B-57382, JUNE 12, 1946, 25 COMP. GEN. 849

B-57382: Jun 12, 1946

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IN THE CASE OF A RESTORED EMPLOYEE WHO WAS DENIED AN ADVANCEMENT PRIOR TO MILITARY SERVICE BECAUSE OF A " FAIR" EFFICIENCY RATING. MAY BE CONSIDERED AS HAVING TERMINATED ON THE DAY PRECEDING THE EARLIEST POSSIBLE DATE ON WHICH HE COULD HAVE RECEIVED AN ADVANCEMENT BY REASON OF AN EFFICIENCY RATING HAD HE REMAINED IN HIS CIVILIAN POSITION. AS FOLLOWS: THERE IS ENCLOSED HEREWITH A SUPPLEMENTAL PAY ROLL VOUCHER IN THE AMOUNT OF $4.23 FOR THE PERIOD MARCH 24 TO APRIL 6. SALARY AT THE LOWER RATE FOR THE PAY PERIOD CITED WAS PAID APRIL 18. YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER I MAY PROPERLY CERTIFY THE ADDITIONAL AMOUNT FOR PAYMENT ON A BASIS OF THE FOLLOWING RECORD. 600 PER ANNUM WAS " FAIR" FOR THE RATING PERIOD ENDING MARCH 31.

B-57382, JUNE 12, 1946, 25 COMP. GEN. 849

COMPENSATION - WITHIN-GRADE PROMOTIONS AFTER MILITARY DUTY - DEFICIENCY IN EFFICIENCY RATING PRIOR TO MILITARY DUTY UNDER THE WITHIN-GRADE SALARY-ADVANCEMENT PROVISIONS OF SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, DISPENSING WITH THE EFFICIENCY RATING REQUIREMENTS THEREOF UPON AN EMPLOYEE'S ENTRY INTO THE ARMED FORCES, THE WAITING PERIOD FOR THE INITIAL WITHIN-GRADE SALARY ADVANCEMENT BASED UPON MILITARY SERVICE AND PRIOR CIVILIAN SERVICE, IN THE CASE OF A RESTORED EMPLOYEE WHO WAS DENIED AN ADVANCEMENT PRIOR TO MILITARY SERVICE BECAUSE OF A " FAIR" EFFICIENCY RATING, MAY BE CONSIDERED AS HAVING TERMINATED ON THE DAY PRECEDING THE EARLIEST POSSIBLE DATE ON WHICH HE COULD HAVE RECEIVED AN ADVANCEMENT BY REASON OF AN EFFICIENCY RATING HAD HE REMAINED IN HIS CIVILIAN POSITION.

COMPTROLLER GENERAL WARREN TO JOHN T. E. DINWOODIE, DEPARTMENT OF AGRICULTURE, JUNE 12, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 18, 1946, REFERENCE 5B--- FIS, AS FOLLOWS:

THERE IS ENCLOSED HEREWITH A SUPPLEMENTAL PAY ROLL VOUCHER IN THE AMOUNT OF $4.23 FOR THE PERIOD MARCH 24 TO APRIL 6, 1946, WHICH REPRESENTS THE DIFFERENCE, FOR THE PERIOD INVOLVED, BETWEEN A SALARY RATE OF $3,200 PER ANNUM AND $3,310 PER ANNUM. SALARY AT THE LOWER RATE FOR THE PAY PERIOD CITED WAS PAID APRIL 18, 1946 ON E. J. BRENNAN'S VOUCHER NUMBER 13-73955 SYMBOL NUMBER 213-2350. YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER I MAY PROPERLY CERTIFY THE ADDITIONAL AMOUNT FOR PAYMENT ON A BASIS OF THE FOLLOWING RECORD.

THE LAST OFFICIAL EFFICIENCY RATING GIVEN THE EMPLOYEE FOR SERVICE IN HIS CIVILIAN POSITION AS ADMINISTRATIVE ASSISTANT ( FARMER FIELDMAN) CAF-7--- $2,600 PER ANNUM WAS " FAIR" FOR THE RATING PERIOD ENDING MARCH 31, 1942. PRIOR TO MARCH 31, 1942 HE HAD COMPLETED 18 MONTHS OF SERVICE WITHOUT AN INCREASE IN SALARY. UNDER DATE OF DECEMBER 29, 1942 THE EMPLOYEE WAS PLACED ON FURLOUGH FOR MILITARY TRAINING AND SERVICE. HE CONTINUED IN THE MILITARY SERVICE UNTIL OCTOBER 10, 1945 WHEN HE WAS HONORABLY DISCHARGED FROM THE UNITED STATES ARMY. APPLICATION WAS FILED BY THE EMPLOYEE OCTOBER 11, 1945, FOR REEMPLOYMENT IN THE POSITION HELD AT THE TIME OF HIS ENTRANCE INTO THE ARMED FORCES AND RESTORATION TO ACTIVE DUTY WAS EFFECTIVE NOVEMBER 1, 1945.

PURSUANT TO THE EMPLOYEE'S APPLICATION FOR REEMPLOYMENT PERSONNEL ACTIONS WERE INITIATED TO EFFECT CERTAIN WITHIN-GRADE PROMOTIONS AS WELL AS AN ADJUSTMENT IN BASE PAY BY REASON OF THE FEDERAL EMPLOYEE'S PAY ACT OF 1945. THESE ACTIONS REFLECT (1) PAY INCREASE (PERIODIC) TO $2,700 PER ANNUM EFFECTIVE APRIL 1, 1942, (2) PAY INCREASE (PERIODIC) TO $2,800 PER ANNUM EFFECTIVE OCTOBER 1, 1943, (3) PAY INCREASE (PERIODIC) TO $2,900 PER ANNUM EFFECTIVE APRIL 1, 1945, (4) PAY ADJUSTMENT ( FEDERAL EMPLOYEE'S PAY ACT OF 1945) TO $3,310 PER ANNUM EFFECTIVE JULY 1, 1945. CONDUCT OF THE EMPLOYEE IS SHOWN AS "SATISFACTORY" AND THE EFFICIENCY RATING " FAIR," AS SHOWN ON THE EFFICIENCY RATING AS OF MARCH 31, 1942.

THE QUESTION ARISES CONCERNING THE ANNUAL SALARY RATE AT WHICH THE EMPLOYEE WAS RESTORED TO DUTY BECAUSE OF THE FACT THAT HE WAS GRANTED A WITHIN-GRADE OR PERIODIC ADVANCEMENT EFFECTIVE APRIL 1, 1942, APPROXIMATELY NINE MONTHS PRIOR TO HIS ENTRY INTO THE MILITARY SERVICE TOGETHER WITH THE FACT THAT THE LAST EFFICIENCY RATING ON RECORD IS " FAIR.' THERE HAS BEEN CONSIDERED IN THIS CONNECTION SECTION 5 OF THE REGULATIONS GOVERNING WITHIN-GRADE SALARY ADVANCEMENT AS CONTAINED IN EXECUTIVE ORDER 8882 DATED SEPTEMBER 6, 1941. PARTICULAR ATTENTION HAS ALSO BEEN ACCORDED SUBSECTION (B) OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923 AS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEE'S PAY ACT OF 1945; HOWEVER, THE INTENT OF THE LAW, IN ITS APPLICATION TO THE INSTANT CASE IS NOT ALTOGETHER CLEAR TO ME.

FROM NOVEMBER 1, 1945, THE DATE THE EMPLOYEE WAS RESTORED TO ACTIVE DUTY, AND MARCH 23, 1946 (TERMINATION DATE OF PAY PERIOD PRECEDING THE ONE HEREIN INVOLVED) PAY ROLL VOUCHERS, INCLUDING THE SALARY OF THE EMPLOYEE AT THE RATE OF $3,310 PER ANNUM HAVE BEEN CERTIFIED FOR PAYMENT UPON AUTHORITY OF THE CITED PERSONNEL ACTIONS. CONSEQUENTLY, IF IT BE DETERMINED IN THE LIGHT OF THE FACTS PRESENTED, THAT THE FIRST PERIODIC INCREASE FROM $2,600 TO $2,700 PER ANNUM SHOULD NOT HAVE BECOME EFFECTIVE APRIL 1, 1942 FURTHER DETERMINATION OF THE DATE ON WHICH THE FIRST PERIODIC PROMOTION SHOULD HAVE BECOME EFFECTIVE IS DESIRED IN ORDER THAT ANY NECESSARY ADJUSTMENT OF PREVIOUS SALARY PAYMENT MAY BE MADE.

FROM THE FACTS STATED IN YOUR LETTER, IT APPEARS THAT AS OF MARCH 31, 1942, THE EMPLOYEE INVOLVED HAD SERVED THE PRESCRIBED WAITING PERIOD OF 18 MONTHS FOR A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, 55 STAT. 613. UNDER SUCH CIRCUMSTANCES, IT WOULD SEEM THAT THE EMPLOYEE SHOULD HAVE RECEIVED A REGULAR EFFICIENCY RATING AS OF MARCH 31, 1941. AND, IF SUCH RATING WAS "GOOD" OR BETTER THAN "GOOD," THERE APPEARS NO REASON WHY A WITHIN GRADE SALARY ADVANCEMENT WAS NOT GRANTED HIM EFFECTIVE APRIL 1, 1942--- THE EFFICIENCY RATING AS OF MARCH 31, 1942, DOUBTLESS NOT BEING OF RECORD ON APRIL 1, 1942. IF SUCH BE THE CASE, THE FACT THAT THROUGH ADMINISTRATIVE ERROR OR NEGLIGENCE SUCH SALARY ADVANCEMENT WAS NOT MADE WHEN DUE, WOULD NOT PRECLUDE ADMINISTRATIVE ACTION AT ANY TIME TO RECTIFY THE MISTAKE. SEE 21 COMP. GEN. 369. CONSEQUENTLY, UNDER SUCH VIEW OF THE MATTER, THE ADMINISTRATIVE COMPUTATION OF THE EMPLOYEE'S COMPENSATION UPON RESTORATION TO CIVILIAN DUTY AFTER MILITARY SERVICE APPEARS CORRECT AND PAYMENT OF THE ADDITIONAL AMOUNT SHOWN ON THE VOUCHER ACCOMPANYING YOUR LETTER WOULD BE PROPER. HOWEVER, SINCE THE EMPLOYEE WAS NOT GIVEN THE WITHIN-GRADE SALARY ADVANCEMENT EFFECTIVE APRIL 1, 1942, AND NEITHER WAS SUCH SALARY ADVANCEMENT GIVEN DURING THE SUBSEQUENT 9 MONTHS DURING WHICH THE EMPLOYEE REMAINED IN HIS CIVILIAN POSITION, IT IS ASSUMED THAT THE EFFICIENCY RATING AS OF MARCH 31, 1941, WAS NOT SUCH AS WOULD HAVE ENTITLED HIM TO THE SALARY ADVANCEMENT EFFECTIVE APRIL 1, 1942.

SECTION 5 OF EXECUTIVE ORDER 8882, SEPTEMBER 3, 1941, AND SUBSECTION (B) OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, EXPRESSLY PROVIDE THAT AN EMPLOYEE SUCH AS THE PERSON HERE INVOLVED IS ENTITLED TO CREDIT FOR MILITARY SERVICE FOR WITHIN-GRADE SALARY ADVANCEMENT PURPOSES. HOWEVER, THERE HAS BEEN FOUND NO PROVISION, EXPRESS OR IMPLIED, IN EITHER THE SAID EXECUTIVE ORDER OR THE CLASSIFICATION ACT, AS AMENDED, TO THE EFFECT THAT ENTRANCE INTO THE MILITARY SERVICE SHALL OPERATE TO ACCELERATE THE DATE WHEN AN EMPLOYEE OTHERWISE WOULD BE ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT. RATHER, THE PROVISIONS OF THE CITED EXECUTIVE ORDER AND THE CLASSIFICATION ACT DO NO MORE THAN AUTHORIZE THE COUNTING OF MILITARY SERVICE--- IN CONJUNCTION WITH CIVILIAN SERVICE--- IN THE COMPUTATION OF THE PRESCRIBED WAITING PERIODS FOR WITHIN- GRADE SALARY ADVANCEMENTS.

IF, AS STATED ABOVE, IT MAY BE ASSUMED THAT THE EMPLOYEE'S EFFICIENCY RATING AS OF MARCH 31, 1941, WAS NOT SUCH AS WOULD HAVE ENTITLED HIM TO A WITHIN-GRADE SALARY ADVANCEMENT EFFECTIVE APRIL 1, 1942, IT WILL BE SEEN THAT SINCE HIS EFFICIENCY RATING AS OF MARCH 31, 1942, WAS " FAIR," HE WOULD NOT HAVE BEEN ENTITLED--- IF HE HAD REMAINED IN HIS CIVILIAN POSITION--- TO A WITHIN-GRADE SALARY ADVANCEMENT UNTIL HIS NEXT REGULAR EFFICIENCY RATING AS OF MARCH 31, 1943, WAS "ON RECORD" (SEE SECTION 1 (E) OF EXECUTIVE ORDER 8882, SUPRA), ASSUMING IT WOULD HAVE BEEN OF A CHARACTER SUFFICIENT TO ENTITLE HIM TO SUCH ADVANCEMENT. HENCE, UNDER ABOVE CIRCUMSTANCES, THERE IS PERCEIVED NO PROPER BASIS UPON WHICH THE EMPLOYEE, BECAUSE OF HIS ENTRY INTO THE MILITARY SERVICE, PROPERLY MAY BE CONSIDERED AS ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT EFFECTIVE APRIL 1, 1942-- AT WHICH DATE HE OTHERWISE WAS NOT ENTITLED TO SUCH ADVANCEMENT. OF COURSE, SINCE ENTRY INTO THE ARMED FORCES DISPENSES WITH THE REQUIREMENTS CONCERNING EFFICIENCY RATINGS FOR WITHIN-GRADE ADVANCEMENT PURPOSES, IT SEEMS REASONABLE THAT, IN COMPUTING THE WAITING PERIOD FOR THE INITIAL WITHIN-GRADE SALARY ADVANCEMENT IN THE PRESENT CASE, SUCH PERIOD PROPERLY MAY BE CONSIDERED AS HAVING TERMINATED ON MARCH 31, 1943, THE DATE PRECEDING APRIL 1, 1943, THE EARLIEST POSSIBLE DATE UPON WHICH HE COULD HAVE RECEIVED THE SALARY ADVANCEMENT HAD HE REMAINED IN HIS CIVILIAN POSITION--- RATHER THAN POSTPONING THE EFFECTIVE DATE OF THE SALARY ADVANCEMENT UNTIL SUCH DATE AS A REGULAR EFFICIENCY RATING AS OF MARCH 31, 1943, NORMALLY WOULD HAVE BEEN "ON RECORD," AS WOULD HAVE BEEN REQUIRED IF THE EMPLOYEE HAD REMAINED IN HIS CIVILIAN POSITION.

IN THE LIGHT OF THE FOREGOING, IT WILL BE SEEN THAT THE WITHIN-GRADE ADVANCEMENT TO $2,700 MAY BE CONSIDERED AS EFFECTIVE APRIL 1, 1943, AND ADVANCEMENT TO $2,800 AS EFFECTIVE OCTOBER 1, 1944. EFFECTIVE JULY 1, 1945, THE EMPLOYEE'S SALARY WOULD BE INCREASED TO $3,200 BY OPERATION OF PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND ON OCTOBER 1, 1945, HE WOULD BE ENTITLED TO BE CREDITED WITH AN ADDITIONAL WITHIN GRADE PROMOTION TO $3,310. HENCE, UPON RESTORATION TO DUTY ON NOVEMBER 1, 1945, AFTER MILITARY SERVICE, THE EMPLOYEE WAS ENTITLED TO COMPENSATION AT THE RATE OF $3,310 PER ANNUM, AT WHICH RATE YOU STATE HE HAS BEEN PAID FOR THE PERIOD NOVEMBER 1, 1945, THROUGH MARCH 23, 1946. HAVING BEEN PAID AT THE RATE OF $3,200 PER ANNUM FOR THE PERIOD MARCH 24 TO APRIL 6, 1946, THE EMPLOYEE IS ENTITLED TO THE DIFFERENCE BETWEEN THAT SALARY AND $3,310 PER ANNUM FOR THE LAST-MENTIONED PERIOD. ACCORDINGLY, THE VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT.