B-37199, DECEMBER 31, 1943, 23 COMP. GEN. 471

B-37199, DECEMBER 31, 1943, 23 COMP. GEN. 471

COMPENSATION - WITHIN-GRADE PROMOTION - RESTORATION IN FORMER POSITION AFTER TRANSFER TO ANOTHER AGENCY, ETC. IN COMPUTING THE 18- OR 30-MONTH WAITING PERIOD PRESCRIBED BY THE WITHIN- GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, AND EXECUTIVE REGULATIONS THEREUNDER, THERE MAY BE INCLUDED CIVILIAN SERVICE IN ANY BRANCH OF THE GOVERNMENT; AND SUCH WAITING PERIOD DATES FROM THE LAST "EQUIVALENT INCREASE IN COMPENSATION," REGARDLESS OF THE BRANCH OF SERVICE IN WHICH THE EQUIVALENT INCREASE WAS GRANTED. WHERE AN EMPLOYEE TRANSFERRED FROM ONE AGENCY TO ANOTHER AT AN INCREASE IN GRADE AND SALARY UNDER CONDITIONS ENTITLING HIM TO THE REEMPLOYMENT RIGHTS PROVIDED BY THE WAR SERVICE REGULATIONS ISSUED PURSUANT TO EXECUTIVE ORDER NO. 9063, AND WAS SUBSEQUENTLY RESTORED TO HIS POSITION IN THE FORMER AGENCY AT THE SAME SALARY RATE AND GRADE HELD PRIOR TO HIS TRANSFER, PLUS ANY AUTOMATIC WITHIN-GRADE SALARY ADVANCEMENTS HE WOULD HAVE RECEIVED HAD HE REMAINED IN THAT POSITION, THE 18- OR 30-MONTH WAITING PERIOD PRESCRIBED BY THE WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, WOULD DATE FROM THE LAST AUTOMATIC PROMOTION HE WOULD HAVE RECEIVED IN HIS POSITION IN THE FORMER AGENCY, RATHER THAN FROM THE DATE OF HIS RETURN TO SUCH POSITION. IN THE CASE OF AN EMPLOYEE WHO TRANSFERRED FROM ONE AGENCY TO ANOTHER AT AN INCREASE IN GRADE AND SALARY UNDER CONDITIONS ENTITLING HIM TO REEMPLOYMENT RIGHTS UNDER WAR SERVICE REGULATIONS ISSUED PURSUANT TO EXECUTIVE ORDER NO. 9063, AND WHO WAS RETRANSFERRED TO A POSITION IN THE FORMER AGENCY PLUS ANY PERIODIC SALARY ADVANCEMENT, BUT LOWER THAN THE SALARY RATE OF THE HIGHER GRADE IN THE AGENCY TO WHICH HE TRANSFERRED, THE 18- OR 30-MONTH WAITING PERIOD PRESCRIBED BY THE WITHIN-GRADE SALARY- ADVANCEMENT STATUTE OF AUGUST 1, 1941, WOULD BEGIN TO RUN FROM THE DATE OF THE SALARY INCREASE INCIDENT TO THE TRANSFER TO THE OTHER AGENCY--- THE REDUCTION IN SALARY UPON RETRANSFER NOT BEING FOR CONSIDERATION. IN THE CASE OF AN EMPLOYEE WHO TRANSFERRED TO ANOTHER AGENCY AT AN INCREASE IN GRADE AND SALARY UNDER CONDITIONS ENTITLING HIM TO THE REEMPLOYMENT RIGHTS OF THE WAR SERVICE REGULATIONS ISSUED PURSUANT TO EXECUTIVE ORDER NO. 9063, BUT, WHO DID NOT RETURN TO HIS POSITION IN THE FORMER AGENCY THROUGH EXERCISE OF SUCH REEMPLOYMENT RIGHTS, THE 18- OR 30- MONTH WAITING PERIOD PRESCRIBED BY THE WITHIN-GRADE SALARY ADVANCEMENT STATUTE OF AUGUST 1, 1941, WOULD DATE FROM THE EQUIVALENT INCREASE IN COMPENSATION GRANTED INCIDENT TO HIS TRANSFER TO THE OTHER AGENCY. COMP. GEN. 265, DISTINGUISHED. WHERE AN EMPLOYEE TRANSFERRED FROM ONE AGENCY TO ANOTHER AT AN INCREASE IN GRADE AND SALARY WITH REEMPLOYMENT RIGHTS GRANTED UNDER THE WAR SERVICE REGULATIONS ISSUED PURSUANT TO EXECUTIVE ORDER NO. 9063, AND THEREAFTER, EITHER FOR PERSONAL REASONS OR BECAUSE HIS WORK WAS COMPLETED ACCEPTED A POSITION WITH A THIRD AGENCY AT THE SAME GRADE AND SALARY AS THAT RECEIVED IN HIS ORIGINAL POSITION, INSTEAD OF INVOKING HIS REEMPLOYMENT RIGHTS IN THE AGENCY IN WHICH ORIGINALLY EMPLOYED THE 18- OR 30-MONTH WAITING PERIOD PRESCRIBED BY THE WITHIN-GRADE SALARY ADVANCEMENT STATUTE OF AUGUST 1, 1941, WOULD BEGIN TO RUN FROM THE DATE OF THE INCREASE IN GRADE AND SALARY INCIDENT TO HIS TRANSFER TO THE OTHER AGENCY. WHERE AN EMPLOYEE TRANSFERRED AT AN INCREASE IN SALARY AND GRADE FROM ONE AGENCY TO ANOTHER WITH REEMPLOYMENT RIGHTS GRANTED UNDER WAR SERVICE REGULATIONS ISSUED PURSUANT TO EXECUTIVE ORDER NO. 9063, AND RETURNED TO HIS POSITION IN THE FORMER AGENCY, UNDER CONDITIONS NOT INVOLVING THE EXERCISE OF REEMPLOYMENT RIGHTS, AT THE SAME SALARY RATE HE WAS RECEIVING IN THE HIGHER-GRADE POSITION IN THE OTHER AGENCY, THE 18- OR 30-MONTH WAITING PERIOD PRESCRIBED BY THE WITHIN-GRADE SALARY ADVANCEMENT STATUTE OF AUGUST 1, 1941, WOULD DATE FROM THE INCREASE IN SALARY AND GRADE INCIDENT TO HIS TRANSFER TO THE OTHER AGENCY.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, DECEMBER 31, 1943:

I HAVE YOUR LETTER OF DECEMBER 13, 1943, AS FOLLOWS:

IN YOUR LETTER OF OCTOBER 8, 1943, (B-37199), YOU RULED, CONCERNING AN EMPLOYEE RESTORED TO HIS FORMER PERMANENT POSITION AT HIS LAST RATE IN THE GRADE, THAT HIS SERVICE IN THE POSITION HELD IN THE INTERIM IS TO BE INCLUDED IN HIS WAITING PERIOD FOR WITHIN-GRADE SALARY ADVANCEMENT, REGARDLESS OF THE SALARY PAID IN HIS INTERIM POSITION.

OTHER FORMER EMPLOYEES ENTITLED TO THE REEMPLOYMENT BENEFITS MENTIONED IN MY LETTER OF SEPTEMBER 24 (TO WHICH YOUR LETTER MENTIONED ABOVE REPLIED) ARE NOW BEGINNING TO EXERCISE THOSE RIGHTS, AND I FIND IT NECESSARY TO SUBMIT CERTAIN OTHER QUESTIONS.

THIS AGENCY'S ANNOUNCED POLICY WITH RESPECT TO THE PAY OF EMPLOYEES IN THIS CATEGORY IS AS FOLLOWS:

"AN EMPLOYEE WHO IS RETURNED TO HIS FORMER POSITION OR A POSITION OF EQUAL GRADE IN THE FEDERAL SECURITY AGENCY THROUGH THE OPERATION OF WAR SERVICE REEMPLOYMENT RIGHTS, SHALL ORDINARILY BE PAID AT HIS LAST RATE IN THE GRADE TO WHICH HE IS RETURNED, PLUS THE AUTOMATIC PROMOTIONS HE WOULD HAVE EARNED HAD HE REMAINED IN THAT GRADE.' ( PERSONNEL BULLETIN NO. 14, SUPPLEMENT NO. 1, ST PAR.)

(1) AM I CORRECT IN ASSUMING THAT WHEN SUCH AN EMPLOYEE RETURNS TO HIS FORMER POSITION AT THIS LAST SALARY IN THAT POSITION, PLUS THE STATUTORY PROMOTION HE WOULD HAVE RECEIVED HAD HE REMAINED IN THAT POSITION, THE WAITING PERIOD FOR HIS NEXT STATUTORY PROMOTION WOULD DATE FROM THE BEGINNING OF THE QUARTER ON WHICH SUCH PROMOTION WOULD OTHERWISE HAVE BEEN RECEIVED RATHER THAN FROM THE DATE OF HIS RETURN?

(2) IF RETURNED AT A RATE HIGHER THAN THAT WHICH HIS STATUTORY PROMOTION WOULD GIVE HIM (BUT LOWER THAN HIS SALARY IN THE HIGHER GRADE), FROM WHAT DATE WOULD THE WAITING PERIOD FOR HIS NEXT STATUTORY PROMOTION BEGIN TO RUN?

(3) IF RETURNED NOT THROUGH THE EXERCISE OF REEMPLOYMENT RIGHTS BUT PURELY THROUGH ADMINISTRATIVE DECISION, WOULD YOUR ANSWER BE DIFFERENT, AND IF SO, IN WHAT WAY? (THIS LATTER QUESTION WOULD RELATE TO AN EMPLOYEE WHO HAD TRANSFERRED TO ANOTHER AGENCY AT AN INCREASE IN GRADE AND SALARY AND WHO FOR PERSONAL REASONS WANTED TO RETURN TO HIS FORMER POSITION BEFORE HE HAD COMPLETED HIS WORK IN THE OTHER AGENCY.)

THE SECOND PARAGRAPH OF THE SUPPLEMENT TO THE PERSONNEL BULLETIN REFERRED TO ABOVE READS AS FOLLOWS:

"ALL NEW APPOINTMENTS BY TRANSFER FROM WAR-SERVICE POSITIONS WITH REDUCTION IN GRADE SHALL ORDINARILY BE AT THE BASE (MINIMUM) RATE OF THE GRADE OF POSITION TO WHICH APPOINTMENT IS MADE.'

ONE OF OUR EMPLOYEES WAS IN AN EXECUTIVE DEPARTMENT AT CAF GRADE 5, $2,000 PER ANNUM. ORDINARILY, HE WOULD HAVE RECEIVED A STATUTORY INCREASE IN THAT GRADE ON JANUARY 1, 1943, BUT HE TRANSFERRED IN DECEMBER 1942, WITH REEMPLOYMENT RIGHTS, TO A CAF GRADE 7 WAR-SERVICE POSITION AT $2,600 PER ANNUM. WHEN HIS WORK WAS FINISHED IN THE LATTER POSITION, HE ACCEPTED A POSITION WITH THE FEDERAL SECURITY AGENCY INSTEAD OF INVOKING HIS REEMPLOYMENT RIGHTS IN THE EXECUTIVE DEPARTMENT. HE ENTERED ON DUTY IN THE FEDERAL SECURITY AGENCY IN A CAF GRADE 5 POSITION, AT $2,000 PER ANNUM, ON NOVEMBER 10, 1943.

(4) FROM WHAT DATE DOES THE WAITING PERIOD FOR HIS NEXT STATUTORY PROMOTION IN CAF GRADE 5 BEGIN TO RUN?

(5) HAD HE LEFT THE GRADE 7 WAR-SERVICE POSITION FOR PERSONAL REASONS AND NOT BECAUSE HIS WORK WAS FINISHED, WOULD YOUR ANSWER BE DIFFERENT, AND IF SO, IN WHAT RESPECT?

(6) IN THE EVENT THAT SUCH AN EMPLOYEE IS RETURNED TO HIS FORMER POSITION AT THE SALARY HE WAS RECEIVING IN THE HIGHER-GRADE POSITION, DOES THE WAITING PERIOD FOR THE NEXT STATUTORY PROMOTION DATE FROM THE DATE ON WHICH HE RECEIVED HIS LAST EQUIVALENT INCREASE?

THE "REGULATIONS GOVERNING WITHIN-GRADE SALARY ADVANCEMENTS" ISSUED BY THE PRESIDENT ( EXECUTIVE ORDER 8882, DATED SEPTEMBER 3, 1941), PROVIDE, IN PERTINENT PART, AS FOLLOWS:

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

(D) " EQUIVALENT INCREASE IN COMPENSATION" SHALL MEAN ANY INCREASE OR INCREASES WHICH IN TOTAL ARE EQUAL TO OR GREATER THAN THE COMPENSATION INCREMENT IN THE LOWEST GRADE IN WHICH THE EMPLOYEE HAS SERVED DURING THE TIME PERIOD OF EIGHTEEN OR THIRTY MONTHS, AS THE CASE MAY BE.

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. READING THOSE PROVISIONS OF THE REGULATIONS TOGETHER IN THE LIGHT OF THE CONTROLLING STATUTE, IT HAS BEEN NECESSARY TO CONCLUDE GENERALLY THAT THE WAITING PERIOD FOR AUTOMATIC WITHIN-GRADE SALARY ADVANCEMENTS INCLUDES CIVILIAN SERVICE IN ANY BRANCH OF THE GOVERNMENT AND DATES FROM THE LAST "EQUIVALENT INCREASE IN COMPENSATION" AS DEFINED BY THE REGULATIONS REGARDLESS OF THE BRANCH OF THE CIVILIAN SERVICE IN WHICH THE EQUIVALENT INCREASE WAS GRANTED. HENCE, IN DECISION OF NOVEMBER 22, 1941, 21 COMP. GEN. 478, IT WAS HELD (QUOTING FROM THE SYLLABUS):

WHERE AN EMPLOYEE IS TRANSFERRED TO A POSITION IN A HIGHER GRADE RESULTING IN AN INCREASE IN COMPENSATION EQUIVALENT TO THE AMOUNT OF THE SALARY STEP IN THE LOWER GRADE, AND, UPON COMPLETION OF THE ASSIGNMENT IN THE HIGHER GRADE, IS RETURNED TO HIS FORMER SALARY AND GRADE THE EMPLOYEE IS NOT ELIGIBLE FOR A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, UNTIL THE BEGINNING OF THE NEXT QUARTER AFTER THE LAPSE OF 18 OR 30 MONTHS (AS THE CASE MAY BE) FROM THE TIME HE RECEIVED THE EQUIVALENT INCREASE IN COMPENSATION WHEN TRANSFERRED TO THE HIGHER GRADE. SEE, ALSO, 21 COMP. GEN. 285 AND 369.

HOWEVER, IN THE DECISION OF OCTOBER 8, 1943 (B-37199), 23 COMP. GEN. 265, TO WHICH YOU REFER, INVOLVING A TRANSFER UNDER THE PROVISIONS OF THE WAR SERVICE REGULATIONS, IT WAS HELD (QUOTING FROM THE SYLLABUS):

IN THE CASE OF AN EMPLOYEE WHO TRANSFERRED FROM ONE AGENCY TO ANOTHER AT AN INCREASE IN GRADE AND SALARY UNDER CONDITIONS ENTITLING HIM TO THE REEMPLOYMENT RIGHTS AND BENEFITS PROVIDED BY THE WAR SERVICE REGULATIONS ISSUED PURSUANT TO EXECUTIVE ORDER NO. 9063, AND WHO WAS SUBSEQUENTLY RESTORED TO A POSITION IN THE FORMER AGENCY AT THE SAME SALARY RATE AND GRADE HELD PRIOR TO HIS TRANSFER, THE SERVICE IN THE AGENCY TO WHICH HE TRANSFERRED MAY BE INCLUDED IN COMPUTING THE 18- OR 30-MONTH WAITING PERIOD PRESCRIBED BY THE WITHIN-GRADE SALARY ADVANCEMENT STATUTE OF AUGUST 1, 1941; AND THE WAITING PERIOD WOULD DATE FROM THE LAST PROMOTION IN THE FORMER AGENCY RATHER THAN FROM THE DATE OF THE INCREASE IN GRADE AND SALARY UPON TRANSFER TO THE OTHER AGENCY. 21 COMP. GEN. 285, DISTINGUISHED. THAT RULE WAS NOT INTENDED TO, AND DOES NOT, CHANGE THE RULE PREVIOUSLY STATED APPLICABLE IN CASES WHERE REEMPLOYMENT BENEFITS ARE NOT INVOLVED. SEE THE DECISION OF DECEMBER 28, 1943, B-38826, TO THE ATTORNEY GENERAL.

IF, AS IS UNDERSTOOD FROM YOUR LETTER, QUESTION 1 RELATES TO AN EMPLOYEE WHO WAS TRANSFERRED FROM THE FEDERAL SECURITY AGENCY TO ANOTHER BRANCH OF THE SERVICE WITH REEMPLOYMENT BENEFITS AND HE WAS RESTORED TO HIS POSITION IN THE FEDERAL SECURITY AGENCY IN ACCORDANCE WITH THE WAR SERVICE REGULATIONS CONTROLLING REEMPLOYMENT BENEFITS, THE SAID QUESTION IS ANSWERED IN THE AFFIRMATIVE.

REFERRING TO QUESTION 2, IT IS NOTED THAT NEITHER THE STATED ADMINISTRATIVE POLICY OF THE FEDERAL SECURITY AGENCY NOR THE WAR SERVICE REGULATIONS PROHIBIT THE RETRANSFERRING OF AN EMPLOYEE WITH REEMPLOYMENT BENEFITS AT A RATE HIGHER THAN THAT HE PREVIOUSLY RECEIVED, PLUS SUCH AUTOMATIC PROMOTION TO WHICH HE MAY HAVE BEEN ENTITLED. THERE IS NO LEGAL OBJECTION TO THAT PROCEDURE, AS IT IS IN LINE WITH THE RULE STATED IN DECISION OF SEPTEMBER 18, 1943, 23 COMP. GEN. 201, AS FOLLOWS (QUOTING FROM THE SYLLABUS):

IN FIXING UNDER THE CLASSIFICATION ACT THE INITIAL SALARY RATE OF AN EMPLOYEE WHO, AFTER PROMOTION OR REASSIGNMENT TO A HIGHER GRADE FOR AN INDEFINITE PERIOD TO FILL A VACANCY CAUSED BY ANOTHER EMPLOYEE'S ENTRANCE INTO THE ACTIVE MILITARY SERVICE, WAS REDUCED TO HIS FORMER GRADE UPON RETURN OF THE EMPLOYEE FROM THE SERVICE, THE RATE MAY BE (1) THE SAME AS THAT OF THE HIGHER GRADE TO WHICH PROMOTED OR REASSIGNED (INCLUDING ANY PERIODIC OR MERITORIOUS SALARY ADVANCEMENT) PROVIDED THE SALARY RATE OF THAT GRADE IS ALSO A STANDARD RATE IN THE GRADE TO WHICH REDUCED, OR (2) WITH AS LITTLE LOSS OF SALARY AS IS NECESSARY TO PAY A RATE PRESCRIBED FOR THE GRADE TO WHICH REDUCED. 21 COMP. GEN. 436, DISTINGUISHED.

HOWEVER, IN THAT EVENT, THE GENERAL RULE, RATHER THAN THE EXCEPTION STATED IN THE DECISION OF OCTOBER 8, 1943, SUPRA, WOULD BE APPLICABLE AND THE WAITING PERIOD IN QUESTION (2) WOULD BEGIN TO RUN FROM THE DATE OF THE INCREASE IN COMPENSATION GRANTED INCIDENT TO THE EMPLOYEE'S TRANSFER TO ANOTHER AGENCY, THE REDUCTION UPON RETURN TO THE FEDERAL SECURITY AGENCY NOT BEING FOR CONSIDERATION. SEE THE DECISION OF OCTOBER 27, 1941, 21 COMP. GEN. 369, IN WHICH IT WAS HELD (QUOTING FROM THE SIXTH PARAGRAPH OF THE SYLLABUS):

A REDUCTION IN SALARY DURING THE PRESCRIBED PERIOD THAT AN EMPLOYEE MUST SERVE WITHOUT AN ,EQUIVALENT INCREASE IN COMPENSATION" IN ORDER TO BE ELIGIBLE FOR A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, HAS NO EFFECT ON THE EMPLOYEE'S ELIGIBILITY TO THE INCREASE, AND WHERE THE REDUCTION FOLLOWS A PRIOR INCREASE IN SALARY, THE SAID PRESCRIBED PERIOD CONTINUES TO RUN FROM THE EFFECTIVE DATE OF THE PRIOR INCREASE.

THE FIRST ABOVE-STATED GENERAL RULE (21 COMP. GEN. 478), RATHER THAN THE RULE MAKING AN EXCEPTION THERETO APPLICABLE ONLY WHEN REEMPLOYMENT BENEFITS ARE INVOLVED (23 COMP. GEN. 265), IS APPLICABLE IN ANSWERING QUESTION (3). THAT IS TO SAY, THE WAITING PERIOD AFTER RETURN OF THE EMPLOYEE TO THE FEDERAL SECURITY AGENCY WOULD DATE FROM THE EQUIVALENT INCREASE IN COMPENSATION GRANTED INCIDENT TO THE EMPLOYEE'S TRANSFER TO THE OTHER AGENCY.

IF, AS IS UNDERSTOOD FROM YOUR LETTER, REEMPLOYMENT BENEFITS ARE NOT INVOLVED, THE GENERAL RULE, RATHER THAN THE EXCEPTION STATED IN THE DECISION OF OCTOBER 8, 1943, IS APPLICABLE IN ANSWERING QUESTIONS (4) (5) AND (6). IN ALL THREE CASES THE WAITING PERIOD BEGAN TO RUN FROM THE TIME IN DECEMBER, 1942, THAT THE EMPLOYEE WAS INCREASED FROM $2,000 TO $2,600 PER ANNUM INCIDENT TO HIS TRANSFER TO THE OTHER AGENCY.