B-64351, APRIL 8, 1947, 26 COMP. GEN. 754

B-64351: Apr 8, 1947

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PERIODS IN NONPAY STATUS EMPLOYEES WHO ARE REINSTATED OR REEMPLOYED IN AN AGENCY OTHER THAN THE ONE THEY LEFT TO ENTER THE ARMED FORCES. NOTWITHSTANDING THE FACT THAT ANY MANDATORY RESTORATION RIGHTS WHICH THE EMPLOYEES MAY HAVE HAD EXPIRED PRIOR TO SUCH REINSTATEMENT OR REEMPLOYMENT. 26 COMP. ENTERED CIVILIAN EMPLOYMENT WITH THE MILITARY GOVERNMENT AUTHORITIES ARE ENTITLED. WAS EMPLOYED IN CIVILIAN CAPACITY WITH THE MILITARY GOVERNMENT AUTHORITIES IS ENTITLED. ARE NOT ENTITLED TO COUNT FOR WITHIN-GRADE ADVANCEMENT PURPOSES ANY PORTION OF THE 120 CALENDAR DAYS ALLOWED UNDER CIVIL SERVICE REGULATIONS FOR PERIODS IN A NONPAY STATUS INTERVENING BETWEEN TERMINATION OF MILITARY SERVICE AND ENTRY INTO MILITARY GOVERNMENT SERVICE AND BETWEEN SUCH CIVILIAN SERVICE AND THE DATE OF RESTORATION TO FORMER CIVILIAN POSITIONS.

B-64351, APRIL 8, 1947, 26 COMP. GEN. 754

COMPENSATION - PERIODIC WITHIN-GRADE ADVANCEMENTS' SERVICE CREDITS - MILITARY, NAVAL, ETC., ERVICE; MILITARY GOVERNMENT CIVILIAN SERVICE; PERIODS IN NONPAY STATUS EMPLOYEES WHO ARE REINSTATED OR REEMPLOYED IN AN AGENCY OTHER THAN THE ONE THEY LEFT TO ENTER THE ARMED FORCES, MERCHANT MARINE, OR TO PERFORM SERVICE ON WAR TRANSFER, MAY, IN THE ADMINISTRATIVE DISCRETION OF THE EMPLOYING AGENCY, BE CREDITED WITH SUCH SERVICE TOWARD WITHIN GRADE ADVANCEMENT UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, NOTWITHSTANDING THE FACT THAT ANY MANDATORY RESTORATION RIGHTS WHICH THE EMPLOYEES MAY HAVE HAD EXPIRED PRIOR TO SUCH REINSTATEMENT OR REEMPLOYMENT. 26 COMP. GEN. 138, AMPLIFIED. EMPLOYEES WHO, AFTER MILITARY OR NAVAL SERVICE, ENTERED CIVILIAN EMPLOYMENT WITH THE MILITARY GOVERNMENT AUTHORITIES ARE ENTITLED, UPON MAKING TIMELY APPLICATION FOR MANDATORY RESTORATION PURSUANT TO EXECUTIVE ORDER NO. 9711, TO COUNT SUCH CIVILIAN WAR TRANSFER SERVICE AS WELL AS THEIR MILITARY SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENT UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945; ALSO THOSE EMPLOYEES WHO FAILED TO MAKE TIMELY APPLICATION FOR MANDATORY RESTORATION MAY, IN THE ADMINISTRATIVE DISCRETION, BE CREDITED BOTH WITH THEIR MILITARY SERVICE AND CIVILIAN SERVICE UNDER SAID EXECUTIVE ORDER FOR WITHIN-GRADE ADVANCEMENT PURPOSES. AN EMPLOYEE WHO, AFTER MILITARY OR NAVAL SERVICE, WAS EMPLOYED IN CIVILIAN CAPACITY WITH THE MILITARY GOVERNMENT AUTHORITIES IS ENTITLED, UPON TIMELY APPLICATION FOR MANDATORY RESTORATION PURSUANT TO EXECUTIVE ORDER NO. 9711" TO COUNT TOWARD WITHIN-GRADE ADVANCEMENT UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, PERIODS IN A NONPAY STATUS, NOT IN EXCESS OF 120 CALENDAR DAYS, INTERVENING BETWEEN THE TERMINATION OF MILITARY SERVICE AND ENTRY INTO MILITARY GOVERNMENT SERVICE AND BETWEEN SUCH CIVILIAN SERVICE AND THE DATE OF RESTORATION TO HIS FORMER CIVILIAN POSITION. IN THE ABSENCE OF A STATUTE OR REGULATION HAVING THE FORCE AND EFFECT OF LAW, EMPLOYEES WHO, AFTER CIVILIAN SERVICE WITH THE MILITARY GOVERNMENT AUTHORITIES UPON WHICH THEY ENTERED AFTER MILITARY SERVICE, DO NOT AVAIL THEMSELVES OF THEIR MANDATORY REEMPLOYMENT RIGHTS UNDER EXECUTIVE ORDER NO. 9711, ARE NOT ENTITLED TO COUNT FOR WITHIN-GRADE ADVANCEMENT PURPOSES ANY PORTION OF THE 120 CALENDAR DAYS ALLOWED UNDER CIVIL SERVICE REGULATIONS FOR PERIODS IN A NONPAY STATUS INTERVENING BETWEEN TERMINATION OF MILITARY SERVICE AND ENTRY INTO MILITARY GOVERNMENT SERVICE AND BETWEEN SUCH CIVILIAN SERVICE AND THE DATE OF RESTORATION TO FORMER CIVILIAN POSITIONS. THE CIVIL SERVICE REGULATION OF DECEMBER 5, 1946, PROMULGATED PURSUANT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945, PRESCRIBING A MAXIMUM PERIOD OF 120 CALENDAR DAYS BETWEEN DATE OF DISCHARGE FROM THE ARMED FORCES AND THE DATE OF RESTORATION TO CIVILIAN DUTY WHICH MAY BE CREDITED TOWARD WITHIN-GRADE SALARY ADVANCEMENT, MAY NOT OPERATE TO GRANT BENEFITS PRIOR TO ITS EFFECTIVE DATE, SO THAT EMPLOYEES MAY NOT BE GRANTED WITHIN-GRADE SALARY ADVANCEMENTS ON THE BASIS OF SUCH REGULATION PRIOR TO THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE EFFECTIVE DATE OF THE REGULATION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, APRIL 8, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 28, 1947, AS FOLLOWS:

WE SHOULD LIKE TO SUBMIT FOR YOUR CONSIDERATION AND DECISION SOME QUESTIONS CONCERNING OUR AUTHORITY TO CREDIT SERVICE TOWARD WITHIN GRADE PAY INCREASES IN THE CASES OUTLINED BELOW:

1. THE EMPLOYEE INVOLVED IN THIS CASE WAS GIVEN A WAR SERVICE INDEFINITE REAPPOINTMENT IN THE DEPARTMENT, EFFECTIVE NOVEMBER 19, 1945, IN A CAF-9 POSITION AT THE MINIMUM OF THE GRADE. THE EMPLOYEE LAST HELD A CAF-9 POSITION, $3,200, IN THE OFFICE OF EMERGENCY MANAGEMENT AND WAS PLACED ON MILITARY FURLOUGH FROM THAT OFFICE IN AUGUST 1942. THE EMPLOYEE WAS NOTIFIED WHILE ON FURLOUGH THAT HE WAS BEING TERMINATED BECAUSE THE OFFICE OF EMERGENCY MANAGEMENT WAS BEING ABOLISHED. ON HIS RETURN FROM MILITARY FURLOUGH HE COULD NOT IMMEDIATELY LEARN WHETHER THERE HAD BEEN A TRANSFER OF FUNCTIONS TO ANOTHER AGENCY FROM THE UNIT IN WHICH HE HAD WORKED. DID NOT APPLY TO THE CIVIL SERVICE COMMISSION FOR RESTORATION TO DUTY UNDER THESE CIRCUMSTANCES BUT CAME TO THIS DEPARTMENT INSTEAD. HIS REAPPOINTMENT ON NOVEMBER 19, 1945, WAS MADE WHILE HE WAS ON TERMINAL MILITARY LEAVE. HE WORKED WITH US AT THE MINIMUM OF CAF-9 FROM NOVEMBER 19, 1945, TO FEBRUARY 15,1946. ON FEBRUARY 15 HE WAS CALLED BACK TO ACTIVE MILITARY DUTY. HE COMPLETED THAT DUTY ON AUGUST 22, 1946, AND IS NOW APPLYING FOR RETURN TO HIS POSITION WITH US.

WHEN WE RETURN THIS EMPLOYEE WE SHALL GIVE HIM CREDIT FOR HIS LAST PERIOD OF MILITARY SERVICE TOWARD WITHIN-GRADE PAY INCREASES IN CAF-9. THE DECISION (B-59772) WHICH YOU ADDRESSED TO ME ON AUGUST 27, 1946, INDICATES THAT WE MAY DO THIS ADMINISTRATIVELY EVEN THOUGH FAILURE OF THE EMPLOYEE TO APPLY FOR HIS POSITION WITHIN 90 DAYS AFTER DISCHARGE FROM THE ARMED FORCES MEANS THAT HIS MANDATORY REEMPLOYMENT RIGHTS HAD LAPSED. POSSIBLE WE WILL GIVE HIM CREDIT ALSO FOR HIS FIRST PERIOD OF MILITARY SERVICE SO THAT THE SALARY RATE AT WHICH WE REEMPLOY HIM WILL INCLUDE WITHIN-GRADE PAY INCREASES WHICH HE WOULD HAVE RECEIVED HAD HE REMAINED IN HIS CAF-9 POSITION FROM AUGUST 1942. THERE IS DOUBT AS TO OUR AUTHORITY TO GRANT CREDIT FOR THAT FIRST PERIOD OF MILITARY SERVICE BECAUSE THE REAPPOINTMENT HERE IN NOVEMBER 1945, WAS IN ANOTHER DEPARTMENT THAN THE ONE FROM WHICH THE EMPLOYEE WAS FURLOUGHED AND IN WHICH HE HAD MANDATORY RESTORATION RIGHTS. NO CREDIT WAS ALLOWED FOR SUCH SERVICE WHEN REAPPOINTMENT WAS EFFECTED IN NOVEMBER 1945, BECAUSE THERE WAS DOUBT AT THAT TIME THAT AUTHORITY TO GRANT IT EXISTED. YOUR DECISION B-57646 OF JUNE 12, 1946 (25 COMP. GEN. 852, 858) AND THE DETERMINATION BY THE CIVIL SERVICE COMMISSION WHICH IS QUOTED THEREIN INDICATE THAT THE EMPLOYEE IS NOT ENTITLED AS A MATTER OF RIGHT TO CREDIT FOR SUCH PERIOD OF SERVICE, BUT YOUR DECISION B-59772 OF AUGUST 27, 1946, INDICATES THAT WE MAY HAVE SOME LATITUDE ADMINISTRATIVELY TO GRANT SUCH CREDIT REGARDLESS. IT WILL BE NOTED THAT THE CASE WHICH IS HERE UNDER CONSIDERATION AND THE ONE ON WHICH YOUR AUGUST 27, 1946, DECISION IS BASED ARE ALIKE IN THAT THE EMPLOYEE INVOLVED IN EACH CASE HAD NO MANDATORY REEMPLOYMENT RIGHTS, BUT THE CASES DIFFER IN THE RESPECT THAT THE EMPLOYEE IN ONE CASE HAD NOT HELD A POSITION IN THIS DEPARTMENT PRIOR TO FURLOUGH FOR MILITARY SERVICE, WHILE THE EMPLOYEE IN THE OTHER CASE HAD.

(A) MAY WE ASSUME THAT OUR DISCRETIONARY AUTHORITY TO GIVE CREDIT FOR MILITARY, MERCHANT MARINE OR WAR TRANSFER SERVICE TOWARD WITHIN GRADE PAY INCREASES COVERS CASES LIKE THE ONE WHICH WE HAVE OUTLINED ABOVE, IN WHICH WE REEMPLOY OR REAPPOINT PERSONS AFTER THEIR MILITARY OR OTHER SPECIAL WAR SERVICE WHO HAVE NOT PREVIOUSLY HELD POSITIONS IN THIS DEPARTMENT?

(B IF THE ANSWER TO THE PRECEDING QUESTION IS "YES," COULD WE USE OUR AUTHORITY TO CREDIT SERVICE IN ANY SUCH CASE WHERE THE EMPLOYEE CONCERNED FAILED TO APPLY FOR A POSITION HERE WITHIN 90 DAYS OF HIS DISCHARGE FROM THE MILITARY SERVICE OR WITHIN 40 DAYS OF THE TERMINATION OF HIS WAR TRANSFER SERVICE, AS WELL AS IN THOSE CASES WHERE APPLICATION WAS MADE WITHIN THE PRESCRIBED 90-OR 40-DAY PERIOD?

2. WE HAVE EMPLOYEES WHO, WHEN DISCHARGED FROM THE ARMED FORCES, TAKE A CIVILIAN POSITION WITH THE MILITARY GOVERNMENT IN OCCUPIED COUNTRIES PRIOR TO RETURNING TO POSITIONS HERE. THE CIVIL SERVICE COMMISSION AUTHORIZES WAR TRANSFERS TO THE NAVY DEPARTMENT OR THE WAR DEPARTMENT, AS THE CASE MAY BE, FOR THESE EMPLOYEES AND EXECUTIVE ORDER 9711 OF APRIL 11, 1946, CONFERS REEMPLOYMENT RIGHTS TO THEIR ORIGINAL OR LIKE POSITIONS ON THEM, BUT THEIR FAILURE TO APPLY FOR RETURN TO THEIR ORIGINAL DEPARTMENTS WITHIN 90 DAYS OF THE TERMINATION OF THEIR SERVICE WITH THE MILITARY GOVERNMENT RESULTS IN THEIR LOSING THEIR MANDATORY REEMPLOYMENT RIGHTS.

SOME OF THESE EMPLOYEES HAVE NOW APPLIED FOR RETURN TO THEIR ORIGINAL POSITIONS IN THIS DEPARTMENT. WE WILL, THEREFORE, APPRECIATE YOUR DECISION AS TO WHETHER WE MAY, IF WE CHOOSE, ADMINISTRATIVELY GIVE THESE EMPLOYEES CREDIT FOR THEIR MILITARY SERVICE AND THEIR WAR TRANSFER SERVICE TOWARD WITHIN-GRADE PAY INCREASES IN THEIR ORIGINAL POSITIONS WHEN WE REEMPLOY THEM. IN CASE WE MAY GIVE THEM SUCH CREDIT, WE WOULD ALSO GRANT CREDIT FOR TIME FOLLOWING THEIR DISCHARGE FROM THE ARMED FORCES AND TIME FOLLOWING TERMINATION OF THEIR WAR TRANSFER SERVICE. THIS IS ALLOWED UNDER INSTRUCTIONS OF THE CIVIL SERVICE COMMISSION IN SUBSECTION (C), SECTION 301, ON PAGE Z1-427 OF THE FEDERAL PERSONNEL MANUAL, IN SUBSECTION (H) OF SECTION 301 AND IN AMENDMENT TO SUBSECTION (H) WHICH WAS PUBLISHED IN THE FEDERAL REGISTER OF JANUARY 28, 1947 (12 FR 551). TO ILLUSTRATE: SIXTY DAYS AFTER HIS DISCHARGE FROM THE ARMED FORCES, ONE OF OUR FORMER EMPLOYEES ACCEPTED A CIVILIAN POSITION WITH THE MILITARY GOVERNMENT IN GRADE CAF 11, TWO GRADES HIGHER THAN HIS FORMER POSITION HERE. HE HAS NOW APPLIED FOR RETURN TO HIS FORMER CAF-9 POSITION IN THIS DEPARTMENT AND WILL BE REEMPLOYED IN IT, EFFECTIVE 30 DAYS AFTER THE TERMINATION OF HIS SERVICE WITH THE MILITARY GOVERNMENT TOWARD WITHIN-GRADE PAY INCREASES IN COMPUTING THE SALARY RATE TO BE PAID TO HIM WHEN WE REEMPLOY HIM IN HIS FORMER CAF-9 POSITION? IF WE MAY, WE WOULD ALSO, OF COURSE, GIVE HIM CREDIT FOR THE 60 CALENDAR DAYS OF NON-PAY STATUS FOLLOWING HIS MILITARY SERVICE AND THE 30 CALENDAR DAYS FOLLOWING HIS SERVICE WITH THE MILITARY GOVERNMENT IN ACCORDANCE WITH THE ABOVE MENTIONED INSTRUCTIONS OF THE CIVIL SERVICE COMMISSION.

WE ARE IN DOUBT REGARDING OUR AUTHORITY TO GIVE CREDIT FOR WAR TRANSFER SERVICE TO THESE EMPLOYEES, EVEN WHERE THEY IMMEDIATELY APPLY AND ARE RESTORED TO THEIR ORIGINAL POSITIONS AFTER THE TERMINATION OF SUCH SERVICE, BECAUSE THEY DID NOT LEAVE THEIR POSITIONS TO COMPLY WITH WAR TRANSFERS BUT RATHER LEFT THEM TO ENTER THE ARMED FORCES. ALSO, THEY DID NOT APPLY FOR RESTORATION TO SUCH POSITIONS AFTER THEIR DISCHARGE FROM THE ARMED FORCES BUT ACCEPTED POSITIONS IN THE NAVY DEPARTMENT OR THE WAR DEPARTMENT FOR SERVICE UNDER THE MILITARY GOVERNMENT AUTHORITIES IN OCCUPIED COUNTRIES INSTEAD. IN OTHER WORDS, THE LAW EMBODIED IN SECTION 402 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND THE REGULATIONS WHICH THE CIVIL SERVICE COMMISSION HAS ISSUED THEREUNDER WOULD NOT APPEAR TO ENTITLE THEM TO CREDIT FOR BOTH PERIODS OF SERVICE AS A MATTER OF RIGHT. HOWEVER, THE FACT THAT REEMPLOYMENT RIGHTS HAVE BEEN CONFERRED UPON THEM BY EXECUTIVE ORDER 9711 AND THE FACT THAT THE CIVIL SERVICE COMMISSION HAS INDICATED THAT AN AGGREGATE OF 120 CALENDAR DAYS OF THE TOTAL TIME ELAPSING AFTER BOTH THEIR MILITARY AND THEIR WAR TRANSFER SERVICE SHALL BE CREDITED TOWARD WITHIN-GRADE PAY INCREASES IN THE POSITIONS TO WHICH RESTORED, SUGGESTS THAT WE MAY REGARD THE WAR TRANSFER SERVICE AS BEING, IN EFFECT, MERELY AN EXTENSION OF THEIR MILITARY SERVICE. UNDER THE CIRCUMSTANCES, IT IS FELT THAT YOU MAY NOT BE REQUIRED TO OBJECT TO OUR GIVING THEM CREDIT FOR BOTH PERIODS OF SUCH SERVICE IN DETERMINING THE SALARY RATE AT WHICH THEY SHOULD BE PAID IN THE POSITION TO WHICH RESTORED.

3. A FOOTNOTE TO THE INSTRUCTIONS IN SUBSECTION (H) OF SECTION 301 OF THE WITHIN-GRADE SALARY ADVANCEMENT REGULATIONS ON PAGE Z1-427 OF THE FEDERAL PERSONNEL MANUAL INDICATES THAT THEY ARE EFFECTIVE AS TO ALL COMPUTATIONS OF WITHIN-GRADE PAY INCREASES MADE AFTER DECEMBER 5, 1946. THEY WOULD BE APPLICABLE IN A CASE LIKE THE FOLLOWING: AN EMPLOYEE'S WAITING PERIOD WOULD HAVE ENDED ON SEPTEMBER 30, 1946. SUCH PERIOD IS ADVANCED 50 WORKING DAYS BECAUSE OF NONCREDITABLE NON PAY STATUS BETWEEN DISCHARGE FROM THE ARMED FORCES AND RETURN TO CIVILIAN DUTY IN HIS PARTICULAR CASE. THIS WOULD MAKE THE PAY INCREASE BECOME DUE AFTER DECEMBER 5, 1946. MUST, THEREFORE, RECOMPUTE THE SERVICE CREDITABLE IN ACCORDANCE WITH THE NEW INSTRUCTIONS WHICH ENTITLE THE EMPLOYEE TO CREDIT FOR 120 CALENDAR DAYS OF THE TIME ELAPSING BETWEEN DISCHARGE FROM THE ARMED FORCES AND RESTORATION TO HIS FORMER POSITION. RECOMPUTATION MOVES THE END OF THE WAITING PERIOD BACK TO SEPTEMBER 30, 1946. SINCE THIS IS A DATE PRIOR TO THE BEGINNING OF THE PAY PERIOD IN WHICH THE CIVIL SERVICE COMMISSION ISSUED THE NEW INSTRUCTIONS, WE ASSUME THAT WE SHOULD MAKE THE INCREASE EFFECTIVE AS OF DECEMBER 5, 1946. IS THIS CORRECT?

WE ARE WITHHOLDING INSTRUCTIONS TO OUR BUREAUS IN REGARD TO THE PROCEDURE TO BE FOLLOWED IN HANDLING CASES IN WHICH THE FOREGOING QUESTIONS ARISE PENDING RECEIPT OF YOUR DECISION. YOUR PROMPT CONSIDERATION WILL, THEREFORE, BE DEEPLY APPRECIATED.

SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, PROVIDES:

(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 AMY 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. AS USED IN THIS PARAGRAPH THE TERM "SERVICE IN THE MERCHANT MARINE" SHALL HAVE THE SAME MEANING AS WHEN USED IN THE ACT ENTITLED " AN ACT TO PROVIDE REEMPLOYMENT RIGHTS FOR PERSONS WHO LEAVE THEIR POSITIONS TO SERVE IN THE MERCHANT MARINE, AND FOR OTHER PURPOSES," APPROVED JUNE 23, 1943 ( U.S.C., 1940 EDITION, SUPP. IV, TITLE 50 APP., SECS. 1471 TO 1475, INC. ).'

IN THE DECISION OF AUGUST 27, 1946, B-59772, 26 COMP. GEN. 138, REFERRED TO IN YOUR LETTER, AFTER QUOTING THE CURRENT REGULATIONS OF THE CIVIL SERVICE COMMISSION WHICH RESTRICT THE COUNTING OF SERVICE IN THE ARMED FORCES OR UPON WAR TRANSFER FOR WITHIN-GRADE SALARY ADVANCEMENTS TO THOSE CASES WHERE THE RESTORATION TO CIVILIAN DUTY WAS ON A MANDATORY BASIS IT WAS STATED:

WITHOUT AT THIS TIME PASSING UPON THE VALIDITY OF THE CIVIL SERVICE REGULATIONS SO FAR AS THEY ATTEMPT TO DENY THE RIGHT OF A FORMER GOVERNMENT EMPLOYEE TO CREDIT FOR SERVICE IN THE ARMED FORCES, MERCHANT MARINE, OR WAR TRANSFER TOWARD A WITHIN-GRADE SALARY ADVANCE UPON REINSTATEMENT OR REEMPLOYMENT IN THE GOVERNMENT SERVICE UNDER CIVIL SERVICE REGULATIONS AUTHORIZING SUCH REINSTATEMENT OR REEMPLOYMENT UPON OTHER THAN A MANDATORY BASIS, IT WOULD SEEM THAT THE QUOTED REGULATIONS DO NOT DENY THE DISCRETIONARY AUTHORITY OF THE EMPLOYING OFFICE TO GIVE CREDIT FOR ALL SUCH SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS IF THEY SHOULD DESIRE TO EXERCISE THAT DISCRETION--- THERE APPEARING NOTHING IN THE PROVISIONS OF SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 OTHERWISE TO BAR THE GRANTING OF SUCH CREDIT. ACCORDINGLY, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE DEPARTMENT OF AGRICULTURE GIVING CREDIT TO REINSTATED OR REEMPLOYED PERSONNEL FOR THEIR MILITARY, MERCHANT MARINE, OR WAR TRANSFER SERVICE TOWARD WITHIN-GRADE SALARY ADVANCES, NOTWITHSTANDING THAT THEIR MANDATORY RESTORATION RIGHTS HAVE LAPSED. * *

WHILE THE PARTICULAR CASE CONSIDERED IN THAT DECISION INVOLVED THE REEMPLOYMENT BY THE DEPARTMENT OF AGRICULTURE OF A FORMER EMPLOYEE OF THAT DEPARTMENT WHOSE MANDATORY RESTORATION RIGHTS HAD LAPSED, THAT PORTION OF THE DECISION WHICH IS QUOTED ABOVE WAS NOT INTENDED AS APPLYING SOLELY TO INSTANCES WHERE FORMER EMPLOYEES ARE REEMPLOYED IN THE SAME AGENCY WHICH THEY LEFT TO ENTER THE ARMED FORCES OR TO PERFORM SERVICE ON WAR TRANSFER. ON THE CONTRARY, THE QUOTED STATEMENT WAS INTENDED TO COVER ALL REEMPLOYMENTS OR REINSTATEMENTS WITHIN THE PURVIEW OF THE SAID SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 ON OTHER THAN A MANDATORY BASIS. ACCORDINGLY, QUESTIONS 1 (A) AND (B) ARE ANSWERED IN THE AFFIRMATIVE.

SECTION 1 OF EXECUTIVE ORDER NO. 9711, APRIL 11, 1946, READS AS FOLLOWS:

ANY FORMER EMPLOYEE OF A DEPARTMENT OR AGENCY OF THE FEDERAL GOVERNMENT WHO IS ENTITLED TO THE BENEFITS GRANTED BY SUBSECTION 8 (B) (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 (54 STAT. 890), AS AMENDED, AND WHO HAS ENTERED OR ENTERS CIVILIAN EMPLOYMENT UNDER THE MILITARY GOVERNMENT AUTHORITIES OF THE UNITED STATES IN ANY OF THE OCCUPIED TERRITORIES WITHIN 90 DAYS AFTER SEPARATION FROM ACTIVE MILITARY OR NAVAL SERVICE SHALL, IF QUALIFIED TO PERFORM THE DUTIES OF HIS POSITION, BE REEMPLOYED IN HIS ORIGINAL CIVILIAN POSITION OR IN A POSITION OF LIKE SENIORITY, STATUS, AND PAY, UPON APPLICATION FOR SUCH REEMPLOYMENT, MADE TO THE ORIGINAL EMPLOYING DEPARTMENT OR AGENCY WITHIN 90 DAYS AFTER TERMINATION OF SUCH CIVILIAN EMPLOYMENT IN ANY OF THE OCCUPIED TERRITORIES, AND UPON PRESENTATION OF A STATEMENT BY THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, OR THEIR AUTHORIZED REPRESENTATIVE, RECITING THE DATE OF TERMINATION OF SUCH CIVILIAN EMPLOYMENT, THAT HIS SERVICES HAVE BEEN SATISFACTORY, AND THAT TERMINATION WAS NOT THE RESULT OF DELINQUENCY OR MISCONDUCT ON THE PART OF THE EMPLOYEE.

SECTION 205 OF THE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 216 ( CHAPTER Z1, PAGE 426, FEDERAL PERSONNEL MANUAL), PROVIDES:

WAR TRANSFER.--- " WAR TRANSFER" MEANS ANY TRANSFER AUTHORIZED BY THE CIVIL SERVICE COMMISSION UNDER THE EXECUTIVE ORDER NOS. 8973 OF DECEMBER 12, 1941, OR 9067 OF FEBRUARY 20, 1942, WAR MANPOWER COMMISSION DIRECTIVE NO. X, OR WAR SERVICE REGULATION IX, UNDER CONDITIONS ENTITLING THE EMPLOYEE TO REEMPLOYMENT IN HIS FORMER POSITION OR A POSITION OF LIKE SENIORITY, STATUS, AND PAY; CIVILIAN EMPLOYMENT IN OCCUPIED COUNTRIES SUBJECT TO THE PROVISIONS OF EXECUTIVE ORDER NO. 9711 OF APRIL 11, 1946; OR EMPLOYMENT WIHTH PUBLIC INTERNATIONAL ORGANIZATIONS SUBJECT TO THE PROVISIONS OF EXECUTIVE ORDER NO. 9721 OF MAY 10, 1946.

IT SEEMS CLEAR THAT UNDER THE TERMS OF SECTION 1 OF EXECUTIVE ORDER NO. 9711, SUPRA, PERSONS WITIN THE PURVIEW THEREOF WHO MAKE TIMELY APPLICATION FOR RESTORATION TO THEIR FORMER CIVILIAN POSITION AFTER TERMINATION OF THEIR SERVICE WITH MILITARY GOVERNMENT AUTHORITIES IN OCCUPIED TERRITORIES HAVE MANDATORY RESTORATION RIGHTS WITHIN THE MEANING OF THE SAID CIVIL SERVICE REGULATIONS. ALSO, IT WILL BE NOTED THAT SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 SPECIFICALLY AUTHORIZES THE COUNTING, FOR WITHIN-GRADE SALARY ADVANCEMENT PURPOSES, OF "SERVICE UNDER A WAR TRANSFER AS DEFINED BY THE CIVIL SERVICE COMMISSION.' CONSEQUENTLY, SINCE SECTION 205 OF THE CIVIL SERVICE REGULATIONS, SUPRA, RECOGNIZES SERVICE WITH THE MILITARY GOVERNMENT AUTHORITIES PURSUANT TO EXECUTIVE ORDER NO. 9711 AS CREDITABLE SERVICE FOR WITHIN-GRADE SALARY ADVANCEMENTS, IT IS CONCLUDED THAT PERSONS COMING WITHIN THE PURVIEW OF EXECUTIVE ORDER NO. 9711 WHO MAKE TIMELY APPLICATION FOR RESTORATION TO THEIR FORMER CIVILIAN POSITIONS ARE ENTITLED, AS A MATTER OF RIGHT, TO COUNT SUCH CIVILIAN SERVICE AS WELL AS THEIR MILITARY SERVICE FOR WITHIN-GRADE SALARY ADVANCEMENTS. LIKEWISE, IN LINE WITH THE HOLDING IN THE SAID DECISION OF AUGUST 27, 1946, THOSE EMPLOYEES WHO FAIL TO MAKE TIMELY APPLICATION FOR RESTORATION TO THEIR FORMER POSITIONS, MAY, IN THE DISCRETION OF THE OFFICIAL OF THE AGENCY IN WHICH THEY SUBSEQUENTLY ARE EMPLOYED, BE CREDITED BOTH WITH THEIR MILITARY SERVICE AND THEIR CIVILIAN SERVICE UNDER EXECUTIVE ORDER 9711.

WITH RESPECT TO THE COUNTING OF THE NONPAY PERIOD INTERVENING BETWEEN THE TERMINATION OF SERVICE WITH THE ARMED FORCES AND THE ENTRANCE UPON DUTY WITH THE MILITARY GOVERNMENT AUTHORITIES AND, ALSO, THE PERIOD BETWEEN THE DATE OF TERMINATION OF SUCH DUTY AND THE DATE OF RESTORATION TO THE FORMER CIVILIAN POSITION, IT IS PROVIDED IN THE SAID CIVIL SERVICE REGULATIONS UNDER THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946, AS FOLLOWS:

PART III. COMPUTATION OF PERIODS OF SERVICE.

SECTION 301. SERVICE TO BE CREDITED.--- IN COMPUTING THE PERIODS OF SERVICE REQUIRED FOR WITHIN-GRADE SALARY ADVANCEMENTS THERE SHALL BE CREDITED TO SUCH SERVICE:

IN THE CASE OF AN EMPLOYEE EXERCISING REEMPLOYMENT RIGHTS UNDER THE TERMS OF EXECUTIVE ORDER NO. 9711, NOT TO EXCEED A TOTAL PERIOD OF 120 CALENDAR DAYS OF TIME ELAPSING BETWEEN RELEASE FROM MILITARY SERVICE AND ACCEPTANCE OF CIVILIAN EMPLOYMENT IN OCCUPIED TERRITORIES UNDER THE MILITARY GOVERNMENT AUTHORITIES OF THE UNITED STATES, AND TIME ELAPSING BETWEEN TERMINATION OF SUCH EMPLOYMENT AND THE EXERCISE OF HIS REEMPLOYMENT RIGHTS IN ACCORDANCE WITH EXECUTIVE ORDER NO. 9711.

IN THE LIGHT OF THE FOREGOING, YOU ARE ADVISED THAT UPON TIMELY APPLICATION FOR RESTORATION TO CIVILIAN DUTY, UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 9711, AN EMPLOYEE IS ENTITLED TO HAVE CREDITED TO HIM THE PERIODS IN A NONPAY STATUS UP TO A MAXIMUM OF 120 CALENDAR DAYS. HOWEVER, IN THE ABSENCE OF A STATUTE OR REGULATION HAVING THE FORCE AND EFFECT OF LAW SPECIFICALLY PROVIDING THEREFOR, EMPLOYEES WHO FAIL TO AVAIL THEMSELVES OF THEIR REEMPLOYMENT RIGHTS UNDER EXECUTIVE ORDER NO. 9711, PROPERLY MAY NOT BE GIVEN CREDIT FOR ANY PORTION OF SUCH NONDUTY PERIODS AS SERVICE CREDITS TOWARDS WITHIN-GRADE SALARY ADVANCEMENTS. THE QUESTIONS PRESENTED UNDER PARAGRAPH 2 OF YOUR LETTER ARE ANSWERED ACCORDINGLY.

SINCE, IN THE EXAMPLE GIVEN IN CONNECTION WITH QUESTION 3, THE RIGHT TO COUNT THE PERIOD IN A NONPAY STATUS BETWEEN THE DATE OF DISCHARGE FROM THE ARMED FORCES AND THE DATE OF RESTORATION TO CIVILIAN DUTY DID NOT ARISE UNTIL DECEMBER 5, 1946--- THE EFFECTIVE DATE OF THE CIVIL SERVICE REGULATION MENTIONED--- SUCH REGULATION MAY NOT OPERATE TO GRANT ANY BENEFITS PRIOR TO ITS EFFECTIVE DATE. FURTHER, SINCE WITHIN GRADE SALARY ADVANCEMENTS ARE EFFECTIVE AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE DATE UPON WHICH AN EMPLOYEE MEETS ALL THE PREREQUISITES NECESSARY THEREFOR, YOU ARE ADVISED THAT, IN THE EXAMPLE GIVEN, AND ASSUMING THAT THE OTHER REQUIREMENTS HAD BEEN MADE EFFECTIVE AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING DECEMBER 5--- THE DATE WHEN THE EMPLOYEE WAS ENTITLED TO COUNT HIS NONPAY STATUS FOR SERVICE CREDIT PURPOSES.