B-126295, FEB. 9, 1956

B-126295, FEB. 9, 1956

TO MR. L. H. PERKINS, AUTHORIZED CERTIFYING OFFICER, OFFICE OF THE ADMINISTRATIVE ASSISTANT SECRETARY, DEPARTMENT OF LABOR:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5, 1955, SUBMITTING A PAYROLL VOUCHER FOR AN EMPLOYEE OF THE OFFICE OF THE SECRETARY, DEPARTMENT OF LABOR, COVERING A LONGEVITY PROMOTION EFFECTIVE NOVEMBER 20, 1955, AND REQUESTING OUR DECISION REGARDING THE LEGALITY OF THE PROPOSED PAYMENT.

THE EMPLOYEE WAS PLACED ON MILITARY FURLOUGH OCTOBER 13, 1949, AND WAS DISCHARGED FROM MILITARY SERVICE ON JANUARY 15, 1953. FROM INFORMATION INFORMALLY OBTAINED WE UNDERSTAND THAT THE EMPLOYEE FILED AN APPLICATION FOR RESTORATION AFTER MILITARY SERVICE ON APRIL 3, 1953. THAT ACTION SATISFIED THE 90-DAY REQUIREMENT OF SECTION 9 (B) OF THE ACT OF JUNE 24, 1948, 62 STAT. 614, FOR FILING AN APPLICATION FOR REEMPLOYMENT AFTER SEPARATION FROM MILITARY SERVICE. FURTHER, WE UNDERSTAND THAT THE EMPLOYEE DESIRED TO BE ASSIGNED TO A POSITION OUTSIDE OF WASHINGTON AND THE PERSONNEL OFFICE IN ATTEMPTING TO LOCATE A PROPER POSITION DID NOT RESTORE THE EMPLOYEE TO DUTY WITHIN THE 30 DAYS REQUIRED BY SECTION 35.5 (A) OF THE REGULATIONS, PAGE Z1-376, FEDERAL PERSONNEL MANUAL, ISSUED BY THE CIVIL SERVICE COMMISSION UNDER SECTION 9 (E) (1) OF THE ACT OF JUNE 24, 1948, 62 STAT. 616. WE ALSO UNDERSTAND THAT STANDARD FORM 50 SHOWS THE EMPLOYEE WAS RETURNED TO DUTY ON JUNE 15, 1953, AFTER MILITARY FURLOUGH, APPROXIMATELY 73 DAYS AFTER THE APPLICATION FOR RESTORATION WAS FILED, APRIL 3, 1953. THE RECORDS SHOWS THAT THE LAST EQUIVALENT INCREASE WAS RECEIVED BY THE EMPLOYEE ON JULY 21, 1952, WHICH PLACED THE EMPLOYEE AT THE TOP STEP OF THE GRADE. IN COMPUTING THE NEXT INCREASE, NAMELY, THE FIRST LONGEVITY STEP, YOU SAY THAT NO NOTICE WAS TAKEN OF THE EXCESS ABSENCE BETWEEN JANUARY 15, 1953, THE DATE OF DISCHARGE FROM MILITARY SERVICE, AND JUNE 15, 1953, THE DATE EMPLOYEE WAS ACTUALLY RESTORED--- A PERIOD OF 5 MONTHS AND 1 DAY. THE LONGEVITY STEP-INCREASE WAS ADMINISTRATIVELY EFFECTED AT FIRST ON JULY 31, 1955, THE FIRST DAY OF THE PAY PERIOD AFTER THREE YEARS FROM THE LAST EQUIVALENT INCREASE ON JULY 20, 1952. AN INFORMAL EXCEPTION WAS TAKEN BY OUR DIVISION OF AUDITS QUESTIONING THE EFFECTIVE DATE OF THAT LONGEVITY INCREASE. AFTER CONSIDERING THAT EXCEPTION YOU SAY THAT THE EFFECTIVE DATE WAS CHANGED FROM JULY 31, 1955, TO NOVEMBER 20, 1955. YOUR LETTER QUESTIONS THE LEGALITY OF GRANTING THE LONGEVITY RAISE EFFECTIVE THIS LATTER DATE.

SECTION 25.52 (D), PAGE Z1-316, FEDERAL PERSONNEL MANUAL, READS, IN PART, AS FOLLOWS:

"LONGEVITY PERIOD IS THREE YEARS, OF THE AGGREGATE PERIOD, OF CONTINUOUS SERVICE IN A CLASSIFICATION ACT POSITION: (1) AT THE MAXIMUM SCHEDULES RATE OF THE EMPLOYEE'S GRADE * * *. INTERVENING MILITARY SERVICE INTERRUPTING CONTINUOUS SERVICE * * * IS CREDITABLE FOR LONGEVITY STEP INCREASES. * * * A NEW LONGEVITY PERIOD BEGINS * * * AFTER A BREAK IN SERVICE OF FOUR WORKWEEKS. THE LONGEVITY PERIOD SHALL BE EXTENDED FOR A SUFFICIENT AMOUNT OF PAID SERVICE TO MAKE UP UNPAID ABSENCES IN EXCESS OF A TOTAL OF SIX WORKWEEKS DURING SUCH PERIOD.'

BASED UPON THE FOREGOING FACTS AND CIRCUMSTANCES, TWO QUESTIONS APPEAR, VIZ: (1) HAS A BREAK IN SERVICE OCCURRED FOR LONGEVITY STEP INCREASE PURPOSES, AND (2) WHAT IS THE PROPER EFFECTIVE DATE FOR THE LONGEVITY STEP -INCREASES?

SINCE BY LAW AN EMPLOYEE WHO RETURNS FROM MILITARY SERVICE IS GIVEN 90 DAYS WITHIN WHICH TO FILE AN APPLICATION FOR RESTORATION, AND SINCE THE EMPLOYEE HERE COMPLIED WITH THAT REQUIREMENT, WE ARE REQUIRED TO CONCLUDE THAT NO BREAK IN SERVICE OCCURRED IN THIS CASE.

SINCE THE EMPLOYEE FILED AN APPLICATION FOR RESTORATION ON APRIL 3, 1953, AND SINCE THE ADMINISTRATIVE OFFICE WAS, UNDER SECTION 35.5 (A) OF THE REGULATION HEREINABOVE REFERRED TO, REQUIRED TO RESTORE HER TO DUTY WITHIN 30 DAYS BUT FAILED TO DO SO, THE TIME AFTER THE 30 DAYS MAY IN THIS CASE BE CONSIDERED AS ABSENCE WITHOUT PAY FOR THE PURPOSE OF APPLYING THE PROVISIONS OF SECTION 25.52 (D) ABOVE QUOTED. IN OTHER WORDS, THE EMPLOYEE WAS REQUIRED TO HAVE BEEN RESTORED TO DUTY NOT LATER THAN MAY 3, 1953.

UNDER THE PROVISIONS OF SECTION 25.52 (D) THE FOLLOWING NUMBER OF DAYS DURING THE PERIOD THE EMPLOYEE WAS DISCHARGED AND FINALLY RESTORED, NAMELY, JANUARY 15 TO JUNE 15, 1953, MAY BE DEEMED CREDITABLE FOR THE LONGEVITY STEP-INCREASE HERE INVOLVED:

TABLE

CALENDAR

DAYS THE PERIOD FROM DATE OF DISCHARGE TO DATE APPLICATION FOR RESTORATION WAS MADE--- JANUARY 15 TO APRIL 3, 1953 78 DAYS THE PERIOD DURING WHICH THE ADMINISTRATIVE OFFICE 30 DAYS IS REQUIRED TO RESTORE AN EMPLOYEE AFTER RECEIPT OF APPLICATION--- APRIL 3 TO MAY 3, 1953 THE PERIOD OF SIX WORKWEEKS ALLOWED BY 40 DAYS SECTION 25.52 (D/--- MAY 4 THROUGH JUNE 12, 1953 (30 WORKDAYS)

-------- TOTAL

148 DAYS

BASED UPON THE FOREGOING CREDITABLE SERVICE RUNNING THROUGH JUNE 12, 1953 --- NOTE THAT EMPLOYEE WAS RESTORED JUNE 15, 1953--- IT APPEARS THAT SINCE THE LAST EQUIVALENT INCREASE WAS EFFECTIVE JULY 20, 1952, THE THREE YEARS' CONTINUOUS SERVICE REQUIRED FOR THE LONGEVITY STEP-INCREASE WOULD HAVE BEEN COMPLETED PRIOR TO JULY 31, 1955, THE EFFECTIVE DATE THE LONGEVITY STEP-INCREASE WAS FIRST GRANTED ADMINISTRATIVELY. THEREFORE, THE ADMINISTRATIVE ACTION ORIGINALLY TAKEN WAS CORRECT, AND NO OVERPAYMENT OCCURRED. 34 COMP. GEN. 111; B 119398, NOVEMBER 23, 1954.

THE REFUND COLLECTED FROM THE EMPLOYEE SHOULD BE RETURNED.