B-63016, FEBRUARY 19, 1947, 26 COMP. GEN. 606

B-63016: Feb 19, 1947

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THERE IS NO AUTHORITY TO GRANT A WITHIN-GRADE ADVANCEMENT. WITHOUT REGARD TO SUCH REQUIREMENTS WHERE A PERIOD OF CIVILIAN SERVICE IS NECESSARY. IT IS IMMATERIAL THAT. HAD THE EMPLOYEE NOT RETURNED TO CIVILIAN DUTY UNTIL AFTER THE ADVANCEMENT WAS OTHERWISE DUE. IT COULD HAVE BEEN GRANTED WITHOUT AN EFFICIENCY RATING. AN EMPLOYEE FOR WHOM NO EFFICIENCY RATING WAS "ON RECORD" ON THE DATE HE BECAME ELIGIBLE. IS NOT ENTITLED TO ADVANCEMENT AS OF SUCH DATE ON THE BASIS OF A SUBSEQUENTLY APPROVED EFFICIENCY RATING. AS FOLLOWS: YOUR ADVICE IS REQUESTED WITH REGARD TO THE EFFECTIVE DATES ON WHICH AUTOMATIC PROMOTIONS MAY BE GRANTED TO CERTAIN EMPLOYEES OF THIS DEPARTMENT AS PROVIDED BY SUBSECTION (B) OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923.

B-63016, FEBRUARY 19, 1947, 26 COMP. GEN. 606

COMPENSATION - PERIODIC WITHIN-GRADE ADVANCEMENTS - EFFICIENCY RATING REQUIREMENTS UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, WHICH AUTHORIZES THE COUNTING OF MILITARY SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENT WITHOUT REGARD TO THE EFFICIENCY RATING REQUIREMENTS THEREOF, THERE IS NO AUTHORITY TO GRANT A WITHIN-GRADE ADVANCEMENT, AFTER AN EMPLOYEE'S RETURN FROM MILITARY SERVICE, WITHOUT REGARD TO SUCH REQUIREMENTS WHERE A PERIOD OF CIVILIAN SERVICE IS NECESSARY, IN CONJUNCTION WITH PRIOR MILITARY SERVICE, TO COMPLETE THE PRESCRIBED WAITING PERIOD; AND IT IS IMMATERIAL THAT, HAD THE EMPLOYEE NOT RETURNED TO CIVILIAN DUTY UNTIL AFTER THE ADVANCEMENT WAS OTHERWISE DUE, IT COULD HAVE BEEN GRANTED WITHOUT AN EFFICIENCY RATING. AN EMPLOYEE FOR WHOM NO EFFICIENCY RATING WAS "ON RECORD" ON THE DATE HE BECAME ELIGIBLE, FROM A TIME STANDPOINT, FOR A WITHIN-GRADE SALARY ADVANCEMENT PURSUANT TO SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS REQUIRED BY REGULATIONS OF THE CIVIL SERVICE COMMISSION RESPECTING ADVANCEMENTS UNDER SAID SECTION, IS NOT ENTITLED TO ADVANCEMENT AS OF SUCH DATE ON THE BASIS OF A SUBSEQUENTLY APPROVED EFFICIENCY RATING.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, FEBRUARY 19, 1947:

THERE HAS BEEN CONSIDERED YOUR UNDATED LETTER, REFERENCE DP, RECEIVED IN THIS OFFICE JANUARY 15, 1947, AS FOLLOWS:

YOUR ADVICE IS REQUESTED WITH REGARD TO THE EFFECTIVE DATES ON WHICH AUTOMATIC PROMOTIONS MAY BE GRANTED TO CERTAIN EMPLOYEES OF THIS DEPARTMENT AS PROVIDED BY SUBSECTION (B) OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND EXECUTIVE ORDER 8882, DATED SEPTEMBER 3, 1941.

FIRST CASE

(A) EMPLOYEE "A" WAS AN EMPLOYEE OF THE FOREIGN ECONOMIC ADMINISTRATION, AND WAS TRANSFERRED IN ABSENTIA TO THE DEPARTMENT OF STATE UNDER EXECUTIVE ORDER 9630 ON SEPTEMBER 27, 1945.

(B) EMPLOYEE "A" LEFT HIS POSITION, P-2, $2,600 PER ANNUM, TO ENTER THE ARMED FORCES ON NOVEMBER 20, 1942. HE RETURNED FROM MILITARY FURLOUGH AND ENTERED ON DUTY IN THE DEPARTMENT OF STATE ON JUNE 7, 1946, AS P-2, $3,200 PER ANNUM DUE TO THE PERIODIC INCREASES EARNED WHILE ON MILITARY DUTY. HIS PAST PAY INCREASE BECAME EFFECTIVE JULY 1, 1945.

(C) FROM A TIME-PERIOD STANDPOINT AS PROVIDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, EMPLOYEE "A" WAS ENTITLED TO A PERIODIC INCREASE ON JULY 14, 1946. INASMUCH AS HE HAD SO RECENTLY RETURNED FROM MILITARY SERVICE NO CURRENT EFFICIENCY RATING WAS ON RECORD IN THE DEPARTMENT. FOR THIS REASON, WHEN THE NEXT PAY INCREASE WOULD NORMALLY HAVE BECOME EFFECTIVE, IT WAS NOT GRANTED. A 90-DAY SPECIAL RATING COVERING THE PERIOD BETWEEN JUNE 7, 1946, AND SEPTEMBER 7, 1946, WAS APPROVED BY THE APPROPRIATE EFFICIENCY RATING COMMITTEE ON SEPTEMBER 25, 1946. A PAY INCREASE BASED ON THE RATING OF " VERY GOOD" WAS PROCESSED, EFFECTIVE OCTOBER 6, 1946.

THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, PROVIDES IN PART AS FOLLOWS:

"SEC. 402 (B) (2) THAT AN EMPLOYEE SHALL NOT BE ADVANCED UNLESS HIS CURRENT EFFICIENCY IS ,GOOD" OR BETTER THAN "GOOD; "

"/3) THAT THE SERVICE AND CONDUCT OF SUCH EMPLOYEE ARE CERTIFIED BY THE HEAD OF THE DEPARTMENT * * * AS BEING OTHERWISE SATISFACTORY; AND

"/4) THAT ANY EMPLOYEE * * * WHO, * * * HAS LEFT HIS POSITION TO ENTER THE ARMED FORCES * * * WHO, * * * 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 WITHOUT REGARD TO PARAGRAPHS (2) AND (3) OF THIS SUBSECTION, AND TO CREDIT SUCH SERVICE IN THE ARMED FORCES * * * TOWARD SUCH WITHIN-GRADE SALARY ADVANCEMENTS.'

QUESTION: EMPLOYEE "A" CLAIMS PAYMENT IS DUE HIM FOR THE DIFFERENCE IN SALARY FROM JULY 14, 1946 THROUGH OCTOBER 5, 1946, ON THE BASIS THAT HE WAS ENTITLED TO A WITHIN-GRADE SALARY INCREASE ON JULY 14, 1946, WHICH WOULD HAVE BEEN GRANTED AUTOMATICALLY HAD HE NOT EXERCISED HIS REEMPLOYMENT RIGHTS UNTIL AFTER THAT DATE. IS HE CORRECT?

DURING THE PAST MONTHS SEVERAL THOUSAND NEW EMPLOYEES HAVE BEEN TRANSFERRED TO THE DEPARTMENT OF STATE UNDER EXECUTIVE ORDERS 9806, 9621, AND 9630. THE VOLUME OF WORK INVOLVED IN ABSORBING THESE EMPLOYEES INTO THE DEPARTMENT COUPLED WITH REINSTATING VETERANS WITH REEMPLOYMENT RIGHTS IN THE DEPARTMENT OR IN THE AGENCIES ABSORBED UNDER THE EXECUTIVE ORDERS, AND THE REDUCTION-IN-FORCE PROGRAM HAS, IN SOME INSTANCES, CAUSED A DELAY IN OBTAINING THE CURRENT RATINGS NECESSARY TO GRANTING THE WITHIN-GRADE PROMOTIONS. IN ORDER THAT EMPLOYEES SHALL NOT BE PENALIZED BECAUSE OF SUCH CIRCUMSTANCES AS DESCRIBED ABOVE IT IS REQUESTED THAT YOU ALSO REVIEW THE FOLLOWING CASES.

SECOND CASE

(A) EMPLOYEE "B," CAF-5, $2,000 PER ANNUM, LEFT HIS POSITION TO ENTER THE ARMED FORCES ON DECEMBER 31, 1943.

(B) ON MARCH 16, 1944, WHILE ON MILITARY FURLOUGH THE POSITION EMPLOYEE "B" LEFT WAS REALLOCATED TO CAF-6, $2,300 PER ANNUM.

(C) EMPLOYEE "B" RETURNED FROM MILITARY FURLOUGH AND WAS REINSTATED IN THE DEPARTMENT OF STATE ON JANUARY 6, 1946, AT CAF-6, $2,760 PER ANNUM, WHICH SALARY INCLUDED THE PERIODIC INCREASE AS OF JULY 1, 1945.

(D) FROM THE TIME-PERIOD STANDPOINT EMPLOYEE "B" BECAME ELIGIBLE FOR A PERIOD INCREASE ON JULY 14, 1946. HIS EFFICIENCY RATING WAS NOT APPROVED UNTIL JULY 19, 1946. A PAY INCREASE BASED ON HIS RATING OF " EXCELLENT" WAS PROCESSED, EFFECTIVE JULY 28, 1946.

QUESTION: MAY A SALARY INCREASE BE GRANTED TO EMPLOYEE "B" FOR THE PERIOD JULY 14, 1946 TO JULY 28, 1946?

THIRD CASE

(A) EMPLOYEE "C," CAF-3 CLERK, $1,968 PER ANNUM WAS TRANSFERRED FROM THE NAVY DEPARTMENT TO THE DEPARTMENT OF STATE OF MARCH 11, 1946.

(B) EMPLOYEE "C" RECEIVED A PERIODIC INCREASE ON JULY 1, 1945. CURRENT EFFICIENCY RATING WAS ON RECORD FOR HER IN THE NAVY DEPARTMENT AND WHEN SHE BECAME ELIGIBLE FOR A PERIODIC INCREASE ON JULY 14, 1946, IT WAS NECESSARY TO OBTAIN A CURRENT EFFICIENCY RATING. EMPLOYEE "C" WAS GIVEN A SPECIAL RATING WHICH WAS APPROVED OCTOBER 9, 1946, AND BECAME EFFECTIVE OCTOBER 20, 1946.

QUESTION: MAY THIS AUTOMATIC PROMOTION BE MADE RETROACTIVE TO JULY 14, 1946?

SUBSECTION (B) OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, WAS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, 59 STAT. 295, 299, QUOTED IN PART IN CONNECTION WITH THE FIRST CASE DISCUSSED IN YOUR LETTER, SUPRA, TO READ AS FOLLOWS:

(B) ALL EMPLOYEES COMPENSATED ON A PER ANNUM BASIS, AND OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT, WHO HAVE NOT ATTAINED THE MAXIMUM RATE OF COMPENSATION FOR THE GRADE IN WHICH THEIR POSITIONS ARE RESPECTIVELY ALLOCATED, SHALL BE ADVANCED IN COMPENSATION SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN THE GRADE AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE COMPLETION OF (1) EACH TWELVE MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE LESS THAN $200, OR (2) EACH EIGHTEEN MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE $200 OR MORE, SUBJECT TO THE FOLLOWING CONDITIONS:

(1) THAT NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD, EXCEPT INCREASE MADE PURSUANT TO SUBSECTION (F) OF THIS SECTION;

(2) THAT AN EMPLOYEE SHALL NOT BE ADVANCED UNLESS HIS CURRENT EFFICIENCY IS "GOOD" OR BETTER THAN "GOOD; "

(3) THAT THE SERVICE AND CONDUCT OF SUCH EMPLOYEE ARE CERTIFIED BY THE HEAD OF THE DEPARTMENT OR AGENCY OR SUCH OFFICIAL AS HE MAY DESIGNATE AS BEING OTHERWISE SATISFACTORY; AND

(4) THAT ANY EMPLOYEE, (A) WHO, WHILE SERVING UNDER PERMANENT, WAR SERVICE, TEMPORARY, OR ANY OTHER TYPE OF APPOINTMENT, HAS LEFT HIS POSITION TO ENTER THE ARMED FORCES OR THE MERCHANT MARINE, OR TO COMPLY WITH A WAR TRANSFER AS DEFINED BY THE CIVIL SERVICE COMMISSION, (B) WHO HAS BEEN SEPARATED UNDER HONORABLE CONDITIONS FROM ACTIVE DUTY IN THE ARMED FORCES, OR HAS RECEIVED A CERTIFICATE OF SATISFACTORY SERVICE IN THE MERCHANT MARINE, OR HAS A SATISFACTORY RECORD ON WAR TRANSFER, AND (C) 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 WITHOUT REGARD TO PARAGRAPHS (2) AND (3) OF THIS SUBSECTION, AND TO CREDIT SUCH SERVICE IN THE ARMED FORCES, IN THE MERCHANT MARINE, AND ON WAR TRANSFER, TOWARD SUCH WITHIN- GRADE SALARY ADVANCEMENTS. * * * (ITALICS SUPPLIED.)

WITH RESPECT TO THE FIRST CASE PRESENTED, IT APPEARS FROM THE INFORMATION FURNISHED IN CONNECTION THEREWITH THAT, IN ACCORDANCE WITH THE PROVISIONS OF SAID SECTION 7 (B) (4), SUPRA, THE EMPLOYEE, UPON RETURN FROM MILITARY SERVICE TO CIVILIAN DUTY ON JUNE 7, 1946, WAS GRANTED THE WITHIN-GRADE SALARY ADVANCEMENTS WHICH HAD ACCRUED DURING HIS MILITARY SERVICE AND WAS GIVEN CREDIT FOR 11 MONTHS AND 6 DAYS TOWARDS HIS NEXT WITHIN-GRADE SALARY ADVANCEMENT ON ACCOUNT OF HIS SERVICE WITH THE ARMED FORCES. IT IS CLEAR FROM THE FACTS STATED THAT, AS OF THAT DATE, THE EMPLOYEE WAS NOT ENTITLED TO A FURTHER WITHIN GRADE SALARY ADVANCEMENT SINCE THE 12 MONTHS OF SERVICE AS REQUIRED BY THE LAW HAD NOT ELAPSED SINCE THE COMPLETION DATE-- - JUNE 30, 1945--- OF SERVICE FOR HIS LAST WITHIN-GRADE ADVANCEMENT. HAVING RETURNED TO CIVILIAN DUTY JUNE 7, 1946, THE EMPLOYEE WAS REQUIRED TO RENDER SERVICE IN THAT CAPACITY FOR A PERIOD SUFFICIENT TO COMPLETE THE PRESCRIBED WAITING PERIOD. AND, WHILE SUBSECTION (B) (2), AS AMENDED, SUPRA, AUTHORIZES THE COUNTING OF MILITARY SERVICE FOR WITHIN-GRADE SALARY ADVANCEMENTS BASED THEREON "UPON HIS RETURN TO DUTY," IT DOES NOT AUTHORIZE THE MAKING OF ADVANCEMENTS THEREAFTER WITHOUT REGARD TO SUCH REQUIREMENTS WHERE SUBSEQUENT CIVILIAN SERVICE IS NECESSARY, IN CONJUNCTION WITH MILITARY SERVICE, TO COMPLETE THE PRESCRIBED WAITING PERIOD. ACCORDINGLY, IN ORDER THAT SUCH EMPLOYEE BE ENTITLED TO AN ADDITIONAL WITHIN-GRADE SALARY ADVANCEMENT ON THE DATE OTHERWISE DUE, IT WAS NECESSARY THAT, FOR THE PERIOD OF SUCH CIVILIAN SERVICE, THE EMPLOYEE'S "CURRENT EFFICIENCY BE "GOOD" OR BETTER THAN "GOOD" AS REQUIRED BY SAID SUBSECTION.

CHAPTER Z1-426, FEDERAL PERSONNEL MANUAL, CONTAINING THE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION PURSUANT TO THE AUTHORITY VESTED IN IT UNDER SECTION 605 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 304, PROVIDES:

SECTION 204. CURRENT EFFICIENCY.--- " CURRENT EFFICIENCY" MEANS THE OFFICIAL EFFICIENCY RATING ON RECORD APPROPRIATE FOR WITHIN-GRADE SALARY ADVANCEMENT PURPOSES, IN ACCORDANCE WITH THE UNIFORM EFFICIENCY RATING SYSTEM.

SINCE ON JULY 14, 1946, THE DATE ON WHICH THE EMPLOYEE OTHERWISE WAS ELIGIBLE FOR THE WITHIN-GRADE SALARY ADVANCEMENT, THERE WAS NOT "ON RECORD" ANY EFFICIENCY RATING GOVERNING ANY PART OF HIS SERVICE FOR THE YEAR PRECEDING THAT DATE, SUCH INCREASE PROPERLY MAY NOT BE MADE EFFECTIVE ON THAT DATE. SEE 21 COMP. GEN. 1067; 25 ID. 90. ACCORDINGLY, THE QUESTION PRESENTED IN CONNECTION WITH THE FIRST CASE IS ANSWERED IN THE NEGATIVE. FURTHER, WHILE IT MAY BE THAT HAD THE EMPLOYEE NOT RETURNED TO CIVILIAN DUTY UNTIL AFTER JULY 14, 1946, HE WOULD HAVE BEEN ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT EFFECTIVE THAT DATE, WITHOUT THE NECESSITY OF AN EFFICIENCY RATING, THAT MAY NOT BE VIEWED AS IN ANY WISE AFFECTING HIS RIGHTS UNDER THE APPLICABLE STATUTE ON THE BASIS OF THE ACTUAL FACTS IN THE MATTER.

EXCEPT FOR THE AMOUNT OF MILITARY SERVICE (APPROXIMATELY 6 MONTHS), FOR WHICH THE EMPLOYEE INVOLVED IN THE SECOND CASE RECEIVED CREDIT TOWARD HIS NEXT WITHIN-GRADE SALARY ADVANCEMENT UPON HIS RETURN TO CIVILIAN DUTY, THE PERTINENT FACTS IN THAT CASE ARE ESSENTIALLY THE SAME AS THOSE CONSIDERED UNDER THE FIRST CASE. HENCE, WHAT WAS STATED IN THAT CASE LIKEWISE APPLIES TO THE SECOND CASE AND THE QUESTION PRESENTED IN CONNECTION THEREWITH ALSO IS ANSWERED IN THE NEGATIVE.

SO FAR AS CONCERNS THE EFFECTIVE DATE OF THE WITHIN-GRADE SALARY ADVANCEMENT FOR THE EMPLOYEE MENTIONED IN THE THIRD CASE, IT IS NOTED THAT THE EFFICIENCY RATING UPON WHICH SUCH ADVANCEMENT WAS PREDICATED WAS APPROVED SUBSEQUENT TO THE DATE ON WHICH, FROM A TIME STANDPOINT, THE EMPLOYEE WAS ELIGIBLE FOR THE WITHIN-GRADE SALARY ADVANCEMENT. CONSEQUENTLY, IN VIEW OF THE REQUIREMENT THAT, IN ORDER TO BE ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT, THE EFFICIENCY RATING MUST BE "ON ORD," AND, IN LINE WITH THE RULES STATED IN THE DECISIONS OF THIS OFFICE CITED IN CONNECTION WITH THE FIRST CASE, SUPRA, THE QUESTION IN THE THIRD CASE MUST BE ANSWERED IN THE NEGATIVE.