B-59243, AUGUST 5, 1946, 26 COMP. GEN. 91

B-59243, AUGUST 5, 1946, 26 COMP. GEN. 91

OFFICERS AND EMPLOYEES - REINSTATEMENT TO FORMER GRADE FOLLOWING REEMPLOYMENT IN LOWER GRADE AFTER MILITARY DUTY AN EMPLOYEE WHO, BECAUSE OF ADMINISTRATIVE MISUNDERSTANDING OR MISTAKE, WAS REEMPLOYED AFTER MILITARY DUTY IN A GRADE LOWER THAN THAT OF THE POSITION HE HELD UPON ENTERING THE ARMED FORCES IS NOT, BY THE MERE ACCEPTANCE OF SUCH EMPLOYMENT, TO BE CONSIDERED AS HAVING WAIVED HIS MANDATORY RIGHT UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, TO BE REINSTATED TO HIS FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS, AND PAY; HOWEVER, THE REINSTATEMENT IS EFFECTIVE ONLY FROM THE DATE OF CORRECTIVE ADMINISTRATIVE ACTION AND MAY NOT BE GIVEN RETROACTIVE EFFECT. AN EMPLOYEE WHO, BECAUSE OF HIS REEMPLOYMENT AFTER MILITARY DUTY AT THE MAXIMUM SALARY RATE OF A GRADE, CAF-5, LOWER THAN THAT, CAF-7, OF THE POSITION HELD UPON ENTERING THE ARMED FORCES, WAS PRECLUDED FROM RECEIVING A WITHIN-GRADE SALARY ADVANCEMENT TO WHICH HE OTHERWISE WOULD HAVE BEEN ENTITLED UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 ON THE BASIS OF MILITARY SERVICE IS ENTITLED, UPON REINSTATEMENT TO A POSITION IN HIS FORMER GRADE THE ENTRANCE SALARY OF WHICH IS THE SAME AS THE MAXIMUM OF THE LOWER GRADE, TO SUCH WITHIN GRADE ADVANCEMENT EFFECTIVE FROM THE DATE OF REINSTATEMENT IN THE FORMER GRADE.

COMPTROLLER GENERAL WARREN TO CECIL E. CUSTER, UNITED STATES CIVIL SERVICE COMMISSION, AUGUST 5, 1946:

REFERENCE IS MADE TO YOUR LETTER OF JULY 15, 1946 (FILE BF:GMF:HAW), AS FOLLOWS:

THERE IS ATTACHED A PAY ROLL COVERING PAYMENT FOR SALARY TO AN EMPLOYEE OF THE U.S. CIVIL SERVICE COMMISSION. THE FACTS IN THE CASE ARE AS FOLLOWS:

W. CLIFTON STONE, JR., AN EMPLOYEE OF THE FOURTH REGIONAL OFFICE OF THE U.S. CIVIL SERVICE COMMISSION, WAS INDUCTED INTO THE MILITARY SERVICE AND WAS PLACED ON MILITARY LEAVE WITHOUT PAY FOR AN INDEFINITE PERIOD, BEGINNING APRIL 7, 1944. JUST PRIOR TO ENTERING THE MILITARY SERVICE MR. STONE OCCUPIED THE POSITION OF RECRUITING REPRESENTATIVE, CAF-7, $2600 PER ANNUM. WHEN MR. STONE RETURNED FROM MILITARY SERVICE THE REGIONAL DIRECTOR DETERMINED THAT THERE WAS NO CAF-7 POSITION IN THE FOURTH REGIONAL OFFICE FOR WHICH MR. STONE WAS QUALIFIED, AND ACCORDINGLY RESTORED HIM ON APRIL 29, 1946 TO THE POSITION OF CIVIL SERVICE EXAMINER, CAF-5, $2980 PER ANNUM, THE TOP OF THE GRADE. THIS ACTION WAS TAKEN BY THE REGIONAL DIRECTOR NOTWITHSTANDING THE COMMISSION'S UNVARYING POLICY OF RESTORING AN EMPLOYEE UPON RETURN FROM MILITARY TO HIS FORMER POSITION, OR ONE OF LIKE SENIORITY, STATUS AND PAY. THE COMMISSION'S POLICY IS STATED IN ITS MANUAL OF INSTRUCTIONS, PAGE B3.13.051 AND IS AS FOLLOWS:

"UPON APPLICATION FOR RESTORATION AND THE FULFILLMENT OF ALL NECESSARY REQUIREMENTS FOR RESTORATION, THE RETURNING EMPLOYEE SHALL BE GIVEN ALL THE RIGHTS TO WHICH HE IS ENTITLED BY LAW AND REGULATION, INCLUDING THE RIGHT TO BE RESTORED TO HIS OLD JOB OR ONE OF LIKE SENIORITY, STATUS AND PAY.'

WHEN THE ACTION TAKEN BY THE REGIONAL DIRECTOR WAS REVIEWED IN THE PERSONNEL DIVISION OF THE CENTRAL OFFICE FOR CONFORMANCE WITH COMMISSION POLICY AND EXISTING LAWS AND REGULATIONS, IT WAS DISCOVERED THAT MR. STONE HAD BEEN RESTORED TO A POSITION IN A LOWER GRADE. AFTER MAKING A SURVEY, IT WAS DETERMINED THAT THERE WERE, AT THE TIME OF MR. STONE'S RETURN, AT LEAST TWO POSITIONS AS CIVIL SERVICE EXAMINER, CAF 7, WHICH WERE OCCUPIED BY NON-PREFERENCE EMPLOYEES FOR WHICH MR. STONE WAS QUALIFIED, AND TO WHICH HE COULD HAVE BEEN RESTORED. THE REGIONAL DIRECTOR WAS IMMEDIATELY INSTRUCTED TO EXECUTE A PERSONNEL ACTION GIVING IT RETROACTIVE EFFECT WITH THE HOPE THAT SINCE THE REGIONAL DIRECTOR HAD NOT COMPLIED WITH WRITTEN POLICY AND INSTRUCTIONS OF THE COMMISSION THE MISTAKE COULD BE RECTIFIED AND THE EMPLOYEE COULD BE RESTORED TO THE POSITION TO WHICH HE WAS ENTITLED AND GIVEN THE PERIODIC PAY INCREASE DUE HIM UPON RETURN FROM MILITARY SERVICE. ACTION WAS TAKEN ON MAY 20, 1946 TO PLACE MR. STONE IN THE POSITION OF CIVIL SERVICE EXAMINER, CAF-7, RETROACTIVELY TO APRIL 29, THE DATE OF HIS ACTUAL RETURN FROM MILITARY FURLOUGH. HE ALSO WAS GIVEN ONE PERIODIC PAY INCREASE WHICH RAISED HIS SALARY TO $3090, THE SECOND STEP IN GRADE CAF-7.

A COPY OF THE COMMISSION'S LETTER OF MAY 3, 1946 QUESTIONING THE REGIONAL DIRECTOR'S ACTION, AND A COPY OF HIS REPLY THERETO IS ATTACHED. THE COMMISSION ORALLY DIRECTED THE REGIONAL DIRECTOR TO RESTORE MR. STONE TO A CAF-7 POSITION.

SINCE IT APPEARS THAT THE FIRST ACTION TAKEN IN RESTORING MR. STONE TO THE POSITION WAS NOT IN ACCORDANCE WITH THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, 50 U.S.C. 308, WHICH REQUIRES THAT AN EMPLOYEE BE RESTORED TO THE POSITION HE HELD PRIOR TO HIS ENTRANCE IN THE ARMED FORCES, OR TO A POSITION OF LIKE SENIORITY, STATUS AND PAY, YOUR DECISION IS REQUESTED AS TO WHETHER RETROACTIVE ACTION COULD BE TAKEN WHICH WOULD RESTORE HIM TO A POSITION OF LIKE SENIORITY, STATUS AND PAY.

IT IS REQUESTED THAT YOU ADVISE THIS OFFICE WHETHER THE ATTACHED PAY ROLL MAY BE CERTIFIED WHICH GIVES THE EMPLOYEE THE DIFFERENCE IN SALARY BETWEEN CAF-5, $2980 AND CAF-7, $3090 FROM THE TIME HE WAS RESTORED TO DUTY IN THE CAF-5 POSITION, OR FROM APRIL 29 TO MAY 20, WHEN ACTION WAS TAKEN RESTORING MR. STONE TO THE CAF-7 POSITION.

IN DECISION OF JANUARY 5, 1946, B-54166, 25 COMP. GEN. 495, AFTER QUOTING THE APPLICABLE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT, 58 STAT. 798, WITHIN-GRADE PROMOTION LAW, 59 STAT. 299, AND REGULATIONS, IT WAS STATED AS FOLLOWS:

AS IT IS INDICATED IN YOUR LETTER THAT THE EMPLOYEE INVOLVED HAS COMPLIED WITH ALL THE TERMS AND CONDITIONS PROVIDED FOR IN THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, SUPRA, HE IS ENTITLED TO BE RESTORED TO THE POSITION HE HELD PRIOR TO HIS ENTRANCE IN THE ARMED FORCES OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY. MOREOVER, UPON RESTORATION TO SUCH POSITION, HE WOULD BE ENTITLED TO WITHIN GRADE SALARY ADVANCEMENTS AS PROVIDED FOR IN THE FEDERAL EMPLOYEES PAY ACT OF 1945, SUPRA. IN THE EVENT SUCH EMPLOYEE BE REEMPLOYED IN A POSITION OF LOWER SENIORITY, STATUS, OR PAY, AS PROPOSED IN YOUR LETTER, HE ALSO WOULD BE ENTITLED TO ALL WITHIN-GRADE SALARY ADVANCEMENTS WHICH ACCRUED TO HIS BENEFIT BY REASON OF HIS SERVICE IN THE ARMED FORCES. HOWEVER, IN THE INSTANT CASE, IT IS PROPOSED TO REEMPLOY THE RETURNED VETERAN IN A POSITION OF A LOWER GRADE THAN THAT FORMERLY HELD BY HIM BUT AT THE MAXIMUM SALARY RATE PROVIDED FOR IN THAT GRADE. IN THAT EVENT, IT CORRECTLY IS STATED IN YOUR LETTER THAT HE CANNOT RECEIVE THE AUTOMATIC PROMOTION IN VIEW OF THE SPECIFIC PROVISION OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, SUPRA, WHICH EXCLUDES FROM ITS PURVIEW EMPLOYEES WHO HAVE "ATTAINED THE MAXIMUM RATE OF COMPENSATION FOR THE GRADE.'

IT FOLLOWS, THEREFORE, THAT ALTHOUGH THE EMPLOYEE HERE INVOLVED APPEARS TO BE ENTITLED UNDER EXPRESS PROVISIONS OF LAW TO REEMPLOYMENT IN HIS FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS, AND PAY, YET IF HE ACTUALLY IS REEMPLOYED, AS PROPOSED BY YOU, AT THE MAXIMUM RATE IN A LOWER GRADE (CAF-12, $6,020 PER ANNUM), HE MAY NOT BE GRANTED THE WITHIN-GRADE SALARY ADVANCEMENTS TO WHICH HE OTHERWISE WOULD BE ENTITLED. FURTHERMORE, YOUR PROPOSAL TO EFFECT A TEMPORARY APPOINTMENT OF THIS EMPLOYEE AT THE MAXIMUM RATE OF CAF-12 WITH THE VIEW TO REINSTATING HIM TO HIS FORMER GRADE AT A LATER DATE ALSO WOULD OPERATE TO DEFEAT HIS RIGHT TO AN AUTOMATIC PROMOTION UPON SUCH REINSTATEMENT FOR THE REASON THAT SUCH REINSTATEMENT TO HIS FORMER GRADE WOULD CONSTITUTE A PROMOTION WITH A RESULTANT "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THOSE WORDS AS USED IN THE FEDERAL EMPLOYEES PAY ACT OF 1945, SUPRA. SEE 21 COMP. GEN. 285, ID. 369.

YOUR LETTER INDICATES THAT THE EMPLOYEE MET ALL THE STATUTORY CONDITIONS ENTITLING HIM TO REEMPLOYMENT UPON HIS DISCHARGE FROM THE MILITARY SERVICE, AND THUS, UNDER THE APPLICABLE LAWS AND REGULATIONS HE WAS ENTITLED TO RESTORATION IN HIS FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS, AND PAY, AND TO ANY AUTOMATIC PROMOTIONS WHICH ACCRUED TO HIS BENEFIT BY REASON OF HIS SERVICE IN THE ARMED FORCES. HOWEVER, IT APPEARS THAT THROUGH NO FAULT OF HIS OWN, HE WAS RESTORED TO THE TOP STEP OF A POSITION IN A GRADE LOWER THAN THE ONE HELD AT THE TIME HE ENTERED THE MILITARY SERVICE, AND UNDER THE RULE STATED IN 25 COMP. GEN. 495, SUPRA, HE WAS PRECLUDED FROM RECEIVING THE WITHIN-GRADE PROMOTION TO WHICH HE OTHERWISE WOULD HAVE BEEN ENTITLED. SINCE THE VETERAN NOW HAS BEEN REINSTATED TO A POSITION OF THE SAME GRADE AS THE ONE HELD BY HIM UPON HIS ENTRY INTO THE ARMED FORCES, IT IS PROPOSED TO ALLOW HIM FOR THE PERIOD APRIL 29 TO MAY 18, 1946, THE DIFFERENCE BETWEEN THE RATE AT WHICH HE WAS RESTORED ON APRIL 29 ($2,980 PER ANNUM) AND THE RATE AT WHICH HE WAS REINSTATED ON MAY 20 ($3,090 PER ANNUM), THE DIFFERENCE OF $110 BEING THE RESULT OF A WITHIN-GRADE PROMOTION ALLOWED PURSUANT TO THE PROVISIONS OF SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, 59 STAT. 299.

WHERE AN EMPLOYEE IS RESTORED TO A POSITION IN A GRADE LOWER THAN THAT HELD BY HIM AT THE TIME OF HIS ENTRANCE INTO MILITARY SERVICE, HE IS NOT CONSIDERED TO HAVE WAIVED THE MANDATORY RIGHT OF RESTORATION TO HIS FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS AND PAY, IN THE ABSENCE OF CLEAR AND POSITIVE EVIDENCE OF SUCH WAIVER. WHERE IT APPEARS--- AS HERE--- THAT THE RESTORATION TO A POSITION IN A LOWER GRADE WAS DUE TO AN ADMINISTRATIVE MISUNDERSTANDING OR MISTAKE, THE RETURNED VETERAN CANNOT BE SAID TO HAVE WAIVED THE RESTORATION RIGHTS TO WHICH HE IS ENTITLED UNDER EXPRESS PROVISIONS OF LAW BY THE MERE ACCEPTANCE OF SUCH EMPLOYMENT PARTICULARLY WHERE, AS HERE, THE ERROR HAS BEEN CORRECTED BY THE ADMINISTRATIVE OFFICE WITHOUT UNREASONABLE DELAY. UNDER SUCH CIRCUMSTANCES, THE EMPLOYEE IS ENTITLED TO BE REINSTATED TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY; HOWEVER, THE REINSTATEMENT IS EFFECTIVE ONLY FROM THE DATE OF SUCH ACTION, AND LEGALLY MAY NOT BE GIVEN A RETROACTIVE EFFECT. MOREOVER, THE RIGHT TO AUTOMATIC PROMOTION UPON REINSTATEMENT TO SUCH POSITION IS NOT DEFEATED BY THE ORIGINAL RESTORATION TO A LOWER GRADE, UNLESS THE REINSTATEMENT IS SUCH AS TO CONSTITUTE A PROMOTION WITH A RESULTING "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THOSE WORDS AS USED IN THE FEDERAL EMPLOYEES PAY ACT OF 1945, IN WHICH EVENT THE PERIOD OF SERVICE REQUIRED TO ENTITLE THE EMPLOYEE TO A WITHIN-GRADE ADVANCEMENT WOULD BEGIN TO RUN AS OF THE DATE OF SUCH PROMOTION. 25 COMP. GEN. 495.

IN THE INSTANT CASE, AS THE COMPENSATION PAYABLE AT THE TOP OF THE GRADE TO WHICH THE EMPLOYEE WAS RESTORED (CAF-5, $2,980 PER ANNUM) IS IDENTICAL WITH THAT PAYABLE FOR THE FIRST STEP IN GRADE CAF-7, TO WHICH HE WAS REINSTATED LATER, NO EQUIVALENT INCREASE IN COMPENSATION WAS RECEIVED THROUGH SUCH ACTION. ACCORDINGLY, UPON REINSTATEMENT TO GRADE CAF-7, THE EMPLOYEE BECAME ENTITLED TO THE WITHIN-GRADE PROMOTION IN ACCORDANCE WITH THE STATUTORY PROVISIONS, EFFECTIVE FROM THE DATE OF HIS REINSTATEMENT, OR MAY 20, 1946--- THERE BEING NO LAW OR REGULATION WHICH PERMITS RETROACTIVE PAYMENT OF A WITHIN-GRADE PROMOTION UNDER THE CONDITIONS HERE INVOLVED.

IN THE LIGHT OF THE ABOVE, THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.