B-46010, DECEMBER 11, 1944, 24 COMP. GEN. 448

B-46010: Dec 11, 1944

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I HAVE YOUR LETTER OF NOVEMBER 27. AS FOLLOWS: THE NATIONAL PARK SERVICE HAS A NUMBER OF PERMANENT SEASONAL EMPLOYEES WHO HAVE BEEN FURLOUGHED FOR DUTY WITH THE ARMED FORCES. THESE EMPLOYEES IN THEIR CIVILIAN POSITIONS ARE EMPLOYED FOR VARYING PERIODS. ARE ADMINISTRATIVELY FURLOUGHED FOR THE REMAINDER OF THE YEAR. HAS BEEN NOTED BUT WE ARE NOT ENTIRELY SURE OF ITS APPLICATION. IN THE DECISION A QUESTION WAS PRESENTED CONCERNING CREDIT FOR PART-TIME SUBSTITUTE POSTAL EMPLOYEES WHO WERE ON MILITARY FURLOUGH. IT WAS RULED IN PART AS FOLLOWS: "SINCE SUBSTITUTE POSTAL EMPLOYEES DO NOT ALWAYS WORK FULL TIME. WITH 8 HOURS A DAY FOR THE TIME THEY WERE IN THE MILITARY SERVICE IN FIXING THEIR SALARY RATE UPON ADVANCEMENT TO REGULARS.

B-46010, DECEMBER 11, 1944, 24 COMP. GEN. 448

COMPENSATION - AUTOMATIC PROMOTIONS - SERVICE CREDITS - MILITARY SERVICE OF SEASONAL EMPLOYEES SEASONAL EMPLOYEES OCCUPYING PERMANENT POSITIONS WITHIN THE PURVIEW OF THE CLASSIFICATION ACT, AS AMENDED, WHO WORK PART TIME DURING EACH YEAR, MAY COUNT TOWARD AUTOMATIC PROMOTIONS UNDER THE ACT OF AUGUST 1, 1941, UPON RESTORATION TO THEIR CIVILIAN POSITIONS AFTER ACTIVE MILITARY SERVICE UNDER CONDITIONS ENTITLING THEM TO REEMPLOYMENT BENEFITS, PERIODS OF ACTIVE MILITARY SERVICE CORRESPONDING TO THE AVERAGE PERIODS EMPLOYED EACH YEAR IN THEIR CIVILIAN POSITIONS, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5 OF EXECUTIVE ORDER NO. 8882, ISSUED PURSUANT TO SAID ACT OF AUGUST 1, 1941.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE INTERIOR, DECEMBER 11, 1944.

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

THE NATIONAL PARK SERVICE HAS A NUMBER OF PERMANENT SEASONAL EMPLOYEES WHO HAVE BEEN FURLOUGHED FOR DUTY WITH THE ARMED FORCES. THESE EMPLOYEES IN THEIR CIVILIAN POSITIONS ARE EMPLOYED FOR VARYING PERIODS, BUT FOR APPROXIMATELY FOUR MONTHS ANNUALLY, AND ARE ADMINISTRATIVELY FURLOUGHED FOR THE REMAINDER OF THE YEAR. THE QUESTION ARISES AS TO THE PERIOD THAT MAY BE CREDITED FOR AUTOMATIC PROMOTION PURPOSES DURING THE MILITARY FURLOUGH.

YOUR DECISION OF MAY 20, 1941, 20 COMP. GEN., 789, HAS BEEN NOTED BUT WE ARE NOT ENTIRELY SURE OF ITS APPLICATION. IN THE DECISION A QUESTION WAS PRESENTED CONCERNING CREDIT FOR PART-TIME SUBSTITUTE POSTAL EMPLOYEES WHO WERE ON MILITARY FURLOUGH, AND IT WAS RULED IN PART AS FOLLOWS:

"SINCE SUBSTITUTE POSTAL EMPLOYEES DO NOT ALWAYS WORK FULL TIME, IT WOULD BE IMPROPER TO CREDIT THEM, UPON RESTORATION TO THEIR CIVILIAN POSITIONS UNDER THE TERMS AND CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 OR PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, AS AMENDED, WITH 8 HOURS A DAY FOR THE TIME THEY WERE IN THE MILITARY SERVICE IN FIXING THEIR SALARY RATE UPON ADVANCEMENT TO REGULARS, BUT THE POSTMASTER GENERAL MAY ADOPT A RULE FOR CREDITING TIME IN THE MILITARY SERVICE BASED ON THE AVERAGE NUMBER OF HOURS' SERVICE DURING A PERIOD PRECEDING THE MILITARY SERVICE.'

YOUR RULING IS THEREFORE REQUESTED AS TO WHETHER THE AVERAGE NUMBER OF MONTHS ORDINARILY WORKED BY THE NATIONAL PARK SERVICE SEASONAL EMPLOYEES MAY BE CREDITED, OR WHETHER THE FULL-TIME IN MILITARY SERVICE SHOULD BE CREDITED, IN CONNECTION WITH PERIODIC PAY INCREASES.

SECTION 5 OF EXECUTIVE ORDER NO. 8882 DATED SEPTEMBER 3, 1941, CONTAINING THE PRESIDENT'S REGULATIONS UNDER THE ACT OF AUGUST 1, 1941, 55 STAT. 613, PROVIDES AS FOLLOWS:

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 CONGRESS), 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 7 (B) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED.

IN THE DECISION OF OCTOBER 27, 1941, 21 COMP. GEN. 369, IT WAS HELD (QUOTING FROM THE SYLLABUS):

AN EMPLOYEE PAID ON AN ANNUAL BASIS WHO, AT THE BEGINNING OF A QUARTER, OCCUPIES A PERMANENT PART-TIME POSITION (FRACTIONAL PART OF A YEAR) WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THE CLASSIFICATION ACT IS ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, IF HE HAS HAD THE PRESCRIBED LENGTH OF SERVICE WITHOUT AN EQUIVALENT INCREASE IN COMPENSATION, COMPUTED, WITH REGARD TO INTERVENING NON-PAY STATUS OR ABSENCE ON FURLOUGH OR LEAVE WITHOUT PAY, IN ACCORDANCE WITH SECTIONS 2 (C) AND (D) OF THE PRESIDENT'S REGULATIONS PROMULGATED PURSUANT TO THE STATUTE, AND IF HE IS OTHERWISE QUALIFIED UNDER THE TERMS AND CONDITIONS OF THE STATUTE.

SEE, ALSO 21 COMP. GEN. 569, 644.

UNDER THE LAW, REGULATIONS, AND CITED DECISIONS, SEASONAL EMPLOYEES OCCUPYING PERMANENT POSITIONS WITHIN THE PURVIEW OF THE CLASSIFICATION ACT, AS AMENDED, WHO WORK PART TIME DURING EACH YEAR--- APPROXIMATELY 4 MONTHS--- MAY COUNT THE PERIOD OF THEIR ACTIVE CIVILIAN SERVICE TOWARD AUTOMATIC PROMOTION; AND UNDER THE PROVISIONS OF SECTION 5 OF THE PRESIDENT'S REGULATIONS AND THE RULE STATED IN DECISION OF MAY 20, 1941, 20 COMP. GEN. 789, CITED IN YOUR LETTER, A CORRESPONDING PERIOD OF ACTIVE MILITARY SERVICE--- APPROXIMATELY 4 MONTHS EACH YEAR--- MAY BE COUNTED TOWARD AUTOMATIC PROMOTION UPON RESTORATION OF THE EMPLOYEE TO A CIVILIAN POSITION UNDER CONDITIONS ENTITLING HIM TO REEMPLOYMENT BENEFITS. THERE WOULD BE NO AUTHORITY TO COUNT ALL OF THE PERIOD OF ACTIVE MILITARY SERVICE TOWARD AUTOMATIC PROMOTION.

ACCORDINGLY, THE FIRST ALTERNATIVE QUESTION POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE, AND THE SECOND ALTERNATIVE, IN THE NEGATIVE.