B-51771, SEPTEMBER 26, 1945, 25 COMP. GEN. 293

B-51771: Sep 26, 1945

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NO APPROPRIATE VACANCY EXISTS IN THE PARTICULAR AGENCY AT THE PLACE FROM WHICH HE WAS FURLOUGHED TO ENTER THE ARMED FORCES. FROM THE PLACE OF RESTORATION TO A PLACE WHERE A SUITABLE VACANCY IS AVAILABLE UNDER THE SAME AGENCY. 21 COMP. THIS DEPARTMENT IS CONFRONTED WITH A TREMENDOUS TASK IN MAKING NECESSARY PLANS FOR POST-WAR READJUSTMENT IN OUR CIVILIAN EMPLOYMENT. A MAJOR FACTOR IN THIS PLANNING IS THE ORDERLY AND PROMPT REASSIMILATION OF THOSE DISCHARGED VETERANS WHO ARE ENTITLED TO REEMPLOYMENT UNDER CONTROLLING STATUTES OR CIVIL SERVICE REGULATIONS. CURRENT CHANGES IN THE NEEDS OF THE ARMY AND FUTURE REDUCTION IN THE DEPARTMENT'S ACTIVITIES WILL NECESSARILY MEAN THAT MANY INSTALLATIONS AND OFFICES WILL CLOSE WHILE OTHERS WILL BE DRASTICALLY REDUCED IN SIZE.

B-51771, SEPTEMBER 26, 1945, 25 COMP. GEN. 293

TRAVELING EXPENSES - RETURN TO CIVILIAN POSITION AFTER MILITARY DUTY WHERE, UPON THE RETURN OF A CIVILIAN EMPLOYEE FROM MILITARY DUTY, NO APPROPRIATE VACANCY EXISTS IN THE PARTICULAR AGENCY AT THE PLACE FROM WHICH HE WAS FURLOUGHED TO ENTER THE ARMED FORCES, THE EMPLOYEE MAY BE REGARDED AS RESTORED AT THAT PLACE FOR THE PURPOSE OF PAYING HIS TRAVEL EXPENSES IN CONNECTION WITH TRANSFER, FOR THE CONVENIENCE OF THE GOVERNMENT, FROM THE PLACE OF RESTORATION TO A PLACE WHERE A SUITABLE VACANCY IS AVAILABLE UNDER THE SAME AGENCY. 21 COMP. GEN. 398, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, SEPTEMBER 26, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 14, 1945, AS FOLLOWS:

AS HAS BEEN INDICATED IN PREVIOUS SUBMISSIONS TO YOUR OFFICE, THIS DEPARTMENT IS CONFRONTED WITH A TREMENDOUS TASK IN MAKING NECESSARY PLANS FOR POST-WAR READJUSTMENT IN OUR CIVILIAN EMPLOYMENT. A MAJOR FACTOR IN THIS PLANNING IS THE ORDERLY AND PROMPT REASSIMILATION OF THOSE DISCHARGED VETERANS WHO ARE ENTITLED TO REEMPLOYMENT UNDER CONTROLLING STATUTES OR CIVIL SERVICE REGULATIONS. CURRENT CHANGES IN THE NEEDS OF THE ARMY AND FUTURE REDUCTION IN THE DEPARTMENT'S ACTIVITIES WILL NECESSARILY MEAN THAT MANY INSTALLATIONS AND OFFICES WILL CLOSE WHILE OTHERS WILL BE DRASTICALLY REDUCED IN SIZE. THSE CHANGES IN CIRCUMSTANCES WILL NOT, HOWEVER, ALTER THE DEPARTMENT'S LEGAL AND MORAL OBLIGATION TO REEMPLOY THOSE INDIVIDUALS WHO LEFT ITS EMPLOYMENT TO SERVE IN THE ARMED FORCES.

REALIZATION OF THE FULL IMPLICATIONS OF THIS AND RELATED PROBLEMS COMPELS ME TO REQUEST RECONSIDERATION OF YOUR DECISION IN 21 COMP. GEN. 398 WHICH WAS RENDERED TO THIS DEPARTMENT ON OCTOBER 30, 1941. THIS REQUEST IS PROMPTED IN PART ALSO BY THE DEVELOPMENT OF FEDERAL POLICY IN THE PERIOD THAT HAS ELAPSED. THE CONGRESS, THE PRESIDENT AND THE CIVIL SERVICE COMMISSION HAVE ALL SPOKEN IN A MANNER THAT LEAVES NO DOUBT AS TO THE OBLIGATION TO RESTORE THE EMPLOYEE AND TO INTERPRET HIS RIGHTS AND BENEFITS IN THEIR MOST FAVORABLE AND LIBERAL LIGHT. IT HAS BEEN ESTABLISHED AS THE POLICY OF THE WAR DEPARTMENT THAT THE VETERAN SHALL BE REEMPLOYED IN THE INSTALLATION OF ORIGINAL EMPLOYMENT IF HIS OLD POSITION OR ANOTHER OF LIKE SENIORITY, STATUS AND PAY EXISTS IN THAT INSTALLATION. IF THAT IS NOT POSSIBLE, PLACEMENT MUST BE EFFECTED IN ANOTHER INSTALLATION IN THE SAME COMMUTING AREA. ONLY AFTER EXHAUSTING THESE EFFORTS AT LOCALITY PLACEMENT WILL IT BE REQUIRED THAT A VETERAN MOVE TO ANOTHER AREA AS A CONDITION FOR OBTAINING THE RIGHTS ACCORDED HIM BY PUBLIC POLICY. THE SIZE AND EXTENT OF OUR ULTIMATE DEMOBILIZATION TASK WILL, HOWEVER, MAKE IT INEVITABLE THAT A SUBSTANTIAL NUMBER OF VETERANS WILL BE REQUIRED TO MOVE OUT OF THE AREA OF ORIGINAL EMPLOYMENT.

IN MANY INSTANCES ACCEPTANCE OF A POSITION IN A DIFFERENT LOCALITY WILL HASTEN THE COMPLETE DISCHARGE OF THIS OBLIGATION. TO THAT EXTENT, PAYMENT OF THE USUAL EXPENSES OF TRANSPORTATION TO THE NEW DUTY STATION IS FOR THE CONVENIENCE OF THE DEPARTMENT BECAUSE IT WILL PERMIT OF GREATER ADMINISTRATIVE LEEWAY IN DISCHARGING THE TOTAL OBLIGATION. BUT BEYOND THIS CONVENIENCE FACTOR, CONTINUED APPLICATION OF YOUR EARLIER DECISION WOULD SEEM TO BE WHOLLY INCONSISTENT WITH SUBSEQUENT DEVELOPMENTS OF REEMPLOYMENT POLICY. THIS POLICY CONTEMPLATES THAT A VETERAN SHALL BE RESTORED TO HIS FORMER STATUS AND THAT HE SHALL NOT BE PENALIZED BECAUSE OF HIS MILITARY SERVICE. TO REQUIRE THAT HE PAY HIS OWN TRAVEL EXPENSES BECAUSE THE DEPARTMENT IS UNABLE TO PLACE HIM IN HIS EXACT FORMER STATUS WOULD CONSTITUTE A VERY REAL PENALTY INDEED. I SINCERELY HOPE THAT YOU WILL AGREE THAT THE CONVENIENCE OF THE GOVERNMENT AS WELL AS FUNDAMENTAL EQUITY TO THE EMPLOYEE WOULD BE SERVED BY A CHANGE IN YOUR PREVIOUS RULING.

IT IS ALSO PERTINENT TO OBSERVE THAT THIS VIEW IS STRENGTHENED BY PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AND OF REGULATIONS ISSUED TO IMPLEMENT THAT STATUTE WHICH REQUIRE THAT AN EMPLOYEE WHO IS RESTORED TO DUTY "SHALL BE REGARDED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING IN SERVICE IN THE LAND OR NAVAL FORCES.' THIS PROVISION, WHEN VIEWED IN THE LIGHT OF THE STATUTES INTENT AND SUBSEQUENT APPLICATION, WOULD SEEM TO MINIMIZE THE "NEW APPOINTMENT" CONCEPT WHICH RECEIVED SO MUCH EMPHASIS IN YOUR DECISION IN 22 COMP. GEN. 825, AMPLIFYING THE ORIGINAL RULING. REGULATIONS OF THE CIVIL SERVICE COMMISSION REQUIRE THAT THE DEPARTMENT BE CONSIDERED AS A SINGLE EMPLOYER FOR REEMPLOYMENT PURPOSES AND THAT PLACEMENT EFFORTS BE AGENCY-WIDE. COMPLIANCE WITH THE LAW AND REGULATIONS WILL BE VERY SERIOUSLY HANDICAPPED IF TECHNICAL DISTINCTIONS AS TO THE VETERAN'S EMPLOYMENT STATUS ARE SO CLOSELY DRAWN AS TO RESTRICT ESSENTIAL ADMINISTRATIVE DISCRETION.

MODIFICATION OF YOUR EARLIER DECISION TO PERMIT PAYMENT OF TRAVEL EXPENSES FROM THE ORIGINAL STATION TO THE NEW ASSIGNMENT UPON FAILURE TO ACCOMPLISH LOCALITY PLACEMENT IS EARNESTLY SOLICITED.

IN THE SYLLABUS OF THE DECISION OF OCTOBER 30, 1941, 21 COMP. GEN. 398, IT WAS STATED:

AN EMPLOYEE INDUCTED INTO THE MILITARY FORCES UNDER EITHER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 OR PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, WHOSE POSITION HAS BEEN ABOLISHED DURING A PERIOD OF FURLOUGH FOR SUCH DUTY BUT WHO IS OFFERED A POSITION OF LIKE SENIORITY, STATUS, AND PAY AT A DIFFERENT LOCATION IS REQUIRED TO BEAR THE EXPENSE OF TRAVEL TO SUCH POINT. HOWEVER, THE DECISION OF FEBRUARY 20, 1943, 22 COMP. GEN. 825, HELD (QUOTING FROM THE SYLLABUS):

A CIVILIAN EMPLOYEE WHO, UPON HIS RETURN FROM ACTIVE MILITARY SERVICE, WAS ASSIGNED AS A MATTER OF ADMINISTRATIVE CONVENIENCE TO A NEW OFFICIAL STATION, RATHER THAN RESTORED TO HIS POSITION AT THE OLD STATION, WHICH IS STILL IN BEING ALTHOUGH THE POSITION IS OCCUPIED BY ANOTHER EMPLOYEE, MAY BE PAID THE EXPENSES OF TRAVEL AND TRANSPORTATION OF HOUSEHOLD EFFECTS INCURRED IN CONNECTION WITH HIS TRANSFER FROM THE OLD TO THE NEW STATION.

THE FIRST OF THOSE TWO DECISIONS INVOLVED AN EMPLOYEE WHO HAD BEEN FURLOUGHED FROM THE POSITION OF COMMANDER OF A COMPANY IN THE CIVILIAN CONSERVATION CORPS IN A CERTAIN DISTRICT IN WHICH ALL CAMPS AND COMPANIES WERE ABANDONED OR DISCONTINUED PRIOR TO HIS RETURN FROM THE MILITARY SERVICE. IT IS UNDERSTOOD FROM THE FIRST PARAGRAPH OF YOUR LETTER THAT YOUR PRESENT QUESTION DOES NOT RELATE TO SUCH A SITUATION, ALTHOUGH, IN SOME INSTANCES, THE PARTICULAR OFFICE OR INSTALLATION IN WHICH THE EMPLOYEE FORMERLY WORKED HAS BEEN CLOSED. THE DECISION OF OCTOBER 30, 1941, 21 COMP. GEN. 398, IS LIMITED, OF COURSE, TO THE PARTICULAR FACTS THERE CONSIDERED AND IT WAS NOT INTENDED AS HOLDING THAT THE MERE ABOLISHING OF AN EMPLOYEE'S POSITION BY REASON OF THE CURTAILMENT OF CERTAIN ACTIVITIES OF THE WAR DEPARTMENT WOULD PRECLUDE THE TRANSFERRING OF A RETURNED VETERAN AT GOVERNMENT EXPENSE TO A PLACE OTHER THAN THE ONE AT WHICH HE WORKED UNDER THE WAR DEPARTMENT PRIOR TO HIS ENTERING THE ARMED FORCES, EVEN THOUGH THERE MAY BE INVOLVED THE CLOSING OF THE PARTICULAR OFFICE OR INSTALLATION IN WHICH THE EMPLOYEE LAST WORKED.

IN CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 532, DATED JULY 31, 1945, THE FOLLOWING REGULATIONS ( TITLE II-2 AND 3) APPEAR:

IN DETERMINING THE RESTORATION RIGHT OF A RETURNING VETERAN IT IS NOT REQUIRED THAT THERE BE A VACANCY BUT THAT THERE BE AN APPROPRIATE POSITION. IF ACTIVITIES OF THE AGENCY HAVE BEEN CURTAILED AND THERE IS NO EXISTING VACANCY BUT THERE IS AN EXISTING PRIVATE POSITION, THE RETURNING VETERAN ENTITLED TO SUCH STATUTORY RESTORATION MUST BE RESTORED EVEN THOUGH REDUCTION-IN-FORCE PROCEDURES HAVE TO BE APPLIED * * * .

THE VETERAN IS ENTITLED TO BE RESTORED TO THE POSITION HE LEFT IF IT EXISTS. IF IT DOES NOT EXIST, HE IS ENTITLED TO A POSITION OF LIKE SENIORITY, STATUS AND PAY.

SINCE THE OBLIGATION TO RESTORE A RETURNING VETERAN RESTS UPON AN AGENCY AS A WHOLE, IF THE POSITION HE LEFT, OR ONE OF LIKE SENIORITY, STATUS, AND PAY DOES NOT EXIST WHERE THE VETERAN WAS EMPLOYED FORMERLY, IT IS INCUMBENT UPON THE AGENCY TO OFFER THE VETERAN A POSITION IN ANOTHER LOCALITY WHERE AN APPROPRIATE POSITION DOES EXIST. WHERE SUCH POSITION EXISTS IN MORE THAN ONE LOCALITY, HE SHOULD BE GIVEN A CHOICE. IF, DURING HIS SERVICE IN THE ARMED FORCES, THE AGENCY OR THE FUNCTIONS TO WHICH HIS FORMER POSITION WAS RELATED HAVE BEEN TRANSFERRED TO ANOTHER LOCALITY, THE AGENCY'S OBLIGATIONS WILL HAVE BEEN DISCHARGED IF IT OFFERS HIM HIS FORMER POSITION OR A POSITION OF LIKE SENIORITY, STATUS AND PAY IN THE NEW LOCALITY.

CERTAINLY, THOSE REGULATIONS DO NOT CONTEMPLATE ANY DISTINCTION IN REEMPLOYMENT BENEFITS BETWEEN EMPLOYEES WHOSE POSITIONS HAVE BEEN ABOLISHED AND EMPLOYEES WHOSE POSITIONS HAVE NOT BEEN ABOLISHED. CONSEQUENTLY, IN THE CASES TO WHICH YOU REFER, THE RETURNING EMPLOYEE MAY BE REGARDED AS RESTORED AT THE PLACE FROM WHICH FURLOUGHED--- EVEN THOUGH THERE BE NO VACANCY OR POSITION FOR HIM THERE--- AND TRANSFERRED FOR THE CONVENIENCE OF THE GOVERNMENT TO A PLACE WHERE THE DEPARTMENT DOES HAVE A SUITABLE VACANCY OR POSITION FOR HIM; AND IN SUCH CASES PAYMENT OF TRAVELING EXPENSES TO COMPLETE THE RESTORATION OF A RETURNED VETERAN REASONABLY MAY BE REGARDED AS ONE OF THE ,BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON WAS INDUCTED (OR ENTERED) INTO" THE ARMED FORCES, WITHIN THE MEANING OF THOSE WORDS AS USED IN SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF SEPTEMBER 16, 1940, 54 STAT. 890, AS AMENDED, AND STATUTES IN PARI MATERIA. NOTE, IN THIS CONNECTION, THE FOLLOWING QUOTATION FROM A DECISION OF OCTOBER 2, 1941, B-12385 (UNPUBLISHED):

IN DECISION OF JUNE 28, 1938, 17 COMP. GEN. 1117, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

"A CHANGE OF STATION IN THE FIELD SERVICE OF THE WAR DEPARTMENT, UNDER THE SAME BUREAU AND INVOLVING PAYMENT OF COMPENSATION FROM DIFFERENT APPROPRIATIONS UNDER CONTROL OF THE SAME BUREAU, WHEN MADE IN THE INTEREST OF THE GOVERNMENT, AND NOT FOR THE PERSONAL CONVENIENCE OF THE EMPLOYEE, MAY BE CONSIDERED A TRANSFER WITHIN THE MEANING OF THE ANNUAL STATUTORY PROVISION AUTHORIZING PAYMENT OF TRAVELING EXPENSES OF EMPLOYEES "ON TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER.' 17 COMP. GEN. 874, AMPLIFIED.'

THIS RULE IS APPLICABLE IN THE CASE HERE PRESENTED WHERE THE EMPLOYEE WAS ON FURLOUGH OR LEAVE OF ABSENCE WITHOUT PAY AT THE TIME OF THE TRANSFER. COMPARE DECISIONS OF JANUARY 11, 1936, A-60370, AND MAY 29, 1936, A-71773, CITED IN, AND DISTINGUISHED FROM, THE DECISION OF AUGUST 24, 1937, 17 COMP. GEN. 183, THE LATTER INVOLVING A CASE WHERE AN EMPLOYEE WAS REEMPLOYED AFTER FURLOUGH WITHOUT PAY IN ANOTHER POSITION AT AN INCREASE IN COMPENSATION. IN THE INSTANT CASE, THE EMPLOYEE MAY BE REGARDED AS HAVING BEEN TRANSFERRED FROM ONE PERMANENT STATION TO ANOTHER, RATHER THAN APPOINTED TO A NEW POSITION REQUIRING HIM TO BEAR THE COST OF PLACING HIMSELF AT HIS FIRST DUTY STATION UNDER THE NEW APPOINTMENT.

ACCORDINGLY, I HAVE TO ADVISE THAT THE RULE STATED IN THE DECISION OF FEBRUARY 20, 1943, 22 COMP. GEN. 825, RATHER THAN THE RULE STATED IN THE DECISION OF OCTOBER 30, 1941, 21 COMP. GEN. 398, IS FOR APPLICATION IN THE CASE OF RESTORATION UNDER CIRCUMSTANCES SUCH AS ARE DESCRIBED IN YOUR LETTER, SUPRA. ..END :