B-20783, OCTOBER 11, 1941, 21 COMP. GEN. 313

B-20783: Oct 11, 1941

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IS ELIGIBLE FOR A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1. THERE MAY BE COUNTED SERVICE IN A TEMPORARY POSITION WHICH WAS ESTABLISHED FOR A PERIOD OF 6 MONTHS OR LESS OR WHICH WAS DESIGNATED AS TEMPORARY BY LAW. 1941: I HAVE YOUR LETTER OF SEPTEMBER 23. REFERENCE IS MADE TO THE DEPARTMENT'S LETTER OF SEPTEMBER 11. THE FOLLOWING QUESTIONS HAVE NOW ARISEN AND YOUR DECISION IS REQUESTED IN CONNECTION THEREWITH: 2. SECTION 2 OF EXECUTIVE ORDER NO. 8882 IS QUOTED AS FOLLOWS: "IN COMPUTING THE PERIODS OF SERVICE REQUIRED BY THE SAID SECTION 7 FOR WITHIN-GRADE ADVANCEMENTS THERE SHALL BE CREDITED TO SUCH SERVICE: "/A) CONTINUOUS CIVILIAN EMPLOYMENT IN ANY BRANCH. AS THE CASE MAY BE. "/D) SERVICE RENDERED PRIOR TO ABSENCE ON FURLOUGH OR LEAVE WITHOUT PAY WHERE SUCH ABSENCE IS IN EXCESS OF THIRTY DAYS BUT NOT EXCEEDING ONE YEAR.'.

B-20783, OCTOBER 11, 1941, 21 COMP. GEN. 313

COMPENSATION - WITHIN-GRADE PROMOTIONS - SERVICE CREDITS IN DETERMINING WHETHER AN EMPLOYEE OCCUPYING A PERMANENT POSITION WITHIN THE SCOPE OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, IS ELIGIBLE FOR A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, THERE MAY BE COUNTED SERVICE IN A TEMPORARY POSITION WHICH WAS ESTABLISHED FOR A PERIOD OF 6 MONTHS OR LESS OR WHICH WAS DESIGNATED AS TEMPORARY BY LAW, OR SERVICE IN A PERMANENT POSITION NOT WITHIN THE SCOPE OF THE CLASSIFICATION ACT. UNDER EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, SPECIFYING THE SERVICE WHICH MAY BE COUNTED IN DETERMINING AN EMPLOYEE'S ELIGIBILITY TO A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, TIME ELAPSING IN A NONPAY STATUS IN EXCESS OF 30 DAYS IN THE AGGREGATE MAY NOT BE COUNTED IN COMPUTING THE 18 OR 30 MONTHS' PERIOD AN EMPLOYEE MUST SERVE WITHOUT AN "EQUIVALENT INCREASE IN COMPENSATION" AS A CONDITION TO ELIGIBILITY TO AN ADVANCEMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, OCTOBER 11, 1941:

I HAVE YOUR LETTER OF SEPTEMBER 23, 1941, AS FOLLOWS:

1. REFERENCE IS MADE TO THE DEPARTMENT'S LETTER OF SEPTEMBER 11, 1941, REQUESTING DECISION ON A QUESTION IN CONNECTION WITH THE ACT OF AUGUST 1, 1941 ( PUBLIC 200, 77TH CONGRESS), AMENDING THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND EXECUTIVE ORDER NO. 8882. THE FOLLOWING QUESTIONS HAVE NOW ARISEN AND YOUR DECISION IS REQUESTED IN CONNECTION THEREWITH:

2. SECTION 2 OF EXECUTIVE ORDER NO. 8882 IS QUOTED AS FOLLOWS:

"IN COMPUTING THE PERIODS OF SERVICE REQUIRED BY THE SAID SECTION 7 FOR WITHIN-GRADE ADVANCEMENTS THERE SHALL BE CREDITED TO SUCH SERVICE:

"/A) CONTINUOUS CIVILIAN EMPLOYMENT IN ANY BRANCH, EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, AGENCY, OR CORPORATION OF THE FEDERAL GOVERNMENT OR IN THE MUNICIPAL GOVERNMENT IN THE DISTRICT OF COLUMBIA.

"/B) TIME ELAPSING ON ANNUAL, SICK, OR OTHER LEAVE WITH PAY.

"/C) TIME ELAPSING IN A NONPAY STATUS (INCLUDING BREAK IN SERVICE) NOT EXCEEDING THIRTY DAYS WITHIN ANY ONE TIME PERIOD OF EIGHTEEN OR THIRTY MONTHS, AS THE CASE MAY BE.

"/D) SERVICE RENDERED PRIOR TO ABSENCE ON FURLOUGH OR LEAVE WITHOUT PAY WHERE SUCH ABSENCE IS IN EXCESS OF THIRTY DAYS BUT NOT EXCEEDING ONE YEAR.'

IN COMPUTING THE EIGHTEEN- AND THIRTY-MONTH PERIODS OF SERVICE IN ACCORDANCE WITH THE EXECUTIVE ORDER, CAN THE DEPARTMENT COUNT WITHIN THOSE PERIODS THE FOLLOWING TYPES OF SERVICE:

"A. TEMPORARY SERVICE IN ANOTHER DEPARTMENT OR AGENCY IN A TEMPORARY POSITION ESTABLISHED FOR A DEFINITE PERIOD OF SIX MONTHS OR LESS, OR WHICH WAS DESIGNATED AS TEMPORARY BY LAW, PROVIDING THERE WAS NO BREAK IN SERVICE IN EXCESS OF THIRTY DAYS BETWEEN THE TEMPORARY SERVICE IN THE OTHER DEPARTMENT AND APPOINTMENT TO A PERMANENT POSITION, AS DEFINED IN EXECUTIVE ORDER NO. 8882, IN THE WAR DEPARTMENT.

"B. TEMPORARY SERVICE IN ANOTHER DEPARTMENT OR AGENCY IN A POSITION ESTABLISHED FOR A DEFINITE PERIOD OF SIX MONTHS OR LESS, OR WHICH WAS DESIGNATED AS TEMPORARY BY LAW, FOLLOWED BY TEMPORARY SERVICE IN THE WAR DEPARTMENT IN A POSITION ESTABLISHED FOR A DEFINITE PERIOD OF SIX MONTHS OR LESS, WHEREIN THERE WAS NO BREAK IN SERVICE IN EXCESS OF THIRTY DAYS, AFTER WHICH THE PERSON WAS GIVEN AN APPOINTMENT TO A PERMANENT POSITION IN THE WAR DEPARTMENT WITHOUT EXCESSIVE BREAK IN SERVICE.

"C. TEMPORARY SERVICE IN THE WAR DEPARTMENT IN A POSITION ESTABLISHED FOR A DEFINITE PERIOD OF SIX MONTHS OR LESS, FOLLOWING WHICH THE PERSON WAS APPOINTED TO A PERMANENT POSITION, WITHOUT A BREAK IN SERVICE IN EXCESS OF THIRTY DAYS.

"D. PERMANENT SERVICE IN A POSITION NOT GRADED UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, FOLLOWING WHICH THE EMPLOYEE WAS APPOINTED OR TRANSFERRED WITHOUT BREAK IN SERVICE IN EXCESS OF THIRTY DAYS, TO A PERMANENT POSITION GRADED UNDER THE CLASSIFICATION ACT 1923, AS AMENDED.'

3. EXECUTIVE ORDER NO. 8882, AS QUOTED ABOVE, PROVIDES THAT TIME ELAPSING IN A NONPAY STATUS (INCLUDING BREAK IN SERVICE) NOT EXCEEDING THIRTY DAYS WITHIN ANY ONE PERIOD OF EIGHTEEN OR THIRTY MONTHS, MAY BE COUNTED DURING THE PERIOD. IS THE DEPARTMENT REQUIRED TO COUNT LEAVE WITHOUT PAY IN ANY SUCH PERIOD IN THE AGGREGATE NOT EXCEEDING THIRTY DAYS, OR CAN ALL LEAVE WITHOUT PAY BE COUNTED EXCEPT PERIODS EXCEEDING THIRTY DAYS?

THE QUESTION PRESENTED IN THE DEPARTMENT'S LETTER OF SEPTEMBER 11, 1941, REFERRED TO IN THE OPENING PARAGRAPH OF THE ABOVE-QUOTED LETTER WAS ANSWERED IN DECISION OF OCTOBER 2, 1941, B-20500, 21 COMP. GEN. 285.

SECTION 2 OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 55 STAT. 613, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 2. SECTION 7 OF THE SAID ACT IS HEREBY AMENDED BY INSERTING THE LETTER "/A)" AFTER THE FIGURE "7" AT THE BEGINNING OF SAID SECTION, AND BY ADDING THE FOLLOWING PARAGRAPHS AS SUBSECTIONS THEREOF:

"/B) ALL EMPLOYEES COMPENSATED ON A PER ANNUM BASIS, AND OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT, WHO HAVE NOT ATTAINED THE MAXIMUM RATE OF COMPENSATION FOR THE GRADE IN WHICH THEIR POSITIONS ARE RESPECTIVELY ALLOCATED, SHALL BE ADVANCED IN COMPENSATION SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN THE GRADE AT THE BEGINNING OF THE NEXT QUARTER, FOLLOWING THE COMPLETION OF: (1) EACH EIGHTEEN MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE $60 OR $100, OR (2) EACH THIRTY MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE $200 OR $250, SUBJECT TO THE FOLLOWING CONDITIONS.

"/1) THAT NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD, EXCEPT INCREASE MADE PURSUANT TO SUBSECTION (F) OF THIS SECTION;

"/G) THE PRESIDENT IS HEREBY AUTHORIZED TO ISSUE SUCH REGULATIONS AS MAY BE NECESSARY FOR THE ADMINISTRATION OF THIS SECTION.'

SECTION 1 OF EXECUTIVE ORDER NO. 8882 DATED SEPTEMBER 3, 1941, DEFINES CERTAIN TERMS OF THE ACT, AS FOLLOWS:

SECTION 1. IN THE ADMINISTRATION OF THE SAID SECTION 7, THE FOLLOWING DEFINITIONS OF TERMS USED THEREIN SHALL APPLY:

(A) "PERMANENT POSITIONS" SHALL INCLUDE ALL POSITIONS EXCEPT THOSE DESIGNATED AS TEMPORARY BY LAW AND THOSE ESTABLISHED FOR DEFINITE PERIODS OF SIX MONTHS OR LESS.

(B) "POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT" SHALL INCLUDE ALL PERMANENT POSITIONS, INCLUDING POSITIONS IN THE FIELD SERVICES, IN THE EXECUTIVE AND LEGISLATIVE BRANCHES, IN GOVERNMENT-OWNED OR GOVERNMENT-CONTROLLED CORPORATIONS, AND IN THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, THE COMPENSATION OF WHICH HAS BEEN FIXED ON A PER-ANNUM BASIS, PURSUANT TO THE ALLOCATION OF SUCH POSITIONS TO THE APPROPRIATE GRADE EITHER BY THE CIVIL SERVICE COMMISSION OR BY ADMINISTRATIVE ACTION OF THE DEPARTMENT OR AGENCY CONCERNED, IN ACCORDANCE WITH THE COMPENSATION SCHEDULES OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, OR THE SAID SCHEDULES AS ADJUSTED BY AN AUTHORIZED DIFFERENTIAL.

(C) "QUARTER" SHALL MEAN THE THREE MONTHS' PERIOD BEGINNING ON JANUARY 1, APRIL 1, JULY 1, OR OCTOBER 1.

THE PERTINENT PROVISIONS OF SECTION 2 OF THE EXECUTIVE ORDER ARE QUOTED IN YOUR LETTER, SUPRA.

THE WORDS "OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT," APPEARING IN SECTION 2 (B) OF THE STATUTE, ABOVE QUOTED, HAVE RELATION TO THE BEGINNING OF ANY QUARTER, THAT IS, THE TIME THAT AN EMPLOYEE BECOMES ELIGIBLE FOR A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE TERMS AND CONDITIONS OF THE STATUTE. OTHER WORDS, AN EMPLOYEE MUST AT SUCH TIME OCCUPY A PERMANENT POSITION WITHIN THE SCOPE OF THE CLASSIFICATION ACT AS THAT TERM HAS BEEN DEFINED IN THE REGULATIONS. THE DEFINITIONS OF THE TERMS "PERMANENT POSITIONS" AND "POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT" APPEARING IN SECTION 1 OF THE PRESIDENT'S REGULATIONS THUS HAVE RELATION TO THE POSITION HELD AT THE BEGINNING OF THE QUARTER AN EMPLOYEE BECOMES ELIGIBLE FOR THE WITHIN GRADE SALARY ADVANCEMENT.

THERE IS NO REQUIREMENT IN THE LAW OR REGULATIONS THAT THE ENTIRE 18 OR 30 MONTHS' PERIOD IMMEDIATELY PRECEDING THE BEGINNING OF SUCH QUARTER (SEE DECISION OF OCTOBER 2, 1941, B-20500, 21 COMP. GEN. 285) MUST BE, OR SHALL HAVE BEEN, SERVED IN A PERMANENT POSITION WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THE CLASSIFICATION ACT. IN THE ABSENCE OF ANY EXPRESS RULE IN THE STATUTE TO THE CONTRARY, THE BASIS ON WHICH SERVICE MAY BE COUNTED IN COMPUTING THE 18 OR 30 MONTHS' PERIOD IS A MATTER WITHIN THE AUTHORITY OF THE PRESIDENT TO REGULATE UNDER THE TERMS OF SECTION 2 (G) OF THE STATUTE.

SECTION 2 (A) OF THE REGULATIONS AUTHORIZES THE CREDITING OF CONTINUOUS CIVILIAN EMPLOYMENT UNDER THE FEDERAL AND DISTRICT OF COLUMBIA GOVERNMENTS, AND NO CONDITION APPEARS THEREIN OR ELSEWHERE THAT ALL OF SUCH SERVICE MUST HAVE BEEN IN A PERMANENT POSITION OR ONE WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES OF THE CLASSIFICATION ACT. THE CONTRARY IS INDICATED BY THE FACT THAT THE REGULATION AUTHORIZES THE INCLUSION OR COUNTING OF SERVICE IN ANY BRANCH OF THE GOVERNMENT--- IT UNQUESTIONABLY BEING THE CASE THAT THE POSITIONS IN SOME OF THE BRANCHES OF THE GOVERNMENT ARE NOT WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES OF THE CLASSIFICATION ACT. THE REGULATION OBVIOUSLY CARRIES OUT THE SPIRIT AND INTENT OF THE STATUTE TO GRANT PERIODIC INCREASES IN COMPENSATION BASED UPON LENGTH OF SERVICE, PROVIDED THE OTHER PRESCRIBED CONDITIONS OF THE STATUTE ARE, OR HAVE BEEN, MET.

ACCORDINGLY, QUESTIONS A, B, C, AND D IN PARAGRAPH 2 OF YOUR LETTER ARE ANSWERED IN THE AFFIRMATIVE.

UNDER THE TERMS OF SECTION 2 (C) OF THE REGULATIONS, THE AGGREGATE OF TIME ELAPSING IN A NONPAY STATUS, WHETHER IN ONE OR MORE PERIODS, IN THE 18 OR 30 MONTHS' PERIOD IMMEDIATELY PRECEDING THE BEGINNING OF A QUARTER THAT MAY BE COUNTED, SHALL NOT EXCEED 30 DAYS. ANY PERIOD IN A NONPAY STATUS IN EXCESS OF 30 DAYS IN THE AGGREGATE MAY NOT BE COUNTED IN COMPUTING THE 18 OR 30 MONTHS' PERIOD. ACCORDINGLY, THE FIRST ALTERNATIVE QUESTION STATED IN PARAGRAPH 3 OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE, THUS REQUIRING A NEGATIVE ANSWER TO THE SECOND ALTERNATIVE QUESTION STATED IN SAID PARAGRAPH.