B-62446, FEBRUARY 10, 1947, 26 COMP. GEN. 573

B-62446: Feb 10, 1947

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COMPENSATION - WITHIN-GRADE ADVANCEMENTS - SERVICE CREDIT FOR MILITARY DUTY WHERE THE POSITIONS OF EMPLOYEES ON MILITARY FURLOUGH WERE. HAVE THE EFFECT OF ELIMINATING ALL MILITARY SERVICE FROM CONSIDERATION FOR WITHIN-GRADE SALARY- ADVANCEMENT PURPOSES UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (26 COMP. AS FOLLOWS: WE HAVE YOUR DECISIONS NOS. WHICH DEAL WITH THE GRANTING OF PERIODIC PAY INCREASES ON POSITIONS WHICH ARE REALLOCATED IN ABSENTIA. WE RESTORED EIGHT EMPLOYEES TO DUTY AFTER MILITARY FURLOUGH AND ALLOWED THEM BENEFIT OF PAY INCREASES ACCRUED ON POSITIONS WHICH WERE REALLOCATED IN ABSENTIA. THE FACTS IN THESE CASES ARE AS FOLLOWS: CASE NO. 1 IN CASE NO. 1. THIS POSITION WAS REALLOCATED TO ASSISTANT CHIEF IN CHARGE.

B-62446, FEBRUARY 10, 1947, 26 COMP. GEN. 573

COMPENSATION - WITHIN-GRADE ADVANCEMENTS - SERVICE CREDIT FOR MILITARY DUTY WHERE THE POSITIONS OF EMPLOYEES ON MILITARY FURLOUGH WERE, ON THE BASIS OF INCREASED DUTIES OR RESPONSIBILITIES SOME OF WHICH ATTACHED TO THE POSITIONS AFTER THE FORMER INCUMBENTS ENTERED MILITARY SERVICE, ALLOCATED TO HIGHER GRADES--- AS DISTINGUISHED FROM BEING REALLOCATED (25 COMP. GEN. 419) OR ALLOCATED ON THE BASIS OF INCREASED DUTIES OR RESPONSIBILITIES ALL OF WHICH ATTACHED PRIOR TO MILITARY SERVICE (25 COMP. GEN. 882/--- THE RESULTING INCREASES IN COMPENSATION, UPON REEMPLOYMENT OF THE EMPLOYEES IN SUCH HIGHER GRADES AFTER MILITARY SERVICE, HAVE THE EFFECT OF ELIMINATING ALL MILITARY SERVICE FROM CONSIDERATION FOR WITHIN-GRADE SALARY- ADVANCEMENT PURPOSES UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (26 COMP. GEN. 100).

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, FEBRUARY 10, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 5, 1946, AS FOLLOWS:

WE HAVE YOUR DECISIONS NOS. B-53153 DATED NOVEMBER 26, 1945, AND B 57609 DATED JUNE 18, 1946, AND AUGUST 8, 1946, WHICH DEAL WITH THE GRANTING OF PERIODIC PAY INCREASES ON POSITIONS WHICH ARE REALLOCATED IN ABSENTIA. A RESULT OF OUR INTERPRETATION OF YOUR DECISION OF NOVEMBER 26, 1945, WE RESTORED EIGHT EMPLOYEES TO DUTY AFTER MILITARY FURLOUGH AND ALLOWED THEM BENEFIT OF PAY INCREASES ACCRUED ON POSITIONS WHICH WERE REALLOCATED IN ABSENTIA. THE FACTS IN THESE CASES ARE AS FOLLOWS:

CASE NO. 1

IN CASE NO. 1, THE EMPLOYEE ENTERED MILITARY FURLOUGH EFFECTIVE MAY 6, 1942, FROM THE POSITION OF ASSISTANT CLERK, CAF-3, $1,680. THIS POSITION WAS REALLOCATED TO ASSISTANT CHIEF IN CHARGE, CAF-5, EFFECTIVE DECEMBER 16, 1944, AND, UPON RETURN OF THIS EMPLOYEE FROM MILITARY FURLOUGH ON JANUARY 7, 1946, HE WAS RESTORED TO THIS POSITION AND ALLOWED BENEFIT OF ONE PERIODIC PAY INCREASE. IT IS NOT KNOWN EXACTLY TO WHAT EXTENT THE RESPONSIBILITIES HAD INCREASED AT THE TIME THE INCUMBENT LEFT THE POSITION TO ENTER MILITARY FURLOUGH; HOWEVER, IN VIEW OF THE PERIOD OF TIME BETWEEN THE DATE THE EMPLOYEE LEFT THE POSITION AND THE DATE OF REALLOCATION, IT MAY BE ASSUMED THAT THE ADDITIONAL RESPONSIBILITIES HAD NOT BEEN ATTACHED TO THE POSITION WHEN THE EMPLOYEE ENTERED MILITARY FURLOUGH. THIS EMPLOYEE IS STILL SERVING IN THE GRADE CAF-5 POSITION AT $2,770.20, THE SECOND STEP OF THE GRADE, AND IS INDEBTED FOR THE NET AMOUNT OF $71.48 THROUGH OCTOBER 19, 1946.

CASE NO. 2

IN CASE NO. 2, THE EMPLOYEE ENTERED MILITARY FURLOUGH EFFECTIVE NOVEMBER 12, 1942, FROM THE POSITION OF UNDER CLERK, CAF-1, $1,260. ALL EMPLOYEES SERVING IN UNDER CLERK POSITIONS IN THIS PARTICULAR DIVISION WERE PUT ON A ROTATING OR MOBILE BASIS ON AUGUST 24, 1944, AND THE POSITIONS WERE REALLOCATED TO CAF-2 ON THAT DATE. UPON RETURN OF THIS EMPLOYEE FROM MILITARY FURLOUGH EFFECTIVE JANUARY 14, 1946, HE WAS RESTORED TO ONE OF THESE POSITIONS AND ALLOWED BENEFIT OF ONE PERIODIC PAY INCREASE ACCRUING FROM THE DATE OF REALLOCATION. THIS EMPLOYEE IS STILL SERVING IN THE GRADE CAF-2 POSITION AT $2,020.00, THE SECOND STEP OF THE GRADE, AND IS INDEBTED FOR THE NET AMOUNT OF $38.60 THROUGH OCTOBER 19, 1946.

CASE NO. 3

IN CASE NO. 3, THE EMPLOYEE ENTERED MILITARY FURLOUGH EFFECTIVE OCTOBER 14, 1941, FROM THE POSITION OF JUNIOR CLERK, CAF-2, $1,440. A SURVEY WAS MADE OF THE POSITIONS IN THE PARTICULAR UNIT IN WHICH THIS EMPLOYEE SERVED AND TWO GRADE LEVELS WERE ESTABLISHED ON AUGUST 14, 1944; NAMELY CAF-2 CLERK AND CAF-3 CLERK. ALTHOUGH IT CANNOT BE SUBSTANTIATED BY RECORDS NOW AVAILABLE IN THE PERSONNEL OFFICE, BOTH THE EMPLOYEE AND HIS SUPERVISORS CONTEND THAT A STATEMENT OF DUTIES PREPARED BY THIS EMPLOYEE BEFORE HE ENTERED MILITARY SERVICE WAS THE BASIS UPON WHICH REALLOCATION OF THIS POSITION WAS REQUESTED AND SUBSEQUENTLY RECEIVED. THIS EMPLOYEE WAS RESTORED TO DUTY ON JANUARY 2, 1946, TO THE POSITION OF SPECIAL SEARCHER, CAF-3 AND ALLOWED BENEFIT OF ONE PERIODIC PAY INCREASE ON THE BASIS THAT THE POSITION HAD BEEN REALLOCATED IN ABSENTIA. SINCE HE WAS PROMOTED TO A HIGHER GRADE ON MARCH 13, 1946, HE IS INDEBTED FOR THE NET AMOUNT OF $10.11 THROUGH OCTOBER 19, 1946.

CASE NO. 4

IN CASE NO. 4, THE EMPLOYEE ENTERED MILITARY FURLOUGH EFFECTIVE APRIL 28, 1944, FROM THE POSITION OF ASSISTANT SUPERVISOR AND PHOTOGRAPHER, CAF-4, $1,860. THIS POSITION WAS REALLOCATED TO ASSISTANT UNIT HEAD, CAF-5, EFFECTIVE OCTOBER 31, 1944, AND, UPON RETURN FROM MILITARY FURLOUGH ON JANUARY 7, 1946, HE WAS RESTORED TO THIS POSITION AND ALLOWED BENEFIT OF ONE PERIODIC PAY INCREASE. LIKE THE POSITION IN CASE NO. 1, IT IS NOT KNOWN EXACTLY TO WHAT EXTENT THE RESPONSIBILITIES HAD INCREASED WHEN THE EMPLOYEE ENTERED MILITARY SERVICE. THIS EMPLOYEE IS STILL SERVING IN THE GRADE CAF-5 POSITION AT $2,770.20, THE SECOND STEP OF THE GRADE, AND IS INDEBTED FOR THE NET AMOUNT OF $87.49 THROUGH OCTOBER 19, 1946.

CASE NO. 5

IN CASE NO. 5, WE HAVE FOUR EMPLOYEES WHO LEFT THE POSITION OF REPRESENTATIVE CIVIL SERVICE COMMISSION ( ADMINISTRATIVE AIDE), CAF-6 TO ENTER MILITARY FURLOUGH. EFFECTIVE JANUARY 10, 1944, SEVERAL MONTHS AFTER THESE EMPLOYEES ENTERED MILITARY SERVICE, THE GRADE CAF-6 POSITIONS WERE REALLOCATED TO RECRUITING REPRESENTATIVE, CAF-7, AND WHEN THESE EMPLOYEES RETURNED FROM MILITARY FURLOUGH THEY WERE RESTORED TO THE GRADE CAF-7 POSITION AND ALLOWED BENEFIT OF ONE PERIODIC PAY INCREASE. THESE EMPLOYEES ARE STILL SERVING IN THE GRADE CAF-7 POSITION AND ARE INDEBTED FOR THE DIFFERENCE IN SALARY BETWEEN THE MINIMUM AND THE SECOND STEP OF THE GRADE CAF-7 SINCE THE DATES OF THEIR RESTORATION TO DUTY, WHICH WAS DURING DECEMBER 1945.

IN VIEW OF YOUR DECISIONS OF JUNE 18 AND AUGUST 8, 1946, WHICH STATE SPECIFICALLY THAT THE ADDITIONAL DUTIES AND RESPONSIBILITIES WHICH WARRANTED REALLOCATION MUST BE ATTACHED TO A POSITION PRIOR TO ENTRANCE INTO MILITARY FURLOUGH BEFORE PERIODIC PAY INCREASES CAN DATE FROM THE DATE OF REALLOCATION AND IN VIEW OF THE FACT THAT IT CANNOT, IN THESE CASES, BE DEFINITELY ESTABLISHED THAT ADDITIONAL RESPONSIBILITIES DID ATTACH TO THESE POSITIONS AT THE TIME THE EMPLOYEES ENTERED MILITARY SERVICE, IT IS REALIZED THAT OUR INTERPRETATION OF THE DECISION OF NOVEMBER 26, 1945, WAS PERHAPS IN ERROR AND THE ABOVE EMPLOYEES SHOULD HAVE BEEN RESTORED AT THE MINIMUM OF THE GRADE. HOWEVER, THE POLICY OF THIS AGENCY HAS BEEN TO THE MAXIMUM EXTENT POSSIBLE TO PROVIDE RETURNING VETERANS WITH ALL BENEFITS THEY WOULD HAVE RECEIVED HAD THEY NOT ENTERED MILITARY SERVICE; A LARGE NUMBER OF VETERANS RESTORED TO DUTY IN THIS AGENCY HAVE BEEN RESTORED TO POSITIONS REALLOCATED DURING THEIR MILITARY SERVICE, BUT WHICH, CLEARLY, WERE POSITIONS TO WHICH THEY HAD A LEGAL CLAIM. THE VAST MAJORITY OF THESE EMPLOYEES FEEL THAT THEY WERE, IN EFFECT, PENALIZED FOR MILITARY SERVICE SINCE THEIR SALARY, AFTER RESTORATION TO DUTY, IS LOWER THAN THAT OF FELLOW-EMPLOYEES WHO WERE ON THE JOB WHEN THE POSITIONS WE REALLOCATED.

SINCE ACTION ON THE FIVE CASES CITED ABOVE WAS TAKEN IN GOOD FAITH AND IN ACCORDANCE WITH COMMISSION POLICY, IT IS RESPECTFULLY REQUESTED THAT THESE CASES BE APPROVED AS EXCEPTIONS AND THE EMPLOYEES NOT BE REQUIRED TO MAKE REFUND FOR OVERPAYMENT OF SALARY.

IN THE DECISION OF NOVEMBER 26, 1945, B-53153, 25 COMP. GEN. 419, REFERRED TO IN YOUR LETTER, SUPRA, IT WAS HELD (QUOTING THE FIRST TWO PARAGRAPHS OF THE SYLLABUS) AS FOLLOWS:

UNDER SECTION 5 OF EXECUTIVE ORDER NO. 8882, ISSUED PURSUANT TO THE WITHIN-GRADE SALARY ADVANCEMENT STATUTE OF AUGUST 1, 1941, RELATING TO THE AUTOMATIC PROMOTION RIGHTS OF "ANY EMPLOYEE OF THE FEDERAL GOVERNMENT" ON MILITARY FURLOUGH, AN EMPLOYEE WAS ENTITLED, UPON RESTORATION TO A CIVILIAN POSITION AFTER MILITARY DUTY, TO THE BENEFITS OF THE REALLOCATION OF THE POSITION HE OCCUPIED WHEN HE ENTERED THE MILITARY SERVICE AS WELL AS TO ANY AUTOMATIC PROMOTIONS WHICH WOULD HAVE BEEN DUE HAD HE REMAINED IN CIVILIAN SERVICE. 21 COMP. GEN. 1007, AMPLIFIED.

WHERE A FIELD SERVICE POSITION OF AN EMPLOYEE ON MILITARY FURLOUGH HAS BEEN REALLOCATED, IN ABSENTIA, RESULTING IN AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, THE WAITING PERIOD FOR A WITHIN-GRADE PROMOTION UNDER SAID ACT BEGAN TO RUN FROM THE EFFECTIVE DATE OF SUCH REALLOCATION RATHER THAN FROM THE DATE THE EMPLOYEE WAS RESTORED TO HIS CIVILIAN POSITION.

THE BASIS FOR THE PERSONNEL ACTION TAKEN WITH RESPECT TO THE POSITIONS CONSIDERED IN THAT DECISION WAS EXPRESSLY SET FORTH IN THE LETTER FROM THE SECRETARY OF AGRICULTURE AS FOLLOWS:

IT WAS RECOGNIZED BY THE CIVIL SERVICE COMMISSION AND THE DEPARTMENT THAT GENERALLY THESE POSITIONS WERE NOT PROPERLY ALLOCATED. ALTHOUGH FUNDS WERE AVAILABLE UNDER SOME APPROPRIATIONS, OTHER APPROPRIATIONS WERE SO FULLY ENCUMBERED AS TO RENDER IT IMPOSSIBLE TO REALLOCATE ALL POSITIONS THEN IN SUBSTANDARD GRADES WITHOUT ADDITIONAL FUNDS, WHICH WERE MADE AVAILABLE FOR THE FIRST TIME IN THE AGRICULTURAL APPROPRIATION ACT FOR THE FISCAL YEAR 1945, APPROVED JUNE 28, 1944.

CHAPTER P2-4, FEDERAL PERSONNEL MANUAL, CONTAINING, INTER ALIA, DEFINITIONS OF CERTAIN TERMS AND PHRASES AS USED IN CONNECTION WITH THE CLASSIFICATION OF POSITIONS UNDER THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, AS AMENDED, CONTAINS THE FOLLOWING DEFINITION:

REALLOCATION.--- A CHANGE IN THE ALLOCATION OF A POSITION WHICH HAS NOT CHANGED MATERIALLY IN ITS DUTIES AND RESPONSIBILITIES SINCE IT WAS LAST ALLOCATED. A CHANGE OF ALLOCATION BASED ON A CHANGE OF DUTIES OR RESPONSIBILITIES--- COMMONLY CALLED A "REALLOCATION"--- SHOULD BE TERMED AN ,ALLOCATION.'

THE ABOVE-QUOTED DEFINITION OF THE TERM "REALLOCATION," AND THE DISTINCTION THERE MADE BETWEEN THAT TERM AND THE TERM,"ALLOCATION," APPEAR TO BE MATTERS LONG SINCE SETTLED BY THE CIVIL SERVICE COMMISSION. HENCE, IT WILL BE SEEN THAT THE PERSONNEL ACTIONS CONSIDERED IN THE SAID DECISION OF NOVEMBER 26, 1945, INVOLVED THE REALLOCATION OF THE PARTICULAR POSITIONS CONCERNED IN THE STRICT SENSE OF THAT TERM AS DEFINED BY THE CIVIL SERVICE COMMISSION. CONSEQUENTLY, IT IS NOT UNDERSTOOD UPON WHAT BASIS THE HOLDING IN THAT DECISION MIGHT BE VIEWED AS AUTHORITY FOR THE SUBSEQUENT ACTION TAKEN BY THE CIVIL SERVICE COMMISSION IN THE BASES SET OUT IN YOUR LETTER, SUPRA, EACH OF WHICH APPEARS TO INVOLVE, AT LEAST TO SOME DEGREE, A CHANGE IN DUTIES OR RESPONSIBILITIES WHICH NECESSITATED THE CHANGE IN GRADE OF THE POSITION HAD ATTACHED TO THE POSITION PRIOR TO THE INCUMBENT'S ENTRY INTO THE ARMED FORCES. THAT CONCLUSION WAS NOTHING MORE THAN A RECOGNITION OF THE FACT THAT, UNDER SUCH CIRCUMSTANCES, THE ACTUAL POSITION HELD BY THE EMPLOYEE AT THE TIME OF HIS ENTRANCE INTO THE ARMED FORCES--- WITH THE SAME RESPONSIBILITIES AND DUTIES AS HE HAD BEEN REQUIRED TO DISCHARGE--- HAD BEEN PLACED IN A DIFFERENT CLASSIFICATION ACT GRADE, AND, THEREFORE, HE SHOULD NOT LOSE THE BENEFIT OF THE CHANGE IN GRADE BY REASON OF THE ACT THAT HE WAS IN THE MILITARY SERVICE AT THE TIME THE PERSONNEL ACTION TO EFFECT SUCH CHANGE IN GRADE WAS TAKEN. MOREOVER, SUCH CONCLUSION IS IN CONSONANCE WITH THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 885, 890, AS AMENDED, REQUIRING THAT EMPLOYEES ENTITLED TO THE BENEFITS OF THAT ACT WHO LEAVE A POSITION IN THE EMPLOY OF THE UNITED STATES GOVERNMENT "SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY.'

THE SAME CONSIDERATIONS GIVING RISE TO THE HOLDING IN THE DECISION OF JUNE 18, 1946, SUPRA, ARE NOT PRESENT IN THOSE CASES WHEREIN, BECAUSE OF INCREASED DUTIES OR RESPONSIBILITIES ATTACHING TO A POSITION AFTER THE INCUMBENT ENTERS THE ARMED FORCES OR BECAUSE OF A GRADUAL INCREASE IN DUTIES--- SOME OF WHICH ATTACHED BEFORE ENTRY IN THE ARMED FORCES AND OTHERS AFTER THAT DATE--- ALLOCATION OF THE POSITION TO A DIFFERENT GRADE IS REQUIRED. IN NEITHER OF SUCH INSTANCES MAY IT FAIRLY BE SAID THAT THE CHANGED ALLOCATION REPRESENTS THE PROPER ALLOCATION OF THE POSITION ACTUALLY OCCUPIED UPON THE DATE OF ENTRY INTO THE SERVICE. ON THE CONTRARY, IN THE FIRST CIRCUMSTANCE, THE DUTIES GIVING RISE TO THE PERSONNEL ACTION NEVER HAD BEEN DISCHARGED BY THE RETURNING EMPLOYEE AND, IN THE SECOND CIRCUMSTANCE, ONLY A PORTION OF SUCH DUTIES HAD BEEN PERFORMED PRIOR TO MILITARY SERVICE AND WHICH, OF ITSELF, MIGHT NOT HAVE BEEN SUFFICIENT TO WARRANT THE CHANGE IN GRADE. IN THAT CONNECTION, IT WAS HELD IN THE THIRD DECISION REFERRED TO IN YOUR LETTER, NAMELY, THAT OF AUGUST 8, 1946, B-57699, 26 COMP. GEN. 100 (QUOTING THE SYLLABUS), AS FOLLOWS:

WHERE THE POSITION OF AN EMPLOYEE ON MILITARY FURLOUGH WAS ALLOCATED TO A HIGHER GRADE ON THE BASIS OF INCREASED RESPONSIBILITIES ATTACHING BEFORE AND AFTER ENTERING MILITARY SERVICE, THE ALLOCATION ACTION MUST BE REGARDED AS CREATING AN ENTIRELY NEW POSITION RATHER THAN AS CONSTITUTING A REALLOCATION, AND, UPON RESTORATION OF THE EMPLOYEE AFTER MILITARY SERVICE TO THE POSITION AS SO ALLOCATED, THE RESULTING INCREASE IN COMPENSATION--- MORE THAN THE EQUIVALENT OF THE WITHIN GRADE ADVANCEMENTS WHICH WOULD HAVE ACCRUED DURING MILITARY SERVICE--- HAS THE EFFECT OF ELIMINATING ALL MILITARY SERVICE FROM CONSIDERATION FOR WITHIN-GRADE ADVANCEMENT PURPOSES UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (59 STAT. 299). 25 COMP. GEN. 882, AMPLIFIED.

FROM THE INFORMATION FURNISHED WITH RESPECT TO THE PARTICULAR CASES MENTIONED IN YOUR LETTER, IT APPEARS THAT, IN EACH CASE, SOME OF THE DUTIES OR RESPONSIBILITIES FORMING THE BASIS FOR THE CHANGE IN GRADE ATTACHED TO THE POSITION AFTER THE FORMER INCUMBENT ENTERED THE MILITARY SERVICE. ACCORDINGLY, IF SUCH BE THE CASE, IT WOULD APPEAR THAT THE DETERMINATION AS TO THE COMPENSATION PROPERLY PAYABLE TO THE INVOLVED EMPLOYEES UPON THEIR RESTORATION TO CIVILIAN DUTY IS GOVERNED BY THE SAID DECISION OF AUGUST 8, 1946, AND, THEREFORE, YOU ARE ADVISED THAT THE NECESSARY ACTION SHOULD BE TAKEN BY YOUR COMMISSION TO EFFECT COLLECTION OF ANY AMOUNTS WHICH ARE SHOWN TO HAVE BEEN ERRONEOUSLY PAID TO THE EMPLOYEES INVOLVED.