B-169684, MAY 26, 1970

B-169684: May 26, 1970

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STATUTE DOES NOT REQUIRE THAT EMPLOYEE IN MILITARY SERVICE HAVE RIGHT OF RESTORATION AS INDICATED IN PARAGRAPH 3 (A) OF LETTER- EMPLOYEE WHO OTHERWISE QUALIFIES FOR RETROACTIVE PAY UNDER SUBSECTION 5 (A) IS ENTITLED TO SUCH PAYMENT REGARDLESS OF WHETHER HE HAS RIGHT OF RESTORATION. SUBSECTION 5 (A) OF EXECUTIVE ORDER 11524 DIRECTS THE CIVIL SERVICE COMMISSION TO PRESCRIBE THE NECESSARY PAY CONVERSION RULES FOR THE RATES OF PAY CONTAINED IN THE GENERAL SCHEDULE WHICH RATES WERE ADJUSTED UNDER PUBLIC LAW 91-231. WE HAVE EXAMINED THE CONVERSION RULES PRESCRIBED IN SECTION 531.205 OF THE COMMISSION'S REGULATIONS AND WE HAVE NO LEGAL OBJECTION THERETO. WE FIND THAT SUCH DIFFERENCES ARE OF NO CONSEQUENCE.

B-169684, MAY 26, 1970

COMPENSATION--INCREASES--PUBLIC LAW 91-231 GAO HAS NO LEGAL OBJECTION TO REGULATIONS PERTAINING TO PAY CONVERSION AND PREMIUM PAY ISSUED PURSUANT TO PUB. L. 91-231 AND E. O. NO. 11524, WITH RESPECT TO FPM LETTER NO. 531-39, DATED APR. 28, 1970, HOWEVER, STATUTE DOES NOT REQUIRE THAT EMPLOYEE IN MILITARY SERVICE HAVE RIGHT OF RESTORATION AS INDICATED IN PARAGRAPH 3 (A) OF LETTER- EMPLOYEE WHO OTHERWISE QUALIFIES FOR RETROACTIVE PAY UNDER SUBSECTION 5 (A) IS ENTITLED TO SUCH PAYMENT REGARDLESS OF WHETHER HE HAS RIGHT OF RESTORATION-- THEREFORE, PARAGRAPH 3 (A) OF FPM LETTER SHOULD BE CORRECTED ACCORDINGLY.

TO MR. HAMPTON:

THIS REFERS TO YOUR LETTER OF APRIL 29, 1970, REQUESTING OUR COMMENTS ON THE ENCLOSED COPY OF FEDERAL PERSONNEL MANUAL LETTER NO. 531-39, DATED APRIL 28, 1970, AND THE REGULATIONS PERTAINING TO PAY CONVERSION AND PREMIUM PAY ISSUED PURSUANT TO PUBLIC LAW 91-231, APPROVED APRIL 15, 1970, 84 STAT. 195, AND EXECUTIVE ORDER 11524, APRIL 15, 1970.

SUBSECTION 5 (A) OF EXECUTIVE ORDER 11524 DIRECTS THE CIVIL SERVICE COMMISSION TO PRESCRIBE THE NECESSARY PAY CONVERSION RULES FOR THE RATES OF PAY CONTAINED IN THE GENERAL SCHEDULE WHICH RATES WERE ADJUSTED UNDER PUBLIC LAW 91-231. SUBSECTION 5 (B) OF THAT ORDER STATES THAT SUCH RULES SHALL CONFORM AS NEARLY AS PRACTICABLE TO THE CONVERSION RULES CONTAINED IN THE FEDERAL SALARY ACT OF 1967, 81 STAT. 624. WE HAVE EXAMINED THE CONVERSION RULES PRESCRIBED IN SECTION 531.205 OF THE COMMISSION'S REGULATIONS AND WE HAVE NO LEGAL OBJECTION THERETO. WHILE WE NOTE THAT IN SOME CASES --FOR EXAMPLE, PARAGRAPH (A) (5)--THE LANGUAGE THEREOF DIFFERS FROM THAT USED IN THE 1967 PAY ACT, WE FIND THAT SUCH DIFFERENCES ARE OF NO CONSEQUENCE.

CONCERNING THE AMENDMENTS TO PART 550, SUBPART A (PREMIUM PAY), OF THE COMMISSION'S REGULATIONS, WHICH WERE REQUIRED BY SECTION 8 OF PUBLIC LAW 91-231, WE FIND NOTHING LEGALLY OBJECTIONABLE THEREIN.

WITH RESPECT TO FPM LETTER NO. 531-39, APRIL 28, 1970, OUR ONLY COMMENT CONCERNS THE FOLLOWING STATEMENT QUOTED FROM PARAGRAPH 3 (A), REGARDING RETROACTIVE PAYMENTS:

"* * * IN THIS CONNECTION, AN EMPLOYEE IS CONSIDERED TO BE ON THE ROLLS OF AN AGENCY WHEN HE HAS ENTERED THE SERVICE OF THE ARMED FORCES OF THE UNITED STATES WITH A RIGHT OF RESTORATION, AND RETURNS TO CIVILIAN SERVICE WITHIN THE PERIOD FOR EXERCISING HIS RESTORATION RIGHT. * * *"

SUBSECTION 5 (A) OF PUBLIC LAW 91-231 PROVIDES:

"(A) RETROACTIVE PAY, COMPENSATION, OR SALARY SHALL BE PAID BY REASON OF THIS ACT ONLY IN THE CASE OF AN INDIVIDUAL IN THE SERVICE OF THE UNITED STATES (INCLUDING SERVICE IN THE ARMED FORCES OF THE UNITED STATES) OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA ON THE DATE OF ENACTMENT OF THIS ACT, * * *"

UNDER THAT SUBSECTION "SERVICE OF THE UNITED STATES" INCLUDES SERVICE IN THE ARMED FORCES OF THE UNITED STATES. HOWEVER, THE STATUTE DOES NOT REQUIRE THAT THE EMPLOYEE WHO IS SERVING IN THE ARMED FORCES HAVE A RIGHT OF RESTORATION TO A CIVILIAN POSITION AS INDICATED IN PARAGRAPH 3 (A), ABOVE. AN EMPLOYEE WHO OTHERWISE QUALIFIES FOR RETROACTIVE PAY UNDER SUBSECTION 5 (A) IS ENTITLED TO SUCH PAYMENT REGARDLESS OF WHETHER HE HAS A RIGHT OF RESTORATION.

SUBSECTION 5 (B) OF PUBLIC LAW 91-231 PROVIDES:

"(B) FOR THE PURPOSES OF THIS SECTION, SERVICE IN THE ARMED FORCES OF THE UNITED STATES, IN THE CASE OF AN INDIVIDUAL RELIEVED FROM TRAINING AND SERVICE IN THE ARMED FORCES OF THE UNITED STATES OR DISCHARGED FROM HOSPITALIZATION FOLLOWING SUCH TRAINING AND SERVICE, SHALL INCLUDE THE PERIOD PROVIDED BY LAW FOR THE MANDATORY RESTORATION OF SUCH INDIVIDUAL TO A POSITION IN OR UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA."

THAT SUBSECTION DOES NOT REQUIRE THAT THE EMPLOYEE ACTUALLY RETURN TO CIVILIAN SERVICE WITHIN THE RESTORATION PERIOD IN ORDER TO BE ENTITLED TO RETROACTIVE PAY UNDER PUBLIC LAW 91-231. RATHER, THE PERIOD OF MANDATORY RESTORATION IS CONSIDERED TO BE "SERVICE IN THE ARMED FORCES OF THE UNITED STATES" FOR PURPOSES OF SUBSECTION 5 (A) OF PUBLIC LAW 91 231.

PARAGRAPH 3 (A) OF THE FPM LETTER SHOULD BE CORRECTED IN ACCORDANCE WITH THE ABOVE.

WE APPRECIATE YOUR GIVING US THE OPPORTUNITY TO COMMENT ON THE REGULATIONS AND INSTRUCTIONS DISCUSSED ABOVE.