B-22140, DECEMBER 13, 1941, 21 COMP. GEN. 566

B-22140: Dec 13, 1941

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AN INFORMAL APPLICATION MADE WITHIN THE 40-DAY PERIOD PRESCRIBED BY THE STATUTE WILL SUFFICE. AN EMPLOYEE IS NOT ENTITLED AS A MATTER OF RIGHT TO BE RESTORED IN ACCORDANCE WITH SECTION 3 (B) OF PUBLIC RESOLUTION NO. 96 OF AUGUST 27. WHERE IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT THE EMPLOYEE WAS NOT QUALIFIED TO PERFORM THE DUTIES OF SUCH A CIVILIAN POSITION WITHIN 40 DAYS AFTER RELIEF FROM MILITARY DUTY. 1941: I HAVE YOUR LETTER OF NOVEMBER 24. YOUR ATTENTION IS INVITED TO THE FACTS IN THE FOLLOWING CASE. EMPLOYEE OF THE WAR DEPARTMENT WAS RELIEVED FROM DUTY IN HIS CIVILIAN POSITION. REQUESTING REEMPLOYMENT AND STATING THAT THE DISABILITY WOULD BE REMOVED WITHIN 30 DAYS AFTER AN OPERATION WHICH WAS TO BE PERFORMED AS SOON AS AUTHORITY WAS GRANTED.

B-22140, DECEMBER 13, 1941, 21 COMP. GEN. 566

OFFICERS AND EMPLOYEES - REEMPLOYMENT RIGHTS UPON RELIEF FROM MILITARY DUTY THE APPLICATION REQUIRED TO BE MADE AFTER RELEASE FROM ACTIVE MILITARY DUTY IN ORDER TO OBTAIN THE CIVILIAN REEMPLOYMENT BENEFITS OF SECTION 3 (B) OF PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, AS AMENDED, NEED NOT BE IN ANY PARTICULAR FORM AND, THEREFORE, AN INFORMAL APPLICATION MADE WITHIN THE 40-DAY PERIOD PRESCRIBED BY THE STATUTE WILL SUFFICE. AN EMPLOYEE IS NOT ENTITLED AS A MATTER OF RIGHT TO BE RESTORED IN ACCORDANCE WITH SECTION 3 (B) OF PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, AS AMENDED, TO A CIVILIAN POSITION WHICH HE LEFT TO ENTER UPON ACTIVE MILITARY DUTY, OR ONE OF LIKE SENIORITY, STATUS, AND PAY, WHERE IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT THE EMPLOYEE WAS NOT QUALIFIED TO PERFORM THE DUTIES OF SUCH A CIVILIAN POSITION WITHIN 40 DAYS AFTER RELIEF FROM MILITARY DUTY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, DECEMBER 13, 1941:

I HAVE YOUR LETTER OF NOVEMBER 24, 1941, AS FOLLOWS:

1. YOUR ATTENTION IS INVITED TO THE FACTS IN THE FOLLOWING CASE. EMPLOYEE OF THE WAR DEPARTMENT WAS RELIEVED FROM DUTY IN HIS CIVILIAN POSITION, CAF-7 AT $2,900 PER ANNUM, TO ENTER ON ACTIVE DUTY ON SEPTEMBER 18, 1940, DUE TO A PHYSICAL DISABILITY, AND MADE AN INFORMAL APPLICATION IN A PERSONAL LETTER WRITTEN TO HIS COMMANDING OFFICER ON SEPTEMBER 24, 1940, REQUESTING REEMPLOYMENT AND STATING THAT THE DISABILITY WOULD BE REMOVED WITHIN 30 DAYS AFTER AN OPERATION WHICH WAS TO BE PERFORMED AS SOON AS AUTHORITY WAS GRANTED. FORMAL APPLICATION FOR REEMPLOYMENT WAS FILED ON NOVEMBER 7, 1940, STATING THAT THE DISABILITY WOULD BE REMOVED BY NOVEMBER 15, 1940. THE INDIVIDUAL WAS REEMPLOYED ON NOVEMBER 23, 1940 IN A CAF-4 POSITION AT $1,800 PER ANNUM AND WAS PROMOTED TO CAF-7 AT $2,600 PER ANNUM, EFFECTIVE FEBRUARY 1, 1941. IN VIEW OF THE REEMPLOYMENT PROVISIONS CONTAINED IN PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 ( PUBLIC LAW NO. 783 76TH CONGRESS) AND THE SERVICE EXTENSION ACT OF 1941 ( PUBLIC LAW NO. 213, 77TH CONGRESS), THIS EMPLOYEE IS NOW DEMANDING REINSTATEMENT IN HIS FORMER POSITION AT THE SAME GRADE AND SALARY, I.E., CAF-7 AT $2,900 PER ANNUM, AND COMPENSATION FOR THE DIFFERENCE IN SALARY BETWEEN $1,800 PER ANNUM AND $2,900 PER ANNUM FROM NOVEMBER 23, 1940 TO FEBRUARY 1, 1940, AND THE DIFFERENCE BETWEEN $2,600 PER ANNUM AND $2,900 PER ANNUM FROM FEBRUARY 1, 1941 UNTIL SUCH TIME AS HE IS REINSTATED IN HIS FORMER POSITION AT CAF-7 AT $2,900 PER ANNUM.

2. UNDER THE REEMPLOYMENT PROVISIONS REFERRED TO ABOVE, REINSTATEMENT IN THE SAME POSITION, OR ONE OF LIKE SENIORITY, STATUS AND PAY, IS MANDATORY, PROVIDED THE INDIVIDUAL HAS RECEIVED A SERVICE CERTIFICATE, IS STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION AND MAKES APPLICATION FOR REEMPLOYMENT WITHIN FORTY DAYS AFTER HE IS RELIEVED FROM SUCH TRAINING AND SERVICE.

3. YOU WILL NOTE THAT THE INDIVIDUAL REFERRED TO IN THIS CASE MADE INFORMAL APPLICATION WITHIN THE FORTY-DAY PERIOD PRESCRIBED, BUT HIS FORMAL APPLICATION WAS MADE AFTER THE FORTY DAYS HAD ELAPSED. IN VIEW OF THE FACT THAT NO FORM OF APPLICATION HAS BEEN PRESCRIBED BY LAW, AND NO FORM HAS BEEN PRESCRIBED BY THE DEPARTMENT, YOUR DECISION IS REQUESTED AS TO WHETHER AN INFORMAL APPLICATION WITHIN THE FORTY-DAY PERIOD IS SUFFICIENT TO AUTHORIZE A REINSTATEMENT IN THE POSITION FORMERLY OCCUPIED BY THIS EMPLOYEE, OR ONE OF LIKE SENIORITY, STATUS AND PAY, THE FORMAL APPLICATION BEING FILED AFTER THE FORTY-DAY PERIOD HAD ELAPSED.

4. DECISION IS ALSO REQUESTED AS TO WHETHER REINSTATEMENT IN THE POSITION FORMERLY OCCUPIED, OR ONE OF LIKE SENIORITY, STATUS AND PAY, MUST BE MADE WHEN THERE IS A DISABILITY AT THE TIME OF APPLICATION AND WHICH IS NOT CORRECTED UNTIL AFTER THE FORTY-DAY PERIOD HAS EXPIRED.

5. DECISION IS ALSO REQUESTED AS TO WHETHER THE DEPARTMENT IS REQUIRED TO PAY THE DIFFERENCE IN COMPENSATION AS CLAIMED UNDER THE STATEMENT OF FACTS AS OUTLINED IN PARAGRAPH 1 ABOVE, AND AS TO WHETHER THE DEPARTMENT MAY PROMOTE THIS EMPLOYEE TO $2,900 PER ANNUM IN GRADE CAF-7 IN VIEW OF THE PROVISIONS OF THE ACT AMENDING THE CLASSIFICATION ACT OF 1923, AS AMENDED ( PUBLIC LAW NO. 200, 77TH CONGRESS).

THIS OFFICE HAS BEEN ADVISED INFORMALLY BY THE WAR DEPARTMENT THAT THIS EMPLOYEE WHO WAS OCCUPYING A PERMANENT POSITION WAS ORDERED INTO THE ACTIVE MILITARY SERVICE AS A MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY. ACCORDINGLY, THERE ARE APPLICABLE IN THE CONSIDERATION OF THIS CASE THE PROVISIONS OF PUBLIC RESOLUTION NO. 96 DATED AUGUST 27, 1940, 54 STAT. 858, 859, SECTION 3 OF WHICH, AS AMENDED BY SECTION 8 (D) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 891, PROVIDES IN PERTINENT PART AS FOLLOWS:

(A) ANY MEMBER OF ANY RESERVE COMPONENT OF THE LAND OR NAVAL FORCES WHO IS ON ACTIVE DUTY OR WHO MAY BE ASSIGNED TO ACTIVE DUTY AND WHO, IN THE JUDGMENT OF THOSE IN AUTHORITY OVER HIM, SATISFACTORILY COMPLETES SUCH ACTIVE DUTY, AND ANY PERSON SO ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES WHO, IN THE JUDGMENT OF THOSE IN AUTHORITY OVER HIM, SATISFACTORILY COMPLETES THE PERIOD OF SERVICE REQUIRED UNDER THIS JOINT RESOLUTION, SHALL BE ENTITLED TO A CERTIFICATE TO THAT EFFECT UPON THE COMPLETION OF SUCH ACTIVE DUTY OR SUCH PERIOD OF SERVICE, WHICH SHALL INCLUDE A RECORD OF ANY SPECIAL PROFICIENCY OR MERIT ATTAINED. ADDITION, EACH SUCH PERSON, WHO IS ASSIGNED TO SUCH ACTIVE DUTY OR ORDERED INTO SUCH ACTIVE MILITARY SERVICE SHALL BE GIVEN A PHYSICAL EXAMINATION AT THE BEGINNING OF SUCH ACTIVE DUTY OR SERVICE AND A MEDICAL STATEMENT SHOWING ANY PHYSICAL DEFECTS NOTED UPON SUCH EXAMINATION; AND UPON THE COMPLETION OF THE PERIOD OF SUCH ACTIVE DUTY OR SERVICE, EACH SUCH PERSON SHALL BE GIVEN ANOTHER PHYSICAL EXAMINATION AND SHALL BE GIVEN A MEDICAL STATEMENT SHOWING ANY INJURIES, ILLNESSES OR DISABILITIES SUFFERED BY HIM DURING SUCH PERIOD OF ACTIVE DUTY OR SERVICE.

(B) IN THE CASE OF ANY SUCH PERSON WHO, IN ORDER TO PERFORM SUCH ACTIVE DUTY OR SUCH SERVICE, HAS LEFT OR LEAVES A POSITION OTHER THAN A TEMPORARY POSITION, IN THE EMPLOY OF ANY EMPLOYER AND WHO (1) RECEIVES SUCH CERTIFICATE, (2) IS STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION, AND (3) MAKES APPLICATION FOR REEMPLOYMENT WITHIN FORTY DAYS AFTER HE IS RELIEVED FROM SUCH ACTIVE DUTY OR SERVICE---

(A) IF SUCH POSITION WAS IN THE EMPLOY OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA, SUCH PERSON SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS AND PAY:

(C) ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF ACTIVE MILITARY SERVICE, SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON WAS ORDERED INTO SUCH SERVICE, AND SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION. ( ITALICS SUPPLIED.)

SECTION 7 OF THE ACT OF AUGUST 18, 1941, PUBLIC LAW 213, 55 STAT. 627, PROVIDES AS FOLLOWS:

ANY PERSON WHO, SUBSEQUENT TO MAY 1, 1940, AND PRIOR TO THE TERMINATION OF THE AUTHORITY CONFERRED BY SECTION 2 OF THIS JOINT RESOLUTION, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES SHALL BE ENTITLED TO ALL THE REEMPLOYMENT BENEFITS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 TO THE SAME EXTENT AS IN THE CASE OF PERSONS INDUCTED UNDER SAID ACT: PROVIDED, THAT THE PROVISIONS OF SECTION 8 (B) (A) OF SAID ACT SHALL BE APPLICABLE TO ANY SUCH PERSON WITHOUT REGARD TO WHETHER THE POSITION WHICH HE HELD SHALL HAVE BEEN COVERED INTO THE CLASSIFIED CIVIL SERVICE DURING THE PERIOD OF HIS MILITARY OR NAVAL SERVICE.

REFERRING TO THE ITALICIZED PORTION OF PUBLIC RESOLUTION NO. 96, SUPRA, IT IS CLEAR THAT THE REEMPLOYMENT PROVISIONS OF THAT STATUTE ARE APPLICABLE TO THIS EMPLOYEE WHO WAS IN THE ACTIVE MILITARY SERVICE ON AUGUST 27, 1940, DATE OF APPROVAL OF THE LAW, UNDER ORDERS AS A MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY, AND WAS RELEASED FROM SUCH SERVICE AFTER THE DATE OF THAT STATUTE AND PRIOR TO AUGUST 18, 1941. VIEW THEREOF, SECTION 7 OF THE ACT OF AUGUST 18, 1941, PUBLIC LAW 213, ABOVE QUOTED, WOULD APPEAR TO HAVE NO SPECIAL APPLICATION TO THIS CASE.

AS STATED IN PARAGRAPH NO. 2 OF YOUR LETTER, REEMPLOYMENT BENEFITS ARE CONDITIONED UPON THREE GROUNDS, VIZ: (1) THAT THE EMPLOYEE PRESENT TO THE ADMINISTRATIVE OFFICE A CERTIFICATE SHOWING SATISFACTORY COMPLETION OF THE PERIOD OF MILITARY SERVICE REQUIRED OF HIM; (2) THAT THE EMPLOYEE IS STILL QUALIFIED TO PERFORM THE DUTIES OF THE POSITION HE FORMERLY HELD; AND (3) THAT THE EMPLOYEE MAKE APPLICATION FOR REEMPLOYMENT WITHIN 40 DAYS AFTER HE IS RELIEVED FROM ACTIVE MILITARY DUTY OR SERVICE.

REFERRING TO THE FIRST QUESTION (STATED IN PAR. 3 OF YOUR LETTER), NO PARTICULAR FORM OF APPLICATION IS SPECIFIED IN THE STATUTE, AND IN THE ABSENCE OF ANY EXPRESS STATUTORY PROVISION WITH REFERENCE THERETO, AN INFORMAL APPLICATION BY THE EMPLOYEE FOR RESTORATION TO HIS CIVILIAN POSITION RECEIVED IN THE ADMINISTRATIVE OFFICE WITHIN 40 DAYS AFTER HIS RELEASE FROM ACTIVE MILITARY SERVICE COULD AND MAY BE REGARDED AS MEETING REEMPLOYMENT CONDITION NO. (3) OF SECTION 3 (B) OF PUBLIC RESOLUTION NO. 96, SUPRA. ACCORDINGLY, THE FIRST WRITTEN APPLICATION OF THE EMPLOYEE IN THIS CASE, ALTHOUGH INFORMAL, WOULD APPEAR TO BE LEGALLY SUFFICIENT.

THE SECOND QUESTION (STATED IN PAR. 4 OF YOUR LETTER), INVOLVES REEMPLOYMENT CONDITION NO. 2 OF SECTION 3 (B) OF PUBLIC RESOLUTION NO. 96. WHETHER AN EMPLOYEE "IS STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION" IS FOR ADMINISTRATIVE DETERMINATION, AND ANY DETERMINATION MADE IN THAT CONNECTION WOULD NOT ORDINARILY BE SUBJECT TO REVIEW OR REVISION BY THIS OFFICE. HOWEVER, IT IS THE VIEW OF THIS OFFICE THAT IN ORDER TO MEET SAID CONDITION NO. (2) OF THE STATUTE AN EMPLOYEE MUST BE QUALIFIED TO PERFORM THE DUTIES OF THE CIVILIAN POSITION (WHICH HE FORMERLY HELD) WITHIN THE 40-DAY PERIOD AFTER RELEASE FROM ACTIVE MILITARY SERVICE AUTHORIZED BY THE STATUTE. IN OTHER WORDS, SAID CONDITION NO. (2) MUST EXIST BEFORE THE 40-DAY PERIOD EXPIRES, OTHERWISE THE EMPLOYEE IS UNABLE TO QUALIFY FOR REEMPLOYMENT. ACCORDINGLY, IF, AS WOULD APPEAR TO BE THE FACT, THE WAR DEPARTMENT HAS DETERMINED ADMINISTRATIVELY THAT THE EMPLOYEE HERE INVOLVED WAS NOT QUALIFIED AT ANY TIME WITHIN 40 DAYS AFTER SEPTEMBER 18, 1940, THE DATE HE WAS RELEASED FROM ACTIVE MILITARY SERVICE, TO PERFORM THE DUTIES OF THE POSITION IN GRADE CAF-7 WHICH HE LEFT TO ENTER THE ACTIVE MILITARY SERVICE, OR THE DUTIES OF A POSITION OF LIKE SENIORITY, STATUS, AND PAY, THE EMPLOYEE WAS NOT ENTITLED AS A MATTER OF RIGHT TO BE RESTORED TO SUCH A POSITION.

IN VIEW OF THE ANSWER THUS MADE TO YOUR SECOND QUESTION, THE THIRD QUESTION STATED IN THE FIRST PART OF PARAGRAPH NO. 5 OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.

THE FOURTH QUESTION (STATED IN THE LAST PART OF PAR. 5 OF YOUR LETTER) IS ANSWERED IN THE NEGATIVE. THAT IS TO SAY, AS THE EMPLOYEE RECEIVED AN INCREASE IN COMPENSATION FROM $1,800 PER ANNUM TO $2,600 PER ANNUM, EFFECTIVE FEBRUARY 1, 1941, HE WILL NOT BE ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT IN GRADE CAF-7 UNTIL OCTOBER 1, 1942, THE BEGINNING OF THE FIRST QUARTER AFTER THE EXPIRATION OF 18 MONTHS FROM FEBRUARY 1, 1941. SEE SECTION 2 (B) (1) OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 55 STAT. 613.