B-56324, MAY 21, 1946, 25 COMP. GEN. 786

B-56324: May 21, 1946

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WAS RESTORED AT THE PLACE FROM WHICH FURLOUGHED TO A POSITION IN A GRADE HIGHER THAN THAT HELD PRIOR TO HIS ENTRY INTO THE MILITARY SERVICE. WAS IMMEDIATELY TRANSFERRED IN SUCH HIGHER GRADE TO A NEW PERMANENT STATION WHERE A SUITABLE VACANCY WAS AVAILABLE. 1946: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 25. AS FOLLOWS: ATTACHED HERETO IS A TRAVEL VOUCHER. MCWATERS WAS HOLDING A POSITION IN ATLANTA. HE WAS SIMULTANEOUSLY PROMOTED FROM FIELD REPRESENTATIVE. THE FOLLOWING REGULATIONS APPEAR: "THE VETERAN IS ENTITLED TO BE RESTORED TO THE POSITION HE LEFT IF IT EXISTS. HE IS ENTITLED TO A POSITION OF LIKE SENIORITY. STATUS AND PAY DOES NOT EXIST WHERE THE VETERAN WAS EMPLOYED FORMERLY.

B-56324, MAY 21, 1946, 25 COMP. GEN. 786

TRAVELING EXPENSES - RESTORATION TO HIGHER GRADE AND TRANSFER TO NEW STATION AFTER MILITARY DUTY WHERE AN EMPLOYEE, UPON RETURN FROM THE MILITARY SERVICE, WAS RESTORED AT THE PLACE FROM WHICH FURLOUGHED TO A POSITION IN A GRADE HIGHER THAN THAT HELD PRIOR TO HIS ENTRY INTO THE MILITARY SERVICE, AND WAS IMMEDIATELY TRANSFERRED IN SUCH HIGHER GRADE TO A NEW PERMANENT STATION WHERE A SUITABLE VACANCY WAS AVAILABLE, SUCH RESTORATION MAY NOT BE REGARDED AS A NEW APPOINTMENT REQUIRING THE EMPLOYEE TO PLACE HIMSELF AT THE NEW STATION AT HIS OWN EXPENSE; RATHER, THE TRAVELING EXPENSES INCIDENT TO THE TRANSFER MAY BE PAID BY THE GOVERNMENT. 17 COMP. GEN. 183, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO PAUL R. LANGDON, RAILROAD RETIREMENT BOARD, MAY 21, 1946:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 25, 1946, AS FOLLOWS:

ATTACHED HERETO IS A TRAVEL VOUCHER, WITH COPIES OF TRAVEL ORDER AND ADVICE OF PERSONNEL ACTION, COVERING TRAVEL EXPENSES INCURRED ON CHANGE OF OFFICIAL STATION JANUARY 6, AND 7, 1946 BY JAMES H. MCWATERS, FOR WHICH WE REQUEST YOUR DECISION AS TO VALIDITY OF PAYMENT.

THE RECORDS OF THIS BOARD SHOW THAT JAMES H. MCWATERS WAS HOLDING A POSITION IN ATLANTA, GEORGIA WITH THE RAILROAD RETIREMENT BOARD AS A FIELD REPRESENTATIVE, CAF-6, WHEN HE ENTERED MILITARY SERVICE ON JANUARY 14, 1944. UPON HIS RETURN FROM MILITARY SERVICE ON JANUARY 5, 1946, HE WAS SIMULTANEOUSLY PROMOTED FROM FIELD REPRESENTATIVE, CAF-6, TO FIELD REPRESENTATIVE, CAF-7, AND TRANSFERRED TO A POSITION AT JACKSONVILLE, FLORIDA EFFECTIVE JANUARY 5, 1946.

IN CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 532, DATED JULY 31, 1945, THE FOLLOWING REGULATIONS APPEAR:

"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.'

IN VIEW OF THE PROMOTION MENTIONED ABOVE YOUR DECISION IS REQUESTED AS TO WHETHER THERE IS AN OBLIGATION ON THE PART OF THIS AGENCY TO PAY TRAVEL EXPENSES OF THIS EMPLOYEE INCURRED INCIDENT TO HIS CHANGE OF OFFICIAL STATION FROM ATLANTA, GEORGIA TO JACKSONVILLE, FLORIDA.

REFERENCE IS MADE TO DECISIONS OF THE COMPTROLLER GENERAL B-51771 DATED SEPTEMBER 26, 1945 AND A-87927 DATED AUGUST 24, 1937. CONSIDERING THOSE DECISIONS THE QUESTION ARISES AS TO WHETHER SUCH EXPENSES WOULD BE HELD TO BE INCIDENT TO REEMPLOYMENT AT A ONE GRADE INCREASE OF SALARY OVER THAT RECEIVED BY MR. MCWATERS AT THE BEGINNING OF HIS MILITARY FURLOUGH. WOULD ENTRANCE UPON DUTY AT TERMINATION OF A LEAVE WITHOUT PAY FURLOUGH IN THE GRADE 7 POSITION REPORTING FOR DUTY IN ATLANTA, GEORGIA AND SHORTLY THEREAFTER IN JACKSONVILLE, FLORIDA BE CONSIDERED AS ACCEPTING A NEW APPOINTMENT AND ANY EXPENSES INCIDENT TO REPORTING FOR DUTY IN JACKSONVILLE BE HELD AS PERSONAL? THE ATTENDANCE REPORTS SHOW MR. MCWATERS ON DUTY IN THE ATLANTA OFFICE FOR JANUARY 5, 1946 AND IN THE JACKSONVILLE OFFICE FOR JANUARY 7, 1946 AND THEREAFTER.

YOUR EARLY DECISION IN THIS MATTER WILL BE APPRECIATED IN VIEW OF THE FACT THAT THERE IS ANOTHER CLAIM OF THIS CHARACTER BEFORE THIS BOARD FOR CONSIDERATION AND IT IS EXPECTED THAT A NUMBER OF COMPARABLE CASES WILL ARISE.

IN DISTINGUISHING BETWEEN A TRANSFER OF OFFICIAL STATION AND REPORTING TO A FIRST DUTY STATION UNDER A NEW APPOINTMENT IT WAS STATED IN 17 COMP. GEN. 874, IN PERTINENT PART, AS FOLLOWS:

IF A CHANGE IN OFFICIAL STATION OF AN OFFICER OR EMPLOYEE--- DIRECTED FOR THE BENEFIT OF THE GOVERNMENT--- INVOLVES NO BREAK IN SERVICE, NO TERMINATION OF EMPLOYMENT BY OPERATION OF LAW, NO CHANGE IN THE APPROPRIATION TO BE CHARGED WITH THE SALARY AND TRAVELING EXPENSES OF THE OFFICER OR EMPLOYEE, AND NO CHANGE IN THE DEPARTMENT OR ESTABLISHMENT UNDER WHICH THE SERVICE IS TO BE PERFORMED, SUCH CHANGE IN STATION MAY BE REGARDED AS A "TRANSFER" WITHIN THE MEANING OF THE STATUTE, REGARDLESS OF WHETHER, IN CONNECTION WITH SUCH TRANSFER, THERE IS INVOLVED A CHANGE IN TITLE OF THE POSITION OR IN THE GRADE OR SALARY RATE OF THE OFFICER OR EMPLOYEE. * * *

THUS, WHETHER THE TRANSFER OF OFFICIAL STATION IS AT THE SAME OR A DIFFERENT SALARY IS NOT MATERIAL. IN THE DECISION OF AUGUST 24, 1937, A- 87927, 17 COMP. GEN. 183, CITED IN YOUR LETTER, THAT POINT WAS EMPHASIZED TO ILLUSTRATE THAT THE TRANSFER THERE INVOLVED WAS REQUIRED TO BE CONSIDERED A NEW APPOINTMENT BECAUSE ANY INCREASE IN COMPENSATION AS TO THE POSITION HELD BY THE EMPLOYEE PRIOR TO THE TRANSFER WAS PROHIBITED BY LAW.

ACCORDINGLY, THE RESTORATION OF MR. MCWATERS, IN A POSITION OF A HIGHER GRADE THAN THAT HELD BY HIM PRIOR TO HIS MILITARY SERVICE, DOES NOT CONSTITUTE A NEW APPOINTMENT AND, HAVING BEEN RESTORED AT THE PLACE FROM WHICH FURLOUGHED, HIS SUBSEQUENT TRANSFER TO A PLACE WHERE A SUITABLE VACANCY OR POSITION IS AVAILABLE IN THE GRADE AT WHICH HE WAS RESTORED PROPERLY MAY BE EFFECTED AT GOVERNMENT EXPENSE. SEE 22 COMP. GEN. 825; 25 ID. 293. HENCE, THE VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT.