B-39737, FEBRUARY 15, 1944, 23 COMP. GEN. 594

B-39737: Feb 15, 1944

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1944: I HAVE YOUR LETTER OF JANUARY 27. WAS PROMOTED IN GRADE FROM CAF-12 TO CAF-13. FERGUSON TRANSFERRED TO THE WAR RELOCATION AUTHORITY WHERE HE WAS ASSIGNED TO A POSITION OF GRADE CAF 12 LEVEL. IT IS FOR NOTING THAT MR. FERGUSON RETURNED WAS NOT THE ONE WHICH HE OCCUPIED AT THE TIME OF HIS TRANSFER TO THE WAR RELOCATION AUTHORITY. INQUIRY IS MADE AS TO THE DATE FROM WHICH THE 30-MONTH WAITING PERIOD PRESCRIBED BY THE WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1. SINCE IT IS STATED THE EMPLOYEE HERE INVOLVED WAS RETRANSFERRED TO THE TREASURY DEPARTMENT . " THERE WOULD NOT BE FOR APPLICATION HERE THE RULES FOR COMPUTING THE WAITING PERIOD TOWARD WITHIN-GRADE SALARY ADVANCEMENTS APPLICABLE IN CASES WHERE TRANSFERS AND RETRANSFERS OF EMPLOYEES BETWEEN FEDERAL AGENCIES ARE MADE UNDER THE WAR SERVICE REGULATIONS SAVING REEMPLOYMENT BENEFITS.

B-39737, FEBRUARY 15, 1944, 23 COMP. GEN. 594

COMPENSATION - WITHIN-GRADE PROMOTION - RESTORATION IN FEBRUARY 15, 1944: WHERE AN EMPLOYEE TRANSFERRED FROM ONE AGENCY TO ANOTHER AT A DECREASE IN GRADE AND SALARY UNDER CONDITIONS ENTITLING HIM TO THE REEMPLOYMENT RIGHTS OF THE WAR SERVICE REGULATIONS ISSUED PURSUANT TO EXECUTIVE ORDER NO. 9063, AND SUBSEQUENTLY RETRANSFERRED TO A POSITION IN THE FIRST AGENCY AT HIS FORMER GRADE AND SALARY UNDER CONDITIONS NOT INVOLVING THE EXERCISE OF REEMPLOYMENT RIGHTS, THE 18- OR 30-MONTH WAITING PERIOD PRESCRIBED BY THE WITHIN-GRADE SALARY-ADVANCEMENT ACT OF AUGUST 1, 1941, WOULD BEGIN TO RUN FROM THE DATE OF THE RETRANSFER TO, AND RESTORATION OF THE EMPLOYEE'S FORMER SALARY RATE IN, THE FIRST AGENCY.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, FEBRUARY 15, 1944:

I HAVE YOUR LETTER OF JANUARY 27, 1944, AS FOLLOWS:

MR. VAUGHN B. FERGUSON, AN EMPLOYEE OF THE DIVISION OF PERSONNEL, WAS PROMOTED IN GRADE FROM CAF-12 TO CAF-13, EFFECTIVE DECEMBER 9, 1941. JUNE 16, 1942, MR. FERGUSON TRANSFERRED TO THE WAR RELOCATION AUTHORITY WHERE HE WAS ASSIGNED TO A POSITION OF GRADE CAF 12 LEVEL, AT A SALARY OF $5,400 PER ANNUM, UNDER CONDITIONS ENTITLING HIM TO REEMPLOYMENT RIGHTS UNDER THE WAR SERVICE REGULATIONS ISSUED PURSUANT TO EXECUTIVE ORDER NO. 9063. IN MAKING THIS TRANSFER, IT IS FOR NOTING THAT MR. FERGUSON ACCEPTED A DECREASE IN SALARY AND GRADE. ON MAY 3, 1943, MR. FERGUSON RETRANSFERRED TO THE DIVISION OF PERSONNEL OF THE TREASURY DEPARTMENT TO A GRADE CAF-13 POSITION, AT HIS FORMER SALARY OF $5,600 PER ANNUM, UNDER CONDITIONS NOT INVOLVING THE EXERCISE OF REEMPLOYMENT RIGHTS. THE POSITION TO WHICH MR. FERGUSON RETURNED WAS NOT THE ONE WHICH HE OCCUPIED AT THE TIME OF HIS TRANSFER TO THE WAR RELOCATION AUTHORITY.

INQUIRY IS MADE AS TO THE DATE FROM WHICH THE 30-MONTH WAITING PERIOD PRESCRIBED BY THE WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, AS AMENDED, WOULD BEGIN TO RUN IN THE INSTANT CASE.

SINCE IT IS STATED THE EMPLOYEE HERE INVOLVED WAS RETRANSFERRED TO THE TREASURY DEPARTMENT ,UNDER CONDITIONS NOT INVOLVING THE EXERCISE OF REEMPLOYMENT RIGHTS," THERE WOULD NOT BE FOR APPLICATION HERE THE RULES FOR COMPUTING THE WAITING PERIOD TOWARD WITHIN-GRADE SALARY ADVANCEMENTS APPLICABLE IN CASES WHERE TRANSFERS AND RETRANSFERS OF EMPLOYEES BETWEEN FEDERAL AGENCIES ARE MADE UNDER THE WAR SERVICE REGULATIONS SAVING REEMPLOYMENT BENEFITS. SEE THE DECISION OF SEPTEMBER 18, 1943, 23 COMP. GEN. 201. RATHER, THERE IS APPLICABLE HERE THE RULE STATED IN DECISIONS COVERING CASES IN WHICH REEMPLOYMENT BENEFITS ARE NOT INVOLVED.

IN THE DECISION OF DECEMBER 31, 1943, B-37199, 23 COMP. GEN. 471, AFTER QUOTING THE PERTINENT PROVISIONS OF SECTIONS 1 AND 2 OF THE "REGULATIONS GOVERNING WITHIN-GRADE SALARY ADVANCEMENTS" ISSUED BY THE PRESIDENT ( EXECUTIVE ORDER 8882, DATED SEPTEMBER 3, 1941), IT WAS STATED:

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. THERE WERE CITED IN THAT DECISION, AMONG OTHERS, THE DECISIONS, 21 COMP. GEN. 285, 369, AND 478. IN THE DECISION OF OCTOBER 2, 1941, 21 COMP. GEN. 285, IT WAS HELD (QUOTING FROM THE SYLLABUS):

IF DURING THE 18 MONTHS' PERIOD PRECEDING THE EFFECTIVE DATE--- OCTOBER 1, 1941--- OF THE FIRST WITHIN-GRADE COMPENSATION INCREASES UNDER THE ACT OF AUGUST 1, 1941, AN EMPLOYEE WAS PROMOTED FROM CAF-3 AT $1,620 PER ANNUM TO CAF-4 AT $1,800, HE HAS RECEIVED AN "EQUIVALENT INCREASE IN COMPENSATION" DURING THE PAST 18 MONTHS WITHIN THE MEANING OF THE ACT AND IS NOT ENTITLED TO A WITHIN-GRADE INCREASE ON OCTOBER 1, 1941, AND THE 18 MONTHS' PERIOD NECESSARY FOR ELIGIBILITY TO A FURTHER PROMOTION UNDER THE ACT MUST BEGIN TO RUN FROM THE DATE OF THE LAST PROMOTION TO CAF-4 AT $1,800.

WHILE THE FACTS IN THE CASE THERE CONSIDERED DO NOT INVOLVE A TRANSFER BETWEEN FEDERAL AGENCIES, NEVERTHELESS, THE RULE IS APPLICABLE TO CASES COVERING TRANSFERS AND RETRANSFERS BETWEEN AGENCIES WHEN NO REEMPLOYMENT BENEFITS ARE INVOLVED.

HENCE, THE RULE MAY BE STATED THAT WHERE AN EMPLOYEE IS TRANSFERRED FROM ONE FEDERAL AGENCY TO ANOTHER AT A REDUCTION IN COMPENSATION AND IS RETRANSFERRED TO THE FIRST AGENCY AND RESTORED TO THE SALARY RATE PREVIOUSLY RECEIVED IN THAT AGENCY--- SUCH ACTION RESULTING IN THE GRANTING OF AN EQUIVALENT INCREASE IN COMPENSATION--- THE WAITING PERIOD FOR THE PURPOSE OF WITHIN-GRADE SALARY ADVANCEMENT BEGINS TO RUN FROM THE DATE OF THE RETRANSFER TO, AND RESTORATION OF THE EMPLOYEE'S FORMER SALARY RATE IN, THE FIRST AGENCY.

APPLYING THAT RULE IN THE CASE HERE PRESENTED, THE 30 MONTHS' WAITING PERIOD BEGAN TO RUN MAY 3, 1943, WHEN MR. FERGUSON WAS RETRANSFERRED TO THE TREASURY DEPARTMENT AT $5,600 PER ANNUM, RESULTING IN AN INCREASE IN COMPENSATION OF $200 PER ANNUM OVER THE RATE OF $5,400 PER ANNUM RECEIVED IN THE WAR RELOCATION AUTHORITY.