A-34428, DECEMBER 11, 1930, 10 COMP. GEN. 265

A-34428: Dec 11, 1930

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CLASSIFICATION OF CIVILIAN EMPLOYEES - FIELD SERVICE AN EMPLOYEE WHOSE SERVICE UNDER A TEMPORARY APPOINTMENT IN THE FIELD SERVICE WAS TERMINATED AT THE CLOSE OF BUSINESS JUNE 30. WHO WAS APPOINTED TO ANOTHER POSITION IN THE FIELD SERVICE EFFECTIVE JULY 1 OR 2. AS HE WAS NOT ENTITLED TO THE BENEFITS OF THE WELCH ACT HE IS NOT ENTITLED TO THE BENEFITS OF THE BROOKHART ACT. IS AS CONTROLLING OF THE SALARY RATE OF AN EMPLOYEE AS THE ALLOCATION OF THE POSITION. AS FOLLOWS: IT IS REQUESTED THAT A RULING BE GIVEN AS TO WHETHER THE INCREASE IN COMPENSATION PROVIDED BY THE WELCH ACT OF MAY 28. SHOULD HAVE BEEN ALLOWED MR. THE FACTS IN WHOSE CASE ARE STATED BELOW. WHETHER HE IS TO BE REGARDED AS ENTITLED TO THE FURTHER INCREASE PROVIDED BY THE BROOKHART ACT OF JULY 3.

A-34428, DECEMBER 11, 1930, 10 COMP. GEN. 265

CLASSIFICATION OF CIVILIAN EMPLOYEES - FIELD SERVICE AN EMPLOYEE WHOSE SERVICE UNDER A TEMPORARY APPOINTMENT IN THE FIELD SERVICE WAS TERMINATED AT THE CLOSE OF BUSINESS JUNE 30, 1928, AND WHO WAS APPOINTED TO ANOTHER POSITION IN THE FIELD SERVICE EFFECTIVE JULY 1 OR 2, 1928, AND AT AN INITIAL SALARY RATE FIXED BY THE ADMINISTRATIVE OFFICE, ACQUIRED NO RIGHT TO A SALARY INCREASE UNDER THE WELCH ACT IN HIS NEW POSITION, AND AS HE WAS NOT ENTITLED TO THE BENEFITS OF THE WELCH ACT HE IS NOT ENTITLED TO THE BENEFITS OF THE BROOKHART ACT. A FIELD GRADE OR SALARY RANGE CORRESPONDING TO A GRADE OR SALARY RANGE PRESCRIBED BY THE CLASSIFICATION ACT, AS AMENDED, ESTABLISHED UNDER THE RULES AND REGULATIONS OF AN ADMINISTRATIVE OFFICE, AND THE PLACEMENT OR ALLOCATION OF A POSITION THEREIN BY ADMINISTRATIVE ACTION, IS AS CONTROLLING OF THE SALARY RATE OF AN EMPLOYEE AS THE ALLOCATION OF THE POSITION, UPON THE FINAL APPROVAL OF THE PERSONNEL CLASSIFICATION BOARD, IN A CERTAIN GRADE UNDER THE DEPARTMENTAL SERVICE, AND A SALARY RATE, AT LEAST THE MINIMUM, IN THE RANGE PRESCRIBED FOR THE PARTICULAR FIELD GRADE IN WHICH THE POSITION HAS BEEN ADMINISTRATIVELY PLACED OR ALLOCATED, MUST BE PAID.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, DECEMBER 11, 1930:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF DECEMBER 1, 1930, AS FOLLOWS:

IT IS REQUESTED THAT A RULING BE GIVEN AS TO WHETHER THE INCREASE IN COMPENSATION PROVIDED BY THE WELCH ACT OF MAY 28, 1928, SHOULD HAVE BEEN ALLOWED MR. WALTER L. VARNEY, CLERK IN THE ENGINEER DEPARTMENT AT LARGE, CINCINNATI, O., THE FACTS IN WHOSE CASE ARE STATED BELOW, AND WHETHER HE IS TO BE REGARDED AS ENTITLED TO THE FURTHER INCREASE PROVIDED BY THE BROOKHART ACT OF JULY 3, 1930.

MR. VARNEY WAS GIVEN TEMPORARY APPOINTMENT ON MARCH 25, 1928, IN THE OFFICE OF THE CITIZENS' MILITARY TRAINING CAMP AT FORT HAYES, COLUMBUS, O., BY SELECTION FROM THE REGISTER OF THE SECRETARY, SIXTH CIVIL SERVICE DISTRICT, CINCINNATI, O. IT IS UNDERSTOOD THAT HE WAS EMPLOYED AS CLERK AT $1,200 PER ANNUM.

ON MAY 15, 1928, MR. VARNEY WAS CERTIFIED TO THE CINCINNATI DISTRICT OFFICE OF THE ENGINEER DEPARTMENT AT LARGE FOR PROBATIONAL APPOINTMENT AS CLERK-TYPIST AND WAS ACCEPTED FOR THIS POSITION. HOWEVER, DUE TO THE FACT THAT MR. VARNEY WAS THEN FAMILIAR WITH THE WORK IN THE OFFICE OF THE CITIZENS' MILITARY TRAINING CAMP, HE WAS REQUESTED BY THAT OFFICE TO REMAIN IN HIS TEMPORARY POSITION, IF POSSIBLE, UNTIL THE COMPLETION OF THE ORGANIZATION OF THESE CAMPS ON JUNE 30, 1928.

IN VIEW OF THE ABOVE REQUEST, MR. VARNEY CALLED AT THE CINCINNATI DISTRICT OFFICE, STATING THE FACTS IN THE CASE, AND, BELIEVING IT TO BE IN THE INTEREST OF THE UNITED STATES, HE WAS GIVEN PERMISSION BY THE DISTRICT ENGINEER, CINCINNATI, O., TO REMAIN IN HIS TEMPORARY POSITION AT FORT HAYES UNTIL THE ORGANIZATION OF THESE CAMPS WAS COMPLETED.

MR. VARNEY, THEREFORE, REMAINED IN HIS TEMPORARY POSITION UNTIL JUNE 30, 1928, ON WHICH DATE HE WAS DISCHARGED. HOWEVER, DUE TO THE FACT THAT JULY 1ST, 1928, CAME ON SUNDAY, HE DID NOT REPORT TO THE DISTRICT ENGINEER, CINCINNATI, O., UNTIL MONDAY, JULY 2D, 1928, THEREBY LOSING HIS SALARY FOR SUNDAY, JULY 1ST, ALTHOUGH LOSING NO ACTUAL TIME, AND WAS, THEREFORE, NOT ACCORDED THE BENEFITS OF THE WELCH ACT, EFFECTIVE JULY 1, 1928.

IT IS BELIEVED THAT MR. VARNEY SHOULD HAVE BEEN ALLOWED THE INCREASE PROVIDED BY THE WELCH ACT, PROVIDED THE UNDERSTANDING THAT THE LEGISLATION REFERRED TO CHANGED THE SALARIES OF POSITIONS RATHER THAN THE SALARIES OF EMPLOYEES, AND THAT IN THE CASE OF A POSITION VACANT ON JUNE 30, 1928, THE ENTRANCE SALARY WAS ADVANCED EFFECTIVE JULY 1, 1928, TO THE NEW MINIMUM RATE APPLICABLE TO THE GRADE TO WHICH THE POSITION WAS ALLOCATED. THE POSITION TO WHICH MR. VARNEY WAS APPOINTED ON JULY 2, 1928, WAS ALLOCATED TO SALARY RANGE 5 ($1,140 $1,500) ON JUNE 30, 1928, AND HIS APPOINTMENT WAS PROPOSED AT THE SECOND SALARY STEP OF THAT GRADE. THE ENTRANCE SALARY OF SALARY RANGE 5 ADVANCED TO $1,260 PER ANNUM, EFFECTIVE JULY 1, 1928, AND THE SECOND SALARY OF THE GRADE BECAME $1,320 PER ANNUM.

INFORMATION IS REQUESTED AS TO WHETHER, IN VIEW OF THE FACT THAT MR. VARNEY WAS IN THE SERVICE ON JUNE 30, 1928, ALTHOUGH IN ANOTHER BUREAU OF THE WAR DEPARTMENT, AND ALTHOUGH EMPLOYED IN TEMPORARY STATUS, HE WAS ENTITLED TO APPOINTMENT IN THE ENGINEER DEPARTMENT ON JULY 2, 1928, AT THE RATE OF $1,320 PER ANNUM. IN VIEW OF THE FACT THAT JULY 1, 1930, FELL ON SUNDAY, IT IS BELIEVED THAT THE TECHNICALITY OF NONEMPLOYMENT ON THAT DATE WOULD HAVE NO BEARING ON THE CASE. IF NOT ENTITLED TO APPOINTMENT AT $1,320 PER ANNUM, INFORMATION IS REQUESTED AS TO WHETHER HE WAS ENTITLED TO APPOINTMENT AT THE RATE OF $1,260 PER ANNUM, THE NEW MINIMUM RATE OF THE SALARY RANGE OF THE POSITION TO WHICH HE WAS APPOINTED, AND, IF SO, AS TO WHETHER HE IS TO BE CONSIDERED AS ENTITLED TO FURTHER ADVANCEMENT OF ONE SALARY STEP UNDER THE PROVISIONS OF THE BROOKHART ACT, EFFECTIVE JULY 3, 1930.

BASED ON THE FACTS STATED IN YOUR LETTER, THIS EMPLOYEE WHO SERVED IN THE FIELD SERVICE JUNE 30, 1928, WAS NOT ENTITLED TO THE BENEFITS OF THE STATUTORY INCREASES IN COMPENSATION AUTHORIZED BY THE WELCH ACT, WHETHER THE NEW APPOINTMENT WAS CONSIDERED AS EFFECTIVE JULY 1 OR JULY 2, 1928. THERE WAS A SEPARATION FROM THE SERVICE AT THE CLOSE OF BUSINESS ON JUNE 30, 1928, AND A NEW APPOINTMENT IN A NEW POSITION JULY 2, 1928, AT AN INITIAL SALARY FIXED BY THE ADMINISTRATIVE OFFICE. THE EMPLOYEE ACQUIRED NO RIGHT TO A STATUTORY INCREASE UNDER THE WELCH ACT IN HIS NEW POSITION IN THE FIELD SERVICE. SINCE HE WAS NOT ENTITLED TO THE BENEFITS OF THE WELCH ACT, HE IS NOT ENTITLED TO THE BENEFITS OF THE BROOKHART SALARY ACT. 10 COMP. GEN. 20; ID. 49; ID. 81; ID. 91; ID. 125.

YOUR LETTER STATES THAT THE INITIAL SALARY RATE OF THE FIELD GRADE OR SALARY RANGE NO. 5 IN WHICH THIS EMPLOYEE WAS APPOINTED EFFECTIVE JULY 2, 1928, WAS $1,260 PER ANNUM AS PRESCRIBED BY THE ADMINISTRATIVE OFFICE, CORRESPONDING TO A SALARY RANGE AS PRESCRIBED BY THE TERMS OF THE WELCH ACT (GRADE 1, C.A.F. SERVICE), BUT THAT THE EMPLOYEE WAS PAID INITIALLY ONLY AT $1,200 PER ANNUM.

A FIELD GRADE OR SALARY RANGE CORRESPONDING TO A GRADE OR SALARY RANGE PRESCRIBED BY THE CLASSIFICATION ACT, AS AMENDED, ESTABLISHED UNDER THE RULES AND REGULATIONS OF AN ADMINISTRATIVE OFFICE, AND THE PLACEMENT OR ALLOCATION OF A POSITION THEREIN BY ADMINISTRATIVE ACTION, IS AS CONTROLLING OF THE SALARY RATE OF AN EMPLOYEE AS THE ALLOCATION OF THE POSITION, UPON THE FINAL APPROVAL OF THE PERSONNEL CLASSIFICATION BOARD, IN A CERTAIN GRADE UNDER THE DEPARTMENTAL SERVICE. A SALARY RATE, AT LEAST THE MINIMUM IN THE RANGE PRESCRIBED FOR THE PARTICULAR GRADE IN WHICH A POSITION HAS BEEN PLACED OR ALLOCATED, MUST BE PAID.

THEREFORE, IF THE FACTS ARE AS STATED THIS EMPLOYEE SHOULD HAVE BEEN PAID INITIALLY FROM JULY 2, 1928, AT THE RATE OF $1,260 PER ANNUM. IF THE EMPLOYEE IS NOW RECEIVING LESS THAN $1,260 PER ANNUM, HIS SALARY SHOULD BE INCREASED TO THAT RATE. FOR PAST PERIODS, PAYMENT SHOULD NOT BE MADE BY A DISBURSING OFFICER, BUT THE EMPLOYEE MAY BE ADVISED OF HIS RIGHT TO FILE IN THIS OFFICE, OVER HIS SIGNATURE, A CLAIM FOR THE AMOUNT INVOLVED, SUPPORTED BY AN ADMINISTRATIVE RECOMMENDATION AND A REPORT OF ALL THE FACTS IN THE CASE, INCLUDING A CERTIFIED COPY OF THE APPOINTMENT EFFECTIVE JULY 2, 1928, OF THE EMPLOYEE TO A POSITION IN FIELD GRADE OR SALARY RANGE NO. 5.