A-21290, MARCH 13, 1928, 7 COMP. GEN. 563

A-21290: Mar 13, 1928

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IS EXPRESSLY LIMITED IN ITS SCOPE TO THE DISTRICT OF COLUMBIA. 600 PER ANNUM TO WHICH HE WAS REDUCED JANUARY 1. 000 PER ANNUM WAS RESTORED. TO THE EFFECT THAT THE WAR DEPARTMENT WAS WITHOUT AUTHORITY UNDER SECTION 4 OF THE ACT OF AUGUST 23. TO REDUCE AN EMPLOYEE WHO WAS AN HONORABLY DISCHARGED EX-SOLDIER IN THE EVENT OF NECESSARY REDUCTIONS MADE IN THE FORCE OF EMPLOYEES. WHO WERE NOT HONORABLY DISCHARGED SOLDIERS. WERE RETAINED IN THE SAME SALARY RATE AT THE TIME THE ACTION WAS TAKEN REDUCING THE EX-SOLDIER. THE ACTION OF THE WAR DEPARTMENT WAS EVIDENTLY THE ANNOUNCEMENT OF AN ADMINISTRATIVE RULE FOR THE GUIDANCE OF THAT DEPARTMENT. THE RULING HAS TO DO WITH ADMINISTRATIVE DISCRETION IN MAKING REDUCTIONS AND IS NOT CONTROLLING IN THE DISPOSITION OF THE PRESENT CLAIM.

A-21290, MARCH 13, 1928, 7 COMP. GEN. 563

COMPENSATION - REDUCTION - PREFERENCE RIGHT TO EX-SOLDIERS AND EX SAILORS SECTION 4 OF THE ACT OF AUGUST 23, 1912, 37 STAT. 413, AS AMENDED BY THE ACT OF FEBRUARY 28, 1916, 39 STAT. 15, GRANTING TO HONORABLY DISCHARGED SOLDIERS AND SAILORS PREFERENCE RIGHTS IN THE EVENT OF REDUCTION IN THE FORCE OF EMPLOYEES UNDER AN EXECUTIVE DEPARTMENT, IS EXPRESSLY LIMITED IN ITS SCOPE TO THE DISTRICT OF COLUMBIA, AND MAY NOT FORM THE BASIS FOR A CLAIM BY AN EX-SOLDIER EMPLOYED IN THE FIELD SERVICE UNDER AN EXECUTIVE DEPARTMENT FOR THE AMOUNT OF COMPENSATION LOST BECAUSE OF A REDUCTION IN HIS SALARY RATE NECESSITATED BY REASON OF REDUCED APPROPRIATIONS DUE TO CURTAILMENT OF THE WORK OF THE DEPARTMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 13, 1928:

S. E. KARIGAN HAS REQUESTED REVIEW OF SETTLEMENT 0151377 (1), DATED NOVEMBER 29, 1927, DISALLOWING HIS CLAIM FOR $426.30, REPRESENTING THE DIFFERENCE BETWEEN THE SALARY RATE OF $2,000 PER ANNUM, RECEIVED BY HIM AS AN EMPLOYEE IN THE QUARTERMASTER CORPS, UNITED STATES ARMY, SAN FRANCISCO, CALIF., PRIOR TO JANUARY 1, 1923, AND THE SALARY RATE OF $1,600 PER ANNUM TO WHICH HE WAS REDUCED JANUARY 1, 1923, FOR THE PERIOD FROM JANUARY 1 TO NOVEMBER 15, 1923, AND THE DIFFERENCE BETWEEN $2,000 AND $1,720 PER ANNUM FROM NOVEMBER 16, 1923, TO APRIL 1, 1924, WHEN HIS SALARY RATE OF $2,000 PER ANNUM WAS RESTORED.

CLAIMANT APPEARS TO BASE HIS CLAIM ON THE REPORT OF A DECISION BY THE WAR DEPARTMENT PUBLISHED IN THE ARMY AND NAVY REGISTER OF AUGUST 27, 1927, TO THE EFFECT THAT THE WAR DEPARTMENT WAS WITHOUT AUTHORITY UNDER SECTION 4 OF THE ACT OF AUGUST 23, 1912, 37 STAT. 413, TO REDUCE AN EMPLOYEE WHO WAS AN HONORABLY DISCHARGED EX-SOLDIER IN THE EVENT OF NECESSARY REDUCTIONS MADE IN THE FORCE OF EMPLOYEES, IF OTHER EMPLOYEES, WITH NO HIGHER EFFICIENCY RATING, WHO WERE NOT HONORABLY DISCHARGED SOLDIERS, WERE RETAINED IN THE SAME SALARY RATE AT THE TIME THE ACTION WAS TAKEN REDUCING THE EX-SOLDIER.

THE ACTION OF THE WAR DEPARTMENT WAS EVIDENTLY THE ANNOUNCEMENT OF AN ADMINISTRATIVE RULE FOR THE GUIDANCE OF THAT DEPARTMENT, AND COULD NOT FORM THE BASIS OF A CLAIM FOR COMPENSATION IN ADDITION TO THAT ACTUALLY RECEIVED BY THE EMPLOYEE AT THE REDUCED RATES. THE RULING HAS TO DO WITH ADMINISTRATIVE DISCRETION IN MAKING REDUCTIONS AND IS NOT CONTROLLING IN THE DISPOSITION OF THE PRESENT CLAIM.

THIS CLAIM HAS BEEN ADMINISTRATIVELY DISAPPROVED BY THE WAR DEPARTMENT, AS FOLLOWS:

THE DEMOTION OF CLAIMANT EFFECTIVE JANUARY 1, 1923, WAS NECESSITATED BY CURTAILMENT OF ACTIVITIES DUE TO CESSATION OF WAR-TIME OPERATIONS. HE WAS SELECTED FOR DEMOTION IN ACCORDANCE WITH EXISTING LAWS, RULES, AND REGULATIONS IN EFFECT AT THE TIME OF DEMOTION. HE WAS ADVISED PRIOR TO THE ACTION OF THE NECESSITY FOR SAME AND ACCEPTED THE DEMOTION.

IT DOES NOT APPEAR THAT THE DEMOTION OF CLAIMANT WAS IN ANY MANNER ILLEGALLY EFFECTED, AND IT IS RECOMMENDED THAT THE CLAIM MADE HEREWITH BE DISALLOWED.

SECTION 4 OF THE ACT OF AUGUST 23, 1912, 37 STAT. 413, PROVIDES AS FOLLOWS:

THE CIVIL SERVICE COMMISSION SHALL, SUBJECT TO THE APPROVAL OF THE PRESIDENT, ESTABLISH A SYSTEM OF EFFICIENCY RATINGS FOR THE CLASSIFIED SERVICE IN THE SEVERAL EXECUTIVE DEPARTMENTS IN THE DISTRICT OF COLUMBIA BASED UPON RECORDS KEPT IN EACH DEPARTMENT AND INDEPENDENT ESTABLISHMENT WITH SUCH FREQUENCY AS TO MAKE THEM AS NEARLY AS POSSIBLE RECORDS OF FACT. SUCH SYSTEM SHALL PROVIDE A MINIMUM RATING OF EFFICIENCY WHICH MUST BE ATTAINED BY AN EMPLOYEE BEFORE HE MAY BE PROMOTED; IT SHALL ALSO PROVIDE A RATING BELOW WHICH NO EMPLOYEE MAY FALL WITHOUT BEING DEMOTED; IT SHALL FURTHER PROVIDE FOR A RATING BELOW WHICH NO EMPLOYEE MAY FALL WITHOUT BEING DISMISSED FOR INEFFICIENCY. ALL PROMOTIONS, DEMOTIONS, OR DISMISSALS SHALL BE GOVERNED BY PROVISIONS OF THE CIVIL-SERVICE RULES. COPIES OF ALL RECORDS OF EFFICIENCY SHALL BE FURNISHED BY THE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS TO THE CIVIL SERVICE COMMISSION FOR RECORD IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION: PROVIDED, THAT IN THE EVENT OF REDUCTIONS BEING MADE IN THE FORCE IN ANY OF THE EXECUTIVE DEPARTMENTS NO HONORABLY DISCHARGED SOLDIER OR SAILOR WHOSE RECORD IN SAID DEPARTMENT IS RATED GOOD SHALL BE DISCHARGED OR DROPPED, OR REDUCED IN RANK OR SALARY.

ANY PERSON KNOWINGLY VIOLATING THE PROVISIONS OF THIS SECTION SHALL BE SUMMARILY REMOVED FROM OFFICE, AND MAY ALSO UPON CONVICTION THEREOF BE PUNISHED BY A FINE OF NOT MORE THAN ONE THOUSAND DOLLARS OR BY IMPRISONMENT FOR NOT MORE THAN ONE YEAR.

THE ACT OF FEBRUARY 28, 1916, 39 STAT. 15, CREATING THE BUREAU OF EFFICIENCY, PROVIDED AS FOLLOWS:

* * * AND PROVIDED FURTHER, THAT THE DUTIES RELATING TO EFFICIENCY RATINGS IMPOSED UPON THE CIVIL SERVICE COMMISSION BY SECTION FOUR OF THE LEGISLATIVE, EXECUTIVE, AND JUDICIAL APPROPRIATION ACT APPROVED AUGUST TWENTY-THIRD, NINETEEN HUNDRED AND TWELVE, * * * ARE TRANSFERRED TO THE BUREAU OF EFFICIENCY.

SEE ALSO SECTION 9 OF THE CLASSIFICATION ACT OF 1923, DATED MARCH 4, 1923, 42 STAT. 1490.

PRIOR TO THE ACT OF AUGUST 23, 1912, SUPRA, THE ATTORNEY GENERAL HAD ANNOUNCED THE RULE THAT EX-SOLDIERS OR SAILORS WERE NOT ENTITLED, UNDER THE THEN EXISTING LAW AND EXECUTIVE ORDERS (SEE PARTICULARLY ACT OF AUGUST 15, 1876, 19 STAT. 169), TO PREFERENCE OVER OTHER PERSONS WHEN REDUCTIONS IN SALARY AND RANK WERE TO BE MADE EVEN THOUGH THEIR QUALIFICATIONS WERE EQUAL. 27 OP.ATTY.GEN. 490.

THE ACT OF AUGUST 23, 1912, SUPRA, AS AMENDED, IS EXPRESSLY LIMITED IN ITS SCOPE TO THE DISTRICT OF COLUMBIA. AND THIS OFFICE HAS BEEN ADVISED THAT THERE HAS BEEN NO ACTION BY THE CIVIL SERVICE COMMISSION, THE BUREAU OF EFFICIENCY, OR THE PERSONNEL CLASSIFICATION BOARD TO EXTEND THE REQUIREMENTS FOR EFFICIENCY RATINGS TO THE FIELD SERVICE. ANY SUCH RATINGS IN THE FIELD HAVE BEEN ADOPTED AND APPLIED BY THE SEVERAL ADMINISTRATIVE OFFICES FOR THEIR GUIDANCE AND DO NOT CONSTITUTE EFFICIENCY RATINGS WITHIN THE MEANING OF THE 1912 STATUTE. SAID STATUTE MAY NOT BE GIVEN ANY BROADER APPLICATION THAN IS THEREIN EXPRESSLY PROVIDED--- VIZ, TO THE DISTRICT OF COLUMBIA. WITH RESPECT TO THE FIELD SERVICE, THE RULE ANNOUNCED UNDER OTHER LAWS PREVIOUSLY IN FORCE WOULD REMAIN FOR APPLICATION.

ACCORDINGLY, ASIDE FROM ANY OTHER QUESTION THAT MIGHT BE INVOLVED (SEE 3 COMP. GEN. 333 AND CASES THEREIN CITED), IT MUST BE HELD THAT THERE IS NO LEGAL BASIS FOR AN ALLOWANCE ON THE PRESENT CLAIM. ACCORDINGLY, THE DISALLOWANCE MUST BE AND IS SUSTAINED.