B-61874, JANUARY 20, 1947, 26 COMP. GEN. 506

B-61874: Jan 20, 1947

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HELD WAR SERVICE INDEFINITE APPOINTMENTS IN UNCLASSIFIED POSITIONS WITH COMPENSATION AT PER DIEM RATES ARE ENTITLED. DECENNIAL CENSUS PER DIEM EMPLOYEES ON MILITARY FURLOUGH WHOSE UNCLASSIFIED POSITIONS WERE NOT CONVERTED DURING MILITARY SERVICE TO POSITIONS UNDER THE CLASSIFICATION ACT PRIOR TO JULY 1. - AS WAS DONE IN THE CASE OF EMPLOYEES REMAINING ON CIVILIAN DUTY. ARE NOT ENTITLED AS A MATTER OF RIGHT. AN EMPLOYEE WHO WAS RECEIVING THE SIXTH OR NEXT-TO-LAST SALARY RATE IN HIS GRADE (CAF-3) WHEN HE ENTERED MILITARY SERVICE IN 1944. WAS ENTITLED. EVEN THOUGH HE WOULD HAVE BEEN LIMITED TO ONE SUCH ADVANCEMENT HAD HE BEEN RESTORED IN HIS FORMER GRADE. AS FOLLOWS: REFERENCE IS MADE TO SECTION 402.

B-61874, JANUARY 20, 1947, 26 COMP. GEN. 506

COMPENSATION - WITHIN-GRADE ADVANCEMENTS; INITIAL SALARY RATES - UNCLASSIFIED EMPLOYEES REEMPLOYED IN CLASSIFIED POSITIONS AFTER MILITARY SERVICE; ETC. DECENNIAL CENSUS EMPLOYEES WHO, AT THE TIME OF ENTRY UPON MILITARY DUTY, HELD WAR SERVICE INDEFINITE APPOINTMENTS IN UNCLASSIFIED POSITIONS WITH COMPENSATION AT PER DIEM RATES ARE ENTITLED, UPON RESTORATION, REINSTATEMENT, OR REEMPLOYMENT IN PERMANENT POSITIONS UNDER THE CLASSIFICATION ACT AFTER MILITARY DUTY, TO COUNT MILITARY SERVICE AND CREDITABLE PRIOR CIVILIAN SERVICE TOWARD OTHERWISE PROPER WITHIN-GRADE SALARY ADVANCEMENTS UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. DECENNIAL CENSUS PER DIEM EMPLOYEES ON MILITARY FURLOUGH WHOSE UNCLASSIFIED POSITIONS WERE NOT CONVERTED DURING MILITARY SERVICE TO POSITIONS UNDER THE CLASSIFICATION ACT PRIOR TO JULY 1, 1945--- THE EFFECTIVE DATE OF COMPENSATION INCREASES PRESCRIBED FOR CLASSIFICATION ACT EMPLOYEES BY THE FEDERAL EMPLOYEES PAY ACT OF 1945--- AS WAS DONE IN THE CASE OF EMPLOYEES REMAINING ON CIVILIAN DUTY, ARE NOT ENTITLED AS A MATTER OF RIGHT, UPON EMPLOYMENT FOR THE FIRST TIME IN CLASSIFICATION ACT POSITIONS AFTER MILITARY SERVICE, TO AN INITIAL SALARY RATE EXCEEDING THE PER ANNUM EQUIVALENT OF THEIR FORMER RATE, PLUS WITHIN-GRADE ADVANCEMENTS UNDER SECTION 402 OF SAID 1945 ACT BASED UPON MILITARY AND CREDITABLE PRIOR CIVILIAN SERVICE. WHERE, IN THE CASE OF DECENNIAL CENSUS EMPLOYEES EMPLOYED IN UNCLASSIFIED POSITIONS AT PER DIEM RATES PRIOR TO MILITARY SERVICE, THE DIFFERENCE BETWEEN THE PER ANNUM EQUIVALENT OF THEIR FORMER RATES AND THE MINIMUM RATES (INCLUDING INCREASES PRESCRIBED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945) OF THE CLASSIFICATION ACT GRADES TO WHICH ASSIGNED AFTER MILITARY DUTY CONSTITUTES AN ,EQUIVALENT INCREASE" IN COMPENSATION WITHIN THE MEANING OF THE WITHIN-GRADE SALARY-ADVANCEMENT PROVISIONS OF SECTION 402 OF THE 1945 ACT, MILITARY SERVICE AND PRIOR CIVILIAN SERVICE MAY NOT BE CREDITED TOWARDS WITHIN-GRADE ADVANCEMENTS BASED UPON THE SALARY AND GRADE TO WHICH ASSIGNED. AN EMPLOYEE WHO WAS RECEIVING THE SIXTH OR NEXT-TO-LAST SALARY RATE IN HIS GRADE (CAF-3) WHEN HE ENTERED MILITARY SERVICE IN 1944, WAS ENTITLED, UPON REEMPLOYMENT ON JULY 1, 1946, AFTER MILITARY SERVICE, IN THE NEXT HIGHER GRADE (CAF-4), TO A SALARY RATE GIVING HIM THE BENEFIT OF HIS FORMER RATE (THE THIRD RATE IN GRADE CAF-4) AS INCREASED BY THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946, PLUS TWO WITHIN-GRADE ADVANCEMENTS ACCRUING UNDER SECTION 402 OF THE 1945 ACT ON THE BASIS OF MILITARY AND CREDITABLE PRIOR CIVILIAN SERVICE, EVEN THOUGH HE WOULD HAVE BEEN LIMITED TO ONE SUCH ADVANCEMENT HAD HE BEEN RESTORED IN HIS FORMER GRADE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, JANUARY 20, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 8, 1946, AS FOLLOWS:

REFERENCE IS MADE TO SECTION 402, SUBSECTION B-4 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND ITS POSSIBLE APPLICATION TO WAR SERVICE INDEFINITE EMPLOYEES OF THE BUREAU OF THE CENSUS WHO ENTERED MILITARY SERVICE FROM UNCLASSIFIED POSITIONS ON THE SIXTEENTH DECENNIAL CENSUS ROLLS, WHERE COMPENSATION WAS AT PER DIEM EVERY DAY RATES, AND WHO, UPON RESTORATION TO DUTY AFTER MILITARY FURLOUGH, ARE ASSIGNED TO POSITIONS UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED.

OF THE SEVERAL HUNDRED EMPLOYEES THE CENSUS BUREAU HAS CARRIED IN A MILITARY FURLOUGH STATUS, THE MAJORITY WERE DECENNIAL CENSUS EMPLOYEES WHO LEFT UNCLASSIFIED POSITIONS. AS A LARGE PROPORTION OF THAT BUREAU'S POSITIONS ARE NOW SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, THE EMPLOYEE, UPON RESTORATION, ENTERS A CLASSIFIED POSITION FOR THE FIRST TIME.

SECTION 6 OF THE CLASSIFICATION ACT OF 1923 PROVIDES THAT "ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.' IT HAS BEEN HELD, HOWEVER, IN SUBSEQUENT DECISIONS RENDERED BY YOU, THAT THE TERM "NEW APPOINTMENTS" APPEARING IN THIS PROVISION DOES NOT INCLUDE REINSTATEMENTS, REAPPOINTMENTS, OR TRANSFERS OF FEDERAL PERSONNEL, WHETHER THE PRIOR EMPLOYMENT WAS WITHIN THE PURVIEW OF THE CLASSIFICATION ACT OR NOT, AND THAT SUCH AN EMPLOYEE MAY BE PAID INITIALLY AT ANY RATE IN THE SALARY RANGE OF THE GRADE FOR THE POSITION TO WHICH REAPPOINTED WHICH DOES NOT EXCEED THE RATE RECEIVED AT THE TIME OF HIS LAST SEPARATION FROM THE SERVICE * * * EXCEPT WHEN AN INCREASE OVER THIS RATE IS NECESSARY IN ORDER TO PAY THE MINIMUM OF THE GRADE TO WHICH REAPPOINTED.

SECTION 402, SUBSECTION B-4 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 READS, IN PART," * * * ANY EMPLOYEE WHO, WHILE SERVING UNDER PERMANENT, WAR SERVICE, TEMPORARY, OR ANY OTHER TYPE OF APPOINTMENT, HAS LEFT HIS POSITION TO ENTER THE ARMED FORCES * * * WHO HAS BEEN SEPARATED UNDER HONORABLE CONDITIONS FROM ACTIVE DUTY IN THE ARMED FORCES * * * AND 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 BE ENTITLED TO WITHIN-GRADE SALARY ADVANCEMENTS WITHOUT REGARD TO PARAGRAPHS (2) AND (3), AND TO CREDIT SUCH SERVICE IN THE ARMED FORCES TOWARD SUCH WITHIN-GRADE SALARY ADVANCEMENTS, * * *"

IT IS DESIRED TO KNOW IF THE WORDING "OR ANY OTHER TYPE OF APPOINTMENT" CAN BE CONSTRUED AS APPLYING TO DECENNIAL CENSUS APPOINTMENTS IN UNCLASSIFIED POSITIONS, WITH COMPENSATION AT PER DIEM EVERY DAY RATES, AND IF AN EMPLOYEE WHO HAD HELD SUCH AN APPOINTMENT, ENTERING A POSITION UNDER THE CLASSIFICATION ACT FOR THE FIRST TIME UPON RESTORATION TO DUTY AFTER MILITARY FURLOUGH, MAY COUNT THE FURLOUGH PERIOD TOWARD AUTOMATIC PAY INCREASES TO BE GRANTED AT THE TIME OF ENTRY INTO THE CLASSIFIED POSITION; OR IF THE ENTRANCE SALARY MUST BE AT A RATE NOT IN EXCESS OF THE RATE RECEIVED IN THE LAST PRIOR POSITION, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6 OF THE CLASSIFICATION ACT, REFERRED TO.

FOLLOWING ARE SPECIFIC CASES IN QUESTION.

CASE I

(A) EMPLOYEE A ENTERED ON DUTY JUNE 30, 1942 UNDER A WAR SERVICE INDEFINITE APPOINTMENT, IN AN UNGRADED POSITION AS A JUNIOR STATISTICIAN AT $5.48 PER DIEM EVERY DAY (EQUIVALENT TO $2,000 PER ANNUM);

(B) WAS PLACED ON LEAVE WITHOUT PAY--- MILITARY FURLOUGH--- DECEMBER 3, 1942;

(C) WAS HONORABLY DISCHARGED FROM MILITARY SERVICE, AND RETURNED TO DUTY MAY 27, 1946, IN A GRADED POSITION AS AN ECONOMIC ANALYST, P 1, AT $2,320 PER ANNUM, THE MINIMUM OF THE GRADE.

QUESTION 1: SHOULD THE EMPLOYEE HAVE BEEN RESTORED AT THE THIRD STEP IN THE GRADE, TO INCLUDE PERIODIC PAY INCREASES AS OF JANUARY 1, 1944 AND JULY 1, 1945?

QUESTION 2: SHOULD THE EMPLOYEE, AS WAS DONE, HAVE BEEN PLACED IN THE CLASSIFIED POSITION AT A SALARY NOT IN EXCESS OF THAT RECEIVED IN HIS LAST PRIOR POSITION?

CASE II

(A) EMPLOYEE B ENTERED ON DUTY UNDER A TEMPORARY DECENNIAL CENSUS APPOINTMENT ON JANUARY 16, 1940, AS A CLERK AT $3.95 PER DIEM EVERYDAY ($1,440 PER ANNUM) AND WAS PROMOTED ON APRIL 16, 1940, FROM $3.95 PD. ED. TO $4.27 PD. ED. ($1,560 PER ANNUM);

(B)WAS PLACED ON LEAVE WITHOUT PAY--- MILITARY FURLOUGH--- JANUARY 19, 1942;

(C) WAS GIVEN, IN ABSENTIA, A CONVERSION OF HIS LIMITED APPOINTMENT TO WAR SERVICE INDEFINITE ON JANUARY 1, 1943;

(D) WAS HONORABLY DISCHARGED FROM MILITARY SERVICE OCTOBER 21, 1945, AND RETURNED TO DUTY JANUARY 7, 1946, IN A GRADED POSITION AS A CLERK, CAF-3, $1,902 PER ANNUM.

QUESTION 1: IN THE RESTORATION OF THE EMPLOYEE AT A HIGHER SALARY WITH ADVANCEMENT FROM $4.27 PD. ED. ($1,500 PER ANNUM) TO $1,902 ($1,620 UNDER OLD RATES), WAS THERE AN "EQUIVALENT INCREASE" AS THAT TERM IS USED IN SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND IS THE EMPLOYEE, THEREFORE, NOT ENTITLED TO CREDIT FOR THE PERIOD OF MILITARY SERVICE TOWARD WITHIN-GRADE PROMOTIONS?

QUESTION 2: SHOULD THE EMPLOYEE BE GRANTED SALARY INCREASES AS OF APRIL 1, 1943, OCTOBER 1, 1944, AND OCTOBER 7, 1945, BASED UPON THE PERIOD OF MILITARY SERVICE 1 JANUARY 19, 1942--- OCTOBER 23, 1945) PLUS SUCH PRIOR CIVILIAN SERVICE AS IS NECESSARY TO COMPLETE ONE WAITING PERIOD?

CASE III

(A) EMPLOYEE C ENTERED ON DUTY SEPTEMBER 1, 1939 UNDER A TEMPORARY DECENNIAL CENSUS APPOINTMENT AS CLERK AT $3.95 PER DIEM EVERY DAY; WAS PROMOTED TO $4.11 PD. ED. ($1,500 PER ANNUM) ON APRIL 16, 1940; WAS MADE AN ASSISTANT SECTION CHIEF AT $4.44 PD. ED. ($1,620 PER ANNUM) ON SEPTEMBER 16, 1940; AND WAS PROMOTED TO SECTION CHIEF ON DECEMBER 16, 1940, WITH AN INCREASE FROM $4.44 PD. ED. ($1,620 PER ANNUM) TO $4.94 PD. ED. ($1,800 PER ANNUM);

(B) WAS PLACED ON LEAVE WITHOUT PAY--- MILITARY FURLOUGH--- MARCH 20, 1941;

(C) WAS HONORABLY DISCHARGED FROM MILITARY SERVICE FEBRUARY 11, 1946, AND RETURNED TO DUTY FEBRUARY 27, 1946, IN A GRADED POSITION AS CLERK, CAF-4, AT $2,100 PER ANNUM.

QUESTION 1: SHOULD THE EMPLOYEE HAVE BEEN RESTORED WITH SALARY INCREASES AS OF JULY 1, 1942, JANUARY 1, 1944, AND JULY 1, 1945, BASED UPON ALL MILITARY AND CIVILIAN SERVICE SINCE DECEMBER 16, 1940, THE DATE OF LAST SALARY INCREASE?

QUESTION 2: SHOULD THE EMPLOYEE, WHEN RESTORED IN A CLASSIFIED POSITION, HAVE BEEN GIVEN A SALARY RATE, AS WAS DONE, NOT IN EXCESS OF THAT RECEIVED IN THE LAST PRIOR POSITION?

CASE IV

(A) EMPLOYEE D ENTERED ON DUTY AUGUST 14, 1940 UNDER A TEMPORARY DECENNIAL CENSUS APPOINTMENT AS SORTING MACHINE OPERATOR AT $3.95 PER DIEM EVERY DAY ($1,440 PER ANNUM). HE WAS PROMOTED JANUARY 1, 1941 TO ASSISTANT SECTION CHIEF AT $4.44 PER DIEM EVERY DAY ($1,620 PER ANNUM); ON MARCH 1, 1947 TO SECTION CHIEF AT $4.94 PD. ED. ($1,800 PER ANNUM); ON FEBRUARY 9, 1942 WAS REAPPOINTED AS SORTING MACHINE OPERATOR (PROBATIONAL INDEFINITE) AT $3.95 PD. ED.; ON MARCH 9, 1942 RESTORED TO A POSITION AS SECTION CHIEF AT $4.94 PD. ED.; ON JUNE 24, 1942 PROMOTED TO $5.10 PD. ED. ($1,860 PER ANNUM); ON NOVEMBER 9, 1942 TO $5.26 PD. ED. ($1,920 PER ANNUM); AND ON JULY 1, 1943 WAS REAPPOINTED AS OPERATOR SORTING MACHINE, CAF-3, AT $1,920 PER ANNUM;

(B) WAS PLACED ON LEAVE WITHOUT PAY--- MILITARY FURLOUGH--- JANUARY 11, 1944;

(C) WAS HONORABLY DISCHARGED FROM MILITARY SERVICE JUNE 25, 1946, AND RETURNED TO DUTY ON JULY 1, 1946, AS OPERATOR, TABULATING EQUIPMENT, CAF- 4, $2,619.72 PER ANNUM (THIS RATE EQUIVALENT TO HIS FORMER SALARY OF $1,920 PER ANNUM PLUS A ONE-STEP SALARY INCREASE, AS OF JULY 1, 1944, TO $1,980 PER ANNUM, THE MAXIMUM OF THE CAF-3 GRADE HELD BY HIM PRIOR TO HIS RETURN TO DUTY).

QUESTION 1: SHOULD THE EMPLOYEE HAVE BEEN RESTORED WITH AN ADDITIONAL ONE -STEP INCREASE, AS OF JULY 1, 1945, TO A RATE BEYOND THAT WHICH COULD HAVE BEEN GIVEN HIM HAD HE BEEN RESTORED TO THE LOWER GRADE FROM WHICH HE ENTERED MILITARY SERVICE?

QUESTION 2: WAS THE RATE EQUIVALENT TO THE MAXIMUM OF THE LOWER GRADE TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN PROMOTED UPON RESTORATION TO DUTY, THE CORRECT RATE FOR USE IN THIS CASE?

IN CONNECTION WITH THE ABOVE, ATTENTION IS CALLED TO THE FACT THAT ALL DECENNIAL CENSUS EMPLOYEES REMAINED IN THE "PER DIEM EVERY DAY" POSITIONS THROUGH JUNE 30, 1943, AND THOSE RETAINED IN A DUTY STATUS AFTER THAT DATE WERE PLACED IN CLASSIFIED POSITIONS ON JULY 1, 1943. NONE OF THOSE PLACED IN CLASSIFIED POSITIONS ON THAT DATE WERE CONSIDERED TO HAVE SATISFIED THE REQUIREMENTS FOR, OR WERE GRANTED, SALARY INCREASES UNDER THE MEAD- RAMSPECK ACT, UNTIL APRIL 1, 1944, WHEN SUCH INCREASES WERE GRANTED TO EMPLOYEES ELIGIBLE AT THAT TIME.

YOUR DECISION IN THESE CASES WOULD BE APPRECIATED, IN ORDER THAT SALARIES GRANTED TO VETERANS ALREADY RESTORED TO THE ROLLS OF THE CENSUS BUREAU MAY BE ADJUSTED, IF SUCH ADJUSTMENTS ARE NECESSARY, AND THAT THE BUREAU MAY BE GUIDED AS TO FUTURE CASES. IN THIS CONNECTION, IT IS DESIRED TO KNOW WHETHER THERE IS ANY DOUBT OF THE VALIDITY OF RETROACTIVE CORRECTION OF SALARIES WHICH MAY ALREADY HAVE BEEN FIXED ERRONEOUSLY FOR VETERANS RESTORED UNDER THE CIRCUMSTANCES OUTLINED ABOVE. AS A MATTER OF POLICY, THE DEPARTMENT OF COMMERCE IS VERY ANXIOUS TO ACCORD THE FULL BENEFIT OF WITHIN-GRADE SALARY INCREASES TO THE AFOREMENTIONED VETERANS, IN KEEPING WITH THE SPIRIT AS WELL AS THE LETTER OF APPLICABLE LAWS AND REGULATIONS.

THE GENERAL QUESTION PRESENTED IN THE FIFTH PARAGRAPH OF YOUR LETTER IS SIMILAR TO THAT INVOLVED IN DECISION OF APRIL 30, 1946, B-54234, TO YOUR PREDECESSOR, WHICH DECISION HELD THAT WHILE TEMPORARY DECENNIAL CENSUS EMPLOYEES, APPOINTED IN ACCORDANCE WITH CIVIL SERVICE REGULATIONS AT PER DIEM RATES WHO ARE RESTORED TO PERMANENT POSITIONS UNDER THE CLASSIFICATION ACT UPON RETURN FROM MILITARY SERVICE MAY NOT BE ADMINISTRATIVELY PROMOTED RETROACTIVELY WITHIN THE APPROPRIATE GRADE AT SALARIES WHICH THEY MIGHT HAVE HELD ON JULY 1, 1943, HAD THEY NOT ENTERED THE ARMED FORCES, THEY WERE ENTITLED TO BE CREDITED WITH TIME SPENT IN THE ARMED FORCES TOWARDS AUTOMATIC WITHIN-GRADE SALARY ADVANCEMENTS.

THE WAR SERVICE INDEFINITE EMPLOYEES HERE INVOLVED ARE IN NO DIFFERENT STATUS WITH RESPECT TO AUTOMATIC SALARY ADVANCEMENTS UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, FROM THAT OF DECENNIAL CENSUS EMPLOYEES WHO WERE THE SUBJECT OF THE DECISION OF APRIL 30, 1946, SUPRA, AND ARE, SUBJECT TO APPLICABLE WITHIN-GRADE PROMOTION REGULATIONS, ENTITLED TO COUNT MILITARY SERVICE, AS WELL AS CIVILIAN SERVICE PRIOR TO ENTRY INTO THE ARMED FORCES, TOWARDS AUTOMATIC WITHIN- GRADE SALARY ADVANCEMENTS UPON BEING RESTORED, REINSTATED, OR REEMPLOYED IN A POSITION UNDER THE CLASSIFICATION ACT, AS AMENDED. SEE THE REGULATIONS OF THE CIVIL SERVICE COMMISSION AND DECISIONS OF THIS OFFICE CITED AND QUOTED IN THE DECISION OF APRIL 30, 1946. ALSO, COMPARE 25 COMP. GEN. 620, ANSWER TO QUESTION 3.

IT IS UNDERSTOOD THAT THE POSITIONS OF THE EMPLOYEES HERE INVOLVED WERE NOT ACTUALLY CONVERTED INTO POSITIONS UNDER THE CLASSIFICATION ACT PRIOR TO JULY 1, 1945, BUT THAT THE EMPLOYEES WERE ASSIGNED OR TRANSFERRED TO GRADES UNDER THAT ACT UPON THEIR RETURN FROM MILITARY SERVICE.

IN DECISION OF JUNE 5, 1946, 25 COMP. GEN. 830, IT WAS HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

WHERE ADMINISTRATIVE ACTION WAS NOT TAKEN EITHER TO CONVERT THE POSITIONS OF EMPLOYEES ON MILITARY FURLOUGH FROM GRADES UNDER THE SALARY SCHEDULES PRESCRIBED BY EXECUTIVE ORDER NO. 6746 TO CLASSIFICATION ACT GRADES, OR TO INCREASE THE RATES THEREOF PURSUANT TO THE FORMULA SET FORTH IN SECTION 405 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR CLASSIFICATION ACT EMPLOYEES, THE MAXIMUM INITIAL SALARY TO WHICH THE EMPLOYEES ARE ENTITLED, UPON RESTORATION AFTER MILITARY SERVICE IN SIMILAR CLASSIFICATION ACT POSITIONS, MUST BE AT RATES WHICH MOST NEARLY EQUAL, BUT DO NOT EXCEED, THE RATES RECEIVED IN THEIR FORMER EXECUTIVE ORDER POSITIONS PLUS THE BENEFIT OF WITHIN GRADE PROMOTIONS AND REALLOCATIONS. 25 COMP. GEN. 230, DISTINGUISHED.

ALSO, SEE B-55971, DATED APRIL 11, 1946.

UNDER THAT RULING THE PERCENTAGE INCREASES IN COMPENSATION GRANTED BY THE AMENDMENTS TO SECTION 13 OF THE CLASSIFICATION ACT OF 1923, BY THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946 ARE NOT FOR APPLICATION IN DETERMINING THE INITIAL SALARY RATE OF EMPLOYEES TRANSFERRED OR ASSIGNED TO POSITIONS UNDER THE CLASSIFICATION ACT FOR THE FIRST TIME UPON RETURN FROM MILITARY SERVICE AND WHOSE POSITIONS WERE NOT CONVERTED TO GRADES UNDER THAT ACT PRIOR TO JULY 1, 1945, THE EFFECTIVE DATE OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. THE SALARY RATES OF THE POSITIONS TO WHICH THE EMPLOYEES ARE ASSIGNED MAY NOT EXCEED THE PER ANNUM EQUIVALENT OF THE COMPENSATION THEY WERE RECEIVING AT THE TIME OF ENTRY INTO THE MILITARY SERVICE, TO WHICH THERE MUST BE ADDED THE AUTOMATIC WITHIN-GRADE SALARY ADVANCEMENTS UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. APPLYING THAT FORMULA TO THE ILLUSTRATIONS SET FORTH IN CASES I, II, AND III OF YOUR LETTER, EMPLOYEE A WOULD BE ENTITLED TO BE ASSIGNED AS A MATTER OF RIGHT TO A SALARY OF $1,968 PER ANNUM UNDER THE CLASSIFICATION ACT, WHICH SALARY FALLS WITHIN THE SALARY RANGE OF CAF-3, OR SP-4, PLUS TWO WITHIN-GRADE SALARY ADVANCEMENTS--- ASSUMING OF COURSE THE EMPLOYEE HAD NO CREDITABLE CIVILIAN SERVICE PRIOR TO JUNE 30, 1942--- OR A TOTAL OF $2,100 PER ANNUM; EMPLOYEE B TO A SALARY OF $1,506 PER ANNUM, IN CAF-1 UNDER THE CLASSIFICATION ACT, PLUS TWO WITHIN-GRADE SALARY ADVANCEMENTS ( JANUARY 19, 1942, TO JANUARY 7, 1946/--- NO CREDIT FOR PRIOR CIVILIAN SERVICE BEING ALLOWABLE BECAUSE RESTORATION WAS NOT MADE WITHIN 30 DAYS FROM DISCHARGE--- OR $1,638 PER ANNUM,; AND EMPLOYEE C, TO A SALARY OF $1,770 PER ANNUM IN CAF-2, PLUS THREE WITHIN-GRADE SALARY ADVANCEMENTS ( DECEMBER 16, 1940, DATE OF LAST EQUIVALENT INCREASE OF COMPENSATION, TO FEBRUARY 27, 1946), OR $1,968 PER ANNUM. FOR COMPUTATION OF MILITARY AND CIVILIAN SERVICE CREDIT, SEE 25 COMP. GEN. 225; ID. 849.

IN DECISION OF JUNE 5, 1945, B-55971, 25 COMP. GEN. 830, SUPRA, IT WAS STATED:

* * * THERE ARE NO LEGAL INHIBITIONS AGAINST RESTORING A VETERAN, UPON MEETING REGULATORY PROVISIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION, TO A POSITION IN A HIGHER GRADE THAN THAT HELD BY HIM PRIOR TO HIS MILITARY SERVICE OR PROMOTING HIM TO A HIGHER GRADE AFTER HE HAS BEEN RESTORED.

IT APPEARS THAT EMPLOYEES A, B, AND C, UPON THEIR RETURN FROM MILITARY DUTY, WERE ASSIGNED TO GRADES UNDER THE CLASSIFICATION ACT THE MINIMUM RATES OF WHICH ARE IN EXCESS OF THOSE RATES TO WHICH THEY PROPERLY WERE ENTITLED AS A MATTER OF RIGHT TO BE RESTORED AND AS SUCH ASSIGNMENTS RESULTED IN EQUIVALENT INCREASES OF COMPENSATION WITHIN THE MEANING OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, THEY ARE NOT ENTITLED TO CREDIT MILITARY AND PRIOR CIVILIAN SERVICE TOWARDS AUTOMATIC WITHIN GRADE SALARY ADVANCEMENTS BASED UPON THE SALARY AND GRADE TO WHICH ASSIGNED. 25 COMP. GEN. 502. THIS CONCLUSION RENDERS UNNECESSARY ANY ANSWER TO THE SPECIFIC QUESTIONS POSED UNDER CASES I, II, AND III.

WITH RESPECT TO CASE NO. IV, EMPLOYEE D HAD BEEN ASSIGNED TO A POSITION UNDER THE CLASSIFICATION ACT PRIOR TO HIS ENTRY INTO THE ARMED FORCES AND THUS WAS ENTITLED TO THE BENEFIT OF THE STATUTORY INCREASES IN THE BASIC RATES OF COMPENSATION PROVIDED FOR UNDER THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946. SUCH INCREASES ARE NOT CONSTRUED TO BE EQUIVALENT INCREASES IN COMPENSATION WITHIN THE MEANING OF SECTION 7 (B) (1) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED. SEE SECTION 405 (C) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 301, AND SECTION 2 (C) OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 216. THE EMPLOYEE'S FORMER SALARY RATE OF $1,920 (THE SIXTH SALARY STEP IN CAF-3) WAS INCREASED BY SAID PAY ACTS TO $2,544.48, AS OF JULY 1, 1946. THAT SALARY RATE IS THE SAME AS THE THIRD SALARY STEP IN CAF 4, THE GRADE OF THE POSITION IN WHICH THE VETERAN WAS REEMPLOYED UPON HIS SEPARATION FROM THE ARMED FORCES.

SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 PROVIDES, IN MATERIAL PART, AS FOLLOWS:

THAT ANY EMPLOYEE * * * 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 * * * AND TO CREDIT SUCH SERVICE IN THE ARMED FORCES * * * TOWARD SUCH WITHIN-GRADE SALARY ADVANCEMENTS. * * *

IN DECISION OF JULY 13, 1946, 26 COMP. GEN. 30, WITH RESPECT TO THE APPLICATION OF THE WITHIN-GRADE SALARY-ADVANCEMENT PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 TO AN EMPLOYEE REINSTATED AFTER MILITARY DUTY IN A GRADE HIGHER THAN THE ONE OCCUPIED AT THE TIME OF ENTRY INTO THE ARMED FORCES, IT WAS STATED AT PAGE 33, ANSWER TO QUESTION B, IN PERTINENT PART, AS FOLLOWS:

* * * 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.

THE EMPLOYEE IN THIS CASE WAS DISCHARGED FROM THE MILITARY SERVICE ON JUNE 25, 1946, AND WAS RESTORED TO DUTY ON JULY 1, 1946. UNDER SECTION 26.53 (C) OF THE CIVIL SERVICE COMMISSION REGULATIONS, EFFECTIVE JULY 1, 1945, ISSUED UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 ( FEDERAL REGISTER OF OCTOBER 6, 1945, PAGE 12597) THE BREAK IN SERVICE OF FIVE DAYS BETWEEN DATE OF DISCHARGE AND DATE OF RESTORATION TO DUTY CONSTITUTED NO BAR TO THE COUNTING AS CONTINUOUS CREDITABLE SERVICE (1) ALL HIS PRIOR CIVILIAN SERVICE SINCE THE DATE OF LAST EQUIVALENT INCREASE OF COMPENSATION, NAMELY, NOVEMBER 9, 1942; (2) ALL OF HIS MILITARY SERVICE, AND (3) THE TIME ELAPSING BETWEEN THE DATE OF DISCHARGE AND DATE OF RESTORATION TO DUTY.

OF COURSE, HAD THIS EMPLOYEE BEEN RESTORED TO A POSITION OF THE SAME GRADE (CAF-3) HE OCCUPIED AT THE TIME OF HIS ENTRY INTO THE ARMED FORCES, HE COULD NOT HAVE BEEN CREDITED AT THAT TIME WITH ANY SERVICE IN EXCESS OF THAT NECESSARY TO INCREASE HIS SALARY TO THE MAXIMUM OF THE GRADE--- IN HIS CASE, A ONE-STEP INCREASE, SINCE HE WAS IN THE SIXTY OR NEXT-TO-LAST STEP IN THAT GRADE AT THE TIME HE ENTERED THE ARMED FORCES. HOWEVER, HE WAS NOT "RESTORED, REEMPLOYED, OR REINSTATED" IN THAT GRADE. INSTEAD, HE WAS "RESTORED, REEMPLOYED, OR REINSTATED" IN THE NEXT HIGHER GRADE (CAF-4) THE THIRD SALARY STEP OF WHICH GRADE IS IDENTICAL WITH THAT OF THE SIXTH OR NEXT-TO-LAST STEP SALARY RATE IN THE LOWER GRADE (CAF-3) HELD BY HIM WHEN HE ENTERED THE MILITARY SERVICE. THAT BEING SO, THE EMPLOYEE, BY VIRTUE OF THE PROVISIONS OF SECTION 402 (B) (4) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, WAS ENTITLED TO COUNT UPON HIS BEING "RESTORED, REEMPLOYED, OR REINSTATED" ALL SERVICE BETWEEN NOVEMBER 9, 1942, AND JULY 1, 1946. THAT WOULD HAVE ENTITLED HIM TO ONE-STEP INCREASE EFFECTIVE JULY 1, 1944 (THE FIRST OF THE QUARTER FOLLOWING THE COMPLETION OF 18 MONTHS OF SERVICE FROM NOVEMBER 9, 1942), AND TO ANOTHER SALARY STEP ON JULY 1, 1945 (THE FIRST OF THE PAY PERIOD FOLLOWING THE COMPLETION OF 12 MONTHS OF SERVICE FROM JULY 1, 1944, EXPIRING JUNE 30, 1945). HENCE, ON THE DATE OF RESTORATION, JULY 1, 1946, HE WAS ENTITLED TO TWO WITHIN-GRADE SALARY ADVANCES IN THE HIGHER GRADE TO WHICH HE WAS "RESTORED, REEMPLOYED, OR REINSTATED," THAT IS, TWO SALARY STEPS ADDED TO $2,544.48 (THE THIRD STEP IN CAF-4, WHICH IS THE EQUIVALENT OF THE SALARY STEP HE HELD IN CAF-3 AT TIME OF ENTRY WITH THE MILITARY SERVICE). THE NEXT SALARY ADVANCEMENT WOULD BE DUE THE FIRST OF THE PAY PERIOD FOLLOWING THE COMPLETION OF 12 MONTHS OF SERVICE FROM JULY 1, 1945, OR JULY 14, 1946, BUT THAT WOULD NOT BE FOR CONSIDERATION ON JULY 1, 1946, THE DATE OF RESTORATION. COMPARE 25 COMP. GEN. 882, AT PAGE 885 ( CASE NO. 4), WHERE THE RESTORATION TO THE INITIAL RATE OF A HIGHER GRADE, REPRESENTING THE EQUIVALENT OF FIVE WITHIN -GRADE SALARY ADVANCEMENTS, ELIMINATED FROM CONSIDERATION ALL CIVIL AND MILITARY SERVICE PRIOR TO RESTORATION. ACCORDINGLY, THE EMPLOYEE HERE UNDER CONSIDERATION WAS ENTITLED TO BE RESTORED AT A SALARY RATE OF $2,694.96, AS OF JULY 1, 1946, AND TO THE NEXT STEP IN GRADE AT THE BEGINNING OF THE NEXT PAY PERIOD AFTER JUNE 30, 1946. 25 COMP. GEN. 121 (ANSWER TO QUESTION 14); ID. 225. IT THUS FOLLOWS THAT QUESTION 1, UNDER CASE IV, IS FOR ANSWERING IN THE AFFIRMATIVE, AND QUESTION 2, IN THE NEGATIVE.

REFERRING TO THE LAST PARAGRAPH OF YOUR LETTER, NO ADJUSTMENT IN THE SALARIES OF EMPLOYEES A, B, AND C APPEARS NECESSARY. HOWEVER, WHEN THROUGH ADMINISTRATIVE ERROR AN EMPLOYEE HAS NOT BEEN GIVEN FULL BENEFIT OF AUTOMATIC WITHIN-GRADE INCREASES, SUCH AS EMPLOYEE D, ACTION MAY BE TAKEN TO ADJUST RETROACTIVELY HIS SALARY TO RECTIFY THE ERROR. 21 COMP. GEN. 369; 25 ID. 849.