B-156693, MAY 14, 1965

B-156693, MAY 14, 1965

TO MRS. HARRIET LOUISE HELLMERS:

THIS REFERS TO YOUR LETTER OF APRIL 14, 1965, REQUESTING REVIEW OF OUR SETTLEMENT DATED APRIL 9, 1965, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION INCIDENT TO YOUR SEPARATION FROM THE SELECTIVE SERVICE SYSTEM, LOCAL BOARD NO. 201, PEKIN, ILLINOIS. SPECIFICALLY, YOU QUESTION THAT PART OF OUR SETTLEMENT PERTAINING TO THE NONACCUMULATION OF LEAVE DURING THE PERIODS OF YOUR SUSPENSION AND REMOVAL FROM THE SERVICE.

THE RECORD SHOWS THAT YOU WERE SUSPENDED EFFECTIVE JULY 22, 1963, AND REMOVED EFFECTIVE AUGUST 12, 1963, FROM YOUR POSITION WITH LOCAL BOARD NO. 201. AT THAT TIME YOU RECEIVED A LUMP-SUM LEAVE PAYMENT FOR 135 HOURS ANNUAL LEAVE. ON APPEAL TO THE UNITED STATES CIVIL SERVICE COMMISSION, THE ADMINISTRATIVE ACTION WAS OVERRULED AND THE COMMISSION ORDERED THAT YOU BE RESTORED TO DUTY RETROACTIVE TO JULY 22, 1963. UPON YOUR RETURN TO DUTY ON SEPTEMBER 5, 1963, THE LUMP-SUM LEAVE PAYMENT WAS CANCELED AND THE 135 HOURS OF ANNUAL LEAVE WERE RECREDITED TO YOUR LEAVE ACCOUNT.

EFFECTIVE SEPTEMBER 10, 1963, YOU AGAIN WERE SUSPENDED FROM YOUR POSITION AND EFFECTIVE OCTOBER 7, 1963, YOU AGAIN WERE REMOVED FROM THE SERVICE. INCIDENT TO THIS REMOVAL ACTION YOU RECEIVED A LUMP-SUM PAYMENT FOR 153 HOURS ANNUAL LEAVE. ON APPEAL, THE CIVIL SERVICE COMMISSION FOUND YOUR SUSPENSION AND REMOVAL TO BE UNJUSTIFIED AND RESTORED YOU TO DUTY. HOWEVER, WHEN YOU RETURNED TO DUTY YOUR LEAVE ACCOUNT WAS RECREDITED WITH ONLY 137 OF THE 153 HOURS ANNUAL LEAVE FOR WHICH YOU HAD RECEIVED A LUMP- SUM PAYMENT SINCE YOU HAD BEEN IMPROPERLY CREDITED WITH ANNUAL LEAVE DURING YOUR FIRST SUSPENSION AND REMOVAL PERIOD (JULY 22 THROUGH SEPTEMBER 4, 1963). YOU WERE NOT CREDITED WITH LEAVE DURING YOUR SECOND SUSPENSION AND REMOVAL PERIOD (SEPTEMBER 10, 1963, THROUGH JUNE 21, 1964).

APPARENTLY YOU BELIEVE THAT THE PROHIBITION AGAINST THE ACCUMULATION OF LEAVE DURING A PERIOD OF SUSPENSION OR REMOVAL AS PRESCRIBED IN 5 U.S.C. 652 (B) (1) IS APPLICABLE ONLY IN THOSE CASES WHERE THE SUSPENSION AND/OR REMOVAL HAS BEEN ULTIMATELY SUSTAINED BY THE PROPER AUTHORITY. SINCE YOU WERE RESTORED TO DUTY UPON A FINDING THAT YOUR SUSPENSION AND REMOVAL WERE UNWARRANTED, YOU BELIEVE THAT YOU SHOULD HAVE BEEN ALLOWED TO ACCUMULATE LEAVE DURING THE TWO SUSPENSION AND REMOVAL PERIODS.

SECTION 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652 (B) (1), PROVIDES AS FOLLOWS:

"/1) ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY UNDER SUBSECTION (A) OF THIS SECTION 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 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.'

THE ABOVE-QUOTED PROVISION IS FOR APPLICATION ONLY WHEN THE EMPLOYEE HAS BEEN RESTORED TO DUTY ON THE GROUND THAT THE SUSPENSION OR REMOVAL WAS UNJUSTIFIED OR UNWARRANTED. IN SUCH CASES THE EMPLOYEE, BY THE EXPRESS TERMS OF THE STATUTE, IS DEEMED TO HAVE RENDERED SERVICE DURING THE SUSPENSION OR REMOVAL PERIOD FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE.

IN EFFECTING YOUR RESTORATION TO DUTY, YOUR ADMINISTRATIVE OFFICE AWARDED YOU BACK PAY BUT DISALLOWED ANY ACCUMULATION OF LEAVE DURING THE SUSPENSION AND REMOVAL PERIODS. THEIR ACTION WAS PROPERLY TAKEN IN ACCORDANCE WITH THE ABOVE STATUTORY PROVISION AND NO FURTHER PAYMENT FOR LEAVE IS DUE. THEREFORE, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.