B-51457, AUGUST 13, 1945, 25 COMP. GEN. 182

B-51457: Aug 13, 1945

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TO WHICH THEY WERE RESTORED PRIOR TO JULY 1. 1945: I HAVE YOUR LETTER OF AUGUST 2. THE EFFECT OF WHICH WAS AS FOLLOWS: (1) FROM JANUARY 3 TO JULY 1. SERVICE IN THE ARMED FORCES OR IN THE MERCHANT MARINE WAS NOT CREDITED TOWARD WITHIN-GRADE SALARY ADVANCEMENTS FOR EMPLOYEES RESTORED AFTER FURLOUGH TO POSITIONS WHICH THEY HELD AS WAR SERVICE APPOINTEES. SERVICE IN THE ARMED FORCES OR IN THE MERCHANT MARINE WAS NOT CREDITED TO EMPLOYEES RESTORED AFTER FURLOUGH TO ENCUMBERED POSITIONS. THE EMPLOYEES IN THESE CASES WERE REQUIRED TO BEGIN A NEW WAITING PERIOD FOR WITHIN-GRADE SALARY ADVANCEMENTS ON THE DAY OF RESTORATION TO THEIR FORMER POSITIONS. WE ARE PREPARING TO ISSUE AMENDED INSTRUCTIONS WHICH WILL PROVIDE FOR CREDITING MILITARY OF MERCHANT MARINE SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS IN ACCORDANCE WITH THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 ( PUBLIC LAW 106.

B-51457, AUGUST 13, 1945, 25 COMP. GEN. 182

COMPENSATION - WITHIN-GRADE PROMOTIONS - MILITARY, ETC., SERVICE CREDIT EMPLOYEES WHO, ON JULY 1, 1945, HELD "PERMANENT" POSITIONS UNDER THE CLASSIFICATION ACT, INCLUDING WAR SERVICE POSITIONS, TO WHICH THEY WERE RESTORED PRIOR TO JULY 1, 1945, AFTER A PERIOD OF MILITARY SERVICE ENTERED UPON FROM WAR SERVICE POSITIONS OR "ENCUMBERED" POSITIONS TEMPORARILY OCCUPIED DURING THE ABSENCE OF OTHER EMPLOYEES ON MILITARY DUTY, MAY BE CREDITED WITH THE PERIOD OF MILITARY SERVICE AND PRIOR CIVILIAN SERVICE FOR THE PURPOSE OF WITHIN-GRADE PROMOTIONS AS OF JULY 1, 1945, UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND APPLICABLE REGULATIONS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, AUGUST 13, 1945:

I HAVE YOUR LETTER OF AUGUST 2, 1945, AS FOLLOWS:

UNDER YOUR DECISIONS (B-46335 AND B-48455) DATED JANUARY 3, 1945, AND APRIL 9, 1945, RESPECTIVELY, WE ISSUED INSTRUCTIONS GOVERNING WITHIN-GRADE SALARY ADVANCEMENTS IN THIS DEPARTMENT, THE EFFECT OF WHICH WAS AS FOLLOWS:

(1) FROM JANUARY 3 TO JULY 1, 1945, SERVICE IN THE ARMED FORCES OR IN THE MERCHANT MARINE WAS NOT CREDITED TOWARD WITHIN-GRADE SALARY ADVANCEMENTS FOR EMPLOYEES RESTORED AFTER FURLOUGH TO POSITIONS WHICH THEY HELD AS WAR SERVICE APPOINTEES;

(2) FROM APRIL 9 TO JULY 1, 1945, SERVICE IN THE ARMED FORCES OR IN THE MERCHANT MARINE WAS NOT CREDITED TO EMPLOYEES RESTORED AFTER FURLOUGH TO ENCUMBERED POSITIONS.

THE EMPLOYEES IN THESE CASES WERE REQUIRED TO BEGIN A NEW WAITING PERIOD FOR WITHIN-GRADE SALARY ADVANCEMENTS ON THE DAY OF RESTORATION TO THEIR FORMER POSITIONS.

WE ARE PREPARING TO ISSUE AMENDED INSTRUCTIONS WHICH WILL PROVIDE FOR CREDITING MILITARY OF MERCHANT MARINE SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS IN ACCORDANCE WITH THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 ( PUBLIC LAW 106, 79TH CONGRESS) AND THE REGULATIONS ISSUED THEREUNDER ( EXECUTIVE ORDER NO. 9578, APPROVED JUNE 30, 1945); THAT IS, THEY WILL PROVIDE FOR ADVANCEMENTS BASED ON SERVICE IN PERMANENT POSITIONS HELD UNDER PERMANENT, WAR SERVICE, TEMPORARY, OR ANY OTHER TYPE OF APPOINTMENT, INCLUDING TIME SPENT IN THE ARMED FORCES OR IN THE MERCHANT MARINE. THESE INSTRUCTIONS WILL SUPERSEDE THOSE WHICH WE PREVIOUSLY ISSUED WITH RESPECT TO SUCH SALARY ADVANCEMENTS AND WILL BE EFFECTIVE AS OF JULY 1, 1945, THE EFFECTIVE DATE OF THE PAY ACT.

QUESTION ARISES IN THIS CONNECTION IN REGARD TO THE DISPOSITION TO BE MADE OF THOSE CASES IN WHICH EMPLOYEES WERE PROPERLY RESTORED TO THEIR FORMER POSITIONS AFTER FURLOUGH FOR MILITARY OR MERCHANT MARINE SERVICE AND THE ACTION TO RESTORE THEM WAS TAKEN BETWEEN JANUARY 3 OR APRIL 9 AND JULY 1, 1945, AS MENTIONED IN THE FIRST PARAGRAPH OF THIS LETTER. AS SET FORTH IN THAT PARAGRAPH, THE EMPLOYEES IN SUCH CASES WERE REQUIRED TO BEGIN NEW WAITING PERIODS ON THE DAYS WHICH THEY WERE RESTORED TO THEIR FORMER POSITIONS.

WE BELIEVE THAT THE AMOUNT OF CREDITABLE SERVICE SHOULD BE RECOMPUTED IN EACH OF THESE CASES INASMUCH AS SUCH RECOMPUTATIONS WOULD CONFER ON THE EMPLOYEES CONCERNED NO GREATER BENEFIT THAN WAS CONFERRED BY YOUR DECISIONS OF JANUARY 3 (AS SUPPLEMENTED BY YOU DECISION B-48144 OF MARCH 16) AND APRIL 9, 1945, ON CERTAIN EMPLOYEES BY PERMITTING THEM TO RETAIN PAYMENTS THERETOFORE RECEIVED ON THE BASIS OF CREDIT ALLOWED FOR THE TYPES OF SERVICE IN QUESTION. FURTHERMORE, WE BELIEVE THAT IT WOULD BE IN KEEPING WITH THE SPIRIT OF THE POLICY ADOPTED BY THE CONGRESS IN THE PAY ACT OF 1945 FOR USE TO CREDIT SUCH SERVICE. YOUR DECISION WILL THEREFORE BE DEEPLY APPRECIATED AS TO WHETHER YOU WILL BE REQUIRED TO TAKE EXCEPTION TO ANY PAY ADJUSTMENT PROCESSED ON THE BASIS OF RECOMPUTATIONS OF THE SERVICE CREDITABLE IN THESE CASES.

SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, AMENDS SUBSECTION (B) OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY THE ACT OF AUGUST 1, 1941, 55 STAT. 613, TO INCLUDE THE FOLLOWING:

(4) THAT ANY EMPLOYEE, (A) WHO, WHILE SERVING UNDER PERMANENT, WAR SERVICE, TEMPORARY, OR ANY OTHER TYPE OF APPOINTMENT, HAS LEFT HIS POSITION TO ENTER THE ARMED FORCES OR THE MERCHANT MARINE, OR TO COMPLY WITH A WAR TRANSFER AS DEFINED BY THE CIVIL SERVICE COMMISSION, (B) WHO HAS BEEN SEPARATED UNDER HONORABLE CONDITIONS FROM ACTIVE DUTY IN THE ARMED FORCES, OR HAS RECEIVED A CERTIFICATE OF SATISFACTORY SERVICE IN THE MERCHANT MARINE, OR HAS A SATISFACTORY RECORD ON WAR TRANSFER, AND (C) WHO, UNDER REGULATIONS OF THE CIVIL SERVICE COMMISSION OR THE PROVISIONS OF ANY LAW PROVIDING FOR RESTORATION OR REEMPLOYMENT, OR UNDER ANY OTHER ADMINISTRATIVE PROCEDURE WITH RESPECT TO EMPLOYEES NOT SUBJECT TO CIVIL SERVICE RULES AND REGULATIONS, IS RESTORED, REEMPLOYED, OR REINSTATED IN ANY POSITION SUBJECT TO THIS SECTION, SHALL UPON HIS RETURN TO DUTY BE ENTITLED TO WITHIN-GRADE SALARY ADVANCEMENTS WITHOUT REGARD TO PARAGRAPHS (2) AND (3) OF THIS SUBSECTION, AND TO CREDIT SUCH SERVICE IN THE ARMED FORCES, IN THE MERCHANT MARINE, AND ON WAR TRANSFER, TOWARD SUCH WITHIN- GRADE SALARY ADVANCEMENTS. AS USED IN THIS PARAGRAPH THE TERM "SERVICE IN THE MERCHANT MARINE" SHALL HAVE THE SAME MEANING AS WHEN USED IN THE ACT ENTITLED "AN ACT TO PROVIDE REEMPLOYMENT RIGHTS FOR PERSONS WHO LEAVE THEIR POSITIONS TO SERVE IN THE MERCHANT MARINE, AND FOR OTHER PURPOSES," APPROVED JUNE 23, 1943 ( U.S.C., 1940 EDITION, SUPP. IV, TITLE 50 APP., SEC. 1471 TO 1475, INC.).

SECTION 301, PART III, CHAPTER II, OF THE CIVIL SERVICE REGULATIONS ( CIVIL SERVICE CIRCULAR NO. 529 OF JUNE 30, 1945) PROVIDES:

(E) SERVICE IN THE ARMED FORCES, IN THE MERCHANT MARINE, OR ON WAR TRANSFER SUBJECT TO THE FOLLOWING CONDITIONS: THE EMPLOYEE MUST HAVE (1) LEFT HIS POSITION TO ENTER THE ARMED FORCES OR THE MERCHANT MARINE, OR TO COMPLY WITH A WAR TRANSFER, (2) BEEN SEPARATED UNDER HONORABLE CONDITIONS FROM ACTIVE DUTY IN THE ARMED FORCES, OR HAVE RECEIVED A CERTIFICATE OF SATISFACTORY SERVICE IN THE MERCHANT MARINE, OR HAVE A SATISFACTORY RECORD ON WAR TRANSFER, AND (3) BEEN RESTORED, REEMPLOYED, OR REINSTATED IN ANY PERMANENT POSITION WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, UNDER REGULATIONS OF THE CIVIL SERVICE COMMISSION, OR THE PROVISIONS OF ANY LAW PROVIDING FOR RESTORATION OR REEMPLOYMENT, OR ANY OTHER ADMINISTRATIVE PROCEDURE WITH RESPECT TO EMPLOYEES NOT SUBJECT TO CIVIL SERVICE RULES AND REGULATIONS. ANY EMPLOYEE ENTITLED TO BE CREDITED WITH SERVICE UNDER THIS SUBSECTION SHALL ALSO BE ENTITLED TO CREDIT FOR CIVILIAN EMPLOYMENT PRIOR TO LEAVING HIS POSITION TO ENTER THE ARMED FORCES OR THE MERCHANT MARINE, OR TO COMPLY WITH A WAR TRANSFER, IN ACCORDANCE WITH SUBSECTIONS (A), (B), (C), AND (D) OF THIS SECTION.

IN DECISION OF JULY 26, 1945, B-51076, 25 COMP. GEN. 102, 111, TO THE ARCHITECT OF THE CAPITOL--- ANSWERING QUESTION (A) (5/--- IT WAS HELD, WITH REGARD TO THE ABOVE-QUOTED STATUTE AND REGULATION, AS FOLLOWS:

IN THE OPINION OF THE ATTORNEY GENERAL OF MAY 26, 1943, 40 OP. ATTY. GEN. 66, IT WAS CONCLUDED THAT WAR SERVICE APPOINTEES HELD TEMPORARY POSITIONS AND, THEREFORE, WERE NOT ENTITLED TO RESTORATION TO THEIR CIVILIAN POSITIONS UPON RETURN FROM THE ARMED FORCES. UPON THE BASIS OF THAT OPINION, THIS OFFICE HELD IN DECISIONS OF JANUARY 3, 1945, 24 COMP. GEN. 491, AND MARCH 16, 1945, 24 COMP. GEN. 688, THAT WAR SERVICE APPOINTEES WERE NOT ENTITLED TO COUNT MILITARY SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS. HAVING REGARD FOR THE WORDS OF SECTION 402 AS UNDERLINED ABOVE, WHICH, SO FAR AS WITHIN-GRADE SALARY ADVANCEMENTS ARE CONCERNED, HAVE THE EFFECT OF MODIFYING THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF SEPTEMBER 16, 1940, 54 STAT. 890, AND STATUTES IN PARI MATERIA, LIMITING REEMPLOYMENT BENEFITS TO EMPLOYEES WHO LEFT POSITIONS OTHER THAN TEMPORARY TO ENTER THE ARMED FORCES, AND AS SECTION 610 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 PROVIDES THAT "THIS ACT SHALL TAKE EFFECT ON JULY 1, 1945," IT IS CONCLUDED THAT THE PURPOSE OR INTENT OF SUBSECTION (B) (4) OF SECTION 7 OF THE CLASSIFICATION ACT, AS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, WAS TO ESTABLISH A RULE WHICH WOULD SUPERSEDE THE RULE STATED IN THE CITED DECISIONS OF THIS OFFICE AND TO ALLOW THE COUNTING OF ALL MILITARY SERVICE AND CIVILIAN SERVICE PRIOR TO MILITARY SERVICE FOR THE PURPOSE OF COMPUTING WITHIN- GRADE SALARY ADVANCEMENTS AS OF JULY 1, 1945, TO ANY EMPLOYEE WHO ON THAT DATE HELD A PERMANENT POSITION AND OTHERWISE MET THE TERMS AND CONDITIONS OF THE STATUTE AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, REGARDLESS OF THE FACT THAT SUCH EMPLOYEE MAY HAVE BEEN RESTORED OR APPOINTED TO A PERMANENT POSITION PRIOR TO JULY 1, 1945. THEREFORE, AS THE SUBSTATION OPERATOR WHOSE CASE IS COVERED BY THIS QUESTION HELD A PERMANENT POSITION ON JULY 1, 1945, WHEN THE STATUTE WENT INTO EFFECT, ALL OF HIS MILITARY SERVICE AND HIS CIVILIAN SERVICE PRIOR TO HIS MILITARY SERVICE MAY BE CREDITED TOWARD COUNTING SERVICE FOR THE PURPOSE OF GRANTING A WITHIN-GRADE SALARY ADVANCEMENT EFFECTIVE AS OF JULY 1, 1945, PROVIDED HE OTHERWISE MET THE TERMS AND CONDITIONS OF THE LAW AND REGULATIONS ON THAT DATE.

IN LINE WITH SAID DECISION, IT MAY BE STATED THAT THE NEW STATUTE AND REGULATION HAVE THE EFFECT OF PREVENTING ANY LOSS, BY REASON OF AN EMPLOYEE'S HAVING ENTERED AND SERVED IN THE ARMED FORCES, OF LONGEVITY CREDIT WHICH HE OTHERWISE WOULD BE ENTITLED TO COUNT, AS THOUGH THE MILITARY SERVICE WERE CIVILIAN SERVICE, UPON RESTORATION (INCLUDING REEMPLOYMENT OR REINSTATEMENT UNDER CIVIL SERVICE REGULATIONS) TO A POSITION PROPERLY CLASSED AS "PERMANENT" WITHIN THE MEANING OF THE PROVISIONS OF LAW AND REGULATION CONTROLLING THE GRANTING OF WITHIN GRADE SALARY ADVANCEMENTS. THE NEW STATUTE AND REGULATION DO NOT GRANT TO VETERANS ANY GREATER BENEFIT TO WITHIN-GRADE ADVANCEMENTS THAN ARE PROVIDED BY LAW FOR NON-VETERANS. FURTHERMORE, THE STATUTE IS NOT EFFECTIVE FOR PAY PURPOSES PRIOR TO JULY 1, 1945. THEREFORE, A VETERAN MUST HAVE BEEN RESTORED OR MUST BE RESTORED HEREAFTER TO A POSITION PROPERLY CLASSED AS "PERMANENT" IN ORDER TO BE ENTITLED TO THE BENEFIT OF THE NEW LAW AND REGULATION WITH RESPECT TO THE GRANTING OF WITHIN GRADE SALARY ADVANCEMENTS. WHETHER A POSITION BE "PERMANENT" OR "TEMPORARY" WITHIN THE MEANING OF THE LAW AND REGULATION IS TO BE DETERMINED BY THE TENURE OF THE APPOINTMENT HELD BY THE EMPLOYEE AT THE TIME OF HIS BEING RESTORED TO CIVILIAN DUTY. 21 COMP. GEN. 1067. HENCE, IF A VETERAN BE RESTORED IN A POSITION CLASSED AS "TEMPORARY" IN WHICH A NON-VETERAN WOULD NOT BE ENTITLED TO RECEIVE ANY WITHIN-GRADE SALARY ADVANCEMENTS, THE VETERAN, ALSO, WOULD NOT BE ENTITLED TO COUNT MILITARY SERVICE OR THE SERVICE PRIOR TO MILITARY SERVICE FOR THE PURPOSE OF PAYING HIM A HIGHER RATE OF SALARY WITHIN THE GRADE THAN A NON-VETERAN WOULD RECEIVE IN THE SAME POSITION.

THEREFORE, IF THE PURPOSE OF THE PROPOSED AMENDED INSTRUCTIONS TO WHICH YOU REFER IN THE THIRD PARAGRAPH OF YOUR LETTER IS TO MAKE A DISTINCTION BETWEEN THE "POSITION" AND THE APPOINTMENT UNDER WHICH AN EMPLOYEE IS SERVING AFTER RESTORATION FOLLOWING MILITARY SERVICE, THE AMENDED INSTRUCTIONS MEAN ONLY THAT ALL PRIOR SERVICE IN ANY CLASS OF CIVILIAN POSITION OCCUPIED PRIOR TO ENTRANCE INTO THE ARMED FORCES--- WHICH IS CREDITABLE TO A NON-VETERAN UNDER THE REGULATIONS TOWARD WITHIN-GRADE SALARY ADVANCEMENTS IN A PERMANENT POSITION--- PLUS SERVICE IN THE ARMED FORCES, IS CREDITABLE SERVICE UNDER THE LAW GRANTING WITHIN-GRADE SALARY ADVANCEMENTS ON AND AFTER JULY 1, 1945, IN A ,PERMANENT" POSITION TO WHICH AN EMPLOYEE IS RESTORED, THE PROPOSED AMENDED INSTRUCTIONS WOULD BE CORRECT.

IN THE LIGHT OF THE FOREGOING, YOUR QUESTIONS ARE ANSWERED AS FOLLOWS:

AS NON-VETERAN EMPLOYEES WHO HOLD WAR SERVICE INDEFINITE APPOINTMENTS ARE AND HAVE BEEN REGARDED AS OCCUPYING "PERMANENT" POSITIONS FOR THE PURPOSE OF GRANTING WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE CLASSIFICATION ACT, THE ADJUSTMENTS PROPOSED TO CORRECT INSTRUCTION (1) REFERRED TO IN THE FIRST PARAGRAPH OF YOUR LETTER MAY BE MADE EFFECTIVE ON AND AFTER JULY 1, 1945.

THE ADJUSTMENTS PROPOSED BY CORRECTION OF INSTRUCTION (2) REFERRED TO IN THE FIRST PARAGRAPH OF YOUR LETTER, AS TO PERMANENT REGULAR EMPLOYEES (NOT WAR SERVICE APPOINTEES) WHO OCCUPIED ENCUMBERED POSITIONS OF INDEFINITE DURATION WHEN THEY ENTERED THE ARMED FORCES WERE AUTHORIZED TO BE MADE RETROACTIVELY EFFECTIVE BY DECISION OF AUGUST 3, 1945, B-50988, TO YOU. ALSO, ADJUSTMENTS MAY BE MADE EFFECTIVE AS OF JULY 1, 1945, IN THE SALARY OF PERSONS WHO LEFT OTHER THAN POSITIONS OF INDEFINITE DURATION TO ENTER THE ARMED FORCES PURSUANT TO THE NEW LAW AND REGULATIONS PROVIDED THEY WERE RESTORED TO "PERMANENT" POSITIONS ON OR PRIOR TO JULY 1, 1945.