B-23135, FEBRUARY 2, 1942, 21 COMP. GEN. 742

B-23135: Feb 2, 1942

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PAYMENT FOR CIVILIAN LEAVE WHILE ON MILITARY DUTY WHETHER AN EMPLOYEE WILL BE ENTITLED UNDER SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940. IN WHICH POSITION IN THE EVENT THE EMPLOYEE WAS TEMPORARILY APPOINTED OR PROMOTED PRIOR TO ENTRY INTO THE MILITARY OR NAVAL SERVICE TO FILL A VACANCY CREATED BY ANOTHER EMPLOYEE'S ENTRY INTO SUCH SERVICE. ARE QUESTIONS PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND NOT FOR THE GENERAL ACCOUNTING OFFICE. AN EMPLOYEE WHO WAS TEMPORARILY APPOINTED OR PROMOTED. IS ENTITLED. 1942: I HAVE YOUR LETTER OF JANUARY 13. THE EMPLOYEE IS CONSIDERED AS HAVING BEEN ON A FURLOUGH OR LEAVE WITHOUT PAY DURING HIS MILITARY OR NAVAL SERVICE. RESTORATION IS REQUIRED TO BE WITHOUT LOSS OF SENIORITY.

B-23135, FEBRUARY 2, 1942, 21 COMP. GEN. 742

OFFICERS AND EMPLOYEES - RESTORATION TO CIVILIAN POSITIONS AFTER MILITARY DUTY; PAYMENT FOR CIVILIAN LEAVE WHILE ON MILITARY DUTY WHETHER AN EMPLOYEE WILL BE ENTITLED UNDER SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, OR STATUTORY PROVISIONS OF SIMILAR IMPORT, TO RESTORATION TO HIS CIVILIAN POSITION UPON DISCHARGE FROM ACTIVE SERVICE IN THE LAND OR NAVAL FORCES, AND, IF SO, IN WHICH POSITION IN THE EVENT THE EMPLOYEE WAS TEMPORARILY APPOINTED OR PROMOTED PRIOR TO ENTRY INTO THE MILITARY OR NAVAL SERVICE TO FILL A VACANCY CREATED BY ANOTHER EMPLOYEE'S ENTRY INTO SUCH SERVICE, ARE QUESTIONS PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND NOT FOR THE GENERAL ACCOUNTING OFFICE. AN EMPLOYEE WHO WAS TEMPORARILY APPOINTED OR PROMOTED, PRIOR TO BEING ORDERED INTO ACTIVE MILITARY OR NAVAL SERVICE, IS ENTITLED, IF OTHERWISE QUALIFIED, TO BE PAID PURSUANT TO THE ACT OF AUGUST 1, 1941, FOR ACCUMULATED AND CURRENT ACCRUED CIVILIAN LEAVE IN ADDITION TO HIS MILITARY PAY AT THE RATE OF COMPENSATION OF THE POSITION TEMPORARILY HELD ON THE LAST DAY OF CIVILIAN SERVICE IMMEDIATELY PRIOR TO ENTRY ON ACTIVE MILITARY OR NAVAL DUTY.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, FEDERAL HOUSING ADMINISTRATION, FEBRUARY 2, 1942:

I HAVE YOUR LETTER OF JANUARY 13, 1942, AS FOLLOWS:

SECTIONS 3 (B) AND 3 (C) OF PUBLIC RESOLUTION NO. 96, 76TH CONGRESS, APPROVED AUGUST 27, 1940, AS AMENDED BY SECTION 8 (D) OF THE SELECTIVE TRAINING AND SERVICE ACT, PUBLIC LAW NO. 783, 76TH CONGRESS, APPROVED SEPTEMBER 16, 1940; SECTIONS 8 (B) AND 8 (C) OF THE SELECTIVE TRAINING AND SERVICE ACT, SUPRA; AND SECTION 7 OF THE SERVICE EXTENSION ACT OF 1941, PUBLIC LAW 213, 77TH CONGRESS, APPROVED AUGUST 18, 1941, PROVIDE FOR THE RESTORATION TO THEIR CIVILIAN POSITIONS OF EMPLOYEES WHO ENTER THE ARMED FORCES OF THE UNITED STATES. THESE ACTS PROVIDE GENERALLY THAT AN EMPLOYEE WHO, IN ORDER TO PERFORM ACTIVE MILITARY OR NAVAL SERVICE IN THE FORCES OF THE UNITED STATES "HAS LEFT OR LEAVES A POSITION, OTHER THAN A TEMPORARY POSITION, * * * IN THE EMPLOY OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES, POSSESSIONS, OR THE DISTRICT OF COLUMBIA, SUCH PERSON SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY.' ( ITALICS SUPPLIED.) UPON SUCH RESTORATION, THE EMPLOYEE IS CONSIDERED AS HAVING BEEN ON A FURLOUGH OR LEAVE WITHOUT PAY DURING HIS MILITARY OR NAVAL SERVICE. RESTORATION IS REQUIRED TO BE WITHOUT LOSS OF SENIORITY, AND SUCH PERSONS MAY NOT BE DISCHARGED WITHOUT CAUSE WITHIN ONE YEAR OF THEIR RESTORATION.

A CONSIDERABLE NUMBER OF EMPLOYEES OF THIS ADMINISTRATION HAVE ALREADY ENTERED THE MILITARY FORCES OF THE UNITED STATES PURSUANT TO THE ABOVE ACTS, AND IT IS VERY LIKELY THAT A RATHER LARGE NUMBER OF OTHER EMPLOYEES OF THIS ADMINISTRATION WILL FROM TIME TO TIME ENTER UPON SUCH ACTIVE MILITARY SERVICE. IN CONNECTION HEREWITH, THE ADMINISTRATION IS CONFRONTED WITH THE PROBLEM OF REPLACING SUCH EMPLOYEES IN SUCH A MANNER AS NOT TO CREATE AN ABNORMAL LIABILITY WITH RESPECT TO THEIR REEMPLOYMENT. FOR EXAMPLE, IF A, WHO OCCUPIES A PERMANENT POSITION, LEAVES SUCH POSITION IN THE ADMINISTRATION TO ENTER THE MILITARY FORCES AND B, WHO IS EMPLOYED TO TAKE HIS PLACE, IS SUBSEQUENTLY CALLED INTO THE SERVICE, THE QUESTION ARISES AS TO WHETHER BOTH A AND B MUST BE RESTORED TO THEIR FORMER POSITIONS WHICH WOULD INVOLVE THE DUTIES ORIGINALLY ASSIGNED ONLY TO A. IF BOTH A AND B UNDER SUCH CIRCUMSTANCES ARE ENTITLED TO BE RESTORED TO THE POSITIONS WHICH THEY LEFT AT THE TIME THEY ENTERED THE MILITARY SERVICE, IT WOULD CREATE A POTENTIAL LIABILITY ON THE PART OF THE ADMINISTRATION, WHICH IT IS FELT WAS NOT CONTEMPLATED BY THE ABOVE MENTIONED ACTS.

IN DEPARTMENTAL CIRCULAR NO. 241 OF NOVEMBER 16, 1940, ISSUED BY THE UNITED STATES CIVIL SERVICE COMMISSION, THE COMMISSION INVITED THE ATTENTION OF APPOINTING OFFICERS IN THE VARIOUS GOVERNMENT DEPARTMENTS AND ESTABLISHMENTS TO THE DESIRABILITY OF MAKING "PROBATIONAL INDEFINITE" APPOINTMENTS TO REPLACE THE INCUMBENTS OF OTHER THAN TEMPORARY POSITIONS WHERE SUCH INCUMBENTS ARE CALLED OR VOLUNTEER FOR ACTIVE MILITARY OR NAVAL SERVICE UNDER CONDITIONS REQUIRING THE RESTORATION OF SUCH PERSONS TO THEIR POSITIONS OR TO POSITIONS OF LIKE SENIORITY, STATUS, AND PAY FOLLOWING THE COMPLETION OF THE PERIOD OF ACTIVE SERVICE. IN THIS CIRCULAR IT WAS POINTED OUT THAT THE USE OF PROBATIONAL INDEFINITE APPOINTMENTS AFFORDED SEVERAL ADVANTAGES OVER TEMPORARY APPOINTMENTS AND IT WAS STATED THAT PROBATIONAL INDEFINITE APPOINTMENTS ARE USUALLY MADE WHEN THE PERIOD OF EMPLOYMENT IS LONGER THAN SIX MONTHS BUT NOT PERMANENT IN NATURE. IF THE SUGGESTION OF THE CIVIL SERVICE COMMISSION IS FOLLOWED, THAT IS, IF THE ADMINISTRATION REPLACES EMPLOYEES WHO LEAVE PERMANENT POSITIONS TO ENTER THE MILITARY SERVICE BY PROBATIONAL INDEFINITE APPOINTEES, WOULD SUCH PROBATIONAL INDEFINITE APPOINTEES BE CONSIDERED AS INCUMBENTS OF PERMANENT POSITIONS SO THAT IF THEY ARE CALLED INTO THE MILITARY SERVICE THEY ALSO WOULD BE ENTITLED TO BE RESTORED TO THE SAME POSITION OR TO A POSITION OF LIKE STATUS, SENIORITY, AND PAY? INASMUCH AS THE PURPOSE OF THE APPOINTMENT OF THE PROBATIONAL INDEFINITE EMPLOYEE WAS TO PROVIDE SOMEONE TO CARRY ON THE DUTIES ORIGINALLY PERFORMED BY THE PERSON WHO LEFT TO ENTER THE MILITARY SERVICE AND ONLY FOR SUCH PURPOSE, IT WOULD APPEAR THAT IT WAS NOT INTENDED BY THE ABOVE MENTIONED ACTS TO PROVIDE SUCH PROBATIONAL INDEFINITE EMPLOYEE WITH A RIGHT TO BE REINSTATED TO THE SAME POSITION OR ONE OF LIKE STATUS, SENIORITY, AND PAY. IN OTHER WORDS, IT WOULD APPEAR THAT THE TENURE OF SUCH AN EMPLOYEE WOULD BY ITS NATURE BE LIMITED BY THE REASONS FOR WHICH HE WAS EMPLOYED AND IN THIS CASE WOULD BE ONLY FOR SO LONG AS THE ORIGINAL EMPLOYEE WHOSE RETURN IS EXPECTED IS ABSENT PERFORMING MILITARY SERVICE, AND THE POSITION TO WHICH HE WAS APPOINTED WOULD THEREFORE APPEAR NOT TO BE PERMANENT WITHIN THE MEANING OF THE ABOVE MENTIONED ACTS. IF THIS IS NOT THE CASE IT MAY BE NECESSARY WHEN THE EMERGENCY IS OVER TO DISCHARGE SOME EMPLOYEES WHO WERE APPOINTED TO PERMANENT POSITIONS UNDER REGULAR PROBATIONAL APPOINTMENTS AND WHO HAVE RENDERED LONGER SERVICE IN ORDER TO PROVIDE AN APPOINTMENT FOR SUCH PROBATIONAL INDEFINITE APPOINTEE WHEN HE RETURNS FROM MILITARY SERVICE.

ANOTHER PROBLEM CONFRONTS THE ADMINISTRATION IN THOSE CASES WHERE, FOLLOWING THE ADMINISTRATION'S POLICY OF PROMOTING FROM WITHIN, SEVERAL EMPLOYEES OF A PARTICULAR OFFICE ARE MOVED UP TO HIGHER GRADE POSITIONS AS A DIRECT OR INDIRECT RESULT OF AN EMPLOYEE'S LEAVING FOR MILITARY OR NAVAL SERVICE. FOR EXAMPLE, A, WHO OCCUPIES A GRADE-5 POSITION IS PLACED ON FURLOUGH FOR MILITARY TRAINING AND B, WHO FORMERLY OCCUPIED A GRADE-4 POSITION, IS PROMOTED TO AN ADDITIONAL IDENTICAL POSITION CORRESPONDING TO A'S IN ORDER THAT HE MAY PERFORM A'S DUTIES. C AND D ARE LIKEWISE PROMOTED TO FILL THE VACANCIES INDIRECTLY CREATED THEREBY AND A NEW PERSON IS APPOINTED TO FILL D'S POSITION. THE PROBLEM ARISES WHEN B, WHO WAS PROMOTED FROM A LOWER GRADE POSITION TO PERFORM THE DUTIES OF A, ALSO LEAVES THE ADMINISTRATION TO ENTER THE MILITARY SERVICE. IF B AND ANY SUBSEQUENT PERSON WHO IS PROMOTED TO A'S JOB FOR THE PURPOSE OF ASSUMING A'S DUTIES IN HIS ABSENCE MUST BE CONSIDERED AS OCCUPYING A PERMANENT POSITION, IT IS POSSIBLE THAT SEVERAL EMPLOYEES WOULD BE ENTITLED TO BE RETURNED TO THE SAME POSITION, THUS CREATING A TREMENDOUS LIABILITY ON THE PART OF THE ADMINISTRATION. IN ORDER TO AVOID DUAL LIABILITY FOR THE SAME POSITION AND IN ORDER TO GIVE REASONABLE PROTECTION TO EMPLOYEES IT IS PROPOSED TO HANDLE THIS SITUATION AS FOLLOWS: WHEN A LEAVES FOR THE MILITARY OR NAVAL SERVICE, B WILL BE PROMOTED TO AN ADDITIONAL IDENTICAL POSITION CORRESPONDING TO A'S AND THE OFFICIAL NOTICE TO B OF SUCH PROMOTION WOULD CARRY THE NOTATION "SUBJECT TO THE RETURN OF AN EMPLOYEE FROM MILITARY SERVICE.' ANY OTHER PROMOTIONS MADE AS THE DIRECT OR INDIRECT RESULT OF A'S LEAVING TO ENTER THE MILITARY SERVICE WOULD BE MADE ON THE SAME CONDITION AND THE OFFICIAL NOTICES WOULD CARRY THE SAME NOTATION. IF B WERE CALLED INTO THE MILITARY SERVICE HE WOULD BE RETAINED IN SUCH ADDITIONAL IDENTICAL POSITION CORRESPONDING TO A'S UNTIL SUCH TIME AS HIS ACCRUED ANNUAL LEAVE APPLIED FOR, IF ALLOWABLE UNDER THE CIRCUMSTANCES, IS EXHAUSTED. HE WOULD THEN BE RETURNED TO HIS FORMER POSITION AND SIMULTANEOUSLY PLACED ON FURLOUGH FOR MILITARY SERVICE. THE THEORY OF THIS ARRANGEMENT IS THAT THE ADDITIONAL IDENTICAL POSITION TO WHICH B WAS PROMOTED IS, IN EFFECT, TEMPORARY FOR PURPOSES OF THE ABOVE- MENTIONED ACTS, IN THAT IT WAS CREATED ONLY FOR THE PURPOSE OF PERMITTING A REPLACEMENT FOR A WHILE HE IS ABSENT PERFORMING MILITARY SERVICE. WOULD BE PROTECTED AS TO HIS EMPLOYMENT WITH THE ADMINISTRATION BY BEING RESTORED TO HIS ORIGINAL POSITION BEFORE BEING PLACED ON " FURLOUGH FOR MILITARY SERVICE.' ACCORDINGLY YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER B CAN BE COMPENSATED FOR ANY ACCUMULATED LEAVE TO HIS CREDIT AT THE RATE OF HIS SALARY IN THE ADDITIONAL IDENTICAL POSITION AND THEN BE RESTORED TO HIS FORMER POSITION SO THAT HE WILL BE ENTITLED ONLY TO THAT FORMER POSITION (OR TO ONE OF LIKE STATUS, SENIORITY, AND PAY) UPON HIS RETURN FROM MILITARY SERVICE.

WITH THE EXCEPTION OF THAT PART OF THE QUESTION STATED IN THE CONCLUDING SENTENCE OF YOUR LETTER RELATING TO THE PAYMENT FOR LEAVE OF ABSENCE IN THE ADDITIONAL IDENTICAL POSITION, THE PROBLEMS PRESENTED INVOLVING THE RESTORATION OR REEMPLOYMENT OF EMPLOYEES AFTER TERMINATION OF ACTIVE SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES, UNDER THE TERMS OF THE STATUTES CITED IN THE FIRST PARAGRAPH OF YOUR LETTER, ARE PRIMARILY FOR ADMINISTRATIVE SOLUTION. WHETHER AN EMPLOYEE WILL BE ENTITLED TO RESTORATION UPON DISCHARGE FROM THE ACTIVE MILITARY OR NAVAL SERVICE, AND, IF SO, IN WHICH POSITION IN THE EVENT THE EMPLOYEE WAS TEMPORARILY APPOINTED OR PROMOTED PRIOR TO ENTRY INTO THE MILITARY OR NAVAL SERVICE TO FILL A VACANCY CAUSED BY ANOTHER EMPLOYEE'S ENTRY INTO SUCH SERVICE, ARE NOT QUESTIONS REQUIRING THE CONSIDERATION OF THE GENERAL ACCOUNTING OFFICE UNDER ITS STATUTORY DUTIES WITH REFERENCE TO THE DETERMINATION OF THE PROPER USES OF PUBLIC FUNDS. THE ACCOUNTING OFFICERS HAVE ALWAYS DEEMED IT NOT TO BE WITHIN THEIR JURISDICTION OR AUTHORITY TO PASS UPON THE LEGALITY OF ADMINISTRATIVE ACTION RELATING SOLELY TO THE ELIGIBILITY OF EMPLOYEES FOR APPOINTMENT, REAPPOINTMENT, OR REINSTATEMENT IN THE FEDERAL SERVICE.

REFERRING TO THE QUESTION CONTAINED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, AN EMPLOYEE WHO IS ORDERED INTO ACTIVE SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES IS ENTITLED TO BE PAID FOR HIS ACCUMULATED AND CURRENT ACCRUED LEAVE UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 202, 55 STAT. 616, ONLY IN THE POSITION ACTUALLY HELD IMMEDIATELY PRIOR TO HIS ENTRY INTO THE ACTIVE MILITARY OR NAVAL SERVICE. SEE DECISION OF OCTOBER 8, 1941, 21 COMP. GEN. 310, AND DECISIONS THEREIN CITED. ACCORDINGLY, THE EMPLOYEE REFERRED TO, IF OTHERWISE QUALIFIED, WOULD BE ENTITLED TO BE PAID FOR SUCH LEAVE AT THE RATE OF COMPENSATION PAID TO HIM IN THE ADDITIONAL IDENTICAL POSITION TEMPORARILY HELD ON THE LAST DAY OF HIS CIVILIAN SERVICE IMMEDIATELY PRIOR TO HIS ENTRY INTO THE ACTIVE MILITARY SERVICE.