B-53153, JUNE 24, 1946, 25 COMP. GEN. 899

B-53153, JUNE 24, 1946, 25 COMP. GEN. 899

COMPENSATION - WITHIN-GRADE PROMOTIONS - SERVICE CREDIT FOR MILITARY DUTY WHERE, FOR ADMINISTRATIVE REASONS, IT IS IMPRACTICABLE TO RESTORE EMPLOYEES RETURNING FROM MILITARY SERVICE TO THEIR FORMER FIELD SERVICE POSITIONS WHICH WERE REALLOCATED, IN ABSENTIA, TO A HIGHER GRADE, ADMINISTRATIVE ACTION PLACING SUCH EMPLOYEES IN POSITIONS CREATED ADMINISTRATIVELY, UPON THE EMPLOYEES' RETURN, AS ADDITIONAL IDENTICAL POSITIONS TO THEIR FORMER POSITIONS AS REALLOCATED MAY NOT OPERATE TO DEPRIVE THE EMPLOYEES OF ANY OF THE MONETARY BENEFITS, SUCH AS WITHIN GRADE SALARY ADVANCEMENTS, WHICH OTHERWISE WOULD HAVE ACCRUED ON THE BASIS OF MILITARY SERVICE HAD THEY BEEN RESTORED TO THEIR FORMER POSITIONS AS REALLOCATED. 25 COMP. GEN. 419, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, JUNE 24, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 17, 1946, REFERENCE A3-5, AS FOLLOWS.

REFERENCE IS MADE TO YOUR DECISION OF NOVEMBER 26, 1945, B-53153, 25 COMP. GEN. 419, WITH REGARD TO AUTOMATIC PROMOTIONS UPON RESTORATION TO CIVILIAN DUTY FOLLOWING MILITARY SERVICE. THIS OFFICE UNDERSTANDS, THE DECISION TO HOLD THAT IF A RETURNING MILITARY MAN IS REEMPLOYED IN HIS FORMER POSITION, LEFT VACANT DURING HIS ABSENCE IN THE SERVICE, HE IS ENTITLED TO THE BENEFITS OF REALLOCATION AND THE AUTOMATIC PROMOTIONS WHICH WOULD HAVE BEEN DUE HIM HAD HE REMAINED IN A CIVILIAN STATUS, CONSIDERING LENGTH OF SERVICE, ETC., FROM THE EFFECTIVE DATE OF THE REALLOCATION OF LIKE OCCUPIED POSITIONS.

THE ALTERNATE PROPOSITION, HOWEVER, IS NOT ENTIRELY CLEAR. IF THE RETURNING SERVICEMAN IS PLACED IN AN ADDITIONAL NEW AND IDENTICAL POSITION RATHER THAN BEING RESTORED TO HIS OLD FIELD POSITION, WE UNDERSTAND YOUR RULING TO BE THAT HIS PERIODIC WITHIN-GRADE SALARY RIGHTS ARE DEPENDENT UPON THE EFFECTIVE DATE OF THE ADMINISTRATIVE ALLOCATION OF THE NEW FIELD POSITION. IN OTHER WORDS, HE WOULD NOT RECEIVE THE BENEFIT OF THE GENERAL REALLOCATION OF OCCUPIED POSITIONS. IN CONSEQUENCE THE RETURNING VETERAN WOULD LOSE THE BENEFIT OF ACCRUALS OF SALARY ADVANCEMENTS IN THE HIGHER GRADE POSITION MERELY BECAUSE HE WAS NOT RESTORED TO HIS OLD POSITION, AND THE INCUMBENT THEREOF MOVED TO THE NEW POSITION. THIS RESULT, DUE ENTIRELY TO ADMINISTRATIVE CONSIDERATIONS WHICH PROMPTED PLACING HIM IN THE NEW ADDITIONAL IDENTICAL POSITION, WOULD SEEM TO BE CONTRARY TO THAT PORTION OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, WHICH REQUIRES THE RESTORATION OF THE RETURNING VETERAN TO HIS OLD POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS AND PAY.

TO BETTER ILLUSTRATE THE PROBLEM AND TO FORM THE BASIS OF A DECISION, THE FOLLOWING EXAMPLES ARE GIVEN:

EMPLOYEE A LEFT A PERMANENT FIELD POSITION ON JUNE 2, 1942 TO ENTER THE MILITARY SERVICE. HIS SALARY WAS THEN $1,800 IN GRADE CAF-4. HE HAD BEEN IN THE SERVICE SINCE JUNE 26, 1941 AND WOULD NOT HAVE BEEN ELIGIBLE FOR AN AUTOMATIC PROMOTION UNTIL JANUARY 1, 1943. ON NOVEMBER 1, 1944, POSITIONS OF THE TYPE HE OCCUPIED, INCLUDING HIS FORMER POSITION TEMPORARILY OCCUPIED BY A NEW APPOINTEE, WERE REALLOCATED TO GRADE CAF-5, WITH ENTRANCE SALARY OF $2,000 PER ANNUM. EMPLOYEE A RETURNED FROM MILITARY FURLOUGH NOVEMBER 19, 1945. FOR ADMINISTRATIVE REASONS, HE WAS RESTORED TO AN ADDITIONAL POSITION IDENTICAL IN DUTIES TO THE ONE HE FORMERLY HAD AND THE OCCUPANT OF THE ORIGINAL POSITION WAS RETAINED THEREIN. THE EFFECT WAS SIMPLY TO INCREASE THE NUMBER OF EMPLOYEES OF THIS CLASS. CONSISTENT WITH THE PREVIOUS ACTION, THE NEW POSITION WAS ALLOCATED TO GRADE CAF-5 AT THE TIME OF ITS CREATION NOVEMBER 19, 1945, AND THE VETERAN WAS RESTORED TO DUTY AT $2,320 PER ANNUM ON THAT DATE.

EMPLOYEE B LEFT A PERMANENT FIELD POSITION ON JANUARY 5, 1942 TO ENTER THE MILITARY SERVICE. HIS SALARY WAS $1,860 PER ANNUM IN GRADE CAF-4. NEXT AUTOMATIC PROMOTION WOULD HAVE BEEN DUE APRIL 1, 1943. IN THIS CASE, THE FIELD POSITIONS WERE REALLOCATED TO GRADE CAF-5, EFFECTIVE JULY 16, 1945. EMPLOYEE B SERVED IN THE MILITARY SERVICE UNTIL APRIL 8, 1946 WHEN HE WAS RETURNED TO AN ADDITIONAL CAF-5 POSITION IN ALL RESPECTS IDENTICAL TO THE ONE HE LEFT EXCEPT AS TO GRADE.

THE ONLY DIFFERENCE IN THE TWO CASES IN SO FAR AS THIS OFFICE IS AWARE IS IN THE SALARY RATES AT WHICH RESTORATION SHOULD BE EFFECTED AND THE DATES OF THE BEGINNING OF THE WAITING PERIOD FOR THE NEXT WITHIN-GRADE SALARY ADVANCEMENT.

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO THE RATE AT WHICH EACH EMPLOYEE SHOULD BE RESTORED AND THE DATE WHEN HIS NEXT WITHIN-GRADE SALARY ADVANCEMENT WOULD BE DUE, GIVING CONSIDERATION TO APPLICABLE STATUTES AND REGULATIONS.

IN DECISION OF NOVEMBER 26, 1945, B-53135, 25 COMP. GEN. 419, REFERRED TO IN YOUR LETTER, IT WAS HELD AS FOLLOWS (QUOTING THE FIRST AND FOURTH PARAGRAPHS OF THE SYLLABUS):

UNDER SECTION 5 OF EXECUTIVE ORDER NO. 8882, ISSUED PURSUANT TO THE WITHIN-GRADE SALARY ADVANCEMENT STATUTE OF AUGUST 1, 1941, RELATING TO THE AUTOMATIC PROMOTION RIGHTS OF "ANY EMPLOYEE OF THE FEDERAL GOVERNMENT" ON MILITARY FURLOUGH, AN EMPLOYEE WAS ENTITLED, UPON RESTORATION TO A CIVILIAN POSITION AFTER MILITARY DUTY, TO THE BENEFITS OF THE REALLOCATION OF THE POSITION HE OCCUPIED WHEN HE ENTERED THE MILITARY SERVICE AS WELL AS TO ANY AUTOMATIC PROMOTIONS WHICH WOULD HAVE BEEN DUE HAD HE REMAINED IN CIVILIAN SERVICE. 21 COMP. GEN. 1007, AMPLIFIED.

WHERE, ON THE BASIS OF THE DUTIES ACTUALLY PERFORMED, ADMINISTRATIVE ACTION WAS TAKEN TO CREATE "NEW" OR "ADDITIONAL" FIELD SERVICE POSITIONS FOR EMPLOYEES ON MILITARY FURLOUGH IN LIEU OF POSITIONS FORMERLY HELD BY THEM, AND SUCH ACTION RESULTED IN AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE WITHIN-GRADE PROMOTION ACT OF AUGUST 1, 1941, THE WAITING PERIOD FOR WITHIN GRADE PROMOTION PURPOSES IN THE NEW OR ADDITIONAL POSITIONS BEGAN ON THE DATE ON WHICH SUCH ACTION WAS ADMINISTRATIVELY APPROVED OR SUCH LATER DATE AS MAY HAVE BEEN ADMINISTRATIVELY DESIGNATED.

FROM THE STATEMENTS CONTAINED IN THE SECOND PARAGRAPH OF YOUR LETTER IT APPEARS THAT THERE IS SOME MISUNDERSTANDING RESPECTING THE APPLICATION OF THE RULE STATED IN THE FOURTH PARAGRAPH OF THE SYLLABUS, SUPRA. IT WILL BE NOTED THAT THE DISCUSSION IN THE SAID DECISION OF NOVEMBER 26, 1945, WHICH GAVE RISE TO THE REFERRED-TO RULE, IS PREFACED BY THE STATEMENT THAT THE ALTERNATE QUESTION PRESENTED IN THE LETTER FROM THE SECRETARY OF AGRICULTURE WAS NOT CLEAR AND WHAT WAS SAID THEREIN WAS BASED UPON CERTAIN ASSUMPTIONS AS TO THE CIRCUMSTANCES CONTEMPLATED BY THE QUESTION. THAT IS TO SAY, THE STATEMENTS MADE WITH RESPECT TO THE ALTERNATE QUESTION THERE PRESENTED COVERED SITUATIONS WHERE, (1) BECAUSE OF THE DUTIES ACTUALLY PERFORMED,"NEW" POSITIONS ADMINISTRATIVELY WERE CREATED, IN ABSENTIA, FOR EMPLOYEES IN THE MILITARY SERVICE, AND (2), WHERE BECAUSE OF THE DUTIES ACTUALLY PERFORMED BY EMPLOYEES REMAINING ON THE JOB,"NEW" POSITIONS WERE CREATED FOR THEM AND, SUBSEQUENTLY, ADMINISTRATIVE ACTION WAS TAKEN TO CREATE, IN ABSENTIA,"ADDITIONAL" IDENTICAL POSITIONS FOR VETERINARIANS AND LAY ASSISTANTS IN THE MILITARY SERVICE IN LIEU OF THEIR FORMER POSITIONS. THE SECOND CIRCUMSTANCE NECESSARILY PRESUPPOSES THAT THE DUTIES ACTUALLY PERFORMED BY EMPLOYEES REMAINING ON THE JOB HAVE CHANGED AND ARE DIFFERENT FROM THOSE PERFORMED BY THAT CLASS OF EMPLOYEES AT THE TIME SOME OF THEIR NUMBER ENTERED MILITARY DUTY. OTHERWISE, HAD THERE BEEN NO SUBSEQUENT CHANGE IN DUTIES, IN CONSONANCE WITH THE RULE STATED IN THE SAID DECISION TO THE EFFECT THAT THE REALLOCATION OF OCCUPIED POSITIONS UNDER THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, AS AMENDED, OPERATES TO EFFECT THE REALLOCATION OF ALL IDENTICAL POSITIONS IN THE PARTICULAR ADMINISTRATIVE ACTIVITY, THE UPGRADING OF THE OCCUPIED POSITIONS LIKEWISE WOULD HAVE OPERATED TO CHANGE THE GRADE OF THE VACANT IDENTICAL POSITIONS. HENCE, IT WILL BE SEEN THAT WHAT WAS SAID WITH RESPECT TO THE CREATION OF "NEW" AND "ADDITIONAL" POSITIONS WAS NOTHING MORE THAN AN APPLICATION OF THE RULE ENUNCIATED FOR "REALLOCATIONS.' IN OTHER WORDS, IN ALL SUCH CASES THE EFFECTIVE DATE OF THE ADMINISTRATIVE ACTION CHANGING THE CLASSIFICATION OF THE POSITION FORMERLY HELD BY EMPLOYEES IN THE MILITARY SERVICE IS THE DATE UPON WHICH THE WAITING PERIOD FOR WITHIN- GRADE SALARY ADVANCEMENT IN THE NEW GRADE BEGINS TO RUN--- ASSUMING THE CHANGE IN GRADE RESULTS IN AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, 55 STAT. 613, 614, AND SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299.

THE CIRCUMSTANCES MENTIONED IN THE TWO EXAMPLES GIVEN IN YOUR LETTER READILY ARE DISTINGUISHABLE FROM THE CONDITIONS CONSIDERED IN THE SAID DECISION OF NOVEMBER 26, 1945. THE DOUBT AS TO THE PROPER RATE OF COMPENSATION TO BE PAID THE EMPLOYEES INVOLVED ARISES, NOT BY VIRTUE OF THE ADMINISTRATIVE ACTION UPON THE EMPLOYEES' FORMER POSITION, BUT BY REASON OF THE FACT THAT THE EMPLOYEES ACTUALLY WERE NOT RESTORED TO THE POSITIONS WHICH THEY VACATED--- AS SUBSEQUENTLY REALLOCATED--- BUT WERE PLACED IN IDENTICAL POSITIONS TO THEIR FORMER POSITIONS AS SUBSEQUENTLY CHANGED, AND WHICH WERE CREATED ADMINISTRATIVELY UPON THEIR RETURN TO CIVILIAN DUTY.

IN CONSONANCE WITH THE HOLDING IN THE SAID DECISION OF NOVEMBER 26, 1945, RESPECTING REALLOCATIONS, IT IS CLEAR THAT THE EMPLOYEES MENTIONED WERE ENTITLED TO THE BENEFITS OF THE REALLOCATIONS OF THEIR POSITIONS EFFECTIVE AS OF THE DATE SUCH ACTION WAS APPROVED ADMINISTRATIVELY, IF RESTORED TO THOSE POSITIONS AFTER MILITARY SERVICE. HOWEVER, SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 890, AS AMENDED, AUTHORIZES THE RESTORATION OF FORMER GOVERNMENT EMPLOYEES WHO ARE ENTITLED TO THE BENEFITS OF THAT SECTION EITHER TO THEIR FORMER POSITIONS OR TO A POSITION OF "LIKE SENIORITY, STATUS, AND PAY.' HENCE, IT APPEARS EQUALLY CLEAR THAT WHERE, FOR ADMINISTRATIVE REASONS, IT IS IMPRACTICABLE TO RESTORE EMPLOYEES RETURNING FROM MILITARY SERVICE TO THEIR FORMER POSITIONS, ADMINISTRATIVE ACTION PLACING THEM IN ADDITIONAL IDENTICAL POSITIONS TO THEIR FORMER POSITIONS MAY NOT OPERATE TO DEPRIVE THEM OF ANY MONETARY BENEFITS WHICH OTHERWISE WOULD HAVE ACCRUED TO THEM HAD THEY BEEN RESTORED TO THEIR FORMER POSITIONS. OTHERWISE, SUCH EMPLOYEES PROPERLY COULD NOT BE SIAD TO HAVE BEEN RESTORED TO POSITIONS OF "LIKE SENIORITY, STATUS, AND PAY" AS REQUIRED BY SECTION 8 (B). ACCORDINGLY, IN THE FIRST EXAMPLE GIVEN IN YOUR LETTER, THE REALLOCATION, IN ABSENTIA, OF THE EMPLOYEE'S FORMER POSITION TO GRADE CAF-5, WITH COMPENSATION AT THE RATE OF $2,000 PER ANNUM EFFECTIVE NOVEMBER 1, 1944, HAVING RESULTED IN AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE WITHIN- GRADE SALARY ADVANCEMENT STATUTES, THE WAITING PERIOD FOR WITHIN-GRADE SALARY ADVANCEMENT IN GRADE CAF-5 COMMENCED NOVEMBER 1, 1944. PURSUANT TO THE PROVISIONS OF SECTION 405 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 300, THE MINIMUM SALARY RATE FOR GRADE CAF-5 WAS INCREASED TO $2,320 PER ANNUM EFFECTIVE JULY 1, 1945, AND SINCE THE WAITING PERIOD FOR WITHIN-GRADE SALARY ADVANCEMENT IN THAT GRADE WAS REDUCED TO 12 MONTHS BY SECTION 402 OF THE SAID 1945 STATUTE, THE WAITING PERIOD FOR THE EMPLOYEE TERMINATED NOVEMBER 1, 1945--- ASSUMING HIS STATUS DURING SUCH PERIOD WAS SUCH AS TO PERMIT CREDIT THEREOF FOR WITHIN-GRADE SALARY PURPOSES. THEREFORE, UPON RESTORATION TO CIVILIAN DUTY ON NOVEMBER 19, 1945, THE EMPLOYEE WAS ENTITLED TO COMPENSATION AT THE RATE OF $2,430--- THE SECOND STEP IN GRADE CAF-5. HAD THE EMPLOYEE REMAINED IN HIS CIVILIAN POSITION THE WITHIN-GRADE SALARY ADVANCEMENT TO $2,430 WOULD HAVE BEEN EFFECTIVE AT THE BEGINNING OF THE NEXT PAY PERIOD AFTER NOVEMBER 1, 1945-- - NECESSARILY AT A DATE PRIOR TO NOVEMBER 19, 1945, THE DATE UPON WHICH THE EMPLOYEE WAS RESTORED. HENCE, THE EMPLOYEE, IF OTHERWISE ENTITLED, WILL BE ELIGIBLE FOR ANOTHER WITHIN-GRADE PROMOTION AT THE COMPLETION OF 12 MONTHS' SERVICE FROM THE EFFECTIVE DATE OF SUCH CONSTRUCTIVE WITHIN- GRADE SALARY ADVANCEMENT.

IN THE SECOND EXAMPLE, IT WILL BE SEEN IN COMPUTING THE COMPENSATION TO WHICH THE EMPLOYEE WOULD HAVE BEEN ENTITLED HAD HE REMAINED IN HIS CIVILIAN POSITION, THAT, FROM THE FACTS PRESENTED, THE EMPLOYEE WOULD HAVE BEEN ENTITLED TO A SECOND WITHIN-GRADE SALARY ADVANCEMENT TO $1,980 PER ANNUM EFFECTIVE OCTOBER 1, 1944, WHICH PER ANNUM RATE, BY OPERATION OF SECTION 405 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, WAS INCREASED TO $2,298 EFFECTIVE JULY 1, 1945. SINCE THE REALLOCATION, IN ABSENTIA, OF HIS FORMER POSITION TO GRADE CAF-5 EFFECTIVE JULY 16, 1945, DID NOT RESULT IN AN ,EQUIVALENT INCREASE IN COMPENSATION," HE WOULD HAVE BEEN ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT TO $2,430 IN GRADE CAF-5, EFFECTIVE AT THE BEGINNING OF THE NEXT PAY PERIOD AFTER OCTOBER 1, 1945. ACCORDINGLY, THE EMPLOYEE INVOLVED WAS ENTITLED TO COMPENSATION AT THE RATE OF $2,430 UPON HIS RESTORATION TO CIVILIAN DUTY ON APRIL 8, 1946, AND, IF OTHERWISE ENTITLED, WILL BE ELIGIBLE FOR ANOTHER WITHIN-GRADE SALARY ADVANCEMENT AFTER THE COMPLETION OF 12 MONTHS' SERVICE FROM THE EFFECTIVE DATE OF THE CONSTRUCTIVE INCREASE TO $2,430.

THE QUESTIONS PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER ARE ANSWERED ACCORDINGLY.