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ARE NOT CONSIDERED IN A LEAVE STATUS DURING THAT PART OF THE PERIOD COVERED BY THE LEAVE PAYMENT. THE BACK PAY DUE EMPLOYEES ON RESTORATION TO DUTY IS THE DIFFERENCE BETWEEN THE SUM OF RETROACTIVE COMPENSATION AND ANY INTERIM NET EARNINGS DURING THE WHOLE PERIOD OF SUSPENSION. THE EMPLOYEE WAS SUSPENDED FROM DUTY UNDER PUBLIC LAW 733. DURING A PORTION OF THE SUSPENSION PERIOD HE RECEIVED COMPENSATION FOR WHICH A CHARGE WAS MADE AGAINST HIS ANNUAL LEAVE ACCOUNT. THIS ACTION WAS IN ACCORDANCE WITH OUR DECISION OF DECEMBER 11. WE CONCLUDED THAT THE TOTAL NET EARNINGS RECEIVED FROM PRIVATE INDUSTRY WAS TO BE DEDUCTED FROM THE SALARY PAYABLE FOR THE PERIOD OF SUSPENSION. WE HELD THAT UPON THE EMPLOYEE'S RESTORATION THE DEPARTMENT WAS REQUIRED TO RECOVER THE PAYMENTS MADE TO HIM DURING THE SUSPENSION PERIOD AND TO MAKE AN APPROPRIATE LEAVE RECREDIT.

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B-122843, SEPTEMBER 20, 1956, 36 COMP. GEN. 220

FEDERAL EMPLOYEES - RESTORATION TO DUTY AFTER UNJUSTIFIED SUSPENSION - LEAVE STATUS - LUMP-SUM PAYMENTS EMPLOYEES WHO RECEIVE LEAVE PAYMENTS DURING PERIODS OF SUSPENSION FROM DUTY UNDER THE ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1, ARE NOT CONSIDERED IN A LEAVE STATUS DURING THAT PART OF THE PERIOD COVERED BY THE LEAVE PAYMENT, AND THE BACK PAY DUE EMPLOYEES ON RESTORATION TO DUTY IS THE DIFFERENCE BETWEEN THE SUM OF RETROACTIVE COMPENSATION AND ANY INTERIM NET EARNINGS DURING THE WHOLE PERIOD OF SUSPENSION. EMPLOYEES WHO RECEIVE LEAVE PAYMENTS DURING SECURITY SUSPENSIONS FROM DUTY UNDER THE ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1, MAY BE REQUIRED EITHER TO REFUND THE PAYMENT ON RESTORATION TO DUTY WITH RECREDIT FOR THE LEAVE OR BE PERMITTED TO RETAIN THE PAYMENT IN ACCORDANCE WITH THE ADMINISTRATIVE DECISION. B-122843, AUG. 11, 1955, MODIFIED IN PART.

TO THE SECRETARY OF THE ARMY, SEPTEMBER 20, 1956:

YOUR LETTER OF JULY 5, 1956, REQUESTS OUR RECONSIDERATION OF THAT PART OF OUR DECISION DATED AUGUST 11, 1955, B-122843, WHICH, YOU SAY, PLACES " EMPLOYEE A" IN AN INEQUITABLE SITUATION.

THE EMPLOYEE WAS SUSPENDED FROM DUTY UNDER PUBLIC LAW 733, 64 STAT. 476, 5 U.S.C. 22-1. DURING A PORTION OF THE SUSPENSION PERIOD HE RECEIVED COMPENSATION FOR WHICH A CHARGE WAS MADE AGAINST HIS ANNUAL LEAVE ACCOUNT. THIS ACTION WAS IN ACCORDANCE WITH OUR DECISION OF DECEMBER 11, 1952, 32 COMP. GEN. 284. OUR DECISION OF AUGUST 11, 1955, HELD THAT DURING SUCH PERIOD THE EMPLOYEE COULD NOT BE CONSIDERED AS BEING IN AN ANNUAL LEAVE STATUS SO AS TO INTERRUPT THE PERIOD OF SUSPENSION. ALSO, WE CONCLUDED THAT THE TOTAL NET EARNINGS RECEIVED FROM PRIVATE INDUSTRY WAS TO BE DEDUCTED FROM THE SALARY PAYABLE FOR THE PERIOD OF SUSPENSION. ADDITIONALLY, WE HELD THAT UPON THE EMPLOYEE'S RESTORATION THE DEPARTMENT WAS REQUIRED TO RECOVER THE PAYMENTS MADE TO HIM DURING THE SUSPENSION PERIOD AND TO MAKE AN APPROPRIATE LEAVE RECREDIT. AT THAT TIME WE REJECTED THE ADMINISTRATIVE VIEW THAT THE "LEAVE GRANTED * * * SHOULD BE NO DIFFERENT FROM LEAVE GRANTED UNDER ORDINARY CIRCUMSTANCES; " THAT WE COMPARE EARNINGS FROM OUTSIDE SOURCES ONLY TO THE RETROACTIVE COMPENSATION COMPUTED FOR THE EXACT PERIOD DURING WHICH THE EMPLOYEE RECEIVED PAYMENT FROM OUTSIDE EMPLOYMENT; AND THAT " EMPLOYEE A" NOT BE REQUIRED TO REFUND THE MONEY RECEIVED FOR LEAVE DURING THE SUSPENSION PERIOD AND THAT, THEREFORE, NO RECREDIT BE MADE TO HIS LEAVE ACCOUNT. YOUR LETTER OF JULY 5 REQUESTS RECONSIDERATION OF OUR CONCLUSIONS ON THOSE ISSUES.

PUBLIC LAW 733 PROVIDES IN PERTINENT PART THAT ANY PERSON SUSPENDED WITHOUT PAY UNDER ITS AUTHORITY MAY, IN THE DISCRETION OF THE AGENCY HEAD CONCERNED, BE REINSTATED OR RESTORED TO DUTY, AND IF SO REINSTATED OR RESTORED SHALL BE ALLOWED COMPENSATION "FOR ALL OR ANY PART OF THE PERIOD OF SUCH SUSPENSION OR TERMINATION IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH SUSPENSION OR TERMINATION * * * AND THE INTERIM NET EARNINGS OF SUCH PERSON * * *.'

DURING A PORTION OF THE SUSPENSION PERIOD HERE INVOLVED " EMPLOYEE A" WAS ALLOWED TO USE HIS 660 HOURS OF ANNUAL LEAVE DURING HIS EXISTING SUSPENSION "WITHOUT PAY" STATUS. HOWEVER, UPON RESTORATION THE ACT PERMITS PAYMENT ONLY OF THE DIFFERENCE BETWEEN THE SUM OF THE RETROACTIVE COMPENSATION AND THE SUM OF HIS "INTERIM NET EARNINGS.' ANY SO CALLED "LEAVE" COMPENSATION PAID DURING THE SUSPENSION LOSES ITS IDENTITY AS A PAYMENT FOR "LEAVE.' MOREOVER, WE FIND NOTHING IN THE ACT OR ITS LEGISLATIVE HISTORY TO INDICATE THAT THE COMPENSATION PAYABLE UPON RESTORATION AFTER AN UNJUSTIFIED SUSPENSION OR TERMINATION UNDER THE ACT IS TO BE PRORATED ACCORDING TO THE DAILY OR WEEKLY INTERIM EARNINGS OR UPON ANY BASIS OTHER THAN THE WHOLE OF THE "PERIOD OF SUCH SUSPENSION OR TERMINATION.' ACCORDINGLY, THE CONCLUSION IN OUR DECISION OF AUGUST 11 CONCERNING THE "LEAVE STATUS" AND THE INTERIM NET EARNINGS IS SUSTAINED.

WHERE THE VALUE OF SUCH LEAVE PLUS THE INTERIM NET EARNINGS WOULD EXCEED THE SUM OF THE COMPENSATION PAYABLE UNDER THE ACT, THE ACT DOES NOT APPEAR TO REQUIRE THAT THE EMPLOYEE REFUND THE LEAVE COMPENSATION GRANTED TO HIM DURING THE PERIOD OF SUSPENSION AND OBTAIN A RECREDIT TO HIS LEAVE ACCOUNT. HENCE, WE NOW HOLD THAT IN SUCH CASES THE PART OF THE LEAVE PAYMENT ALLOWED DURING THE SUSPENSION TO BE REFUNDED AND RECREDITED TO THE EMPLOYEE, OR TO BE RETAINED BY THE EMPLOYEE WITH NO RECREDIT OF THE LEAVE INVOLVED IS A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION. IN THE CASE OF " EMPLOYEE A," THE DIFFERENCE BETWEEN $4,421.13, THE RETROACTIVE COMPENSATION UNDER THE ACT, AND $3,936, THE EMPLOYEE'S EARNINGS FROM OTHER EMPLOYMENT DURING THE PERIOD OF SUSPENSION, AMOUNTS TO $485.13. THUS, WITHOUT CONSIDERATION OF THE SO CALLED LEAVE PAYMENT OF $2,475.36, THE EMPLOYEE WOULD BE ENTITLED TO RECEIVE $485.13. AS TO THE LEAVE PAYMENT OF $2,475.36, THE LEAVE REDUCTION MAY BE ALLOWED TO STAND OR THE EMPLOYEE MAY BE PERMITTED TO APPLY THE CREDIT OF $485.13 WITH A CASH REPAYMENT OF ALL OR PART OF THE BALANCE OF $1,990.23 TO SECURE AN EQUIVALENT RECREDIT OF LEAVE, AS MAY BE ADMINISTRATIVELY DETERMINED. THAT PART OF OUR DECISION OF AUGUST 11 CONCERNING THIS ITEM IS MODIFIED IN ACCORDANCE WITH THE ABOVE.

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