANY PERSON WHOSE REMOVAL OR SUSPENSION WITHOUT PAY IS SOUGHT SHALL (1) HAVE NOTICE OF THE SAME AND OF ANY CHARGES PREFERRED AGAINST HIM; (2) BE FURNISHED WITH A COPY OF SUCH CHARGES; (3) BE ALLOWED A REASONABLE TIME FOR FILING A WRITTEN ANSWER TO SUCH CHARGES, WITH AFFIDAVITS; AND (4) BE FURNISHED AT THE EARLIEST PRACTICABLE DATE WITH A WRITTEN DECISION OF SUCH ANSWER. * * *

(B) (1) ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY UNDER SUBSECTION (A) WHO, AFTER FILING A WRITTEN ANSWER TO THE CHARGES AS PROVIDED UNDER SUCH SUBSECTION OR AFTER ANY FURTHER APPEAL TO PROPER AUTHORITY AFTER RECEIPT OF AN ADVERSE DECISION ON THE ANSWER, 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 * * *.

(2) ANY PERSON WHO IS DISCHARGED, SUSPENDED, OR FURLOUGHED WITHOUT PAY, UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, WHO, AFTER ANSWERING THE REASONS ADVANCED FOR SUCH DISCHARGE, SUSPENSION, OR FURLOUGH OR AFTER AN APPEAL TO THE CIVIL SERVICE COMMISSION, AS PROVIDED UNDER SUCH SECTION, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH DISCHARGE, SUSPENSION, OR FURLOUGH WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH DISCHARGE, SUSPENSION, OR FURLOUGH FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION * * *.

(3) 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 * * *.

WHILE THE PROVISIONS OF PARAGRAPHS (2) AND (3) OF SECTION 6 (B) OF THE ABOVE STATUTE ARE NOT LIMITED TO EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE, NEVERTHELESS, THE RECORD SHOWS THAT YOUR REMOVAL FROM THE SERVICE WAS NOT OCCASIONED BY A REDUCTION IN FORCE UNDER PARAGRAPH (3); ALSO, IT IS APPARENT THAT THE OPERATION OF PARAGRAPH (2), TO WHICH YOU REFER, IS CONDITIONED UPON AN EMPLOYEE'S BEING SUBJECT TO SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 863. THE LATTER STATUTE BY ITS OWN TERMS IS CONFINED TO ANY "PERMANENT OR INDEFINITE PREFERENCE ELIGIBLE, WHO HAS COMPLETED A PROBATIONARY OR TRIAL PERIOD EMPLOYED IN THE CIVIL SERVICE, OR IN ANY ESTABLISHMENT, AGENCY, BUREAU, ADMINISTRATION, PROJECT, OR DEPARTMENT, HEREINBEFORE REFERRED TO.' THAT CONNECTION THE REGULATIONS OF THE CIVIL SERVICE COMMISSION ISSUED PURSUANT TO THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, DO NOT REQUIRE THAT THE PROCEDURE PRESCRIBED BY SECTION 14 OF THE SAID ACT BE FOLLOWED WITH RESPECT TO EMPLOYEES IN POSITIONS EXCEPTED FROM THE COMPETITIVE SERVICE UNLESS THEY HAVE COMPLETED ONE YEAR OF CONTINUOUS CIVILIAN EMPLOYMENT. SEE PART 22 OF THE COMMISSION'S REGULATIONS IN THAT RESPECT. IN OTHER WORDS, THE CIVIL SERVICE COMMISSION APPARENTLY HAS SET UP A TRIAL PERIOD OF ONE YEAR FOR EMPLOYEES IN EXCEPTED POSITIONS WHICH HAS THE EFFECT OF DENYING TO SUCH EMPLOYEES THE BENEFITS OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, UNTIL THAT YEAR OF CONTINUOUS SERVICE IS COMPLETED, THERE BEING NO PROVISION MADE FOR THE COUNTING OF MILITARY SERVICE TOWARD THE COMPLETION OF SUCH PERIOD.

SINCE THE RECORD DISCLOSES THAT YOU WERE APPOINTED TO AN EXCEPTED POSITION IN THE DEPARTMENT OF THE ARMY ON MARCH 28, 1949, AND HAD NOT COMPLETED ONE YEAR OF CONTINUOUS SERVICE AT THE TIME THE ACTION WAS TAKEN TO SEPARATE YOU FROM THE SERVICE ON AUGUST 15, 1949, IT FOLLOWS THAT YOUR REMOVAL FROM THE SERVICE WAS NOT MADE OR REQUIRED TO BE MADE UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED. IN VIEW THEREOF, IT DOES NOT APPEAR THAT YOU ARE QUALIFIED FOR THE COMPENSATION BENEFITS OF SECTION 6 (B) (2) OF THE ACT OF JUNE 10, 1948, SUPRA, WHICH, AS PREVIOUSLY INDICATED, IS APPLICABLE ONLY TO A PERSON DISCHARGED, SUSPENDED, OR FURLOUGHED WITHOUT PAY UNDER SECTION 14 OF THE VETERANS'S PREFERENCE ACT OF 1944, AS AMENDED.

IN THE LIGHT OF THE FOREGOING, THE CONCLUSION IS REQUIRED THAT YOU ARE NOT ENTITLED TO COMPENSATION FOR THE PERIOD OF YOUR REMOVAL FROM THE SERVICE UNDER ANY OF THE PROVISIONS OF THE ACT OF JUNE 10, 1948, AND, THEREFORE, THE DISALLOWANCE OF YOUR CLAIM BY OFFICE SETTLEMENT OF APRIL 26, 1950, IS SUSTAINED.