B-64425, APRIL 3, 1947, 26 COMP. GEN. 734

B-64425: Apr 3, 1947

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" OR OTHER PART TIME EMPLOYEES WHO ARE OTHERWISE WITHIN THE PURVIEW OF THE WITHIN-GRADE SALARY-ADVANCEMENT PROVISIONS OF SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 ARE ENTITLED FROM AND AFTER JULY 1. EMPLOYEES WHO ARE OTHERWISE WITHIN THE PURVIEW OF THE WITHIN-GRADE SALARY -ADVANCEMENT PROVISIONS OF SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 ARE ENTITLED FROM AND AFTER JULY 1. AS FOLLOWS: QUESTION HAS ARISEN AS TO WHETHER WE ARE AUTHORIZED TO GIVE OUR SEASONAL. WE GAVE THESE EMPLOYEES CREDIT FOR PERIODS OF ACTIVE MILITARY OR MERCHANT MARINE SERVICE CORRESPONDING TO THE AVERAGE PERIODS (EITHER ACTUAL OR ESTIMATED ON THE BASIS OF THE EXPERIENCE OF EMPLOYEES DOING SIMILAR WORK) FOR WHICH THEY WERE EMPLOYED EACH YEAR IN THEIR CIVILIAN POSITIONS.

B-64425, APRIL 3, 1947, 26 COMP. GEN. 734

COMPENSATION - PERIODIC WITHIN-GRADE ADVANCEMENTS - MILITARY AND WAR INDUSTRY SERVICE CREDITS SEASONAL,"WHEN-ACTUALLY-EMPLOYED," OR OTHER PART TIME EMPLOYEES WHO ARE OTHERWISE WITHIN THE PURVIEW OF THE WITHIN-GRADE SALARY-ADVANCEMENT PROVISIONS OF SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 ARE ENTITLED FROM AND AFTER JULY 1, 1945--- THE EFFECTIVE DATE OF SAID ACT- - UPON RESTORATION TO CIVILIAN POSITIONS AFTER MILITARY DUTY, TO COUNT ALL OF THEIR MILITARY SERVICE TOWARD WITHIN-GRADE ADVANCEMENT IN THE SAME MANNER AS REGULAR FULL TIME EMPLOYEES. COMPARE 20 COMP. GEN. 789, AND 24 ID. 448. EMPLOYEES WHO ARE OTHERWISE WITHIN THE PURVIEW OF THE WITHIN-GRADE SALARY -ADVANCEMENT PROVISIONS OF SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 ARE ENTITLED FROM AND AFTER JULY 1, 1945--- THE EFFECTIVE DATE OF SAID ACT--- UPON RESTORATION AFTER WAR-INDUSTRY SERVICE, TO COUNT ALL OF THEIR SERVICE IN PRIVATE INDUSTRY UNDER A WAR TRANSFER AS DEFINED BY THE CIVIL SERVICE COMMISSION TOWARD WITHIN-GRADE ADVANCEMENT. COMPARE 22 COMP. GEN. 969, AND 23 ID. 877.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, APRIL 3, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 4, 1947, AS FOLLOWS:

QUESTION HAS ARISEN AS TO WHETHER WE ARE AUTHORIZED TO GIVE OUR SEASONAL, W.A.E. AND OTHER IRREGULAR EMPLOYEES CREDIT FOR ALL ACTIVE MILITARY, MERCHANT MARINE OR WAR TRANSFER SERVICE TOWARD WITHIN-GRADE PAY INCREASES. PRIOR TO JULY 1, 1945, WE GAVE THESE EMPLOYEES CREDIT FOR PERIODS OF ACTIVE MILITARY OR MERCHANT MARINE SERVICE CORRESPONDING TO THE AVERAGE PERIODS (EITHER ACTUAL OR ESTIMATED ON THE BASIS OF THE EXPERIENCE OF EMPLOYEES DOING SIMILAR WORK) FOR WHICH THEY WERE EMPLOYED EACH YEAR IN THEIR CIVILIAN POSITIONS. THIS WAS IN ACCORDANCE WITH YOUR DECISIONS OF MAY 20, 1941, AND DECEMBER 11, 1944 (20 COMP. GEN. 789 AND 24 COMP. GEN. 448). NO CREDIT WAS ALLOWED FOR WAR TRANSFER SERVICE UNLESS IT WAS FEDERAL SERVICE, BASED ON YOUR DECISIONS OF APRIL 14, 1943, AND MAY 17, 1944 (22 COMP. GEN. 969, AG PAGE 974, AND 23 COMP. GEN. 877).

THE FOREGOING DECISIONS WERE BASED ON THE PROVISIONS OF THE MEAD RAMSPECK ACT OF AUGUST 1, 1941, AND THE REGULATIONS WHICH THE PRESIDENT ISSUED PURSUANT THERETO IN EXECUTIVE ORDER 8882, DATED SEPTEMBER 3, 1941. THE APPLICABLE PROVISIONS OF SECTION 5 OF THAT EXECUTIVE ORDER READ AS FOLLOWS:

"ANY EMPLOYEE OF THE FEDERAL GOVERNMENT WHO IN ACCORDANCE WITH THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 ( PUBLIC NO. 783, 76TH CONGRESS, OR OF PUBLIC RESOLUTION NO. 96 APPROVED AUGUST 27, 1940, RELATING TO THE MOBILIZATION OF AUXILIARY MILITARY PERSONNEL, IS RESTORED TO THE SAME POSITION OR A POSITION OF LIKE SENIORITY, STATUS, AND PAY, WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO RECEIVE A SALARY AT A RATE OF NOT LESS THAN THE EMPLOYEE'S LATEST RATE PRIOR TO HIS ENTRANCE INTO ACTIVE MILITARY OR NAVAL DUTY PLUS ANY WITHIN-GRADE SALARY ADVANCEMENT OR ADVANCEMENTS TO WHICH HE WOULD HAVE BEEN ELIGIBLE UNDER THE PROVISIONS OF THE SAID SECTION 7 (B) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED.'

SINCE THESE REGULATIONS WERE ISSUED, THE CONGRESS HAS PROVIDED, IN SECTION 402 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, THAT ANY EMPLOYEE PROPERLY RESTORED AFTER MILITARY, MERCHANT MARINE OR WAR TRANSFER SERVICE IS ENTITLED TO WITHIN-GRADE SALARY ADVANCEMENTS AND "TO CREDIT SUCH SERVICE IN THE ARMED FORCES, IN THE MERCHANT MARINE AND ON WAR TRANSFER, TOWARD SUCH WITHIN-GRADE SALARY ADVANCEMENTS.' THERE IS NOTHING TO INDICATE THAT ANYTHING LESS THAN FULL CREDIT IS TO BE ALLOWED FOR THE PERIOD SERVED IN THE ARMED FORCES, THE MERCHANT MARINE, OR ON WAR TRANSFER, NOR THAT WAS TRANSFER SERVICE IN PRIVATE INDUSTRY OR IN OTHER THAN POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, MAY NOT NOW BE CREDITED THE SAME AS FEDERAL SERVICE IN POSITIONS SUBJECT TO THAT ACT.

YOUR DECISION WILL THEREFORE BE APPRECIATED, FIRST, AS TO WHETHER WE SHOULD STILL FOLLOW YOUR DECISIONS IN 20 COMP. GEN. 789 AND 24 COMP. GEN. 448 WITH RESPECT TO CREDITING MILITARY, MERCHANT MARINE OR WAR TRANSFER SERVICE IN THE SECOND, AS TO WHETHER YOUR DECISIONS IN 22 COMP. GEN. 969 AND 23 COMP. GEN. 877 ARE APPLICABLE TO EMPLOYEES WHO ARE PROPERLY RESTORED ON OR AFTER JULY 1, 1945, FOLLOWING COMPLETION OF WAR TRANSFER SERVICE, INCLUDING SUCH SERVICE IN PRIVATE INDUSTRY. IF WE SHOULD NO LONGER FOLLOW THE RULINGS IN THOSE DECISIONS, IT WILL BE HELPFUL IF YOU WILL INDICATE HOW ADJUSTMENTS SHOULD BE EFFECTED IN CASES WHICH HAVE ALREADY BEEN PROCESSED ON THE BASIS OF SUCH RULINGS.

THE DECISIONS OF THIS OFFICE MENTIONED IN THE FIRST PARAGRAPH OF YOUR LETTER, SUPRA, WERE RENDERED PRIOR TO THE ENACTMENT OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, AND NECESSARILY ARE TO BE VIEWED AS BEING LIMITED TO MATTERS OF CREDITING MILITARY SERVICE OR SERVICE UNDER WAR TRANSFER FOR WITHIN-GRADE SALARY ADVANCEMENT PURPOSES UNDER THE STATUTES AND REGULATIONS IN EFFECT AT THAT TIME. SECTION 5 OF EXECUTIVE ORDER NO. 8882, QUOTED IN YOUR LETTER, WHICH WAS IN EFFECT AT THE TIME THE SAID DECISIONS REPORTED IN 20 COMP. GEN. 789, AND 24 ID. 448 WERE RENDERED, SPECIFICALLY PROVIDED, INTER ALIA, THAT AN EMPLOYEE WITHIN THE PURVIEW THEREOF SHALL BE ENTITLED, UPON RESTORATION TO CIVILIAN DUTY AFTER MILITARY SERVICE, TO ANY WITHIN-GRADE SALARY ADVANCEMENT OR ADVANCEMENTS "TO WHICH HE WOULD HAVE BEEN ELIGIBLE" UNDER THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED. THUS, A SEASONAL OR OTHER PART TIME EMPLOYEE, ON THE BASIS OF HIS NORMAL CIVILIAN TOUR OF DUTY, WAS CREDITED WITH ONLY A PORTION OF EACH CALENDAR YEAR AS SERVICE FOR WITHIN- GRADE SALARY PURPOSES. HENCE, IT WAS PROPER UNDER THE SAID EXECUTIVE ORDER TO GIVE HIM CREDIT FOR MILITARY SERVICE FOR WITHIN-GRADE ADVANCEMENT PURPOSES UPON THE SAME PRO RATA BASIS, SO THAT, IN CONSONANCE WITH THE PROVISIONS OF THE SAID EXECUTIVE ORDER, HE WAS ENTITLED, UPON RESTORATION TO CIVILIAN DUTY, TO WITHIN-GRADE SALARY ADVANCEMENTS IN THE SAME MANNER AND TO THE SAME EXTENT TO WHICH HE WOULD HAVE BEEN "ELIGIBLE" THEREFOR HAD HE REMAINED IN HIS CIVILIAN POSITION.

SIMILARLY, AT THE TIME THE DECISIONS IN 22 COMP. GEN. 969, AND 23 ID. 877, WERE RENDERED, THERE WAS NO STATUTE OR REGULATION AUTHORIZING THE COUNTING OF SERVICE UNDER A WAR TRANSFER TO PRIVATE INDUSTRY FOR PURPOSES OF WITHIN-GRADE SALARY ADVANCEMENTS. CONSEQUENTLY, IT CORRECTLY WAS HELD IN SAID DECISIONS THAT SUCH SERVICE WAS NOT CREDITABLE FOR WITHIN-GRADE SALARY ADVANCEMENT PURPOSES. HOWEVER, AS STATED IN YOUR LETTER, SUBSECTION 7 (B) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, EFFECTIVE JULY 1, 1945, EXPRESSLY PROVIDES THAT AN EMPLOYEE WITHIN THE PURVIEW THEREOF SHALL BE ENTITLED TO CREDIT "SERVICE IN THE ARMED FORCES, IN THE MERCHANT MARINE, AND ON WAR TRANSFER, TOWARD SUCH WITHIN-GRADE SALARY ADVANCEMENT.' CONSEQUENTLY, IT SEEMS CLEAR THAT FROM AND AFTER JULY 1, 1945, SEASONAL OR OTHER PART TIME EMPLOYEES OTHERWISE ENTITLED TO THE BENEFITS OF SUBSECTION 7 (B) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, SUPRA, ARE ENTITLED TO CREDIT FOR ALL OF THEIR MILITARY SERVICE FOR WITHIN-GRADE SALARY ADVANCEMENT PURPOSES IN THE SAME MANNER AS REGULAR, FULL TIME EMPLOYEES. ALSO, UNDER THE PROVISIONS OF THAT SUBSECTION, THEY ARE ENTITLED TO CREDIT FOR SERVICE IN PRIVATE INDUSTRY UNDER A WAR TRANSFER AS DEFINED BY THE CIVIL SERVICE COMMISSION. ACCORDINGLY, IN ANSWER TO THE SPECIFIC QUESTIONS PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, YOU ARE ADVISED THAT THE REFERRED-TO DECISIONS OF THIS OFFICE ARE NOT CONTROLLING WITH RESPECT TO THE CREDITING OF MILITARY AND WAR TRANSFER SERVICE FROM AND AFTER JULY 1, 1945, THE EFFECTIVE DATE OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND THAT SUCH MATTERS ARE FOR DETERMINATION UNDER THE PROVISIONS OF THAT STATUTE AND THE APPLICABLE REGULATIONS ISSUED THEREUNDER.

IN THE ABSENCE OF COMPLETE INFORMATION REGARDING THE FACTS INVOLVED IN EACH CASE, NO STATEMENT WITH RESPECT TO THE MANNER OF ADJUSTING CASES PROCESSED UNDER THE ABOVE-MENTIONED DECISIONS WILL BE ATTEMPTED. HOWEVER, IN THAT CONNECTION, GENERALLY, SEE 25 COMP. GEN. 102 (PARTICULARLY PP. 111, 112), AND 25 ID. 182.