B-57081, JULY 13, 1946, 26 COMP. GEN. 30

B-57081: Jul 13, 1946

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COMPENSATION - WITHIN-GRADE PROMOTIONS AFTER MILITARY DUTY WHERE AN EMPLOYEE WHO OCCUPIED A POSITION NOT SUBJECT TO THE CLASSIFICATION ACT PRIOR TO HIS MILITARY SERVICE WAS RESTORED AFTER MILITARY SERVICE IN A POSITION SUBJECT TO SAID ACT. AN EMPLOYEE WHO OCCUPIED A POSITION NOT SUBJECT TO THE CLASSIFICATION ACT PRIOR TO HIS MILITARY SERVICE BUT WHO WAS RESTORED AFTER MILITARY SERVICE TO A POSITION SUBJECT TO SAID ACT IS NOT LIMITED TO A ONE STEP WITHIN- GRADE SALARY ADVANCEMENT UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 UPON RESTORATION. AN EMPLOYEE WHO WAS RECEIVING THE MAXIMUM SALARY RATE OF GRADE CAF-5 PRIOR TO MILITARY SERVICE IS ENTITLED. THE ENTRANCE SALARY OF WHICH IS THE SAME AS THE MAXIMUM OF THE LOWER GRADE.

B-57081, JULY 13, 1946, 26 COMP. GEN. 30

COMPENSATION - WITHIN-GRADE PROMOTIONS AFTER MILITARY DUTY WHERE AN EMPLOYEE WHO OCCUPIED A POSITION NOT SUBJECT TO THE CLASSIFICATION ACT PRIOR TO HIS MILITARY SERVICE WAS RESTORED AFTER MILITARY SERVICE IN A POSITION SUBJECT TO SAID ACT, THE WITHIN-GRADE SALARY ADVANCEMENTS AUTHORIZED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 ON THE BASIS OF CREDIT FOR MILITARY SERVICE AND PRIOR CIVILIAN SERVICE NEED NOT BE DELAYED UNTIL THE BEGINNING OF THE PAY PERIOD FOLLOWING HIS RESTORATION BUT MAY BE GRANTED SIMULTANEOUSLY WITH RESTORATION, PROVIDED THE PERIOD OF SERVICE ENTITLING HIM TO THE LAST ADVANCEMENT EXPIRED BEFORE THE BEGINNING OF THE PAY PERIOD IN WHICH RESTORED. AN EMPLOYEE WHO OCCUPIED A POSITION NOT SUBJECT TO THE CLASSIFICATION ACT PRIOR TO HIS MILITARY SERVICE BUT WHO WAS RESTORED AFTER MILITARY SERVICE TO A POSITION SUBJECT TO SAID ACT IS NOT LIMITED TO A ONE STEP WITHIN- GRADE SALARY ADVANCEMENT UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 UPON RESTORATION, BUT MAY BE GIVEN THE NUMBER OF WITHIN-GRADE SALARY ADVANCEMENTS OTHERWISE EARNED ON THE BASIS OF HIS MILITARY SERVICE AND PRIOR CIVILIAN SERVICE. AN EMPLOYEE WHO WAS RECEIVING THE MAXIMUM SALARY RATE OF GRADE CAF-5 PRIOR TO MILITARY SERVICE IS ENTITLED, UPON RESTORATION AFTER MILITARY SERVICE TO A POSITION IN GRADE CAF-7, THE ENTRANCE SALARY OF WHICH IS THE SAME AS THE MAXIMUM OF THE LOWER GRADE, TO BE RESTORED AT THE SALARY STEP OF THE HIGHER GRADE WHICH WILL ALLOW CREDIT FOR ALL MILITARY SERVICE AND OTHERWISE CREDITABLE PRIOR CIVILIAN SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. AN EMPLOYEE WHO, UPON RETURN FROM THE MILITARY SERVICE, WAS PREVENTED FROM BEING RESTORED TO HIS FORMER POSITION, WHICH HAD BEEN REALLOCATED IN ABSENTIA TO A HIGHER GRADE, BY REASON OF ITS BEING OCCUPIED BY AN EMPLOYEE WITH A HIGHER RETENTION STATUS, AND WHO WAS APPOINTED TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY COMPARABLE WITH HIS ORIGINAL POSITION AS REALLOCATED IS ENTITLED TO COUNT MILITARY SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FROM THE EFFECTIVE DATE OF REALLOCATION OF THE ORIGINAL POSITION, THE SAME AS IF HE HAD BEEN RESTORED THERETO. WHERE THE POSITION OF AN EMPLOYEE ON MILITARY FURLOUGH HAS BEEN REALLOCATED TO A HIGHER GRADE BUT, FOR PERSONAL REASONS, THE EMPLOYEE IS REEMPLOYED AFTER MILITARY SERVICE IN AN ENTIRELY DIFFERENT POSITION IN SUCH HIGHER GRADE, THE REEMPLOYMENT IN SUCH HIGHER GRADE MUST BE REGARDED AS PROMOTION AND THE WAITING PERIOD FOR WITHIN-GRADE SALARY ADVANCEMENT UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 BEGINS TO RUN FROM THE DATE OF SUCH REEMPLOYMENT. IN ACCORDANCE WITH CIVIL SERVICE REGULATIONS (EFFECTIVE JULY 1, 1945) UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 RELATING TO SERVICE CREDIT FOR WITHIN-GRADE SALARY-ADVANCEMENT PURPOSES PURSUANT TO SECTION 402 OF THE ACT, A FORMER EMPLOYEE WHO, UPON DISCHARGE FROM MILITARY SERVICE, DID NOT DESIRE TO EXERCISE HER REEMPLOYMENT RIGHTS AND RESIGNED, BUT WAS LATER REAPPOINTED TO ANOTHER POSITION IN THE SAME GRADE HELD PRIOR TO MILITARY SERVICE IS ENTITLED TO COUNT MILITARY SERVICE TOWARD WITHIN GRADE SALARY ADVANCEMENT; HOWEVER, THE REAPPOINTMENT HAVING BEEN EFFECTED MORE THAN 30 DAYS (INCLUDING A BREAK IN SERVICE) AFTER SEPARATION FROM MILITARY SERVICE, PRIOR CIVILIAN SERVICE MAY NOT BE CREDITED. IN ACCORDANCE WITH CIVIL SERVICE REGULATIONS (EFFECTIVE JULY 1, 1945) UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 RELATING TO SERVICE CREDIT FOR WITHIN-GRADE SALARY-ADVANCEMENT PURPOSES PURSUANT TO SECTION 402 OF THE ACT, AN EMPLOYEE WHO WAS ABSENT IN A NONPAY STATUS IN EXCESS OF 30 DAYS INCLUDING A BREAK IN SERVICE--- THAT IS, ONE OR MORE DAYS NOT COVERED BY AN ADMINISTRATIVELY GRANTED FURLOUGH, OR BY LEAVE WITHOUT PAY--- EITHER BETWEEN CIVILIAN AND MILITARY SERVICE OR BETWEEN MILITARY AND CIVILIAN SERVICE, MAY NOT RECEIVE CREDIT FOR ANY PART OF THE PERIOD IN SUCH NONPAY STATUS TOWARD WITHIN-GRADE ADVANCEMENT.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, JULY 1946:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 4, 1946, SUBMITTING FOR DECISION A NUMBER OF QUESTIONS REGARDING REEMPLOYMENT RIGHTS OF VETERANS. THE QUESTIONS WILL BE STATED AND ANSWERED IN THE ORDER SUBMITTED.

A. ASSUMING THAT THE BASE RATE OF THE GRADED POSITION DOES NOT REPRESENT AN "EQUIVALENT INCREASE IN COMPENSATION" OVER THAT OF THE UNGRADED POSITION, ESTABLISHED RULINGS OF YOUR OFFICE PERMIT THE GRANTING OF WITHIN -GRADE SALARY ADVANCEMENTS BASED ON SERVICE IN THE UNGRADED POSITION. HAS ALWAYS BEEN REQUIRED, HOWEVER, THAT AN EMPLOYEE MUST OCCUPY A GRADED POSITION AS ONE OF THE CONDITIONS FOR SECURING THE BENEFIT OF SALARY ADVANCEMENT. UNDER THE CIRCUMSTANCES CITED ABOVE, THE VETERAN DOES NOT, IN THE STRICTEST TECHNICAL SENSE, OCCUPY A GRADED POSITION UNTIL AFTER HE HAS BEEN REEMPLOYED. IT WOULD GREATLY SIMPLIFY THE ADMINISTRATIVE PROCEDURE OF REEMPLOYMENT IF THIS TECHNICAL LEGAL DISTINCTION MIGHT BE OVERLOOKED AND THE EMPLOYEE GRANTED THE SALARY ADVANCEMENT SIMULTANEOUSLY WITH REEMPLOYMENT ACTION, A PRACTICE WHICH IS FOLLOWED IN THE CASE OF AN EMPLOYEE WHO IS REEMPLOYED AFTER PREVIOUS SERVICE IN A GRADED POSITION. WOULD YOUR OFFICE BE REQUIRED TO OBJECT TO SUCH SIMULTANEOUS ACTION--- OR WOULD IT BE MANDATORY THAT THE VETERAN BE RESTORED INITIALLY AT THE BASE RATE OF THE GRADED POSITION AND THAT ANY SALARY ADVANCEMENT WITHIN GRADE BE EFFECTED AT THE BEGINNING OF THE FOLLOWING PAY PERIOD?

SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, PROVIDES:

"/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., SECS. 1471 TO 1475, INC.).'

THE RIGHT TO WITHIN-GRADE SALARY ADVANCES BASED UPON PRIOR MILITARY SERVICE IS CONCURRENT WITH THE RESTORATION OF A VETERAN TO A PERMANENT POSITION SUBJECT TO THE CLASSIFICATION ACT, NOTWITHSTANDING THAT HE MAY NOT HAVE OCCUPIED A CLASSIFIED POSITION PRIOR TO HIS MILITARY SERVICE AND IT IS NOT REQUIRED THAT THE WITHIN-GRADE SALARY ADVANCE BE DELAYED FOR ANY PERIOD WHATEVER IF HIS REEMPLOYMENT BE IN A CLASSIFIED (PERMANENT) POSITION BUT MAY BE GIVEN SIMULTANEOUSLY WITH HIS APPOINTMENT PROVIDED THAT THE PERIOD OF SERVICE ENTITLING HIM TO THE LAST STEP EXPIRED BEFORE THE BEGINNING OF THE PAY PERIOD IN WHICH REINSTATED. CREDIT TOWARD WITHIN - GRADE SALARY ADVANCES FOR PAST CIVILIAN SERVICE ALSO MAY BE ALLOWED SIMULTANEOUSLY WITH HIS APPOINTMENT TO A CLASSIFIED (PERMANENT) POSITION IF ENTITLED TO SUCH CREDIT UNDER EXECUTIVE ORDER 8882. SEE 22 COMP. GEN. 1104.

B. UNDER THE PROVISIONS OF SUBSECTION (E), SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY THE ACT APPROVED AUGUST 1, 1941 (55 STAT. 614), ONLY ONE INCREASE WAS AUTHORIZED FOR EMPLOYEES WHO WERE ELIGIBLE FOR INCREASE ON THE EFFECTIVE DATE OF THE ACT, REGARDLESS OF THE LENGTH OF SERVICE WITHOUT AN EQUIVALENT INCREASE IN COMPENSATION. WERE IT NOT FOR ENACTMENT OF SECTION 402, FEDERAL EMPLOYEES PAY ACT OF 1945, THERE WOULD BE NO DOUBT THAT PREVIOUSLY UNGRADED EMPLOYEES WHO ARE RESTORED TO GRADED POSITIONS WOULD BE ENTITLED TO SALARY INCREASE IN THE NEW GRADE AMOUNTING TO ONLY ONE STEP INCREMENT, REGARDLESS OF THE COMBINED LENGTH OF UNGRADED CIVILIAN AND MILITARY SERVICE. MAY THE VERY BROAD TERMS OF SUBSECTION (B) (4) OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY SECTION 402, FEDERAL EMPLOYEES PAY ACT OF 1945, BE SO CONSTRUED AS TO PERMIT THE GRANTING OF MORE THAN ONE STEP INCREMENT WHEN COMBINED CIVILIAN AND MILITARY SERVICE WOULD OTHERWISE PERMIT THE GRANTING OF MORE THAN ONE INCREMENT, UNDER THE CIRCUMSTANCES OUTLINED ABOVE?

IN CONNECTION WITH THE QUESTION PRESENTED IN A, ABOVE, A SIMILAR PROBLEM ARISES WHEN AN EMPLOYEE WHO HAS REACHED THE TOP STEP OF HIS GRADE PRIOR TO MILITARY SERVICE IS RESTORED TO A HIGHER GRADE. A CASE HAS ARISEN IN THE DEPARTMENT WHERE THE EMPLOYEE OCCUPIED A CAF-5 POSITION AT THE TOP OF $2,600 (NOW $2980) PER ANNUM. IF RESTORED AT CAF-5, OF COURSE, THE EMPLOYEE DERIVES NO BENEFIT FROM THE WITHIN-GRADE ADVANCEMENT LAW SINCE HE HAS ALREADY BEEN ADVANCED TO THE TOP OF THE GRADE. IF RESTORED AT CAF-7, BASE SALARY OF WHICH IS THE SAME AS THE TOP STEP OF CAF-5, FURTHER INCREASE BECOMES POSSIBLE. QUESTION HAS BEEN RAISED, HOWEVER, AS TO THE EFFECTIVE DATE OF SUCH INCREASE.

PURSUANT TO SECTION 402, SUPRA, VETERANS REINSTATED AFTER MILITARY SERVICE ARE NOT LIMITED TO ONE STEP WITHIN-GRADE ADVANCEMENT BUT MAY BE GRANTED THE NUMBER OF WITHIN-GRADE SALARY ADVANCES EARNED IN CIVILIAN AND MILITARY SERVICE. SEE ANSWER TO QUESTION A, SUPRA. OF COURSE, IN THE EXAMPLE GIVEN, THE PERSON RESTORED TO THE POSITION IN CAF-5 COULD NOT BE GIVEN SALARY ADVANCES BASED UPON PRIOR SERVICE BEYOND THE MAXIMUM SALARY RATE OF THAT GRADE. HOWEVER, IF A VETERAN BE REINSTATED IN A GRADE HIGHER THAN THE ONE IN WHICH PREVIOUSLY EMPLOYED HE MAY BE GIVEN SIMULTANEOUSLY WITH SUCH APPOINTMENT WITHIN-GRADE SALARY ADVANCES IN THAT HIGHER GRADE BASED UPON SO MUCH OF HIS PAST CREDITABLE CIVILIAN AND MILITARY SERVICE AS IS NOT REQUIRED TO BE USED TO ESTABLISH HIS RIGHT IN THE LOWER GRADE TO A SALARY RATE EQUIVALENT TO THE ENTRANCE SALARY OF THE GRADE IN WHICH RESTORED. THAT IS TO SAY, IN THE EXAMPLE CITED BY YOU IN WHICH THE EMPLOYEE WAS RECEIVING THE MAXIMUM SALARY OF THE GRADE IN WHICH EMPLOYED PRIOR TO MILITARY SERVICE AND IS RESTORED IN A HIGHER GRADE THE ENTRANCE SALARY OF WHICH IS THE SAME AS THE MAXIMUM OF THE LOWER GRADE HE MAY BE GIVEN FULL CREDIT FOR HIS MILITARY AND CIVILIAN SERVICE FOR WITHIN-GRADE ADVANCES IN THE HIGHER GRADE.

C. UNDER THE CIRCUMSTANCES CITED, MAY THE EMPLOYEE BE RESTORED INITIALLY AT A STEP RATE OF CAF-7 WHICH WILL GIVE CREDIT FOR CIVILIAN AND MILITARY SERVICE ELAPSED SINCE THE LAST EQUIVALENT INCREASE IN COMPENSATION, OR MUST SUCH INCREASE AWAIT THE BEGINNING OF THE NEXT PAY PERIOD?

THE FIRST ALTERNATIVE QUESTION IS ANSWERED IN THE AFFIRMATIVE, RENDERING UNNECESSARY ANY ANSWER TO THE SECOND ALTERNATE QUESTION.

D. IF REPLY TO THE ABOVE IS TO THE EFFECT THAT THE EMPLOYEE DID NOT BECOME ELIGIBLE FOR INCREASE UNTIL AFTER RESTORATION IN THE HIGHER GRADE AND THEREFORE SALARY INCREASE MUST AWAIT THE BEGINNING OF THE NEXT PAY PERIOD, DOES THAT MEAN THAT ONLY ONE INCREASE MAY BE GRANTED EVEN THOUGH THE EMPLOYEE'S COMBINED MILITARY AND CIVILIAN SERVICE WOULD ENTITLE HIM TO MORE THAN ONE INCREASE HAD HE BEEN OTHERWISE ELIGIBLE AT TIME OF RESTORATION?

IN THE LIGHT OF THE ANSWERS TO QUESTIONS B AND C, SUPRA, ANSWER TO THIS QUESTION IS RENDERED UNNECESSARY.

YOUR DECISION OF NOVEMBER 26, 1945 (B-53153) TO THE SECRETARY OF AGRICULTURE HAS ALSO RAISED QUESTIONS FOR CLARIFICATION. IT IS UNDERSTOOD THAT THE GENERAL HOLDING OF THIS DECISION IS THAT A VETERAN WHOSE POSITION IS REALLOCATED (THAT IS, REEVALUATED WITHOUT SUBSTANTIAL CHANGE IN DUTIES OR RESPONSIBILITIES) DURING HIS ABSENCE IS ENTITLED TO CREDIT FOR WITHIN- GRADE INCREASES FROM THE DATE OF REALLOCATION. THIS IS IN CONTRAST TO THE CONTRARY RULING IN 24 COMP. GEN. 729 RELATING TO PROMOTIONS INVOLVING A CHANGE IN POSITIONS. THIS DECISION HAS RAISED QUESTIONS IN THE DEPARTMENT SINCE EXECUTIVE ORDER 8882 HAD NOT PREVIOUSLY BEEN REGARDED AS VESTING IN AN EMPLOYEE A RIGHT TO THE BENEFIT OF A REALLOCATION, ESPECIALLY IN VIEW OF YOUR DECISION TO THIS DEPARTMENT IN 24 COMP. GEN. 518. AN ACTUAL CASE NOW PENDING IN THIS DEPARTMENT MAY SERVE TO ILLUSTRATE THE NEED FOR RECONCILING THE DECISIONS CITED ABOVE WHICH, ALTHOUGH NOT INCONSISTENT, HAVE NOT BEEN CLEARLY DISTINGUISHED OR RELATED. THE OCCUPANT OF A CAF-5 POSITION ENTERED MILITARY SERVICE AND DURING HIS ABSENCE IT WAS REALLOCATED TO CAF-7. UPON HIS RETURN, THE POSITION WAS OCCUPIED BY AN EMPLOYEE OF "HIGHER RETENTION STATUS," WITHIN THE MEANING OF WAR SERVICE REGULATION XIII, AND REEMPLOYMENT IN THE REALLOCATED POSITION WITH PROPER CREDIT FOR WITHIN-GRADE INCREASES WAS PROHIBITED BY THAT REGULATION. THE EMPLOYEE WAS THEREFORE PLACED IN A POSITION OF LIKE SENIORITY, STATUS, AND PAY TO HIS ORIGINAL POSITION. THE FOLLOWING ISSUE WAS THUS PRESENTED:

E. IS THIS EMPLOYEE ENTITLED TO THE BENEFITS OF THE NOVEMBER 26 DECISION OR MUST HE BE ACTUALLY RESTORED TO THE ORIGINAL POSITION IN ORDER TO RECEIVE INCREASES DATING FROM REALLOCATION? IT WILL BE SEEN THAT, ALTHOUGH THE VETERAN WAS ENTITLED TO "REALLOCATION" UPON HIS RETURN, TECHNICALLY HE RECEIVED A "PROMOTION" BECAUSE OF THE INTERVENING INCUMBENCY OF AN EMPLOYEE WITH SUPERIOR STATUS.

WHERE THE POSITION OCCUPIED BY A VETERAN BEFORE HIS ENTRANCE INTO THE MILITARY SERVICE WAS REALLOCATED DURING HIS ABSENCE HE WOULD UPON REINSTATEMENT IN THAT POSITION BE ENTITLED TO CREDIT FOR ALL SERVICE RENDERED SINCE THE EFFECTIVE DATE OF THE REALLOCATION. IF HE IS PREVENTED FROM BEING RESTORED TO THAT POSITION BY REASON OF ITS OCCUPANCY BY AN EMPLOYEE WITH A HIGHER RETENTION STATUS, HE MAY BE GIVEN A POSITION OF LIKE SENIORITY, STATUS, AND PAY COMPARABLE WITH HIS ORIGINAL POSITION AS REALLOCATED INCLUDING ALL WITHIN-GRADE SALARY ADVANCES TO WHICH HE WOULD HAVE BEEN ENTITLED UPON RESTORATION TO HIS ORIGINAL POSITION BASED UPON SERVICE SINCE THE EFFECTIVE DATE OF THE REALLOCATION OF THE ORIGINAL POSITION. HOWEVER, SHOULD THE FAILURE TO BE RESTORED TO HIS ORIGINAL REALLOCATED POSITION BE DUE TO OTHER CAUSES SUCH AS THE PERSONAL PREFERENCE OF THE EMPLOYEE, HIS RESTORATION TO THE HIGHER SALARY RATE IN A DIFFERENT POSITION MUST BE CONSTRUED AS A PROMOTION AND ANY WITHIN-GRADE SALARY ADVANCES IN SUCH A CASE MUST BE BASED UPON THE SERVICE RENDERED SINCE THE DATE OF HIS RESTORATION.

A FURTHER RELATED PROBLEM IN THIS GENERAL AREA IS TYPIFIED BY A CASE NOW PENDING IN MY IMMEDIATE OFFICE. THE INDIVIDUAL CONCERNED WAS ORIGINALLY APPOINTED IN THE DEPARTMENT ON JULY 20, 1942, AS CLERK TYPIST, CAF-2, $1,440 PER ANNUM. SHE WAS PROMOTED ON JANUARY 16, 1943, TO ASSISTANT CLERK, CAF-3, $1,620 PER ANNUM. ON AUGUST 5, 1943, THE EMPLOYEE WAS FURLOUGHED FOR THE PURPOSE OF ENTERING THE ARMED FORCES. ON JUNE 14, 1945, SHE WAS HONORABLY DISCHARGED FROM THE UNITED STATES NAVY AND ON JUNE 25, 1945, SHE SUBMITTED A RESIGNATION TO THE OFFICE IN WHICH SHE WAS EMPLOYED PRIOR TO ENTRANCE IN THE MILITARY SERVICE, STATING IN THE RESIGNATION THAT SHE HAD NO DESIRE TO EXERCISE THE REEMPLOYMENT RIGHTS CONFERRED BY WAR SERVICE REGULATION XIII. ON JULY 23, 1945, WITHIN 90 DAYS AFTER SEPARATION FROM MILITARY SERVICE, SHE WAS GIVEN A NEW APPOINTMENT IN THE DEPARTMENT AS CLERK 1STENOGRAPHER, CAF-3, &1,902 PER ANNUM. THIS NEW APPOINTMENT WAS MADE UNDER THE AUTHORITY OF THE CIVIL SERVICE COMMISSION'S WAR SERVICE REGULATION V, ALTHOUGH IT COULD HAVE BEEN EFFECTED AS A REEMPLOYMENT UNDER THE PROVISIONS OF WAR SERVICE REGULATION VIII.

THE LANGUAGE OF SECTION 402 OF THE FEDERAL EMPLOYEES' PAY ACT OF 1945 IS VERY BROAD, PROVIDING WITHIN-GRADE INCREASES FOR ANY FORMER EMPLOYEE WHO,"UNDER REGULATIONS OF THE CIVIL SERVICE COMMISSION"AMONG OTHER AUTHORITIES,"IS RESTORED, REEMPLOYED, OR REINSTATED" IN ANY POSITION SUBJECT TO THAT SECTION. THIS LANGUAGE WOULD APPEAR TO AUTHORIZE CREDIT TOWARD WITHIN-GRADE INCREASES FOR THE PERIOD OF MILITARY SERVICE IN THIS CASE. HOWEVER, IN VIEW OF THE FACT THAT THIS INDIVIDUAL WAS NOT RESTORED UNDER THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OR WAR SERVICE REGULATION XIII (WHICH WAS IN EFFECT ON THE DATE OF HER PRESENT APPOINTMENT) BUT WAS GIVEN A NEW APPOINTMENT WITHIN 90 DAYS AFTER SEPARATION FROM MILITARY SERVICE, YOUR FURTHER ADVICE IS REQUESTED ON THE FOLLOWING: F. WOULD A PROPER CONSTRUCTION OF THE LANGUAGE "UNDER REGULATIONS OF THE CIVIL SERVICE COMMISSION" IN SECTION 402 OF THE FEDERAL EMPLOYEES' PAY ACT OF 1945 ENTITLE THIS EMPLOYEE TO SALARY INCREASES ON OCTOBER 1, 1944, AND OCTOBER 1, 1945, ALL OTHER CONDITIONS FOR THE GRANTING OF SUCH INCREASES HAVING BEEN MET?

SECTION 301, PART III ( CHAPTER II), OF CIVIL SERVICE REGULATIONS ISSUED JUNE 29, 1945, UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND APPROVED BY THE PRESIDENT OF THE UNITED STATES, DEPARTMENTAL CIRCULAR 529, EFFECTIVE JULY 1, 1945, PROVIDES:

IN COMPUTING THE PERIODS OF SERVICE REQUIRED FOR WITHIN-GRADE SALARY ADVANCEMENTS THERE SHALL BE CREDITED TO SUCH SERVICE:

(A) CONTINUOUS CIVILIAN EMPLOYMENT IN ANY BRANCH (LEGISLATIVE, EXECUTIVE, OR JUDICIAL), EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT OR AGENCY, OR CORPORATION OF THE FEDERAL GOVERNMENT OR IN THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA.

(B) TIME ELAPSING ON ANNUAL, SICK, OR OTHER LEAVE WITH PAY.

(C) TIME ELAPSING IN A NON-PAY STATUS (INCLUDING BREAK IN SERVICE) NOT EXCEEDING THIRTY DAYS WITHIN ANY ONE TIME PERIOD OF TWELVE OR EIGHTEEN MONTHS, AS THE CASE MAY BE.

(D) SERVICE RENDERED PRIOR TO ABSENCE ON FURLOUGH OR LEAVE WITHOUT PAY WHERE SUCH ABSENCE IS IN EXCESS OF THIRTY DAYS BUT NOT EXCEEDING ONE YEAR.

(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.

PURSUANT TO THE ABOVE REGULATION THE EMPLOYEE IN THIS CASE WOULD BE ENTITLED TO CREDIT FOR ALL MILITARY SERVICE BUT AS SHE WAS RESTORED TO A CIVILIAN POSITION MORE THAN 30 DAYS (INCLUDING A BREAK IN SERVICE) AFTER HER SEPARATION FROM THE MILITARY SERVICE NO CREDIT FOR PRIOR CIVILIAN SERVICE CAN BE GIVEN TOWARD WITHIN-GRADE SALARY ADVANCES. 22 COMP. GEN. 1104. IT WOULD NOT MAKE ANY DIFFERENCE IN THIS RESPECT WHETHER THE EMPLOYEE SHOULD BE RESTORED UNDER THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT (AS AMENDED, 58 STAT. 798) OR OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. ACCORDINGLY, ON HER APPOINTMENT JULY 23, 1945, IN CAF-3, THE ENTRANCE SALARY OF WHICH, $1,902, IS THE EQUIVALENT RATE UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 TO THAT RECEIVED WHEN SHE WAS SEPARATED FROM THE SERVICE, SHE WAS ENTITLED TO COUNT CREDIT FOR MILITARY SERVICE FOR ONE YEAR, 10 MONTHS, AND 9 DAYS WHICH WOULD ENTITLE HER TO ONE STEP ADVANCEMENT EFFECTIVE ON THE DATE OF HER REINSTATEMENT AND TO AN ADDITIONAL ONE STEP AT THE BEGINNING OF THE PAY PERIOD NEXT AFTER SEPTEMBER 13, 1945.

YOUR DECISION OF MARCH 4, 1946 (B-53541) TO THE PRESIDENT, CIVIL SERVICE COMMISSION, HAS RAISED AN ADDITIONAL QUESTION CONCERNING THE COMPUTATION OF TIME FOR PAY INCREASES UNDER SECTION 402 OF THE FEDERAL EMPLOYEES' PAY ACT OF 1945. IT IS APPRECIATED THAT RESTORATIONS UNDER THE SELECTIVE TRAINING AND SERVICE ACT AND ADMINISTRATIVE REGULATIONS TO THE SAME EFFECT DIFFER IN SEVERAL IMPORTANT RESPECTS FROM RESTORATIONS FOLLOWING IMPROPER DISCHARGE, REDUCTION OR SUSPENSION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944. AT THE SAME TIME, HOWEVER, YOUR INTERPRETATION OF THE LATTER PROVISION HAS CREATED DOUBT AS TO THE PROPRIETY OF GIVING CREDIT TOWARD PAY INCREASES FOR TIME ELAPSED BETWEEN CIVILIAN AND MILITARY SERVICE AND BETWEEN MILITARY SERVICE AND RESTORATION TO ACTIVE CIVILIAN DUTY. AS AN EXAMPLE OF THIS SITUATION, MANY EMPLOYEES LEFT THIS DEPARTMENT TO ENTER MILITARY SERVICE UNDER CIRCUMSTANCES WHERE THEIR ACTUAL INDUCTION WAS DELAYED FOR CONSIDERABLE PERIODS, FOR REASONS USUALLY BEYOND THE INDIVIDUAL'S CONTROL. SIMILARLY, UPON RELIEF FROM ACTIVE DUTY IN THE ARMED FORCES, THE CONGRESS HAS GIVEN THESE INDIVIDUALS A PERIOD OF 90 DAYS IN WHICH TO MAKE APPLICATION FOR RESTORATION TO DUTY. VERY OFTEN IT MAY TAKE AN ADDITIONAL PERIOD OF 30 DAYS OR MORE FOR THE DEPARTMENT TO EFFECT ACTUAL REEMPLOYMENT. OCCASIONALLY, THE VETERAN MAY REQUEST A PERIOD OF LEAVE WITHOUT PAY AFTER RESTORATION IN ORDER TO ADJUST HIMSELF OR HIS AFFAIRS TO CIVILIAN PURSUITS. UNDER YOUR DECISIONS IN 3 COMP. GEN. 40 AND 24 ID. 573, THE EMPLOYEE MUST BE CONSIDERED AS SEPARATED DURING THE PERIOD OF MILITARY SERVICE; YET UNDER THE TERMS OF THE SELECTIVE TRAINING AND SERVICE ACT AND OTHER STATUTES IN PARI MATERIA, HE IS TO BE REGARDED AS HAVING BEEN ON FURLOUGH OR LEAVE WITHOUT PAY DURING THE PERIOD OF SUCH SERVICE. THE QUESTION HAS BEEN RAISED ON SEVERAL OCCASIONS, THEREFORE, AS TO PROPER COMPUTATION OF PERIODS ELAPSING IN NON-PAY STATUS PRIOR TO AND FOLLOWING SERVICE IN THE LAND OR NAVAL FORCES AND THEIR EFFECT, IF ANY, ON THE CREDITING OF PERIODS REPRESENTED BY ACTUAL MILITARY SERVICE. CONNECTION WITH THE LATTER POINT, THE DEPARTMENT HAS NOT AND DOES NOT CONSIDER IT POSSIBLE OR DESIRABLE TO CONSIDER ANY SUCH PERIOD AS A "BREAK IN SERVICE" SUCH AS TO DEFEAT THE VETERAN'S RIGHT TO CREDIT ANY PORTION OF THE PERIOD. AT LEAST TWO ALTERNATIVES APPEAR AVAILABLE AND YOUR ADVICE IS REQUESTED AS TO WHICH IS PROPER OR, IN THE EVENT NEITHER IS APPLICABLE, ANY OTHER SOLUTION.

G. UNDER THE BROAD LANGUAGE OF THE PROVISIONS OF THE FEDERAL EMPLOYEES' PAY ACT OF 1945 CITED ABOVE, MAY THE ENTIRE PERIOD OF ABSENCE FROM CIVILIAN DUTY BE CREDITED TOWARD WITHIN-GRADE PAY INCREASES? FROM THE STANDPOINT OF ADMINISTRATION, AN AFFIRMATIVE ANSWER WOULD BE DESIRABLE SINCE THE CIVILIAN EMPLOYMENT RECORDS OF THE DEPARTMENT WOULD CONTAIN ALL OF THE NECESSARY DATA FOR PROPER CREDIT OF THE PERIOD.

WITH RESPECT TO CREDIT FOR TIME SPENT IN A NONPAY STATUS BETWEEN CIVILIAN AND MILITARY SERVICE, SEE SECTION 301, PART III, OF THE CIVIL SERVICE REGULATIONS OF JUNE 29, 1945, QUOTED, SUPRA, IN ANSWER TO QUESTION F. THE RULES STATED IN SECTION 301, SUBSECTIONS (A), (B), (C), AND (D), FIRST WERE PROMULGATED BY EXECUTIVE ORDER 8882 OF SEPTEMBER 3, 1941. CONSTRUING THE SIMILAR PROVISION IN SAID EXECUTIVE ORDER, IT WAS HELD IN 22 COMP. GEN. 1104:

IN COMPUTING UNDER SECTION 2 OF EXECUTIVE ORDER NO. 8882 THE 18 OR 30 MONTHS' SERVICE NECESSARY TO ENTITLE AN EMPLOYEE TO A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, THERE MAY NOT BE COUNTED, UPON REAPPOINTMENT OF THE EMPLOYEE AFTER A PERIOD OF LEAVE OF ABSENCE WITHOUT PAY (INCLUDING BREAK IN SERVICE FOR ONE WORK DAY OR MORE) IN EXCESS OF 30 DAYS, ANY SERVICE PRIOR TO OR DURING THE PERIOD OF LEAVE OF ABSENCE WITHOUT PAY.

SEE, ALSO, DECISION OF MARCH 4, 1946, B-53541, 25 COMP. GEN. 620. SPECIFICALLY, THEREFORE, IF ANY PERIOD OF ABSENCE IN A NONPAY STATUS BETWEEN CIVILIAN AND MILITARY SERVICE EXCEEDS 30 DAYS AND INCLUDES A BREAK IN SERVICE--- THAT IS, ONE OR MORE DAYS NOT COVERED BY AN ADMINISTRATIVELY GRANTED FURLOUGH, OR BY LEAVE WITHOUT PAY--- NO CREDIT TOWARDS WITHIN- GRADE PROMOTION ADVANCEMENTS MAY BE GIVEN FOR ANY PART OF THE PERIOD IN SUCH NONPAY STATUS.

H. IF A NEGATIVE REPLY TO THE ABOVE IS REQUIRED, MAY A STANDARD PERIOD OF 120 DAYS (COMPUTED ON THE BASIS OF THE 90 DAYS ALLOWED TO APPLY FOR RESTORATION PLUS THE 30 DAYS OF CREDITABLE LEAVE WITHOUT PAY UNDER SECTION 2 OF EXECUTIVE ORDER 8882) BE ALLOWED IN ANY CASE WHERE THE TOTAL ELAPSED TIME EXCEEDS THAT PERIOD?

SEE ANSWER TO QUESTION G. IN NO EVENT CAN CREDIT BE GIVEN FOR MORE THAN 30 DAYS IN A NONPAY STATUS AND TO BE ENTITLED TO CREDIT FOR THAT PERIOD IN A NONPAY STATUS THE ENTIRE PERIOD OF ABSENCE MAY NOT EXCEED 30 DAYS. SUB- SECTION (D) OF PARAGRAPH 301 OF THE CIVIL SERVICE REGULATIONS ABOVE QUOTED RELATES ONLY TO CREDIT FOR PRIOR CIVILIAN SERVICE AND NOT TO CREDIT FOR ANY PERIOD IN A NONPAY STATUS.