B-48144, MARCH 16, 1945, 24 COMP. GEN. 688

B-48144: Mar 16, 1945

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TO THE EFFECT THAT WAR SERVICE APPOINTEES WHO ENTER UPON ACTIVE MILITARY DUTY AND WHO SUBSEQUENTLY ARE REEMPLOYED IN/CIVILIAN POSITIONS ARE NOT ENTITLED TO COUNT THE PERIOD OF MILITARY SERVICE FOR WITHIN-GRADE PROMOTION PURPOSES UNDER THE ACT OF AUGUST 1. IN THE CASE OF WAR SERVICE APPOINTEES WHO HAVE ENTERED UPON ACTIVE MILITARY DUTY AND SUBSEQUENTLY HAVE BEEN RESTORED TO CIVILIAN POSITIONS. THE PERIOD OF MILITARY SERVICE IS A BREAK IN SERVICE. WHERE THE BREAK IN SERVICE IS MORE THAN 30 DAYS (SECTION 2 (C) OF THE EXECUTIVE REGULATIONS RESPECTING WITHIN-GRADE PROMOTIONS UNDER THE ACT OF AUGUST 1. SINCE THE PLACING OF EMPLOYEES UPON MILITARY FURLOUGH CAN HAVE NO LEGAL FORCE AND EFFECT TO PRESERVE A CIVILIAN STATUS AFTER THE EFFECTIVE DATE OF THE FURLOUGH.

B-48144, MARCH 16, 1945, 24 COMP. GEN. 688

WAR SERVICE APPOINTEES - WITHIN-GRADE PROMOTION RIGHTS AFTER MILITARY SERVICE; ETC. THE HOLDING IN DECISION OF JANUARY 3, 1945, 24 COMP. GEN. 491, TO THE EFFECT THAT WAR SERVICE APPOINTEES WHO ENTER UPON ACTIVE MILITARY DUTY AND WHO SUBSEQUENTLY ARE REEMPLOYED IN/CIVILIAN POSITIONS ARE NOT ENTITLED TO COUNT THE PERIOD OF MILITARY SERVICE FOR WITHIN-GRADE PROMOTION PURPOSES UNDER THE ACT OF AUGUST 1, 1941, NEED NOT BE APPLIED RETROACTIVELY TO REQUIRE ADJUSTMENTS IN THE COMPENSATION OF SUCH EMPLOYEES REINSTATED PRIOR TO THE DATE OF THAT DECISION. IN THE CASE OF WAR SERVICE APPOINTEES WHO HAVE ENTERED UPON ACTIVE MILITARY DUTY AND SUBSEQUENTLY HAVE BEEN RESTORED TO CIVILIAN POSITIONS, THE PERIOD OF MILITARY SERVICE IS A BREAK IN SERVICE, AND WHERE THE BREAK IN SERVICE IS MORE THAN 30 DAYS (SECTION 2 (C) OF THE EXECUTIVE REGULATIONS RESPECTING WITHIN-GRADE PROMOTIONS UNDER THE ACT OF AUGUST 1, 1941), THE TIME SUCH EMPLOYEES SERVED IN THEIR CIVILIAN POSITIONS PRIOR TO ENTERING THE MILITARY SERVICE MAY NOT BE COUNTED TOWARD WITHIN-GRADE PROMOTIONS. DECISION OF JANUARY 3, 1945, 24 COMP. GEN. 491, RESPECTING THE REEMPLOYMENT RIGHTS, ETC., OF WAR SERVICE APPOINTEES WHO ENTER UPON MILITARY DUTY, IN THE LIGHT OF THE ATTORNEY GENERAL'S OPINION OF MAY 26, 1943, REQUIRES NO CHANGE IN EXISTING ADMINISTRATIVE PROCEDURE REGARDING THE GRANTING OF MILITARY FURLOUGH TO SUCH APPOINTEES; HOWEVER, SINCE THE PLACING OF EMPLOYEES UPON MILITARY FURLOUGH CAN HAVE NO LEGAL FORCE AND EFFECT TO PRESERVE A CIVILIAN STATUS AFTER THE EFFECTIVE DATE OF THE FURLOUGH, IT WOULD SEEM THAT THE PROPER PROCEDURE WOULD BE TO SEPARATE WAR SERVICE APPOINTEES FROM THEIR CIVILIAN POSITIONS UPON ENTRY INTO THE ARMED FORCES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, MARCH 16, 1945:

I HAVE YOUR LETTER OF FEBRUARY 26, 1945, AS FOLLOWS.

IN YOUR DECISION OF JANUARY 3, 1945 (B-46335) IT WAS HELD THAT A WAR SERVICE APPOINTEE WHO RETURNS TO HIS POSITION FROM MILITARY OR NAVAL SERVICE IS NOT ENTITLED TO HAVE INCLUDED IN THE TIME REQUIRED FOR WITHIN- GRADE SALARY ADVANCEMENT THE TIME THAT HE HAS SPENT IN ACTIVE MILITARY OR NAVAL SERVICE.

THE TREASURY DEPARTMENT HAS RESTORED FORMER EMPLOYEES HOLDING WAR SERVICE APPOINTMENTS TO THEIR ORIGINAL POSITIONS UPON THEIR RETURN FROM MILITARY SERVICE, WITH AUTOMATIC INCREASES IN THOSE CASES WHERE THE WAITING PERIOD HAS ELAPSED, INCLUDING THE TIME IN THE MILITARY SERVICE. THE FOLLOWING QUESTIONS ARE, THEREFORE, SUBMITTED FOR YOUR DECISION:

1. MUST THE TREASURY DEPARTMENT AMEND ITS ACTION IN ALL SUCH CASES OF RETURNED VETERANS TO REDUCE THE SALARY IN EACH CASE TO THE STEP THAT THE EMPLOYEE RECEIVED WHEN HE WENT INTO THE MILITARY SERVICE?

2. IF THE ANSWER TO QUESTION NO. 1 IS "YES," MUST THE ACTION BE MADE RETROACTIVE TO THE DATE OF THE RETURN OF THE EMPLOYEE TO DUTY FROM MILITARY SERVICE?

3. FOR SUCH EMPLOYEES, IS THE PERIOD OF MILITARY SERVICE CONSIDERED A BREAK IN SERVICE, SO THAT THE TIME SERVED IN HIS POSITION PRIOR TO ENTERING THE MILITARY SERVICE MAY NOT BE COUNTED IN THE WAITING PERIOD FOR AN AUTOMATIC PROMOTION?

4. IN VIEW OF THE OPINION OF THE ATTORNEY GENERAL DATED MAY 26, 1943, AND YOUR DECISION OF JANUARY 3, 1945, MAY WAR SERVICE APPOINTEES BE CARRIED ON MILITARY FURLOUGH?

5. IF YOUR ANSWER TO QUESTION NO. 4 IS "NO," IS IT REQUIRED THAT THE TREASURY DEPARTMENT TERMINATE THE SERVICES OF ALL WAR SERVICE APPOINTEES WHO ARE NOW IN THE MILITARY SERVICE AND CARRIED ON MILITARY FURLOUGH?

THE DECISION OF JANUARY 3, 1945, B-46335, 24 COMP. GEN. 491, TO WHICH YOU REFER HELD AS FOLLOWS:

IN VIEW OF THE ATTORNEY GENERAL'S OPINION OF MAY 26, 1943, THAT WAR SERVICE APPOINTEES HOLD ,TEMPORARY" POSITIONS WITHIN THE MEANING OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AND, HENCE, ARE NOT ENTITLED TO REEMPLOYMENT THEREUNDER AFTER MILITARY SERVICE, SECTION 5 OF EXECUTIVE ORDER NO. 8882, AUTHORIZING THE COUNTING OF MILITARY SERVICE TOWARD AUTOMATIC PROMOTION UNDER THE ACT OF AUGUST 1, 1941, IN THE CASE OF EMPLOYEES RESTORED TO CIVILIAN POSITIONS PURSUANT TO THE SELECTIVE TRAINING AND SERVICE ACT, HAS NO APPLICATION TO WAR SERVICE APPOINTEES RESTORED TO CIVILIAN POSITIONS AFTER MILITARY SERVICE UNDER AUTHORITY OF WAR SERVICE REGULATIONS XIII.

ORDINARILY AN ORIGINAL CONSTRUCTION OF A STATUTE, OR OF A REGULATION HAVING THE FORCE AND EFFECT OF LAW, IS EFFECTIVE FROM THE DATE OF THE STATUTE OR REGULATION (WHICH REGULATION INVOLVED HERE IS SECTION 5 OF EXECUTIVE ORDER NO. 8882 OF SEPTEMBER 3, 1941, ISSUED BY THE PRESIDENT PURSUANT TO THE AUTHORITY VESTED IN HIM BY THE PROVISIONS OF THE WITHIN GRADE PROMOTION LAW OF AUGUST 1, 1941, 55 STAT. 613). HOWEVER, IN THE PRESENT INSTANCE THERE WAS ISSUED BY THE CIVIL SERVICE COMMISSION--- APPARENTLY AS A RESULT OF A MISUNDERSTANDING AS TO THE EFFECT OF THE ATTORNEY GENERAL'S OPINION OF MAY 26, 1943--- AN AMENDMENT TO WAR SERVICE REGULATION XIII WHICH WAS SUSCEPTIBLE OF THE INTERPRETATION THAT WAR SERVICE APPOINTEES WERE ENTITLED TO THE SAME REEMPLOYMENT BENEFITS UPON REINSTATEMENT IN THE FEDERAL SERVICE BY ADMINISTRATIVE ACTION AFTER MILITARY SERVICE, AS ARE GRANTED BY LAW AND REGULATION TO PERMANENT EMPLOYEES WHO ARE RESTORED TO CIVILIAN POSITIONS UNDER THE TERMS AND CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT, 54 STAT. 885. WHILE THE LAW DOES NOT VEST IN THE CIVIL SERVICE COMMISSION AUTHORITY TO ISSUE A REGULATION EITHER GRANTING OR DENYING CREDIT FOR MILITARY SERVICE IN COMPUTING WITHIN-GRADE PROMOTIONS, NEVERTHELESS, THE REFERRED-TO AMENDMENT TO THE REGULATION WAS MISLEADING TO THE ADMINISTRATIVE OFFICES AND APPARENTLY IS THE REASON FOR THE ACTION TAKEN BY THE TREASURY DEPARTMENT IN THE CASES HERE INVOLVED. IN VIEW OF THAT SITUATION, AND AS WAR SERVICE APPOINTEES ARE REGARDED AS "OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT" WITHIN THE MEANING OF SECTION 7 OF THE CLASSIFICATION ACT, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 1, 1941, 55 STAT. 613, AND RECEIVE WITHIN-GRADE PROMOTIONS BASED UPON LENGTH OF SERVICE IN SUCH CIVILIAN POSITIONS AS DO PERMANENT EMPLOYEES WHO HOLD OTHER THAN WAR SERVICES APPOINTMENTS, QUESTION 1 IS ANSWERED IN THE NEGATIVE MAKING IT UNNECESSARY TO ANSWER QUESTION 2. THAT IS TO SAY, THE RULE STATED IN THE DECISION OF JANUARY 3, 1945, NEED NOT BE APPLIED RETROACTIVELY TO REQUIRE ADJUSTMENTS IN THE COMPENSATION OF WAR SERVICE APPOINTEES REINSTATED PRIOR TO THE DATE OF THAT DECISION IN CIVILIAN POSITIONS AFTER RELEASE FROM MILITARY SERVICE.

UNDER THE EXISTING LAW AND REGULATIONS, AND IN THE LIGHT OF THE OPINION OF THE ATTORNEY GENERAL AND DECISIONS OF THIS OFFICE, QUESTION 3 MUST BE ANSWERED IN THE AFFIRMATIVE, PROVIDED THE BREAK IN SERVICE MORE THAN 30 DAYS. SEE SECTION 2 (C) OF EXECUTIVE ORDER NO. 8882.

REFERRING TO QUESTIONS 4 AND 5, THIS OFFICE DOES NOT REQUIRE ANY CHANGE IN EXISTING ADMINISTRATIVE PROCEDURE REGARDING THE GRANTING OF MILITARY FURLOUGH TO WAR SERVICE APPOINTEES. BUT, IN ANY EVENT, THE PLACING OF SUCH EMPLOYEES UPON MILITARY FURLOUGH CAN HAVE NO LEGAL FORCE AND EFFECT TO PRESERVE A CIVILIAN STATUS AFTER THE EFFECTIVE DATE OF THE MILITARY FURLOUGH GRANTED TO ANY CIVILIAN EMPLOYEE. SEE DECISION OF JANUARY 30, 1945 B-46952, 24 COMP. GEN. 573. CONSEQUENTLY, IT WOULD SEEM THAT THE PROPER PROCEDURE WOULD BE TO SEPARATE WAR SERVICE APPOINTEES FROM THEIR CIVILIAN POSITIONS UPON ENTRY INTO THE ARMED FORCES.