B-34916, JUNE 12, 1943, 22 COMP. GEN. 1104

B-34916: Jun 12, 1943

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1943: I HAVE YOUR LETTER OF MAY 31. AS FOLLOWS: YOUR OPINION IS DESIRED WITH RESPECT TO THE FOLLOWING QUESTION: A JUNIOR SOIL SURVEYOR WAS APPOINTED ON A PROBATIONAL-PERMANENT BASIS IN THE SOIL CONSERVATION SERVICE OF THE UNITED STATES DEPARTMENT OF AGRICULTURE ON AUGUST 28. HE WAS FURLOUGHED WITHOUT PAY ON JANUARY 2. HIS APPOINTMENT WAS TERMINATED ON JUNE 1. HE WAS REAPPOINTED ON A WAR-SERVICE BASIS IN THE FOOD AND DRUG ADMINISTRATION OF THE FEDERAL SECURITY AGENCY AS A JUNIOR SEAFOOD INSPECTOR. 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.'. THE FACTS PRESENTED SHOW THAT THE EMPLOYEE WAS IN A NON-PAY STATUS (INCLUDING BREAK IN SERVICE) EXCEEDING 30 DAYS.

B-34916, JUNE 12, 1943, 22 COMP. GEN. 1104

COMPENSATION - WITHIN-GRADE PROMOTIONS - SERVICE CREDITS - REAPPOINTMENT AFTER LEAVE WITHOUT PAY AND BREAK IN SERVICE IN COMPUTING UNDER SECTION 2 OF EXECUTIVE ORDER NO. 8882 THE 18 OR 30 MONTHS' SERVICE NECESSARY TO ENTITLE AN EMPLOYEE TO A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, THERE MAY NOT BE COUNTED UPON REAPPOINTMENT OF THE EMPLOYEE AFTER A PERIOD OF LEAVE OF ABSENCE WITHOUT PAY (INCLUDING BREAK IN SERVICE FOR ONE WORK DAY OR MORE) IN EXCESS OF 30 DAYS, ANY SERVICE PRIOR TO OR DURING THE PERIOD OF LEAVE OF ABSENCE WITHOUT PAY.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, JUNE 12, 1943:

I HAVE YOUR LETTER OF MAY 31, 1943, AS FOLLOWS:

YOUR OPINION IS DESIRED WITH RESPECT TO THE FOLLOWING QUESTION:

A JUNIOR SOIL SURVEYOR WAS APPOINTED ON A PROBATIONAL-PERMANENT BASIS IN THE SOIL CONSERVATION SERVICE OF THE UNITED STATES DEPARTMENT OF AGRICULTURE ON AUGUST 28, 1941. HE WAS FURLOUGHED WITHOUT PAY ON JANUARY 2, 1942, AND HIS APPOINTMENT WAS TERMINATED ON JUNE 1, 1942, BECAUSE OF LACK OF FUNDS.

UNDER DATE OF JUNE 6, 1942, HE WAS REAPPOINTED ON A WAR-SERVICE BASIS IN THE FOOD AND DRUG ADMINISTRATION OF THE FEDERAL SECURITY AGENCY AS A JUNIOR SEAFOOD INSPECTOR, AND HAS SERVED CONTINUOUSLY IN THAT CAPACITY SINCE THAT DATE.

SECTION 2 OF EXECUTIVE ORDER 8882, WHICH PRESCRIBES THE REGULATIONS FOR THE ADMINISTRATION OF THE WITHIN-GRADE SALARY ADVANCEMENT PLAN ESTABLISHED BY THE CLASSIFICATION ACT OF 1923 AS AMENDED BY THE ACT OF AUGUST 1, 1941 ( PUBLIC 200, 77TH CONGRESS), READS AS FOLLOWS:

"SECTION 2. 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 OF THE DISTRICT OF COLUMBIA.

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

"/C) TIME ELAPSING IN A NON-PAY 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.'

CAN THE SERVICE RENDERED BY THE ABOVE-NAMED EMPLOYEE WHILE EMPLOYED IN THE SOIL CONSERVATION SERVICE FROM THE TIME OF HIS APPOINTMENT ON AUGUST 28, 1941, TO THE DATE OF HIS FURLOUGH ON JANUARY 2, 1942, BE CREDITED IN COMPUTING THE PERIOD OF SERVICE REQUIRED FOR AN AUTOMATIC PROMOTION IN THE FOOD AND DRUG ADMINISTRATION? CAN 30 DAYS OF HIS FURLOUGH PERIOD BE CREDITED?

THE FACTS PRESENTED SHOW THAT THE EMPLOYEE WAS IN A NON-PAY STATUS (INCLUDING BREAK IN SERVICE) EXCEEDING 30 DAYS. SUBSECTION (D) OF SECTION 2 OF THE REGULATIONS QUOTED IN YOUR LETTER RELATES ONLY TO EMPLOYEES WHO HAVE BEEN "ON FURLOUGH OR LEAVE WITHOUT PAY.' THAT REGULATION DOES NOT BENEFIT AN EMPLOYEE WHO HAS HAD A BREAK IN SERVICE AND WHO DOES NOT FALL WITHIN THE PURVIEW OF SUBSECTION (C) OF SECTION 2 OF THE REGULATIONS. HENCE, AN EMPLOYEE WHO HAS BEEN ON LEAVE OF ABSENCE WITHOUT PAY (INCLUDING BREAK IN SERVICE) IN EXCESS OF 30 DAYS, AND WHO WAS OUT OF THE SERVICE FOR ONE WORK DAY OR MORE, AS IN THE INSTANT CASE, MAY NOT BE CREDITED WITH ANY SERVICE PRIOR TO THE TIME HE WENT ON LEAVE WITHOUT PAY FOR THE PURPOSE OF COMPUTING LONGEVITY UNDER THE CONTROLLING WITHIN-GRADE-PROMOTION LAW AND REGULATIONS. COMPARE 21 COMP. GEN. 369, 791, 945.

BOTH QUESTIONS POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER ARE ANSWERED IN THE NEGATIVE.