B-51754, AUGUST 24, 1945, 25 COMP. GEN. 225

B-51754: Aug 24, 1945

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WERE RESTORED TO POSITIONS AFTER MILITARY SERVICE DID NOT MEET THE TERMS AND CONDITIONS OF THE LAWS AND REGULATIONS THEN IN EFFECT UNDER WHICH MILITARY SERVICE AND PRIOR CIVILIAN SERVICE COULD BE COUNTED TOWARD WITHIN-GRADE PROMOTION. TOWARD WITHIN-GRADE PROMOTIONS UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE LESS THAN $200) SHOULD BE GRANTED A ONE-STEP INCREASE FOR EACH 18-MONTH PERIOD OF SUCH SERVICE SINCE THE LAST EQUIVALENT INCREASE IN COMPENSATION. 1945: I HAVE YOUR LETTER OF AUGUST 14. ) TO CERTAIN EMPLOYEES WHO HAVE RETURNED OR WILL IN THE FUTURE RETURN FROM MILITARY SERVICE IS A SOURCE OF SERIOUS CONCERN IN MANY ELEMENTS OF THIS DEPARTMENT.

B-51754, AUGUST 24, 1945, 25 COMP. GEN. 225

FEDERAL EMPLOYEES PAY ACT OF 1945 - WITHIN-GRADE PROMOTIONS - MILITARY, ETC., SERVICE CREDIT WHERE EMPLOYEES WHO, PRIOR TO JULY 1, 1945, WERE RESTORED TO POSITIONS AFTER MILITARY SERVICE DID NOT MEET THE TERMS AND CONDITIONS OF THE LAWS AND REGULATIONS THEN IN EFFECT UNDER WHICH MILITARY SERVICE AND PRIOR CIVILIAN SERVICE COULD BE COUNTED TOWARD WITHIN-GRADE PROMOTION, THE WITHIN-GRADE PROMOTIONS BASED UPON SUCH MILITARY AND CIVILIAN SERVICE TO WHICH THEY BECAME ENTITLED UPON MEETING THE TERMS AND CONDITIONS OF THE AMENDATORY PROVISIONS OF SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND APPLICABLE REGULATIONS, MAY NOT BE MADE EFFECTIVE PRIOR TO JULY 1, 1945. EMPLOYEES ENTITLED TO COUNT MILITARY SERVICE AND PRIOR CIVILIAN SERVICE, RENDERED BEFORE JULY 1, 1945, TOWARD WITHIN-GRADE PROMOTIONS UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE LESS THAN $200) SHOULD BE GRANTED A ONE-STEP INCREASE FOR EACH 18-MONTH PERIOD OF SUCH SERVICE SINCE THE LAST EQUIVALENT INCREASE IN COMPENSATION, THE LAST PERIOD TO END ON OR LESS THAN ONE YEAR PRIOR TO JUNE 30, 1945; AND FROM THE TERMINATION OF SUCH LAST PERIOD, A ONE-STEP INCREASE SHOULD BE GRANTED FOR EACH 12 MONTHS OF SERVICE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, AUGUST 24, 1945:

I HAVE YOUR LETTER OF AUGUST 14, 1945, AS FOLLOWS:

PROPER APPLICATION OF THE PROVISIONS OF SECTION 402, FEDERAL EMPLOYEES PAY ACT OF 1945 ( PUBLIC LAW 106--- 79TH CONGRESS,) TO CERTAIN EMPLOYEES WHO HAVE RETURNED OR WILL IN THE FUTURE RETURN FROM MILITARY SERVICE IS A SOURCE OF SERIOUS CONCERN IN MANY ELEMENTS OF THIS DEPARTMENT. IN ORDER THAT THE RETURN OF THESE INDIVIDUALS MAY BE EFFECTED PROMPTLY AND WITHOUT DOUBT AS TO THEIR PAY STATUS, IT IS REQUESTED THAT YOU FURNISH ADVICE ON THE MATTERS PRESENTED BELOW.

THE PRIMARY QUESTION IN THIS REGARD CONCERNS THE ELIGIBILITY OF PERSONS TO RECEIVE THE WITHIN-GRADE PAY INCREASES AUTHORIZED BY SECTION 7 (B) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED TO DATE. AS YOU ARE AWARE, MANY EMPLOYEES HAD BEEN DECLARED INELIGIBLE FOR SUCH INCREASES BECAUSE (1) THERE WAS NO EFFICIENCY RATING ON RECORD, AND/OR (2) THEIR TENURE WAS NOT PERMANENT. THIS RECENT AMENDMENT PERMITS THE GRANTING OF SALARY INCREASES WITHOUT REGARD TO THESE FACTORS. APPLICATION OF THIS PROVISION TO FUTURE CASES IS CLEAR INSOFAR AS ELIGIBILITY IS CONCERNED, BUT WE ARE IN DOUBT AS TO PROPER ACTION IN PAST CASES. THE PROBLEM CAN BE PRESENTED MOST EFFECTIVELY BY EXAMPLES OF TYPICAL CASES CURRENTLY PENDING.

EXAMPLE: A, A PERMANENT EMPLOYEE AT CAF-5, $2,000 PER ANNUM, ENTERED ON DUTY IN THE ARMED FORCES IN 1941, PRIOR TO EXTENSION OF THE EFFICIENCY RATING SYSTEM TO THE FIELD SERVICE. HE RETURNED TO CIVILIAN DUTY ON APRIL 1, 1945 AND WAS NOT GIVEN THE PAY INCREASES CONTEMPLATED BY SECTION 5, EXECUTIVE ORDER 8882 BECAUSE OF THE ABSENCE OF REQUIRED EFFICIENCY AND CONDUCT RATINGS. EFFECTIVE JULY 1, THE NEW STATUTE MADE HIM ELIGIBLE FOR AN INCREASE FOR THE FIRST TIME.

EXAMPLE: B, WAS APPOINTED TO A CAF-5 POSITION, $2,000 PER ANNUM ON DECEMBER 1, 1141 (1941) UNDER EXECUTIVE ORDER 8564 AND CONVERTED TO WAR SERVICE INDEFINITE TENURE ON MARCH 16, 1942 (EFFECTIVE DATE OF ORIGINAL WAR SERVICE REGULATIONS). HE ENTERED THE MILITARY SERVICE IN JANUARY 1943 AND RETURNED TO CIVILIAN DUTY APRIL 1, 1945.

(1) ARE A AND B ENTITLED TO ONE INCREASE ONLY OR TO ONE FOR EACH EIGHTEEN MONTH PERIOD OF PREVIOUS CIVILIAN AND MILITARY SERVICE?

(2) MAY SUCH INCREASES BE MADE RETROACTIVE TO THE DATE OF RESTORATION TO DUTY OR ARE THEY EFFECTIVE ONLY FROM JULY 1, 1945?

(3) IF RESTORATION, PURSUANT TO LAW OR REGULATION, WERE EFFECTED AT SOME FUTURE TIME, HOW SHOULD THE TIME PERIOD BE COMPUTED (I.E., SHOULD THE ENTIRE PERIOD OF MILITARY SERVICE BE DIVIDED INTO TWELVE MONTH UNITS AND ONE INCREASE GRANTED FOR EACH PERIOD, OR SHOULD SERVICE PRIOR TO JULY 1, 1945 BE CREDITED IN EIGHTEEN MONTH UNITS AND THAT SUBSEQUENT TO JULY 1, 1945 IN TWELVE MONTH INTERVALS/?

DECISION ON THE ABOVE MATTERS IS NECESSARY BECAUSE OF OUR UNCERTAINTY REGARDING THE CONTINUED EFFECT OF PREVIOUS DECISIONS OF YOUR OFFICE. GENERAL RULE HAS BEEN STATED IN THOSE DECISIONS (NOTABLY 22 COMP. GEN. 336) THAT AN EMPLOYEE MUST MEET ALL OF THE CONDITIONS BEFORE APPLICABLE PAY INCREASE MAY BE GRANTED. IN THE EXAMPLES CITED ABOVE, BOTH A AND B BECAME ELIGIBLE FOR PAY INCREASES FOR THE FIRST TIME ON JULY 1, 1945 AND, EXCEPT FOR THE BROAD LANGUAGE AND INTENT OF SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT, THEY WOULD RECEIVE ONLY ONE OF THE INCREASES REPRESENTED BY TOTAL LENGTH OF SERVICE. ON THE OTHER HAND, THE LEGISLATIVE HISTORY OF THE STATUTE EVIDENCES A CLEAR INTENT ON THE PART OF CONGRESS TO CORRECT INEQUITIES WHICH HAD GROWN OUT OF PREVIOUS LAW AND REGULATIONS AND TO PUT THE PERSONS AFFECTED ON AN EVEN PLANE WITH OTHER PERSONS ENTITLED TO INCREASES ON THE BASIS OF TIME SPENT IN MILITARY SERVICE.

UNCERTAINTY AS TO ULTIMATE DECISION IN THE MATTER HAS REQUIRED THAT THE GRANTING OF INCREASES IN QUESTIONABLE CASES BE POSTPONED. FOR THAT REASON, YOUR EARLY CONSIDERATION OF THESE PROBLEMS IS RESPECTFULLY REQUESTED.

THE RULES STATED IN DECISION OF JULY 26, 1945, B-51076, 25 COMP. GEN. 102, TO THE ARCHITECT OF THE CAPITOL (ANSWER TO QUESTION (A) (5) (, AND IN DECISION OF AUGUST 13, 1945, B-51457, 25 COMP. GEN. 182, TO THE SECRETARY OF AGRICULTURE, ARE FOR APPLICATION IN RESPECT TO THE QUESTIONS HERE PRESENTED. IN THE LATTER DECISION--- AFTER QUOTING (1) FROM SECTION 7 (B) (4) OF THE CLASSIFICATION ACT AS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, (2) FROM THE APPLICABLE REGULATIONS OF THE CIVIL SERVICE COMMISSION, AND (3) FROM THE FIRST DECISION ABOVE CITED (WHICH QUOTATIONS NEED NOT BE REPEATED HERE) IT WAS STATED IN PART, AS OLLOWS:

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 SALARY 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 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.

REFERRING TO QUESTION (1), EMPLOYEES A AND B HAVING BEEN RESTORED TO A PERMANENT STATUS PRIOR TO JULY 1, 1945, ARE ENTITLED TO BE ADVANCED IN GRADE EFFECTIVE JULY 1, 1945, THE NUMBER OF STEPS IN THEIR GRADES BASED UPON ALL CIVILIAN AND MILITARY SERVICE RENDERED PRIOR TO JULY 1, 1945, SINCE THEIR LAST EQUIVALENT INCREASE IN COMPENSATION. FOR FURTHER CLARIFICATION, SEE THE EXAMPLES GIVEN IN THE ANSWER TO QUESTION 3, SUPRA.

REFERRING TO QUESTION (2), AS THE EMPLOYEES APPARENTLY DID NOT MEET THE TERMS AND CONDITIONS OF THE STATUTE AND REGULATIONS IN FORCE WHEN THEY WERE RESTORED APRIL 1, 1945, TO ENTITLE THEM TO A WITHIN-GRADE SALARY ADVANCEMENT AT THAT TIME, SUCH INCREASES SHOULD BE MADE EFFECTIVE AS OF JULY 1, 1945, AT WHICH TIME THEY MET THE TERMS AND CONDITIONS OF THE NEW STATUTE AND REGULATIONS.

REFERRING TO QUESTION (3), NEITHER ONE OF THE SUGGESTED ANSWERS IS ENTIRELY CORRECT. THE PERIOD OF ALL PRIOR CIVILIAN AND MILITARY SERVICE SHOULD BE COMPUTED BEGINNING WITH THE LAST EQUIVALENT INCREASE IN COMPENSATION AND AN INCREASE CREDITED FOR EACH PERIOD OF 18 MONTHS THE LAST ONE ENDING ON OR LESS THAN ONE YEAR PRIOR TO JUNE 30, 1945; AND FROM THE TERMINATION OF THE LAST OF SUCH 18-MONTH PERIOD THE INCREASES SHOULD BE CREDITED FOR EACH YEAR OF SERVICE. YOU DO NOT STATE THE DATE OF THE LAST EQUIVALENT INCREASE IN COMPENSATION IN EITHER CASE PRESENTED. HOWEVER, ASSUMING, FOR EXAMPLE, THAT EMPLOYEES A AND B HAD EXACTLY 4 YEARS OF CREDITABLE SERVICE ON JUNE 30, 1945, SINCE THEIR LAST EQUIVALENT INCREASE, THEY WOULD BE ENTITLED TO A THREE STEP INCREASE IN COMPENSATION IN GRADE EFFECTIVE JULY 1, 1945, ONE FOR EACH OF THE FIRST TWO PERIODS OF 18 MONTHS AND ONE FOR THE YEAR IMMEDIATELY PRECEDING JULY 1, 1945. ASSUMING, AS A FURTHER EXAMPLE, THAT SAID EMPLOYEES HAD THREE YEARS AND NINE MONTHS OF SUCH CREDITABLE SERVICE ON JUNE 30, 1945, THEY WOULD BE ENTITLED TO A TWO-STEP INCREASE IN COMPENSATION IN THEIR GRADES EFFECTIVE JULY 1, 1945, AND TO ANOTHER STEP INCREASE EFFECTIVE AT THE BEGINNING OF THE FIRST PAY PERIOD AFTER SUNDAY, SEPTEMBER 30, 1945. SEE ANSWER TO QUESTION 14, DECISION OF JULY 28, 1945, B-51099, 25 COMP. GEN. 121, TO THE SECRETARY OF AGRICULTURE.