B-108262, MARCH 13, 1952, 31 COMP. GEN. 469

B-108262: Mar 13, 1952

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1952: REFERENCE IS MADE TO LETTER OF FEBRUARY 25. PROVIDES: (B) THE ADMINISTRATOR SHALL HAVE AUTHORITY TO ESTABLISH RESIDENCIES. AS FOLLOWS: A. " EQUIVALENT INCREASE IN COMPENSATION" MEANS ANY INCREASE OR INCREASES IN BASIC COMPENSATION WHICH TOTALED AT THE TIME A WITHIN GRADE SALARY INCREASE IS TO BE PAID. ARE EQUAL TO OR GREATER THAN THE SMALLEST COMPENSATION INCREMENT IN THE LOWEST GRADE IN WHICH THE EMPLOYEE HAS SERVED DURING THE TIME PERIOD OF 12 OR 18 MONTHS. THE FACTS AND CIRCUMSTANCES IN THE CASE PRESENTED ARE STATED IN THE LETTER AS FOLLOWS: (A) OCTOBER 5. - COMPLETED RESIDENCY TRAINING AND WAS CONVERTED TO FULL-TIME PHYSICIAN. IT IS FURTHER STATED THAT THE RESIDENTS "RECEIVE A FIXED STIPEND.

B-108262, MARCH 13, 1952, 31 COMP. GEN. 469

COMPENSATION - WITHIN-GRADE ADVANCEMENTS - VETERANS ADMINISTRATION MEDICAL PERSONNEL THE COMPENSATION INCREASE RESULTING FROM THE RESTORATION OF A VETERANS ADMINISTRATION PHYSICIAN TO HIS FULL-TIME POSITION AFTER COMPLETION OF A TEMPORARY COURSE IN RESIDENCY TRAINING DOES NOT CONSTITUTE AN "EQUIVALENT INCREASE" IN COMPENSATION WITHIN THE MEANING OF THAT TERM AS DEFINED IN VETERANS ADMINISTRATION REGULATIONS RELATING TO WITHIN-GRADE SALARY ADVANCEMENTS FOR MEDICAL PERSONNEL ISSUED PURSUANT TO SECTION 6 (C) OF THE ACT OF JANUARY 3, 1946.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, MARCH 13, 1952:

REFERENCE IS MADE TO LETTER OF FEBRUARY 25, 1952, FROM THE DEPUTY ADMINISTRATOR, REQUESTING DECISION WHETHER THE INCREASE IN SALARY RESULTING FROM THE RESTORATION OF A PHYSICIAN TO A FULL-TIME POSITION HELD BY HIM FOLLOWING COMPLETION OF A COURSE IN RESIDENCY TRAINING CONSTITUTES AN "EQUIVALENT INCREASE" IN COMPENSATION WITHIN THE MEANING OF THAT TERM AS USED IN PARAGRAPH 6, TD 5-79, PROMULGATED BY THE VETERANS ADMINISTRATION PURSUANT TO AUTHORITY VESTED IN THE ADMINISTRATOR BY SECTION 6 (C) OF PUBLIC LAW 293 OF THE 79TH CONGRESS, AS AMENDED.

SECTION 6 (C) OF THE ACT OF JANUARY 3, 1946, 59 STAT. 676, PROVIDES:

(C) PROMOTIONS OF DOCTORS, DENTISTS, AND NURSES SHALL BE MADE ONLY AFTER EXAMINATION GIVEN IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE ADMINISTRATOR. AUTOMATIC PROMOTIONS WITHIN GRADE MAY BE MADE IN INCREMENTS OF THE MINIMUM PAY OF THE GRADE IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE ADMINISTRATOR.

SECTION 14 (B) OF THE SAME ACT OF JANUARY 3, 1946, 59 STAT. 676, 679, PROVIDES:

(B) THE ADMINISTRATOR SHALL HAVE AUTHORITY TO ESTABLISH RESIDENCIES; TO APPOINT QUALIFIED PERSONS TO SUCH POSITIONS WITHOUT REGARD TO CIVIL SERVICE OR CLASSIFICATION LAWS, RULES, OR REGULATIONS; AND TO PRESCRIBE THE CONDITIONS OF SUCH EMPLOYMENT, INCLUDING NECESSARY TRAINING, AND THE CUSTOMARY AMOUNT AND TERMS OF PAY DURING THE PERIOD OF SUCH EMPLOYMENT AND TRAINING.

THE REFERRED-TO REGULATION PROVIDES IN MATERIAL PART, AS FOLLOWS:

A. " EQUIVALENT INCREASE IN COMPENSATION" MEANS ANY INCREASE OR INCREASES IN BASIC COMPENSATION WHICH TOTALED AT THE TIME A WITHIN GRADE SALARY INCREASE IS TO BE PAID, ARE EQUAL TO OR GREATER THAN THE SMALLEST COMPENSATION INCREMENT IN THE LOWEST GRADE IN WHICH THE EMPLOYEE HAS SERVED DURING THE TIME PERIOD OF 12 OR 18 MONTHS, AS THE CASE MAY BE.

THE FACTS AND CIRCUMSTANCES IN THE CASE PRESENTED ARE STATED IN THE LETTER AS FOLLOWS:

(A) OCTOBER 5, 1957--- PROMOTED TO INTERMEDIATE GRADE AT $7,432.20 PER ANNUM.

(B) APRIL 3, 1949--- AFTER HAVING SERVING 17 MONTHS AND 28 DAYS OF SERVICE REQUIRED FOR A WITHIN-GRADE SALARY INCREASE IN ACCORDANCE WITH PARAGRAPH 5B, TB 5-79, CONVERTED TO RESIDENT STATUS UNDER THE PROVISIONS OF SECTION 14 (B), PUBLIC LAW 293, AS AMENDED, AS A JUNIOR RESIDENT AT $3,300 PER ANNUM.

(C) APRIL 1, 1951--- COMPLETED RESIDENCY TRAINING AND WAS CONVERTED TO FULL-TIME PHYSICIAN, AT INTERMEDIATE GRADE AT A SALARY OF $7,600 PER ANNUM, THE BASIC RATE AS INCREASED BY PUBLIC LAW 349, EFFECTIVE DECEMBER 1, 1949.

(D) APRIL 15, 1951--- RECEIVED PERIODIC INCREASE TO SECOND STEP RATE $7,800 PER ANNUM.

IT IS FURTHER STATED THAT THE RESIDENTS "RECEIVE A FIXED STIPEND; " THAT THE ACCEPTANCE OF THE TRAINING IS OPTIONAL WITH THE PHYSICIANS; THAT THEY ARE APPOINTED ON A ONE-YEAR BASIS BUT MAY BE RE-APPOINTED ANNUALLY UNTIL THE REQUIREMENTS OF FORMAL TRAINING NECESSARY TO QUALIFY FOR THE SPECIALTY OF THEIR CHOICE IS COMPLETED AND THAT SUCH TRAINING, GENERALLY, DOES NOT EXCEED THREE YEARS; THAT FULL-TIME PHYSICIANS ARE RESTORED TO THE PERMANENT POSITIONS TO WHICH THEY WERE ASSIGNED PRIOR TO THEIR BEGINNING THE RESIDENCY TRAINING UPON COMPLETION OF SUCH TRAINING, UNLESS QUALIFIED FOR A HIGHER GRADE POSITION; AND THAT THE SERVICE RENDERED IN RESIDENCY TRAINING IS NOT CREDITABLE FOR WITHIN GRADE SALARY INCREASES.

THE REGULATION HEREINBEFORE QUOTED APPEARS SIMILAR TO THE REGULATION OF THE CIVIL SERVICE COMMISSION REGARDING "EQUIVALENT INCREASES" UNDER THE CLASSIFICATION ACT OF 1949, 63 STAT. 954. SEE SECTION 25.11 (F) Z1 314 OF THE FEDERAL PERSONNEL MANUAL. IN CONSTRUING THE EFFECT OF TEMPORARY CHANGES IN STATUS UPON A CLASSIFIED EMPLOYEE'S RIGHT TO A WITHIN-GRADE SALARY ADVANCE, IT WAS STATED IN 28 COMP. GEN. 730, AT PAGE, 732:

THE PRACTICE WHICH IS STATED AS BEING FOLLOWED IN THE CIVIL AERONAUTICS ADMINISTRATION APPEARS TO BE ANALOGOUS TO THE REGULATIONS CONSIDERED IN THE DECISION, SUPRA, IN THAT THE SALARY ADJUSTMENTS ARE OF A RECURRING NATURE, AND--- ALTHOUGH SOME ASSIGNMENTS HAVE LASTED AS LONG AS TWO YEARS- -- USUALLY ARE FOR SHORT PERIODS OF TIME. TO HOLD THAT ANY SUCH SALARY ADJUSTMENT CONSTITUTED AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF SECTION 7 (B) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, WOULD RESULT EITHER IN A COMPLETE DENIAL OF A PERIODIC WITHIN-GRADE SALARY ADVANCEMENT TO THE EMPLOYEE IN HIS REGULAR POSITION WITH NO COMPENSATING BENEFIT IN THAT POSITION, OR WOULD RESULT IN A COMPLETE CIRCUMVENTION OF THE PURPOSES OF THAT SECTION THROUGH APPLICATION OF THE RULE AS TO THE INITIAL SALARY RATE PAYABLE UPON TRANSFER, PROMOTION, DEMOTION, ETC., STATED IN 26 COMP. GEN. 368.

IN LINE WITH THE ABOVE DECISION, IT WOULD APPEAR THAT THE ASSIGNMENT TO A RESIDENCY TRAINING PROPERLY NEED NOT BE CONSIDERED A PERMANENT TRANSFER OF THE EMPLOYEE, BUT RATHER, THAT THE RESIDENCY TRAINING IS IN ALL RESPECTS TEMPORARY. IN THAT VIEW OF THE MATTER, THE INCREASE IN COMPENSATION RESULTING IN THE RESTORATION OF THE EMPLOYEE TO THE GRADE AND SALARY RATE FORMERLY HELD BY HIM UPON COMPLETION OF SUCH TEMPORARY ASSIGNMENT, NEED NOT BE CONSIDERED AN INCREASE IN COMPENSATION WITHIN THE PURVIEW OF THE CITED VETERANS ADMINISTRATION REGULATION. COMPARE 31 COMP. GEN. 149.