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mont alleges that the drawing provides for two totally dissimilar torque wrench mechanisms which are wholly different in construction, quality, performance, cost and value; that the wrenches should have been the subject of separate drawings, specifications and invitations for bids; and that no specific test procedures for evaluation were provided. We find nothing in the record tending to indicate any ambiguity or confusion among bidders as to the wrenches required. The abstract of bids reveals that competitive prices were obtained from the interested bidders which would seem to indicate an understanding of the bid requirements. Richmont's May 8 letter which set out in some detail the technical bases of its position was responded to by the Chief of the Industrial Engineering Division of the Army Rocket and Guided Missile Agency on June 5, 1959, and such report of evaluation concluded as follows:

Relative to the questions, propositions, and advertising type of claims presented in the balance of 8 page letter from Richmont, it is pointed out that the drawing as it exists in Revision E adequately and completely describes the current requirements of the wrenches required by ARGMA. The drawing does not reflect minute details of operation, construction or special features that are not essential for the intended purpose of the wrench. Richmont contends that the Air Force and many aircraft and missile manufacturers have accepted their wrench as standard; however, this has no bearing on the requirements of ARGMA. Perhaps the special features and construction of the Richmont wrenches are essential to the Air Force and some aircraft and missile manufacturers; however, they are not essential for ARGMA use. It is the intent of ARGMA to obtain wrenches which will fulfill the essential requirements at the lowest possible cost. Revision E to the drawing was issued with this objective.

In view of the foregoing and since also it has been determined by the procuring agency that detailed test procedures were neither necessary nor proper, but that it was only necessary to comply with the specifications, we agree that Richmont's protest was properly denied under the circumstances and facts of record. See, in this connection, 34 Comp. Gen. 174.

As requested, copies of this decision are being forwarded by letters dated today to Jo-Line and Richmont.

[B-140197]

Civilian Personnel-Separation Action Changes-Disability Retirement Right

An administrative action in separating an employee, who at the time was disabled due to a mental condition, without first applying for disability retirement on his behalf or without advising the employee of his eligibility for disability retirement is in derogation of the obligation of the employing agency to secure and preserve any benefits to which the employee is entitled and constitutes a basis for setting aside the separation action, therefore, the separation may be regarded as invalid and the records corrected to show a retirement for disability; however, any retirement benefits based on the record correction are for determination by the Civil Service Commission.

To the Postmaster General, August 13, 1959:

On July 10, 1959, your Deputy Postmaster General requested a decision concerning the propriety of changing the records of your Department to show that a former employee of the Akron, Ohio, Post Office was retired for disability on November 27, 1957, rather than separated.

The pertinent facts in the case are summarized as follows: The employee involved, a ten-point veteran, had over ten years of service in the postal field service at the time of his separation. The Notification of Personnel Action Form effecting such separation shows "Separation-Disability." In the block on such form entitled "Remarks" the following explanation appears "Employee separated due to continuous illness of 15 months (90 days additional leave was granted). Confined to hospital." Your Deputy Postmaster General says and the information appearing in the personnel folder of the employee which was transmitted here clearly shows that the disability requiring his separation was of a mental nature. Following his separation the former employee committed suicide-exact date of suicide not furnished-without again being employed in a position under the Post Office Department. Your Department considers that the employee should not have been separated but should have been retired for disability since he had more than enough service for disability retirement on the date that he was separated. However, when the matter of correcting your records to show a retirement for disability was taken up with the Civil Service Commission, your Department was advised that because of the rule enunciated in our decision appearing in 22 Comp. Gen. 291, there is no authority to retroactively change the records to show a retirement for disability in lieu of a "Separation-Disability."

The employee in the case under consideration was a ten-point veteran; yet the information submitted here does not establish that he was afforded the protection guaranteed veterans under section 14 of the Veterans' Preference Act, 5 U.S.C. 863. While it is not within our jurisdiction to pass upon such question, his separation also appears to have been contrary to Executive Order No. 5396, July 17, 1930, which entitles disabled veterans to leave without pay-after the expiration of their sick and annual leave for periods of necessary medical treatment. At the time of the employee's separation and for many months afterward he was receiving medical care and treatment at a Veterans Administration Hospital which fact appears to have been known to the employing agency at the time of his separation as evidenced by the notation on Notification of Personnel Action Form "Confined in hospital."

Of particular significance is a recent case before the Court of Appeals of the District of Columbia (Anderson v. Morgan, 263 F.

2d 903), which involved a disabled employee who had been separated by the Treasury Department rather than involuntarily retired for disability. The Court ordered that the proceedings be remanded to the Treasury Department for cancellation of the separation action and for the filing of an application by the Department with the Civil Service Commission for the disability retirement of the employee. The Court in effect held that there is a duty on a Government agency not to separate an employee because of disability if such employee has the necessary service to qualify for disability retirement. Rather, the Court reasoned, the agency should file on behalf of such employee an application for disability retirement. Where the disability resulting in the separation of an employee is a mental condition which impairs his judgment and ability to make decisions for himself, the reason for the holding in the case of Anderson v. Morgan is even more apparent. In such a case there is an obligation on the part of the employing department or agency processing personnel actions which, as you note, is recognized in some degree by both Post Office Department and Civil Service Commission Regulations to secure and preserve any benefits to which such employee may be entitled. Your Department's action in effecting a separation without first applying for disability retirement in behalf of the employee here involved (such as suggested in the instructions of the Civil Service Commission and the regulations of the Post Office Department) or advising him of his eligibility for such retirement disregarded such obligation and, under the theory of the case of Anderson v. Morgan, would constitute a basis for setting aside the separation action. We agree, also, that the decisions in Vitarelli v. Seaton, 39 U.S. 535, and Service v. Dulles, 354 U.S. 363, indicate the invalidity of a personnel action adverse to an employee when not in conformity with applicable regulations.

In view of the foregoing we consider that the separation action of November 17, 1957, reasonably may be viewed as invalid and the records adjusted accordingly. Any retirement act benefits based upon that conclusion will be for determination by the Civil Service Commission.

[B-140316]

Civilian Personnel-Leave and Compensation-Holidays— July 4, 1959

Employees who had been excused on July 3, 1959, pursuant to Executive Order No. 10825, because the July 4th holiday fell on Saturday their nonworkday, but who were called back for duty on July 4, 1959, are not to be charged for leave for July 3, 1959.

Employees who had regular tours of duty from Monday through Friday but who were required to work on July 3 and July 4, 1959, due to an emergency situation, are not entitled to compensatory time off on an alternate day for July 3, 1959, under Executive Order No. 10825, which does not cover employees who would receive holiday or premium pay or compensatory time in lieu thereof; however, such employees would be entitled to premium (overtime) pay or compensatory time in lieu thereof under the Federal Employees Pay Act of 1945, as amended, 5 U.S.C. 912, 912a.

Employees who have regular tours of duty from Saturday through Thursday of the week in which the July 4, 1959, holiday fell and who worked on July 2, 3, and 4, 1959, would not come within the scope of Executive Order No. 10825, for entitlement to be excused on some other workday during fiscal year 1960, but would be entitled only to compensation or compensatory time as provided under the Federal Employees Pay Act of 1945, 5 U.S.C. 912, 912a.

To the Administrator, General Services Administration, August 13, 1959:

Your letter of July 24, 1959, requests our decision whether under Executive Order No. 10825 certain employees of the General Services Administration who worked July 3 and 4, 1959, may be excused on some other workday during fiscal year 1960 for having worked on July 3.

As July 4 was a Saturday, "a non-workday for many employees," the preamble of Executive Order No. 10825 states "it is appropriate that those employees who do not regularly work on that day be given an alternate day in special observance of this anniversary."

You say that as a result of the fire which occurred Thursday, July 2, at the Pentagon Building, it was essential to remove the debris and damaged equipment, to install shoring under damaged beams, and to restore essential services. Therefore, a large group of employees whose regular tour of duty was Monday through Friday that week were required to work on both Friday and Saturday, July 3 and 4; that other groups of employees, who had been excused for July 3, were called back to work on July 4. Also, you say that all of these employees would have been excused July 3, and no overtime work was scheduled for July 4, had the fire damage not occurred.

Section 1(a) of Executive Order No. 10825 provides that, except as provided in Section 2, employees whose basic workweek includes Friday, July 3, 1959, and who would ordinarily be excused from work on a holiday falling within their basic workweek, shall be excused from duty all day on Friday, July 3, 1959; but that such day shall not be considered a holiday within the meaning of Executive Order No. 10358 or of any statutes relating to compensation and leave of employees of the United States. Section 2(a) provides in part that Executive Order No. 10825 shall not be construed as excusing from duty those employees who for national security or other public reasons should be at their posts of duty on July 3, 1959. Your doubt in the matter arises because of section 2(b) which reads as follows:

(b) This order shall not apply to (i) any employee who receives holiday or premium pay or compensatory time in lieu thereof, for work performed on Saturday, July 4, 1959, or any part thereof, or (ii) any employee whose basic work-week includes Saturday, July 4, 1959, or any part thereof and who is excused from duty without loss of pay or leave on a workday which includes all or part of that day.

Section 3 provides any employee mentioned in section 1 who would ordinarily be excused from work on a holiday, but who (i) is not excused from duty on Friday, July 3, 1959, or (ii) whose basic workweek does not include July 3 or any portion thereof, shall be excused from duty without charge to leave or loss of pay on one other workday in fiscal year 1960. Section 4 precludes the granting of any "holiday, premium, or overtime pay" for any work performed on Friday, July 3, but would permit agencies "to grant compensatory time in lieu thereof" without the need for additional appropriations.

In light of the foregoing provisions of the Executive order, your expressed assumption is correct, namely, that employees who had been excused for July 3, but who were called back for duty on July 4, will not be chargeable for "leave" for July 3. See 38 Comp. Gen. 869, copy attached.

The Executive order expressly was designed to excuse employees who would otherwise work regularly on July 3 or to grant an alternate day to such employees who did not regularly work on Saturday, July 4, 1959, or as provided in section 3 (ii) whose workweek did not include July 3, 1959. However, section 2(b) (i) precludes the grant of an alternate day (for working July 3) to "any employee who receives holiday or premium pay or compensatory time in lieu thereof, for work performed on Saturday, July 4, 1959, or any part thereof." In other words under section 2(b)(ii), any employee whose regularly scheduled basic workweek included Saturday, July 4, and who would receive holiday or premium pay for regular work that day is not covered by the Executive Order No. 10825. Any such employees who were called back for work on July 4 should receive premium (overtime) pay or compensatory time in lieu thereof under the Federal Employees Pay Act of 1945, as amended, 5 U.S.C. 912, 912a. The Executive order does not provide for emergency situations.

Therefore, our view is that compensatory time off on an alternate day for July 3 may not be granted to employees whose regular tours of duty were Monday through Friday but who worked both Friday and Saturday, July 3 and 4, 1959. 38 Comp. Gen. 869.

Concerning your last question, any of your employees whose regular tour of duty was Sunday through Thursday of that week, and who worked as stated in the letter on July 2, 3, and 4, 1959, similarly would not be within the scope of the Executive order and

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