B-57646, JUNE 12, 1946, 25 COMP. GEN. 852

B-57646, JUNE 12, 1946, 25 COMP. GEN. 852

OFFICERS AND EMPLOYEES - REEMPLOYMENT RIGHTS AFTER MILITARY DUTY WHETHER AN EMPLOYEE, UPON RESTORATION AFTER MILITARY SERVICE, HAS BEEN "RESTORED" TO HIS FORMER POSITION OR TO A POSITION OF "LIKE SENIORITY, STATUS, AND PAY" WITHIN THE MEANING OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, IS NOT FOR DETERMINATION BY THE GENERAL ACCOUNTING OFFICE BUT BY THE ADMINISTRATIVE OFFICES JOINTLY WITH THE CIVIL SERVICE COMMISSION; HOWEVER, THE GENERAL ACCOUNTING OFFICE IS NOT PRECLUDED FROM DECIDING QUESTIONS OF SALARY AND PROPER USE OF PUBLIC FUNDS AFTER A PROPER DETERMINATION HAS BEEN MADE THAT THE EMPLOYEE HAS OR HAS NOT BEEN RESTORED TO A POSITION IN ACCORDANCE WITH SAID ACT. THE CIVIL SERVICE COMMISSION HAVING DETERMINED FOR PURPOSES OF THE REEMPLOYMENT PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, THAT THE GOVERNMENT IS NOT A SINGLE EMPLOYER, THAT A VETERAN HAS NO MANDATORY RIGHT OF RESTORATION IN AN AGENCY OTHER THAN THE ONE FROM WHICH FURLOUGHED AND THAT ACCEPTANCE OF EMPLOYMENT IN A DIFFERENT AGENCY DOES NOT CONSTITUTE RESTORATION UNDER THE ACT, AN EMPLOYEE REEMPLOYED AFTER MILITARY DUTY IN OTHER THAN HIS FORMER AGENCY IS NOT, BY VIRTUE OF SAID ACT, ENTITLED TO HAVE HIS UNUSED SICK LEAVE RESTORED. 24 COMP. GEN. 410, OVERRULED IN PART.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JUNE 12, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 6, 1946, REFERENCE JAG: II:WJG:Z,P18-1/LL, AS FOLLOWS:

SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940 (54 STAT. 890), AS AMENDED (58 STAT. 798; 50 U.S. CODE, APPENDIX, 308), PROVIDES, RELATIVE TO THE RESTORATION TO POSITIONS OF PERSONS INDUCTED INTO THE LAND OR NAVAL FORCES PURSUANT TO THE PROVISIONS OF SAID ACT FOR TRAINING AND SERVICE, AS FOLLOWS:

"/B) IN THE CASE OF ANY SUCH PERSON WHO, IN ORDER TO PERFORM SUCH TRAINING AND SERVICE, HAS LEFT OR LEAVES A POSITION, OTHER THAN A TEMPORARY POSITION, IN THE EMPLOY OF ANY EMPLOYER AND WHO (1) RECEIVES SUCH CERTIFICATE, (2) IS STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION, AND (3) MAKES APPLICATION FOR REEMPLOYMENT WITHIN NINETY DAYS AFTER HE IS RELIEVED FROM SUCH TRAINING AND SERVICE OR FROM HOSPITALIZATION CONTINUING AFTER DISCHARGE FOR A PERIOD OF NOT MORE THAN ONE YEAR---

"/A) IF SUCH POSITION WAS IN THE EMPLOY OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA, SUCH PERSON SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY;

"/B) IF SUCH POSITION WAS IN THE EMPLOY OF A PRIVATE EMPLOYER, SUCH EMPLOYER SHALL RESTORE SUCH PERSON TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY UNLESS THE EMPLOYER'S CIRCUMSTANCES HAVE SO CHANGED AS TO MAKE IT IMPOSSIBLE OR UNREASONABLE TO DO SO;

"/C) IF SUCH POSITION WAS IN THE EMPLOY OF ANY STATE OR POLITICAL SUBDIVISION THEREOF, IT IS HEREBY DECLARED TO BE THE SENSE OF THE CONGRESS THAT SUCH PERSON SHOULD BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY.'

THE NAVY DEPARTMENT HAS UNDER CONSIDERATION CERTAIN QUESTIONS CONCERNING THE RIGHTS OF FORMER EMPLOYEES WITH PERMANENT CIVIL SERVICE STATUS TO RESTORATION TO POSITIONS UNDER THE NAVY DEPARTMENT IN ACCORDANCE WITH THE PROVISIONS OF THE ABOVE QUOTED LAW. IN THIS CONNECTION YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

(1) CASE I. EMPLOYEE "A" POSSESSING PERMANENT CIVIL SERVICE STATUS LEFT HIS POSITION AS CAF-1 WITH THE BUREAU OF SHIPS ( NAVY DEPARTMENT) ON DECEMBER 24, 1942, TO ENTER THE ARMED FORCES. UPON DISCHARGE FROM THE ARMED FORCES HE WAS EMPLOYED BY THE BUREAU OF SHIPS IN A CAF-2 POSITION. IF EMPLOYEE "A" HAD BEEN RESTORED AT A CAF-1 AT A PAY RATE WHICH TOOK INTO CONSIDERATION THE WITHIN-GRADE SALARY ADVANCEMENTS HE WAS ENTITLED TO FOR HIS MILITARY SERVICE, HE WOULD ALSO HAVE BEEN RESTORED AT A SALARY RATE OF $1,704.

(A) WAS EMPLOYEE "A" RESTORED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT SINCE HE WAS RESTORED TO A CAF-2 POSITION WHICH WAS A HIGHER GRADE POSITION THAN THE POSITION HE HELD AT THE TIME HE ENTERED MILITARY SERVICE?

(B) IS EMPLOYEE "A" ENTITLED TO HAVE ACCREDITED TO HIM UPON RESTORATION TO THE CAF-2 POSITION, THE SICK LEAVE WHICH HAD ACCRUED TO HIS CREDIT AT THE TIME HE LEFT THE CAF-1 POSITION TO ENTER THE ARMED FORCES?

(C) IF THE DECISIONS IN (A) AND (B) ABOVE ARE IN THE AFFIRMATIVE, WOULD A CONTRARY DECISION HAVE BEEN MADE IF EMPLOYEE "A" HAD NOT ONLY BEEN RESTORED TO A HIGHER GRADE THAN HIS FORMER POSITION BUT ALSO AT A HIGHER PAY RATE THAN HE WOULD HAVE BEEN ENTITLED TO IF HE HAD BEEN RESTORED TO HIS FORMER POSITION?

(2) CASE II. EMPLOYEE "B" POSSESSING PERMANENT CIVIL SERVICE STATUS WAS EMPLOYED BY THE WAR DEPARTMENT AT STOCKTON, CALIFORNIA, AS A CAF-4 AT $1,800 PER ANNUM AT THE TIME SHE ENTERED MILITARY SERVICE. UPON DISCHARGE FROM THE ARMED FORCES SHE APPLIED FOR A POSITION WITH THE NAVY DEPARTMENT AT THE NAVAL SUPPLY DEPOT, OAKLAND, CALIFORNIA, AND WAS FOUND ACCEPTABLE AS A CLERK-TYPIST, CAF-3, AT &1,902 PER ANNUM. EMPLOYEE "B" WAS INFORMED BY THE NAVAL SUPPLY DEPOT THAT SHE SHOULD MAKE APPLICATION FOR RESTORATION TO THE WAR DEPARTMENT AND SUBSEQUENT TRANSFER TO THE NAVAL SUPPLY DEPOT IN ORDER TO GUARANTEE RETENTION OF HER RIGHTS WHICH ARE CONDITIONED UPON STATUTORY RESTORATION. UPON REQUESTING SUCH RESTORATION, EMPLOYEE "B" WAS INFORMED BY THE WAR DEPARTMENT THAT IT WAS UNNECESSARY FOR HER TO BE RESTORED BY THE WAR DEPARTMENT IN ORDER TO PRESERVE HER REEMPLOYMENT RIGHTS. UPON RECEIPT OF THIS INFORMATION EMPLOYEE "B" WAS EMPLOYED BY THE NAVAL SUPPLY DEPOT UNDER A WAR SERVICE INDEFINITE REAPPOINTMENT.

(A) WAS EMPLOYEE "B" RESTORED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT SINCE SHE WAS REEMPLOYED BY A DIFFERENT GOVERNMENTAL AGENCY IN A DIFFERENT GRADE POSITION THAN THAT WHICH SHE LEFT TO ENTER THE ARMED FORCES?

(B) IS EMPLOYEE "B" ENTITLED TO HAVE RECREDITED TO HER UPON EMPLOYMENT IN A CAF-3 POSITION BY THE NAVY DEPARTMENT, THE SICK LEAVE WHICH HAD ACCRUED TO HER CREDIT AT THE TIME SHE LEFT THE CAF-4 POSITION WITH THE WAR DEPARTMENT IN ORDER TO ENTER THE ARMED FORCES?

(3) CASE III. EMPLOYEE "C" POSSESSING PERMANENT CIVIL SERVICE STATUS LEFT A POSITION WITH THE WAR DEPARTMENT AT ANCHORAGE, ALASKA, IN ORDER TO ENTER MILITARY SERVICE. WHILE EMPLOYEE "C" WAS IN THE MILITARY SERVICE THE WAR DEPARTMENT ABOLISHED ITS ACTIVITY AT ANCHORAGE, ALASKA. UPON DISCHARGE FROM MILITARY SERVICE, EMPLOYEE "C" MADE APPLICATION FOR EMPLOYMENT WITH THE NAVY DEPARTMENT AT SEATTLE, WASHINGTON, AND WAS EMPLOYED BY THAT ACTIVITY.

(A) WAS EMPLOYEE "C" RESTORED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT SINCE EMPLOYEE "C" WAS RESTORED TO AN AGENCY OTHER THAN HER FORMER EMPLOYING AGENCY?

(B) IS EMPLOYEE "C" ENTITLED TO HAVE RECREDITED TO HER THE SICK LEAVE WHICH HAD ACCRUED AT THE TIME SHE ENTERED MILITARY SERVICE?

(4) CASE IV. EMPLOYEE "D," AN EMPLOYEE WITH PERMANENT CIVIL SERVICE STATUS, LEFT HER POSITION AS CM-1, 72 CENTS PER HOUR, AT THE TREASURY DEPARTMENT TO ENTER THE ARMED FORCES. UPON DISCHARGE FROM MILITARY SERVICE SHE APPLIED FOR A POSITION, CAF-3, $1,902 PER ANNUM AT THE CENTRAL NAVY DISBURSING OFFICE AND WAS EMPLOYED BY THAT ACTIVITY UNDER A WAR SERVICE APPOINTMENT.

(A) WAS EMPLOYEE "D" RESTORED IN ACCORDANCE WITH SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT SINCE SHE WAS RESTORED IN AN AGENCY OTHER THAN HER FORMER EMPLOYING AGENCY AND AT A PAY RATE IN EXCESS OF THE PAY RATE TO WHICH SHE WOULD HAVE BEEN ENTITLED HAD SHE BEEN RESTORED TO HER FORMER POSITION?

IN ALL OF THE SPECIFIC CASES PRESENTED ABOVE, THE EMPLOYEES CONCERNED

(A) LEFT POSITIONS "OTHER THAN TEMPORARY" TO ENTER THE ARMED FORCES;

(B) RECEIVED CERTIFICATES OF SATISFACTORY SERVICE UPON SEPARATION FROM MILITARY SERVICE;

(C) MADE APPLICATION FOR REEMPLOYMENT WITHIN 90 DAYS OF SEPARATION FROM MILITARY SERVICE; AND

(D) WERE QUALIFIED TO PERFORM THE DUTIES OF THEIR FORMER POSITION AND ALSO THE DUTIES IN WHICH THEY WERE EMPLOYED.

IT APPEARS FROM NUMEROUS DECISIONS OF THE COMPTROLLER GENERAL THAT THE RIGHT TO RECREDIT SICK LEAVE TO A PERSON WHO LEFT HIS POSITION IN ORDER TO ENTER THE ARMED FORCES IS DERIVED SOLELY FROM RESTORATION TO EMPLOYMENT UNDER SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT. (SEE 21 COMP. GEN. 403; ID., MAY 2, 1944, B-41444; ID., AUGUST 12, 1943, B-35822.) SINCE MILITARY SERVICE IS INCONSISTENT WITH CIVILIAN SERVICE AND SINCE, EXCEPT FOR THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, THE PERIOD OF MILITARY SERVICE WOULD BE CONSIDERED AS A BREAK IN SERVICE, IT APPEARS THAT THE SICK LEAVE IN SUCH CASES MAY ONLY BE SAVED IF THE EMPLOYEE IS RESTORED IN STRICT ACCORDANCE WITH THE STATUTE SO THAT THERE WILL MATERIALIZE A RIGHT TO "BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF ACTIVE MILITARY SERVICE.'

IF THE PREMISE SET FORTH IN THE PRECEDING PARAGRAPH, NAMELY, THAT THE RIGHT TO RECREDIT SICK LEAVE IS CONTINGENT UPON RESTORATION IN ACCORDANCE WITH SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, IS CORRECT, IT WOULD APPEAR THAT A DECISION MUST BE REACHED ON THE FOLLOWING QUESTIONS IN ORDER TO DETERMINE FOR EACH OF THE CASES SET FORTH IN THE SECOND PARAGRAPH HEREIN WHETHER RESTORATION WAS MADE IN STRICT ACCORDANCE WITH THE STATUTE. ACCORDINGLY, YOUR FURTHER DECISION IS REQUESTED ON THE ADDITIONAL QUESTIONS, AS FOLLOWS:

(5) MAY THE BENEFITS WHICH ARE CONDITIONED UPON RESTORATION IN ACCORDANCE WITH SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT BE ACCORDED IF RESTORATION IS MADE TO A POSITION WHICH IS NEITHER "THE FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS, AND PAY?

(6) WHAT IS THE MEANING OF THE PHRASE "A POSITION OF LIKE SENIORITY, STATUS, AND PAY?

(7) IS THE FEDERAL GOVERNMENT TO BE CONSIDERED AS ONE EMPLOYER FOR THE PURPOSES OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT?

WITH REGARD TO THE DECISION REQUESTED UNDER (5) ABOVE, IT APPEARS THAT THE BENEFITS SET FORTH IN SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT ACCRUE ONLY IF THE RESTORATION OF THE EMPLOYEE TO DUTY IS MADE IN HIS "FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS, AND PAY.' IT WILL BE OBSERVED THAT SECTION 8 (B) AND (C) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 PROVIDES:

"/B) IN THE CASE OF ANY SUCH PERSON WHO * * * LEAVES A POSITION * * *

"/A) * * * SUCH PERSON SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY; * * *

"C) ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) * * * OF SUBSECTION (B) SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH * * * AND SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION.' (ITALICS SUPPLIED.)

THE LANGUAGE OF SECTION 8 (A) AND (C), AS QUOTED ABOVE, APPEARS TO INDICATE THAT A RETURNING VETERAN SHALL BE RESTORED TO HIS FORMER POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY PROVIDED HE MEETS CERTAIN CONDITIONS PRECEDENT WHICH ARE STATED THEREIN AND THAT ONLY UPON SUCH RESTORATION, THAT IS, TO HIS FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS, AND PAY, IS HE ENTITLED TO THE OTHER BENEFITS SET FORTH IN THE ACT, ONE OF WHICH IS THE RIGHT TO BE CONSIDERED ,AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE.' IN OTHER WORDS, IT APPEARS THAT ONLY AFTER RESTORATION TO THE FORMER POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY DO THE OTHER BENEFITS ACCRUE AND THAT RESTORATION TO A POSITION OTHER THAN THE FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS, AND PAY WOULD DEPRIVE THE VETERAN OF THESE BENEFITS. THIS LITERAL READING OF THE LANGUAGE OF THE STATUTE APPEARS TO BE SUPPORTED BY STATEMENTS IN VARIOUS DECISIONS OF THE COMPTROLLER GENERAL, ONE OF WHICH IS CONTAINED IN DECISION OF NOVEMBER 3, 1941, B-20822, AS FOLLOWS:

"THUS, IT IS ONLY BECAUSE OF SAID STATUTES THAT REEMPLOYMENT BENEFITS, INCLUDING CERTAIN LEAVE RIGHTS, ARE RESTORED TO THEM, AND THEY ARE RESTORED ONLY TO THE EXTENT AND SUBJECT TO THE CONDITIONS SET FORTH THEREIN. AS ABOVE NOTED, UPON COMPLIANCE WITH THOSE CONDITIONS THE EMPLOYEES ARE ENTITLED TO BE "RESTORED" TO THEIR FORMER CIVILIAN POSITION, OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY; AND IT IS ONLY UPON SUCH RESTORATION THAT THERE MATERIALIZES A RIGHT TO "BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF ACTIVE MILITARY SERVICE" AND TO REACQUIRE THE LEAVE AND OTHER BENEFITS WHICH WOULD OTHERWISE HAVE BEEN LOST TO HIM. IN OTHER WORDS, IT IS ONLY IN THE EVENT THAT THE CONDITIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, HAVE BEEN COMPLIED WITH THAT SUCH AN EMPLOYEE IS ENTITLED TO BE RESTORED TO HIS POSITION; AND IT IS ONLY IN THE EVENT THAT HE BE SO RESTORED THAT HE IS ENTITLED TO BE CONSIDERED AS HAVING BEEN ON LEAVE OF ABSENCE FROM HIS POSITION AND TO BE RECREDITED WITH HIS ACCRUED LEAVE.' (ITALICS SUPPLIED.)

IT SEEMS CLEAR FROM THE LANGUAGE OF SAID SECTION 8 THAT A VETERAN IS ENTITLED TO THE BENEFITS WHICH ARE CONDITIONED UPON RESTORATION ONLY IF HE HAS BEEN RESTORED TO A POSITION TO WHICH HE HAS A RIGHT TO DEMAND RESTORATION. IN OTHER WORDS, BECAUSE OF THE MANDATORY PROVISIONS OF THE STATUTE IT WOULD APPEAR THAT THERE IS NO HALF-WAY METHOD OF GRANTING REEMPLOYMENT RIGHTS AND IF DECISION IS MADE THAT A VETERAN QUALIFIES FOR RESTORATION BY MEETING THE CONDITIONS PRECEDENT TO RESTORATION AND THAT AFTER RESTORATION TO A PARTICULAR POSITION HE IS ENTITLED TO THE BENEFITS WHICH ARE PROVIDED FOR THOSE WHO ARE RESTORED IN ACCORDANCE WITH THE STATUTE, IT MUST ALSO BE HELD THAT HAD HE BEEN DENIED REEMPLOYMENT TO THAT POSITION HE COULD DEMAND SUCH REEMPLOYMENT UNDER THE STATUTE. THERE APPEARS NO LANGUAGE IN THE STATUTE WHICH INDICATES THAT THE BENEFITS ACCORDED THEREIN ARE AVAILABLE UNLESS THE INDIVIDUAL IS RESTORED TO A POSITION TO WHICH HE HAS A MANDATORY RIGHT OF RESTORATION. WITH REGARD TO THE DECISION REQUESTED UNDER (6) ABOVE, IF THE PREMISES HEREINBEFORE SET FORTH ARE CORRECT, THEN A DECISION MUST BE MADE AS TO THE MEANING OF THE PHRASE "POSITION OF LIKE SENIORITY, STATUS, AND PAY" IN ORDER TO DETERMINE WHETHER THE REQUIREMENTS OF THE STATUTE HAVE BEEN MET IN THOSE CASES WHERE THE VETERAN IS NOT RESTORED TO HIS FORMER POSITION. IN MAKING THIS DETERMINATION IT MUST BE RECOGNIZED CONGRESS WAS NOT ONLY COVERING EMPLOYEES OF THE FEDERAL GOVERNMENT BUT ALSO EMPLOYEES OF PRIVATE EMPLOYERS AND THAT THEREFORE THE MEANING OF THE TERM ,POSITION OF LIKE SENIORITY, STATUS, AND PAY" IS NOT CONTROLLED BY TERMINOLOGIES WHICH ARE PECULIAR TO THE FEDERAL CIVIL SERVICE SYSTEM. (SEE OPINION OF THE ATTORNEY GENERAL OF DECEMBER 30, 1941.) IT WOULD APPEAR THAT IN THOSE CASES WHERE A VETERAN IS RESTORED TO A POSITION OF HIGHER GRADE AND AT A HIGHER PAY RATE THAN THAT WHICH HE HELD AT THE TIME HE ENTERED MILITARY SERVICE, THAT HE HAS NOT BEEN RESTORED TO A POSITION OF "LIKE SENIORITY, STATUS, AND PAY.' ANY OTHER HOLDING WOULD DEPRIVE THE PHRASE "LIKE SENIORITY, STATUS AND PAY" OF ANY MEANING. IT MAY WELL BE THAT ALL POSITIONS OF THE SAME GRADE ARE NOT "POSITIONS OF LIKE SENIORITY, STATUS, AND PAY" IF THE DUTIES OF THE POSITION EVEN THOUGH THEY ARE AT THE SAME GRADE LEVEL ARE NOT AT ALL SIMILAR TO THE DUTIES OF THE FORMER POSITION. IT MIGHT BE THAT RESTORATION IS MADE TO "A POSITION OF LIKE SENIORITY, STATUS, AND PAY" ONLY WHERE IT IS MADE TO A POSITION WITH THE SAME PAY RANGE AS THE FORMER POSITION AND THEN ONLY IF THE QUALIFICATIONS THAT AN EMPLOYEE MUST POSSESS FOR PERFORMING THE DUTIES OF THE FORMER POSITION CAN BE SAID TO BE THE SAME AS THOSE REQUIRED TO PERFORM THE DUTIES OF THE POSITION TO WHICH HE IS RESTORED.

WITH REGARD TO THE QUESTION PRESENTED IN (7) ABOVE, IT IS DESIRED TO POINT OUT THAT WITH THE EXCEPTION OF THE FIRST CASE PRESENTED IN QUERY (1) ABOVE, ALL OF THE REMAINING CASES PRESENTED FOR YOUR DECISION IN QUERIES (2), (3) AND (4) ABOVE REQUIRE A DETERMINATION AS TO WHETHER OR NOT THE FEDERAL GOVERNMENT MAY BE CONSIDERED A SINGLE EMPLOYER FOR THE PURPOSES OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT. IT WOULD APPEAR THAT IF IT IS PERMISSIBLE TO RECREDIT SICK LEAVE TO AN EMPLOYEE RESTORED IN AN AGENCY OTHER THAN THE FORMER EMPLOYING AGENCY ON THE THEORY THAT HE HAS BEEN RESTORED IN ACCORDANCE WITH THE STATUTE, IT WOULD LIKEWISE SEEM POSSIBLE THAT A VETERAN COULD DEMAND RESTORATION TO A POSITION IN AN AGENCY OTHER THAN HIS FORMER EMPLOYING AGENCY UNDER THE TERMS OF THE STATUTE. IN OTHER WORDS, A DECISION WHICH WOULD PERMIT THE RECREDITING OF SICK LEAVE IN SUCH CASES COULD ONLY BE BASED UPON THE THEORY THAT THE FEDERAL GOVERNMENT IS ONE EMPLOYER FOR THE PURPOSES OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT. IT IS QUESTIONABLE WHETHER SUCH A DETERMINATION COULD BE MADE IN VIEW OF THE CONSTITUTIONAL PROVISIONS ( ARTICLE II, SECTION 2, CLAUSE 2, CONSTITUTION OF THE UNITED STATES) WHICH PERMIT CONGRESS TO DELEGATE TO THE HEADS OF DEPARTMENTS THE POWER TO APPOINT PERSONS TO EMPLOYMENT IN THEIR DEPARTMENT AND IN VIEW OF THE FACT THAT CONGRESS HAS EXERCISED ITS AUTHORITY BY SO DELEGATING THE POWER TO APPOINT TO RESPECTIVE DEPARTMENT HEADS. IT IS RECOGNIZED THAT IN YOUR DECISION OF NOVEMBER 24, 1944, B-45626 (B-45646), IT IS HELD THAT LEAVE COULD BE RECREDITED TO AN EMPLOYEE WHO MEETS THE CONDITIONS SET FORTH IN THE SELECTIVE TRAINING AND SERVICE ACT EVEN THOUGH HE WAS RESTORED IN AN AGENCY OTHER THAN THE ONE IN WHICH HE WAS EMPLOYED AT THE TIME HE ENTERED MILITARY SERVICE. THE CITED DECISION OF NOVEMBER 24, 1944, APPEARS TO BE BASED UPON THE PREMISE THAT AT THAT TIME "NO DECISION HAD (HAS) BEEN RENDERED BY COMPETENT AUTHORITY UPON THE QUESTION WHETHER THE UNITED STATES GOVERNMENT IS TO BE REGARDED AS A SINGLE EMPLOYER FOR THE PURPOSES OF THE STATUTE.' SINCE THE DATE OF THE ABOVE DECISION THE CIVIL SERVICE COMMISSION HAS TAKEN THE FOLLOWING POSITION IN ITS FEDERAL PERSONNEL MANUAL, SECTION R6-7:

"THE COMMISSION IS OF THE OPINION THAT THE FEDERAL GOVERNMENT IS NOT TO BE CONSIDERED A SINGLE EMPLOYER FOR THE PURPOSES OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OR WAR SERVICE REGULATION XIII, AND THAT A RETURNING VETERAN DOES NOT HAVE A MANDATORY RIGHT TO RESTORATION IN AN AGENCY OTHER THAN THE ONE HE LEFT TO ENTER MILITARY SERVICE. CONSEQUENTLY, ACCEPTANCE OF EMPLOYMENT IN A DIFFERENT AGENCY DOES NOT CONSTITUTE RESTORATION UNDER THE LAW OR REGULATION.'

THE QUESTION THEREFORE ARISES WHETHER THE COMPTROLLER GENERAL WILL CONSIDER THE RULING OF THE CIVIL SERVICE COMMISSION TO BE A DECISION RENDERED BY COMPETENT AUTHORITY AND, IF SO, WHETHER ON THE BASIS OF SUCH RULING YOU WILL REVERSE THE POSITION TAKEN IN YOUR DECISION OF NOVEMBER 24, 1944.

IT IS THE NAVY DEPARTMENT'S BELIEF THAT A DECISION OF THE COMPTROLLER GENERAL WHICH WOULD HOLD THAT RESTORATION MUST BE TO THE "FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS, AND PAY" IN THE FORMER EMPLOYING AGENCY WHOULD NOT PREJUDICE THE RIGHTS OF THE EMPLOYEES INVOLVED IN THE CASES SET FORTH IN THE SECOND PARAGRAPH OF THIS SUBMISSION, SINCE IN EACH OF THOSE CASES THE EMPLOYEES CONCERNED REQUESTED RESTORATION TO THE PROPER POSITION AND WERE NOT SO RESTORED THROUGH NO FAULT OF THEIR OWN. IN OTHER WORDS, SINCE EACH OF THESE EMPLOYEES QUALIFIED FOR RESTORATION UNDER THE TERMS OF THE STATUTE, THE REFUSAL OF THEIR EMPLOYERS TO SO EMPLOY THEM CANNOT ACT TO PREJUDICE THEIR RIGHTS. IT CANNOT BE SAID UNDER THOSE CIRCUMSTANCES THAT THE ACCEPTANCE OF OTHER EMPLOYMENT AMOUNTED TO A WAIVER OF THEIR RIGHTS AND, THEREFORE, THE EMPLOYEES INVOLVED COULD NOW BE RESTORED TO THEIR PROPER POSITIONS AND SIMULTANEOUSLY TRANSFERRED TO THE POSITION THEY NOW HOLD.

THE DECISIONS OF THE GENERAL ACCOUNTING OFFICE, WHEREIN THERE MAY HAVE BEEN INVOLVED MATTERS RELATING TO RESTORATION OF VETERANS TO POSITIONS IN THE GOVERNMENT SERVICE, HAVE NEVER EXPRESSLY HELD, IN THE CONSIDERATION OF MATTERS INVOLVING PRIMARILY QUESTIONS OF PAY, THAT IT HAS JURISDICTION TO DETERMINE WHETHER A VETERAN HAS BEEN RESTORED TO A POSITION IN ACCORDANCE WITH SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 890, AS AMENDED. ON THE CONTRARY, AS STATED IN THE DECISION OF JANUARY 13, 1942, 21 COMP. GEN. 742, THE ACCOUNTING OFFICERS OF THE GOVERNMENT ALWAYS HAVE DEEMED IT NOT TO BE WITHIN THEIR JURISDICTION OR AUTHORITY TO PASS UPON THE LEGALITY OF ADMINISTRATIVE ACTION RELATING SOLELY TO THE ELIGIBILITY OF EMPLOYEES FOR APPOINTMENT, REAPPOINTMENT, OR REINSTATEMENT IN THE FEDERAL SERVICE. HOWEVER, WHEN QUESTIONS RELATING TO SUCH SUBJECT MATTERS ALSO INVOLVE THE DETERMINATION OF THE RATE OF PAY OR PROPER USE OF GOVERNMENT FUNDS, IT HAS BEEN NECESSARY FOR THIS OFFICE TO PASS UPON MATTERS THAT OTHERWISE WOULD NOT BE FOR ITS CONSIDERATION. ALSO, IN THAT CONNECTION, IT WAS STATED IN SAID DECISION OF JANUARY 13, 1942, THAT:

* * * WHETHER AN EMPLOYEE WILL BE ENTITLED TO RESTORATION UPON DISCHARGE FROM THE ACTIVE MILITARY OR NAVAL SERVICE, AND IF SO, IN WHICH POSITION IN THE EVENT THE EMPLOYEE WAS TEMPORARILY APPOINTED OR PROMOTED PRIOR TO ENTRY INTO THE MILITARY OR NAVAL SERVICE TO FILL A VACANCY CAUSED BY ANOTHER EMPLOYEE'S ENTRY INTO SUCH SERVICE, ARE NOT QUESTIONS REQUIRING THE CONSIDERATION OF THE GENERAL ACCOUNTING OFFICE UNDER ITS STATUTORY DUTIES WITH REFERENCE TO THE DETERMINATION OF THE PROPER USES OF PUBLIC FUNDS. * * * SEE, ALSO, 23 COMP. GEN. 367 (PARTICULARLY THE LAST PARAGRAPH THEREOF); 24 ID. 709; B-49671, MAY 23, 1945.

SECTION 10 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, SUPRA, 54 STAT. 893, AUTHORIZED THE PRESIDENT TO PRESCRIBE THE NECESSARY RULES AND REGULATIONS TO CARRY OUT THE PROVISIONS OF THE ACT * * *.

UNDER DATE OF FEBRUARY 26, 1944, THE PRESIDENT ADDRESSED LETTERS TO THE CIVIL SERVICE COMMISSION AND THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES STATING THAT HE HAD DESIGNATED THE CIVIL SERVICE COMMISSION AS HIS REPRESENTATIVE TO ISSUE INSTRUCTIONS FROM TIME TO TIME REGARDING THE RIGHTS OF VETERANS TO RESTORATION TO THEIR FORMER FEDERAL POSITIONS UNDER CERTAIN SETS OF CIRCUMSTANCES AND REQUIRED SUCH DEPARTMENTS AND AGENCIES TO ADHERE STRICTLY TO THE INSTRUCTIONS ISSUED BY THE COMMISSION.

ALTHOUGH THE LETTERS OF THE PRESIDENT, SUPRA, FAIL TO STATE THE BASIS OF THE AUTHORITY UNDER WHICH THE CIVIL SERVICE COMMISSION WAS DESIGNATED TO ISSUE SAID INSTRUCTIONS, IT IS PRESUMED THAT SUCH ACTION WAS IN PURSUANCE OF THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, SUPRA. UPON THAT VIEW THE INSTRUCTIONS ISSUED AFTER FEBRUARY 26, 1944, MUST BE REGARDED AS BINDING UPON ALL DEPARTMENTS OF THE GOVERNMENT, AND THERE IS REITERATED HERE THE POSITION OF THE GENERAL ACCOUNTING OFFICE THAT THE QUESTION OF WHETHER A VETERAN HAS BEEN RESTORED TO A POSITION WITHIN THE MEANING OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, SUPRA, IS NOT FOR DETERMINATION BY THIS OFFICE BUT RATHER, FOR DETERMINATION BY THE ADMINISTRATIVE OFFICES JOINTLY WITH THE UNITED STATES CIVIL SERVICE COMMISSION. THAT CONCLUSION, OF COURSE, WOULD NOT PRECLUDE THIS OFFICE FROM DECIDING QUESTIONS OF SALARY AND THE PROPER USE OF PUBLIC FUNDS AFTER A DETERMINATION HAS BEEN MADE THAT A RETURNING VETERAN HAS OR HAS NOT BEEN RESTORED TO A POSITION IN ACCORDANCE WITH THE AFOREMENTIONED ACT, AND IS NOT TO BE CONSIDERED AS DOING SO.

ACCORDINGLY QUESTIONS NOS. 5 AND 6, INVOLVING QUESTIONS AS TO WHAT CONSTITUTES "THE FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS, AND PAY," AND THE MEANING OF THE PHRASE "A POSITION OF LIKE SENIORITY, STATUS, AND PAY"--- MATTERS RELATING TO STATUS--- LIKEWISE ARE FOR DETERMINATION BY THE ADMINISTRATIVE OFFICE AND/OR THE CIVIL SERVICE COMMISSION--- THIS OFFICE BEING INCLINED TO THE VIEW THAT THE PHRASE "LIKE SENIORITY, STATUS, AND PAY" IS SO CONNECTED WITH THE WORD "RESTORED" THAT IT IS INCAPABLE OF SEPARATE CONSIDERATION, AND FOR THE REASONS SET FORTH IN YOUR LETTER, A VETERAN CAN ONLY BE CONSIDERED AS HAVING BEEN "RESTORED" UNDER THE ACT WHEN HE HAS BEEN RESTORED TO HIS FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS, AND PAY.

THE HOLDING IN DECISION OF NOVEMBER 24, 1944, B-45646, 25 COMP. GEN. 410, THAT LEAVE COULD BE RECREDITED TO AN EMPLOYEE WHO MEETS THE CONDITIONS SET FORTH IN THE SELECTIVE TRAINING AND SERVICE ACT EVEN THOUGH HE WAS RESTORED IN AN AGENCY OTHER THAN THE ONE IN WHICH HE WAS EMPLOYED AT THE TIME HE ENTERED MILITARY SERVICE, WAS PREMISED UPON THE FACT THAT, AT THAT TIME, THIS OFFICE WAS NOT AWARE OF ANY DECISION RENDERED BY COMPETENT AUTHORITY UPON THE QUESTION WHETHER THE UNITED STATES GOVERNMENT IS TO BE REGARDED AS A SINGLE EMPLOYER FOR THE PURPOSE OF APPLYING SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, AS AMENDED, AND OTHER STATUTES IN PARI MATERIA, RELATING TO REEMPLOYMENT BENEFITS OF RETURNING VETERANS. THE DETERMINATION MADE BY THE CIVIL SERVICE COMMISSION--- SUBSEQUENT TO SAID DECISION--- IN SECTION R6-7, FEDERAL PERSONNEL MANUAL, QUOTED IN YOUR LETTER, TO THE EFFECT (1) THAT THE FEDERAL GOVERNMENT IS NOT TO BE CONSIDERED A SINGLE EMPLOYER FOR THE PURPOSE OF THE SELECTIVE TRAINING AND SERVICE ACT, ETC., RELATING TO REEMPLOYMENT BENEFITS, (2) THAT A VETERAN DOES NOT HAVE A MANDATORY RIGHT TO RESTORATION IN AN AGENCY OTHER THAN THE ONE HE LEFT TO ENTER MILITARY SERVICE, AND (3) THAT THE ACCEPTANCE OF EMPLOYMENT IN A DIFFERENT AGENCY DOES NOT CONSTITUTE RESTORATION UNDER THE LAW AND REGULATION, WILL BE REGARDED BY THIS OFFICE AS A DECISION BY COMPETENT AUTHORITY UPON THE THREE POINTS THERE INDICATED AND AS CONSTITUTING THE ANSWER TO QUESTION NO. 7. HENCE, THAT PART OF THE DECISION OF NOVEMBER 24, 1944, WHICH HOLDS THAT AN EMPLOYEE IS ENTITLED, BY VIRTUE OF THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT TO HAVE HIS UNLIQUIDATED ANNUAL LEAVE AND UNUSED SICK LEAVE RESTORED, AND TO COUNT SERVICE IN THE ARMED FORCES TOWARD AUTOMATIC PROMOTION UNDER THE ACT OF AUGUST 1, 1941, 55 STAT. 613, UPON HIS REEMPLOYMENT NOTWITHSTANDING HE WAS REEMPLOYED IN AN AGENCY OTHER THAN THE ONE FROM WHICH HE LEFT TO ENTER THE ARMED FORCES, NO LONGER WILL BE CONTROLLING. HOWEVER, IN THAT CONNECTION ANY ACTION HERETOFORE TAKEN UPON THE BASIS OF THAT DECISION IS NOT REQUIRED TO BE DISTURBED. OF COURSE, WHAT IS HERE STATED MUST NOT BE CONSTRUED AS IN ANY WISE AFFECTING THE RIGHT TO RECREDITING OF UNLIQUIDATED ANNUAL LEAVE UNDER THE PROVISIONS OF PUBLIC LAW 517 APPROVED APRIL 7, 1942, 56 STAT. 200, TO VETERANS UPON "THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE.'

IN THE LIGHT OF THE FOREGOING, NO ANSWERS TO QUESTIONS APPEARING IN CASES NO. (1) THROUGH (4) MAY BE RENDERED AT THIS TIME--- IT BEING FOR NOTING THAT THE RIGHTS OF THE VETERANS INVOLVED IN SAID CASES ARE DEPENDENT UPON A DETERMINATION BY THE ADMINISTRATIVE OFFICE UNDER THE INSTRUCTIONS OF THE CIVIL SERVICE COMMISSION AS TO WHETHER THERE HAS BEEN A RESTORATION UNDER SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, SUPRA. ..END