B-13853, DECEMBER 17, 1940, 20 COMP. GEN. 318

B-13853: Dec 17, 1940

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IS NOT REQUIRED TO. FIX THE INITIAL SALARY RATE OF AN EMPLOYEE UPON REINSTATEMENT TO A POSITION WITHIN THE PURVIEW OF THE CLASSIFICATION ACT AT THE RATE IN THE SAME OR CORRESPONDING GRADE THE EMPLOYEE WAS RECEIVING AT TIME OF SEPARATION FROM THE SERVICE. HIS REINSTATEMENT AT THE MINIMUM RATE OF THE GRADE AND SUBSEQUENT RESTORATION TO THE RATE HE WAS RECEIVING AT THE TIME OF HIS RESIGNATION WAS NOT A . PROMOTION" AS THAT TERM IS DEFINED IN THE ADMINISTRATIVE PROMOTION FORMULA RECOMMENDED BY THE BUREAU OF THE BUDGET IN ITS CIRCULAR OF AUGUST 12. 1940: REFERENCE IS MADE TO LETTER DATED DECEMBER 4. THIS EMPLOYEE WAS EMPLOYED IN THE FINANCE DEPARTMENT IN GRADE CAF-8 AT $3. WAS IMMEDIATELY REHIRED AS A CIVILIAN IN GRADE CAF-8 AT $2.

B-13853, DECEMBER 17, 1940, 20 COMP. GEN. 318

COMPENSATION - REINSTATEMENT AT RATE ABOVE GRADE MINIMUM - EFFECT OF ADMINISTRATIVE PROMOTION PROVISIONS AN ADMINISTRATIVE OFFICE MAY, BUT IS NOT REQUIRED TO, FIX THE INITIAL SALARY RATE OF AN EMPLOYEE UPON REINSTATEMENT TO A POSITION WITHIN THE PURVIEW OF THE CLASSIFICATION ACT AT THE RATE IN THE SAME OR CORRESPONDING GRADE THE EMPLOYEE WAS RECEIVING AT TIME OF SEPARATION FROM THE SERVICE. WHERE AN EMPLOYEE RECEIVING A RATE ABOVE THE MINIMUM RATE OF THE CLASSIFICATION ACT GRADE OF HIS POSITION, RESIGNED DURING THE FISCAL YEAR 1941, HIS REINSTATEMENT AT THE MINIMUM RATE OF THE GRADE AND SUBSEQUENT RESTORATION TO THE RATE HE WAS RECEIVING AT THE TIME OF HIS RESIGNATION WAS NOT A ,PROMOTION" AS THAT TERM IS DEFINED IN THE ADMINISTRATIVE PROMOTION FORMULA RECOMMENDED BY THE BUREAU OF THE BUDGET IN ITS CIRCULAR OF AUGUST 12, 1940, ISSUED IN CONNECTION WITH THE ADMINISTRATIVE PROMOTION LIMITATION PROVISIONS IN VARIOUS 1941 APPROPRIATION ACTS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, DECEMBER 17, 1940:

REFERENCE IS MADE TO LETTER DATED DECEMBER 4, 1940, FROM THE DIRECTOR OF PERSONNEL, WAR DEPARTMENT, YOUR DIRECTION, AS FOLLOWS:

THE DEPARTMENT HAS RECEIVED A RECOMMENDATION FOR THE PROMOTION OF AN EMPLOYEE IN THE FINANCE DEPARTMENT AT LARGE, GOVERNORS ISLAND, NEW YORK, FROM $2,900 PER ANNUM TO $3,100 PER ANNUM.

THIS EMPLOYEE WAS EMPLOYED IN THE FINANCE DEPARTMENT IN GRADE CAF-8 AT $3,100 PER ANNUM UNTIL AUGUST 11, 1940, WHEN HE RESIGNED TO ACCEPT EXTENDED ACTIVE DUTY AS A RESERVE OFFICER. HE SUBSEQUENTLY FAILED TO MEET THE PHYSICAL REQUIREMENTS FOR ACTIVE DUTY AND REVERTED TO AN INACTIVE STATUS AS A RESERVE OFFICER ON SEPTEMBER 17, 1940, AND WAS IMMEDIATELY REHIRED AS A CIVILIAN IN GRADE CAF-8 AT $2,900 PER ANNUM, EFFECTIVE SEPTEMBER 18, 1940.

YOUR DECISION IS REQUESTED AS TO WHETHER IT IS MANDATORY THAT THE DEPARTMENT RESTORE THIS EMPLOYEE TO HIS FORMER SALARY OF $3,100 PER ANNUM, OR WHETHER, IF SUCH ACTION IS TAKEN IT WOULD BE CONSIDERED AN ADMINISTRATIVE PROMOTION, AND THEREFORE VIOLATE THE FORMULA OF THE BUREAU OF THE BUDGET REGARDING SUCH PROMOTIONS.

AS THE EMPLOYEE IN QUESTION VOLUNTARILY RESIGNED FROM HIS CIVILIAN POSITION PRIOR TO AUGUST 27, 1940, DATE OF APPROVAL OF PUBLIC RESOLUTION NO. 96, 54 STAT. 858, AUTHORIZING THE PRESIDENT TO ORDER MEMBERS OF THE RESERVE COMPONENTS OF THE ARMY AND NAVY TO ACTIVE MILITARY AND NAVAL SERVICE, TO ACCEPT EXTENDED ACTIVE MILITARY DUTY AS A MEMBER OF THE RESERVE, IT FOLLOWS THAT HE DID NOT LEAVE HIS CIVILIAN POSITION PURSUANT TO SAID PUBLIC RESOLUTION NO. 96, AND WAS NOT, AS A MATTER OF RIGHT, ENTITLED TO BE "RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY"--- QUOTING FROM SECTION 3 (C) OF SAID PUBLIC RESOLUTION NO. 96, AS AMENDED BY THE SELECTIVE TRAINING AND SERVICE ACT, APPROVED SEPTEMBER 16, 1940, PUBLIC, NO. 783, 54 STAT. 885. SEE DECISION OF NOVEMBER 13, 1940, B-12673, 20 COMP. GEN. 257. COMPARE, 20 COMP. GEN. 158; ID. 167.

AN ADMINISTRATION OFFICE MAY, BUT IS NOT REQUIRED TO, FIX THE INITIAL SALARY RATE OF AN EMPLOYEE UPON REINSTATEMENT TO A POSITION WITHIN THE PURVIEW OF THE CLASSIFICATION ACT AT THE RATE IN THE SAME OR CORRESPONDING GRADE THE EMPLOYEE WAS RECEIVING AT TIME OF SEPARATION FROM THE SERVICE. SEE 16 COMP. GEN. 598. HENCE, IT WAS WITHIN ADMINISTRATIVE DISCRETION TO FIX THE INITIAL SALARY RATE OF THE REINSTATED EMPLOYEE HERE INVOLVED AT $2,900 PER ANNUM, THE MINIMUM SALARY RATE OF GRADE CAF-8, AND THERE IS NO LAW, RULE, OR REGULATION MAKING IT MANDATORY UPON THE WAR DEPARTMENT TO RESTORE TO THIS EMPLOYEE THE SALARY RATE OF $3,100 PER ANNUM.

SECTION 5 OF THE ACT MAKING APPROPRIATIONS FOR THE MILITARY ESTABLISHMENT FOR THE FISCAL YEAR 1941, APPROVED JUNE 13, 1940, 54 STAT. 378, PROVIDES AS FOLLOWS:

THE TOTAL AMOUNT USED ON AN ANNUAL BASIS FOR ADMINISTRATIVE WITHIN GRADE PROMOTIONS FOR OFFICERS AND EMPLOYEES UNDER ANY APPROPRIATION OR OTHER FUND MADE AVAILABLE IN THIS ACT SHALL NOT EXCEED THE AMOUNT DETERMINED BY THE BUREAU OF THE BUDGET TO BE AVAILABLE FOR SUCH PURPOSE ON THE BASIS OF THE BUDGET ESTIMATE FOR SUCH APPROPRIATION OR FUND EXCLUSIVE OF NEW MONEY IN ANY SUCH BUDGET ESTIMATE FOR SUCH ADMINISTRATIVE PROMOTIONS. OTHER APPROPRIATION ACTS FOR THE FISCAL YEAR 1941 CONTAIN A SIMILAR PROVISION.

BUREAU OF THE BUDGET CIRCULAR NO. 364, DATED AUGUST 12, 1940, QUOTES THE SAID PROVISION AS WELL AS THE PERTINENT PART OF HOUSE OF REPRESENTATIVES REPORT NO. 1515 ON BILL H.R. 7922, WHICH BECAME THE INDEPENDENT OFFICES APPROPRIATION ACT, 1941, AND FURTHER PROVIDES:

EACH DEPARTMENT, ESTABLISHMENT, AND AGENCY HAS ALREADY BEEN ADVISED BY LETTER OF THE AMOUNT DETERMINED BY THE BUREAU OF THE BUDGET TO BE AVAILABLE UNDER THIS PROVISION.

IN KEEPING WITH THE INTENT OF THE APPROPRIATIONS COMMITTEE, AS EXPRESSED IN ITS REPORT, THE BUREAU OF THE BUDGET RECOMMENDS ADHERENCE TO THE FOLLOWING POLICIES:

1. THE AMOUNTS TO BE AVAILABLE FOR WITHIN-GRADE SALARY ADVANCEMENT WITHIN EACH APPROPRIATION UNIT, SHALL BE SAVED FROM TURN-OVER, VACANCIES, AND OTHER SAVINGS IN THE COST OF PERSONAL SERVICES, WITHOUT ANTICIPATING ANY DEFICIENCY IN THE APPROPRIATION CONCERNED, AND SHALL IN NO CASE EXCEED THE MAXIMUM AMOUNT COMPUTED ON AN ANNUAL BASIS FOR WITHIN-GRADE SALARY ADVANCEMENT WHICH HAS BEEN DETERMINED BY THE BUREAU OF THE BUDGET TO BE AVAILABLE.

2. IF FUNDS ARE AVAILABLE AS INDICATED IN ITEM 1, ALL EMPLOYEES WHO ARE ELIGIBLE FOR WITHIN-GRADE ADVANCEMENT BY REASON OF EFFICIENCY RATING OR RECORD, AND WHO ARE COVERED BY THE FOLLOWING FORMULA, MAY BE GRANTED ONE- STEP WITHIN-GRADE ADVANCEMENT:

A. ELIGIBLE EMPLOYEES IN GRADES HAVING A MINIMUM SALARY OF $3,200, OR ABOVE, WHO, ON JUNE 30, 1940, HAVE NOT HAD A PROMOTION SINCE JUNE 30, 1935.

B. ELIGIBLE EMPLOYEES IN GRADES HAVING A MINIMUM SALARY OF LESS THAN $3,200, WHO, ON JUNE 30, 1940, HAVE NOT HAD A PROMOTION SINCE JUNE 30, 1937.

(THE TERM "PROMOTION" AS USED IN THE ABOVE FORMULA MEANS ANY INCREASE IN COMPENSATION TO AN INDIVIDUAL FROM WITHIN-GRADE SALARY ADVANCEMENT OR AN INCREASE IN SALARY AS A RESULT OF ADVANCEMENT TO A HIGHER GRADE, EITHER TO FILL A VACANCY OR BY REALLOCATION OF THE PERSON'S POSITION.)

WITHIN-GRADE SALARY ADVANCEMENTS GRANTED DURING THE FISCAL YEAR 1941 SHOULD BE LIMITED TO EMPLOYEES WHO ARE ELIGIBLE UNDER THE FORMULA.

3. THE DATE OF LAST PROMOTION (SALARY INCREASE FROM ANY CAUSE) SHOULD BE BASED UPON SERVICE IN ANY DEPARTMENT OR AGENCY OF THE GOVERNMENT. TRANSFER OF AN EMPLOYEE FROM ONE DEPARTMENT OR AGENCY TO ANOTHER WITH AN INCREASE IN COMPENSATION, WHETHER AS A RESULT OF WITHIN-GRADE ADVANCEMENT OR OF TRANSFER AND PROMOTION TO A HIGHER GRADE POSITION, SHOULD BE UNDERSTOOD TO CONSTITUTE A PROMOTION WITHIN THE MEANING OF THIS FORMULA.

4. ELIGIBILITY FOR ADVANCEMENT UNDER THIS FORMULA SHOULD BE LIMITED TO EMPLOYEES WHO HAVE HAD CONTINUOUS SERVICE IN THE FEDERAL GOVERNMENT FOR THE TIME PERIOD SPECIFIED.

5. NO EMPLOYEE SHOULD RECEIVE MORE THAN ONE STEP OF ADMINISTRATIVE WITHIN -GRADE ADVANCEMENT, FOR ANY CAUSE, DURING THE FISCAL YEAR.

6. IN THE CASE OF POSITIONS ALLOCATED UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 6746, A WITHIN-GRADE ADMINISTRATIVE ADVANCEMENT WILL BE CONSTRUED AS A $60 INCREASE IN COMPENSATION IN GRADES E.O. 1 TO 6 INCLUSIVE; $100 IN GRADES E.O. 7 TO 12 INCLUSIVE; $200 IN GRADES E.O. 13 TO 16 INCLUSIVE; $400 IN GRADES E.O. 17; AND $500 IN GRADES E.O. 18 AND 19.

THE STATUTORY PROVISION IN QUESTION, APPEARING IN THE SEVERAL APPROPRIATION ACTS, VESTS IN THE BUREAU OF THE BUDGET AUTHORITY TO DETERMINE ONLY THE TOTAL AMOUNT ON AN ANNUAL BASIS THAT MAY BE USED BY AN ADMINISTRATIVE OFFICE FOR WITHIN-GRADE PROMOTIONS. THE FORMULA FOR MAKING WITHIN-GRADE PROMOTIONS IN INDIVIDUAL CASES DURING THE CURRENT FISCAL YEAR IS, AS STATED IN THE BUREAU OF THE BUDGET CIRCULAR, THE RECOMMENDATION OF A POLICY TO BE FOLLOWED BY THE ADMINISTRATIVE OFFICES. THE BUREAU OF THE BUDGET DOES NOT PURPORT TO MAKE THE FORMULA THUS PRESCRIBED BINDING UPON THE ADMINISTRATIVE OFFICES. BUT ASIDE FROM THIS QUESTION OF THE BINDING EFFECTS OF THE REFERRED-TO FORMULA, IT IS THE VIEW OF THIS OFFICE THAT THE RESTORATION OF A SALARY RATE UPON REINSTATEMENT OR OTHERWISE TO A RATE PREVIOUSLY PAID AN EMPLOYEE DURING THE CURRENT FISCAL YEAR, AS IN THE INSTANT CASE, IS NOT A "PROMOTION" AS THAT TERM IS DEFINED IN THE FORMULA PRESCRIBED BY THE BUREAU OF THE BUDGET.

ACCORDINGLY, REFERRING TO THE ALTERNATIVE QUESTION PRESENTED IN THE LAST PARAGRAPH OF THE DEPARTMENT'S LETTER, HEREINABOVE QUOTED, I HAVE TO ADVISE THAT IF THE SALARY RATE OF $3,100 PER ANNUM IN GRADE CAF-8 SHOULD BE RESTORED TO THE EMPLOYEE HERE INVOLVED, THIS OFFICE WOULD NOT QUESTION OTHERWISE PROPER PAYMENTS OF HIS SALARY OF SUCH RATE BECAUSE OF THE FORMULA RECOMMENDED BY THE BUREAU OF THE BUDGET REGARDING PROMOTIONS. COMPARE DECISION OF OCTOBER 9, 1940, B-12456, 20 COMP. GEN. 191 ..END :