B-39776, FEBRUARY 23, 1944, 23 COMP. GEN. 617

B-39776: Feb 23, 1944

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PROVIDED THE EMPLOYEE WAS RESTORED TO HIS CIVILIAN POSITION UPON RETURN FROM MILITARY SERVICE UNDER CONDITIONS ENTITLING HIM TO THE BENEFITS OF SECTION 5 OF THE SAID EXECUTIVE ORDER. 23 COMP. 1944: I HAVE YOUR LETTER OF JANUARY 31. AS FOLLOWS: DIFFICULTY IS BEING EXPERIENCED IN RECONCILING PARAGRAPHS (C) AND (D). THESE PARAGRAPHS ARE QUOTED FOR READY REFERENCE. "/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 ONE YEAR.'. IT WAS RULED THAT 30 DAYS OF ANY PERIOD AGGREGATING MORE THAN 30 DAYS.

B-39776, FEBRUARY 23, 1944, 23 COMP. GEN. 617

COMPENSATION - WITHIN-GRADE PROMOTIONS - EMPLOYEES ENTERING MILITARY OR NAVAL FORCES; SERVICE CREDITS AN EMPLOYEE WHO, AT THE TIME HE ENTERED THE ACTIVE MILITARY SERVICE, HAD BEEN IN A LEAVE WITHOUT PAY STATUS IN EXCESS OF 30 DAYS BUT LESS THAN ONE YEAR MAY, UNDER THE PROVISIONS OF SECTION 2 (C) OF EXECUTIVE ORDER NO. 8882, ISSUED PURSUANT TO THE WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, COUNT 30 DAYS OF SUCH PERIOD OF LEAVE WITHOUT PAY IN COMPUTING THE 18- OR 30-MONTH WAITING PERIOD PRESCRIBED BY THE SAID STATUTE FOR WITHIN-GRADE SALARY-ADVANCEMENT PURPOSES, PROVIDED THE EMPLOYEE WAS RESTORED TO HIS CIVILIAN POSITION UPON RETURN FROM MILITARY SERVICE UNDER CONDITIONS ENTITLING HIM TO THE BENEFITS OF SECTION 5 OF THE SAID EXECUTIVE ORDER. 23 COMP. GEN. 367, MODIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, FEBRUARY 23, 1944:

I HAVE YOUR LETTER OF JANUARY 31, 1944, AS FOLLOWS:

DIFFICULTY IS BEING EXPERIENCED IN RECONCILING PARAGRAPHS (C) AND (D), SECTION 2 EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, CONCERNING SERVICE CREDITS FOR WITHIN-GRADE SALARY ADVANCEMENTS. THESE PARAGRAPHS ARE QUOTED FOR READY REFERENCE.

"/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 ONE YEAR.'

IN YOUR DECISION OF FEBRUARY 21, 1942, 21 C.G. 791, IT WAS RULED THAT 30 DAYS OF ANY PERIOD AGGREGATING MORE THAN 30 DAYS, BUT LESS THAN ONE YEAR, THAT AN EMPLOYEE IS IN A NONPAY STATUS, ARE TO BE INCLUDED IN THE 18 OR 30 MONTHS' SERVICE PERIOD, THE ELIGIBLE DATE OF THE INCREASE BEING POSTPONED DEPENDING UPON THE AMOUNT OF EXCESS OVER 30 DAYS THAT THE EMPLOYEE IS IN A NONPAY STATUS. THIS RULING APPARENTLY WAS MADE IN THE LIGHT OF PARAGRAPH (C). IN YOUR DECISION OF NOVEMBER 16, 1943, 23 C.G. 367, IT WAS RULED THAT AN EMPLOYEE RETURNING FROM MILITARY SERVICE WHO AT THE TIME HE ENTERED ACTIVE MILITARY SERVICE WAS IN A LEAVE-WITHOUT-PAY STATUS FOR MORE THAN 30 DAYS BUT LESS THAN ONE YEAR MAY COUNT THE SERVICE IN HIS CIVILIAN POSITION PRIOR TO THE PERIOD OF LEAVE WITHOUT PAY AS WELL AS HIS ACTIVE MILITARY SERVICE TOWARD THE 18 OR 30 MONTHS' SERVICE. ACCORDING TO THIS DECISION THE EMPLOYEE MAY NOT INCLUDE ANY OF THE PERIOD OF LEAVE WITHOUT PAY BETWEEN HIS ACTIVE CIVILIAN AND MILITARY SERVICES. IF THE 30 DAYS REFERRED TO IN THE FIRST DECISION ABOVE CITED COULD BE INCLUDED IN THE SERVICE CREDIT, IT APPEARS THAT 30 DAYS IN THE CASE OF YOUR SECOND DECISION ALSO COULD HAVE BEEN INCLUDED. A CLARIFICATION OF THE DEDUCTION WILL BE APPRECIATED AS THE QUESTION HAS ARISEN IN CONNECTION WITH THE DETERMINATION OF THE ELIGIBLE DATE OF AN AUTOMATIC INCREASE FOR AN EMPLOYEE WHO WAS ON LEAVE WITHOUT PAY FROM FEBRUARY 21, TO MARCH 20, 1942. SUBSEQUENTLY THE EMPLOYEE ENTERED THE MILITARY SERVICE AND WAS GIVEN A MILITARY FURLOUGH EFFECTIVE MARCH 30, 1942. MAY 30 DAYS OF LEAVE WITHOUT PAY FROM FEBRUARY 21 TO MARCH 29 BE COUNTED IN THE WAITING PERIOD OF 18 MONTHS?

IN THE FIRST DECISION REFERRED TO, THAT OF FEBRUARY 21, 1942, 21 COMP. GEN. 791, 797, IT WAS HELD:

* * * REGARDING THE SECOND SUBQUESTION UNDER THE QUESTION NUMBERED 4, A PERIOD IN A NONPAY STATUS NOT EXCEEDING 30 DAYS MAY BE INCLUDED IN COUNTING LONGEVITY FOR PURPOSES OF COMPUTING THE PROMOTABLE PERIOD AND ONLY THE EXCESS OVER 30 DAYS IN A NONPAY STATUS MUST BE EXCLUDED. SEE THE LAST PARAGRAPH OF DECISION OF OCTOBER 11, 1941, 21 COMP. GEN. 313, 316, WHEREIN IT WAS STATED AS FOLLOWS:

"UNDER THE TERMS OF SECTION 2 (C) OF THE REGULATIONS, THE AGGREGATE OF TIME ELAPSING IN A NONPAY STATUS, WHETHER IN ONE OR MORE PERIODS, IN THE 18 OR 30 MONTHS' PERIOD IMMEDIATELY PRECEDING THE BEGINNING OF A QUARTER THAT MAY BE COUNTED, SHALL NOT EXCEED 30 DAYS. ANY PERIOD IN A NONPAY STATUS IN EXCESS OF 30 DAYS IN THE AGGREGATE MAY NOT BE COUNTED IN COMPUTING THE 18 OR 30 MONTHS-PERIOD. * * *"

IT WOULD SEEM UNREASONABLE TO CONCLUDE THAT AN EMPLOYEE WHO HAD BEEN IN A NONPAY STATUS EXACTLY 30 DAYS COULD COUNT SUCH PERIOD IN COMPUTING HIS PROMOTABLE PERIOD, WHEREAS AN EMPLOYEE WHO HAD BEEN ABSENT IN A NONPAY STATUS FOR 31 DAYS COULD NOT COUNT ANY OF SUCH PERIOD. ACCORDINGLY, THE EMPLOYEE IN THE EXAMPLE STATED UNDER THIS SUBQUESTION WAS ELIGIBLE FOR A WITHIN-GRADE SALARY ADVANCEMENT AS OF JANUARY 1, 1942, IF OTHERWISE QUALIFIED.

IN THE SECOND DECISION, RENDERED NOVEMBER 16, 1943, 23 COMP. GEN. 367, TO WHICH YOU REFER, IT WAS HELD AT PAGE 369:

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. ( ITALICS SUPPLIED).

THE ITALICIZED PORTION OF THE DECISION JUST QUOTED IS, AS YOU INFERENTIALLY POINT OUT, NOT WHOLLY IN ACCORD WITH THE HOLDING IN THE PREVIOUS DECISION IN RESPECT OF RECKONING THE 30 DAYS IN A NONPAY STATUS IN THE COMPUTATION OF THE 18 OR 30 MONTHS' PERIOD FOR WITHIN GRADE PROMOTION PURPOSES. WHILE THE LATTER DECISION INVOLVED EMPLOYEES WHO ENTERED AND/OR RETURNED FROM MILITARY SERVICE, NO SOUND REASON NOW PRESENTS ITSELF FOR ANY DIFFERENT RULE SOLELY BECAUSE OF THAT FACT IN APPLYING SECTION 2 (C) OF THE PRESIDENT'S REGULATIONS. THE RULE STATED IN THE EARLIER DECISION (21 COMP. GEN. 791, AS WELL AS 21 ID. 313) IS REGARDED AS REASONABLY CARRYING OUT THE PURPOSE AND INTENT OF THE REGULATION AS A WHOLE WHICH RULE, THEREFORE, WILL CONTROL IN ALL CASES WHEREIN SECTION 2 (C) OF THE PRESIDENT'S REGULATIONS IS FOR APPLICATION. HENCE, TO THE EXTENT THE REFERRED-TO DECISION OF NOVEMBER 16, 1943, 23 COMP. GEN. 367, 369, CONFLICTS WITH SAID RULE IT IS MODIFIED ACCORDINGLY.

IN THE CASE PRESENTED IN YOUR LETTER THERE MAY BE COUNTED 30 DAYS OF THE PERIOD OF LEAVE OF ABSENCE WITHOUT PAY FROM FEBRUARY 21 TO MARCH 29, 1942, IN THE COMPUTATION OF THE WAITING PERIOD FOR WITHIN-GRADE SALARY ADVANCEMENT PURPOSES, PROVIDED, OF COURSE, THE EMPLOYEE WAS RESTORED TO HIS CIVILIAN POSITION UPON RETURN FROM MILITARY SERVICE UNDER CONDITIONS THAT ENTITLE HIM TO THE BENEFITS OF SECTION 5 OF THE PRESIDENT'S REGULATIONS, EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941.