B-37945, NOVEMBER 16, 1943, 23 COMP. GEN. 367

B-37945, NOVEMBER 16, 1943, 23 COMP. GEN. 367

COMPENSATION - WITHIN-GRADE PROMOTION - EMPLOYEES ENTERING MILITARY OR NAVAL FORCES AN EMPLOYEE WHO HAD BEEN ON LEAVE WITHOUT PAY IN HIS CIVILIAN POSITION FOR LESS THAN 30 DAYS AT THE TIME HE ENTERED THE MILITARY SERVICE AND WAS RESTORED TO HIS CIVILIAN POSITION AFTER DISCHARGE FROM THE ACTIVE MILITARY SERVICE IS ENTITLED, UNDER THE PROVISIONS OF SECTIONS 2/C) AND 5 OF EXECUTIVE ORDER NO. 8882, TO COUNT THE PERIOD OF LEAVE WITHOUT PAY AS WELL AS THE PERIOD OF ACTIVE MILITARY SERVICE IN COMPUTING THE REQUIRED SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941. AN EMPLOYEE WHO, AT THE TIME HE ENTERED THE ACTIVE MILITARY SERVICE, HAD BEEN IN A LEAVE WITHOUT PAY STATUS FOR MORE THAN 30 DAYS BUT LESS THAN ONE YEAR WITHOUT BREAK IN SERVICE, MAY, UPON RE-EMPLOYMENT IN A CIVILIAN POSITION COUNT THE SERVICE IN HIS CIVILIAN POSITION PRIOR TO THE PERIOD OF LEAVE WITHOUT PAY AS WELL AS THE PERIOD OF ACTIVE MILITARY SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, AND EXECUTIVE REGULATION THEREUNDER, BUT HE MAY NOT COUNT ANY OF THE PERIOD OF LEAVE WITHOUT PAY BETWEEN HIS ACTIVE CIVILIAN AND MILITARY SERVICE. COMP. GEN. 1104, DISTINGUISHED. ( MODIFIED BY 23 COMP. GEN. 617.) A CIVILIAN EMPLOYEE WHO, BY REASON OF A PERIOD OF LEAVE WITHOUT PAY FOR MORE THAN ONE YEAR, HAD LOST HIS RIGHT TO A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, AT THE TIME HE ENTERED THE ACTIVE MILITARY SERVICE, IS NOT ENTITLED, UNDER SECTION 5 OF EXECUTIVE ORDER NO. 8882, TO COUNT SUCH INITIAL SERVICE IN THE ACTIVE MILITARY SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENT IN A CIVILIAN POSITION TO WHICH HE IS LATER RESTORED; IN SUCH A CASE THE 18- OR 30 MONTH WAITING PERIOD WOULD BEGIN WITH THE DATE OF RESTORATION TO THE CIVILIAN POSITION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, NOVEMBER 16, 1943:

I HAVE YOUR LETTER OF OCTOBER 25, 1943, AS FOLLOWS:

A NUMBER OF QUESTIONS HAVE ARISEN IN THIS DEPARTMENT IN REGARD TO WHETHER AN EMPLOYEE WHO ENTERS MILITARY SERVICE WHILE ON LEAVE WITHOUT PAY RESULTING FROM A LACK OF WORK OR FUNDS IS ENTITLED TO CREDIT FOR SUCH SERVICE TOWARD WITHIN-GRADE PROMOTIONS IN THE EVENT HE IS RESTORED TO HIS CIVILIAN POSITION FOLLOWING HIS MILITARY SERVICE.

EXECUTIVE ORDER NO. 8882, PURSUANT TO THE RAMSPECK-MEAD ACT ( SEC. 7 (B) OF THE CLASSIFICATION ACT, 5 U.S.C. 1940 ED. SUPP. II, SECTION 667), WHICH EMBODIES THE REGULATIONS ISSUED PURSUANT TO THE STATUTE, PROVIDES THAT, IN COMPUTING THE PERIODS OF SERVICE REQUIRED 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 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 NONPAY STATUS (INCLUDING BREAK IN SERVICE) NOT EXCEEDING 30 DAYS WITHIN ANY ONE TIME PERIOD OF 18 OR 30 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 30 DAYS BUT NOT EXCEEDING 1 YEAR.'

SECTION 5 OF THE EXECUTIVE ORDER PROVIDES:

"ANY EMPLOYEE OF THE FEDERAL GOVERNMENT WHO, IN ACCORDANCE WITH THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 ( PUBLIC, NO. 783, 76TH CONG.), OR OF PUBLIC RESOLUTION NO. 96 APPROVED AUGUST 27, 1940, RELATING TO THE MOBILIZATION OF AUXILIARY MILITARY PERSONNEL, IS RESTORED TO THE SAME POSITION OR A POSITION OF LIKE SENIORITY, STATUS, AND PAY, WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO RECEIVE A SALARY AT A RATE OF NOT LESS THAN THE EMPLOYEE'S LATEST RATE PRIOR TO HIS ENTRANCE INTO ACTIVE MILITARY OR NAVAL DUTY PLUS ANY WITHIN-GRADE SALARY ADVANCEMENT OR ADVANCEMENTS TO WHICH HE WOULD HAVE BEEN ELIGIBLE UNDER THE PROVISIONS OF THE SAID SECTION 8 (B) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED ( EXECUTIVE ORDER NO. 8882, SEPT. 3, 1941).'

THE VARIOUS SITUATIONS WHICH GIVE RISE TO THE PROBLEMS WILL BE NUMBERED.

1. AN EMPLOYEE OF THIS DEPARTMENT WAS PROMOTED FROM SENIOR FOREMAN OF LABORERS, $1,740 PER ANNUM, TO SENIOR FOREMAN OF LABORERS, $1,800 PER ANNUM, EFFECTIVE OCTOBER 1, 1941. AS A RESULT OF THE CESSATION OF ACTIVITIES IN WHICH THE EMPLOYEE WAS ENGAGED, HE BEGAN TERMINAL LEAVE JUNE 17, 1942. THE LEAVE EXPIRED ON SEPTEMBER 4, 1942, AT WHICH TIME THE EMPLOYEE WAS PLACED ON LEAVE WITHOUT PAY. ON OCTOBER 2, 1942, THE EMPLOYEE, WHILE STILL ON LEAVE WITHOUT PAY, WAS INDUCTED INTO THE UNITED STATES ARMY. HE RECEIVED AN HONORABLE DISCHARGE ON FEBRUARY 22, 1943, AND ON MARCH 16, 1943, HE REPORTED FOR DUTY IN THIS DEPARTMENT. UNDER THE CIRCUMSTANCES, YOUR ADVICE IS REQUESTED AS TO WHETHER THE EMPLOYEE CONCERNED IS ENTITLED TO COUNT THE PERIOD OF MILITARY SERVICE AS CREDITABLE SERVICE FOR A WITHIN-GRADE PROMOTION.

2. ASSUMING THE SAME FACTS FOR PURPOSES OF CONVENIENCE, EXCEPT THAT MORE THAN ONE MONTH, BUT LESS THAN ONE YEAR HAS ELAPSED IN THE PERIOD OF LEAVE WITHOUT PAY BEFORE ENTRANCE UPON MILITARY DUTY, WOULD THE EMPLOYEE BE ENTITLED TO COUNT THE PERIOD OF MILITARY SERVICE IN COMPUTING CREDITABLE SERVICE FOR A WITHIN-GRADE PROMOTION?

3. ASSUMING THE SAME FACTS AS IN QUESTION NO. 1 EXCEPT THAT MORE THAN A YEAR HAS ELAPSED IN A LEAVE-WITHOUT-PAY STATUS BEFORE ENTRANCE OF THE EMPLOYEE UPON MILITARY DUTY, WOULD THE EMPLOYEE BE ENTITLED TO COUNT THE PERIOD OF MILITARY SERVICE AS CREDITABLE SERVICE FOR A WITHIN-GRADE PROMOTION?

THESE PROBLEMS APPEAR TO ARISE PARTLY AS A RESULT OF DOUBT IN REGARD TO THE EXACT REEMPLOYMENT RIGHTS UNDER SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 (50 APP. U.S.C. 1940 ED. 308 (B) (, OF EMPLOYEES WHO ENTER UPON MILITARY DUTY WHILE IN A LEAVE-WITHOUT-PAY STATUS. IF THE EMPLOYEE IS ENTITLED ONLY TO RESTORATION TO THE LEAVE WITHOUT-PAY STATUS, IT WOULD APPEAR THAT SUCH AN EMPLOYEE WOULD NOT BE ENTITLED TO WITHIN-GRADE PROMOTIONS, SINCE SUCH PROMOTIONS WOULD NOT HAVE BEEN ACQUIRED IN A LEAVE-WITHOUT-PAY STATUS. HOWEVER, IF RESTORATION TO ACTIVE DUTY IS REQUIRED FOR EMPLOYEES WHO ENTER UPON MILITARY DUTY FOLLOWING A LEAVE-WITHOUT-PAY STATUS, IT WOULD APPEAR THAT SUCH EMPLOYEES WOULD BE ENTITLED TO COUNT THE PERIOD OF MILITARY SERVICE AS CREDITABLE SERVICE FOR WITHIN-GRADE PROMOTIONS PURSUANT TO SECTION 7 (B) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED. IN VIEW OF THE FACT THAT SALARY PAYMENTS ARE BEING WITHHELD PENDING A DECISION, AN EARLY REPLY WILL BE APPRECIATED.

SECTION 5 OF EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, QUOTED IN YOUR LETTER, OPERATES, FOR THE PURPOSE OF THE WITHIN-GRADE PROMOTION LAW, TO AUTHORIZE THE COUNTING OF SERVICE IN THE ACTIVE MILITARY OR NAVAL FORCES TOWARD WITHIN-GRADE SALARY ADVANCEMENTS AS THOUGH SUCH SERVICE WERE A CONTINUATION OF CIVILIAN SERVICE. IT WOULD FOLLOW THAT THE OTHER PROVISIONS OF THE PRESIDENT'S REGULATIONS CONTAINED IN SAID EXECUTIVE ORDER PROPERLY ARE FOR APPLICATION IN THAT LIGHT, THAT IS, AS THOUGH ACTIVE MILITARY OR NAVAL SERVICE WERE A CONTINUATION OF CIVILIAN SERVICE. COMPARE 22 COMP. GEN. 969, AND DECISION OF OCTOBER 8, 1943, B-37199, 23 COMP. GEN. 265.

ACCORDINGLY, REFERRING TO QUESTION 1, AS THE PERIOD OF LEAVE WITHOUT PAY FROM SEPTEMBER 4, 1942, WHEN THE EMPLOYEE WENT ON LEAVE WITHOUT-PAY IN HIS CIVILIAN POSITION TO OCTOBER 2, 1942, WHEN HE ENTERED THE ACTIVE MILITARY SERVICE, WAS LESS THAN 30 DAYS, THE EMPLOYEE MAY COUNT SUCH PERIOD OF LEAVE WITHOUT PAY AS WELL AS THE PERIOD OF HIS ACTIVE MILITARY SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENT UNDER THE PROVISIONS OF SECTIONS 2 (C) AND 5 OF THE REGULATIONS--- ASSUMING, OF COURSE, THE EMPLOYEE WAS ELIGIBLE TO BE, AND HAS BEEN RESTORED TO HIS CIVILIAN POSITION PURSUANT TO THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT.

RELATIVE TO QUESTION 2, AS THE PERIOD OF LEAVE OF ABSENCE WAS MORE THAN 30 DAYS BUT LESS THAN ONE YEAR, AND AS THERE WAS NO BREAK IN SERVICE (COMPARE 22 COMP. GEN. 1104), THE EMPLOYEE REFERRED TO MAY COUNT THE SERVICE IN HIS CIVILIAN POSITION PRIOR TO GOING ON LEAVE WITHOUT PAY IN THAT POSITION, AS WELL AS THE PERIOD OF HIS ACTIVE MILITARY SERVICE, TOWARD WITHIN-GRADE SALARY ADVANCEMENT UNDER THE PROVISIONS OF SECTIONS 2 (D) AND 5 OF THE REGULATIONS, BUT HE MAY NOT COUNT ANY OF THE PERIOD OF LEAVE OF ABSENCE WITHOUT PAY BETWEEN ACTIVE CIVILIAN AND MILITARY SERVICE.

REFERRING TO QUESTION 3, AS THE EMPLOYEE ALREADY HAD LOST HIS RIGHT TO A WITHIN-GRADE SALARY ADVANCEMENT BEFORE HE ENTERED THE ACTIVE MILITARY SERVICE, SECTION 5 OF THE REGULATIONS MAY NOT OPERATE TO PERMIT THE COUNTING OF INITIAL SERVICE IN THE ACTIVE MILITARY SERVICE TOWARD WITHIN- GRADE SALARY ADVANCEMENT IN A CIVILIAN POSITION TO WHICH THE EMPLOYEE LATER MAY BE RESTORED. HENCE, IN THAT CASE THE WAITING PERIOD WOULD BEGIN WITH THE DATE OF RESTORATION TO THE CIVILIAN POSITION.

THIS DECISION IS IN NOWISE TO BE CONSTRUED AS DECIDING THE QUESTION WHETHER EMPLOYEES OF THE CLASS HERE INVOLVED ARE, UPON THEIR SEPARATION FROM THE MILITARY OR NAVAL FORCES, TO BE RESTORED TO THE LEAVE-WITHOUT PAY STATUS HELD PRIOR TO THEIR ENTRY INTO THE ACTIVE MILITARY OR NAVAL SERVICES, OR TO BE RESTORED TO ACTIVE DUTY (IN A PAY STATUS) IN THE APPLICABLE CIVILIAN POSITION--- THAT BEING A MATTER FOR DETERMINATION BY THE DEPARTMENT OR AGENCY INVOLVED AND THE CIVIL SERVICE COMMISSION. COMP. GEN. 742.