B-65533, JUNE 23, 1947, 26 COMP. GEN. 943

B-65533: Jun 23, 1947

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THE FACT THAT AN EMPLOYEE WAS IN A NON-PAY STATUS (INCLUDING A BREAK IN SERVICE) BETWEEN THE TERMINATION OF MILITARY SERVICE AND RESTORATION TO CIVILIAN DUTY. - WHICH AFFECTED THE SERVICE CREDIT IN A WAITING PERIOD SUBSEQUENT TO THAT PERIOD IN WHICH PRIOR CIVILIAN SERVICE IS CREDITABLE. THE FOLLOWING STATEMENTS ARE PRESENTED FOR YOUR CONSIDERATION: IN YOUR DECISION B-57081 OF JULY 13. IT IS HELD. IN REGARD TO A VETERAN WHO WAS REEMPLOYED IN THE WAR DEPARTMENT AFTER 38 DAYS OF NON-PAY STATUS (INCLUDING BREAK IN SERVICE) BETWEEN DISCHARGE FROM THE MILITARY SERVICE AND REEMPLOYMENT. OF THE CIVIL SERVICE REGULATIONS ISSUED UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945) THE EMPLOYEE IN THIS CASE WOULD BE ENTITLED TO CREDIT FOR ALL MILITARY SERVICE BUT AS SHE WAS RESTORED TO A CIVILIAN POSITION MORE THAN 30 DAYS (INCLUDING A BREAK IN SERVICE) AFTER HER SEPARATION FROM THE MILITARY SERVICE NO CREDIT FOR PRIOR CIVILIAN SERVICE CAN BE GIVEN TOWARD WITHIN-GRADE SALARY ADVANCES. 22 COMP.

B-65533, JUNE 23, 1947, 26 COMP. GEN. 943

COMPENSATION - WITHIN-GRADE SALARY ADVANCEMENTS - SERVICE CREDITS - NON PAY STATUS PRECEDING RESTORATION AFTER MILITARY SERVICE AS AFFECTING PRIOR CIVILIAN SERVICE IN VIEW OF THE PURPOSE OF THE CIVIL SERVICE REGULATIONS UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 RELATING TO SERVICE CREDIT FOR WITHIN GRADE ADVANCEMENT THAT EACH PRESCRIBED PERIOD OF SERVICE MAY BE CONSIDERED SEPARATELY, THE FACT THAT AN EMPLOYEE WAS IN A NON-PAY STATUS (INCLUDING A BREAK IN SERVICE) BETWEEN THE TERMINATION OF MILITARY SERVICE AND RESTORATION TO CIVILIAN DUTY--- WHICH AFFECTED THE SERVICE CREDIT IN A WAITING PERIOD SUBSEQUENT TO THAT PERIOD IN WHICH PRIOR CIVILIAN SERVICE IS CREDITABLE--- DOES NOT OPERATE TO DENY TO THE EMPLOYEE A SALARY ADVANCEMENT BASED IN PART UPON SUCH PRIOR CIVILIAN SERVICE. 26 COMP. GEN. 30 AND ID. 506, MODIFIED IN PART.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JUNE 23, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 14, 1947, AS FOLLOWS:

THE COMMISSION RESPECTFULLY REQUESTS YOUR ADVICE ON THE INTERPRETATION AND APPLICABILITY OF ITS REGULATION PERTAINING TO THE COUNTING OF PRIOR CIVILIAN EMPLOYMENT IN CERTAIN SITUATIONS UPON THE EMPLOYEES' RETURN FROM MILITARY SERVICE, AND THE FOLLOWING STATEMENTS ARE PRESENTED FOR YOUR CONSIDERATION:

IN YOUR DECISION B-57081 OF JULY 13, 1946 (26 COMP. GEN. 30), IT IS HELD, IN REGARD TO A VETERAN WHO WAS REEMPLOYED IN THE WAR DEPARTMENT AFTER 38 DAYS OF NON-PAY STATUS (INCLUDING BREAK IN SERVICE) BETWEEN DISCHARGE FROM THE MILITARY SERVICE AND REEMPLOYMENT, THAT

"PURSUANT TO THE ABOVE REGULATION ( SECTION 301, PART III, CHAPTER II, OF THE CIVIL SERVICE REGULATIONS ISSUED UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945) THE EMPLOYEE IN THIS CASE WOULD BE ENTITLED TO CREDIT FOR ALL MILITARY SERVICE BUT AS SHE WAS RESTORED TO A CIVILIAN POSITION MORE THAN 30 DAYS (INCLUDING A BREAK IN SERVICE) AFTER HER SEPARATION FROM THE MILITARY SERVICE NO CREDIT FOR PRIOR CIVILIAN SERVICE CAN BE GIVEN TOWARD WITHIN-GRADE SALARY ADVANCES. 22 COMP. GEN. 1104.'

SUBSECTION (E) OF SECTION 301 OF THE REGULATIONS UNDER THE 1945 PAY ACT PROVIDED THAT ANY EMPLOYEE ENTITLED TO BE CREDITED WITH MILITARY SERVICE TOWARD WITHIN-GRADE PAY INCREASES THEREUNDER "SHALL ALSO BE ENTITLED TO CREDIT FOR CIVILIAN EMPLOYMENT PRIOR TO LEAVING HIS POSITION TO ENTER THE ARMED FORCES . . . IN ACCORDANCE WITH SUBSECTIONS (A), (B), (C), AND (D) OF THIS SECTION.'

THE FORCE OF THIS QUOTED PORTION OF SECTION 301, AS WE UNDERSTAND, IT, WAS TO REQUIRE THE DEPARTMENTS TO CREDIT RESTORED VETERANS WITH THEIR PRIOR CIVILIAN SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS THAT BECAME DUE ON JULY 1, 1945, OR THEREAFTER, PROVIDED THE VETERANS WERE ENTITLED TO BE CREDITED WITH THEIR MILITARY SERVICE TOWARD SUCH ADVANCEMENTS. THERE WAS THE FURTHER CONDITION THAT IN COMPUTING CREDIT FOR THE PRIOR CIVILIAN SERVICE THE PROVISIONS OF SUBSECTIONS (A), (B), (C), AND (D) OF SECTION 301 SHOULD APPLY.

SUBSECTIONS (A) AND (B) OF SECTION 301 PROVIDED THAT IN COMPUTING THE PERIODS OF SERVICE REQUIRED FOR WITHIN-GRADE PAY INCREASES CREDIT SHOULD BE ALLOWED FOR PAST CIVILIAN SERVICE IN ANY BRANCH OF THE FEDERAL GOVERNMENT, AND TIME ELAPSING ON ANNUAL, SICK, OR OTHER LEAVE WITH PAY. SUBSECTIONS (C) AND (D) PROVIDED FOR CREDITING

"/C) TIME ELAPSING IN A NON-PAY STATUS (INCLUDING BREAK IN SERVICE) NOT EXCEEDING THIRTY DAYS WITHIN ANY ONE TIME PERIOD OF TWELVE OR EIGHTEEN MONTHS, AS THE CASE MAY BE," AND

"/D) SERVICE RENDERED PRIOR TO ABSENCE ON FURLOUGH OR LEAVE WITHOUT PAY WHERE SUCH ABSENCE IS IN EXCESS OF THIRTY DAYS BUT NOT EXCEEDING ONE YEAR.'

BASED ON YOUR DECISION B-34916 OF JUNE 12, 1943 (22 COMP. GEN. 1104), SUBSECTION (D) WAS NOT REGARDED AS BENEFITING ANY EMPLOYEE WHO HAD HAD A BREAK IN SERVICE AND WHO DID NOT COME WITHIN THE PURVIEW OF SUBSECTION (C) OF SECTION 301. HOWEVER, WE FIND NOTHING IN SUBSECTION (C) WHICH MIGHT BE REGARDED AS PROHIBITING THE GRANTING OF CREDIT TO A VETERAN FOR CIVILIAN EMPLOYMENT IN THE WAITING PERIOD IN WHICH HIS MILITARY FURLOUGH BEGAN IF THERE WAS NO ABSENCE OF MORE THAN THIRTY DAYS IN A NON-PAY STATUS IN SUCH WAITING PERIOD AND THE EMPLOYEE WAS RESTORED IN A SUBSEQUENT WAITING PERIOD UNDER CONDITIONS ENTITLING HIM TO COUNT ALL HIS MILITARY SERVICE TOWARD PERIODIC PAY INCREASES. WE BELIEVE THAT A CAREFUL ANALYSIS OF THE REGULATIONS WILL SHOW THAT CREDIT FOR PRIOR CIVILIAN SERVICE SHOULD NOT BE DISALLOWED IN SUCH CASES, REGARDLESS OF THE LENGTH OF TIME ELAPSING BETWEEN HONORABLE DISCHARGE AND RESTORATION IN A SUBSEQUENT WAITING PERIOD. WE BELIEVE THAT THE ONLY CASE IN WHICH A PROPERLY RESTORED VETERAN MIGHT BE REGARDED AS NOT ENTITLED TO RECEIVE CREDIT FOR HIS PRIOR CIVILIAN SERVICE PURSUANT TO THE REGULATIONS UNDER THE 1945 PAY ACT WOULD BE THE RATHER UNUSUAL CASE WHERE HIS MILITARY AND PRIOR CIVILIAN SERVICE AND MORE THAN THIRTY DAYS OF NON-PAY STATUS (INCLUDING BREAK IN SERVICE) BETWEEN HONORABLE DISCHARGE AND RESTORATION WERE ALL INCLUDED IN ONE WAITING PERIOD. IN THIS SITUATION, THE MORE THAN THIRTY DAYS OF NON-PAY STATUS, INCLUDING BREAK IN SERVICE, BETWEEN DISCHARGE AND RESTORATION WOULD REFLECT BACK ON THE PRIOR CIVILIAN EMPLOYMENT BECAUSE IT OCCURRED IN THE SAME WAITING PERIOD, AND THE EFFECT WOULD BE AS INDICATED IN YOUR DECISION OF JUNE 12, 1943 (22 COMP. GEN. 1104).

THE FOLLOWING SPECIFIC EXAMPLE WILL ILLUSTRATE THE TYPE OF CASE ABOUT WHICH WE FEEL THAT ACTION DENYING CREDIT FOR CIVILIAN EMPLOYMENT PRIOR TO MILITARY FURLOUGH WOULD BE INEQUITABLE AND NOT IN HARMONY WITH THE INTENT OF THE ABOVE-QUOTED REGULATIONS:

EXAMPLE: A CLERK-TYPIST, CAF-2, WAS PROMOTED FROM CAF-1, $1,320 TO CAF-2, $1,440, EFFECTIVE OCTOBER 1, 1943; INDUCTED INTO THE ARMY ON DECEMBER 18, 1943, AND PLACED ON MILITARY FURLOUGH MARCH 3, 1944, AT THE EXPIRATION OF HIS LEAVE; RECEIVED AN HONORABLE DISCHARGE FROM THE ARMY ON APRIL 9, 1946; RETURNED TO CIVILIAN DUTY JUNE 10, 1946, HAVING APPLIED APRIL 18, 1946 BUT HIS RETURN WAS DELAYED FOR PERSONAL REASONS. HE WAS GIVEN PAY INCREASES AS OF APRIL 1, 1945, TO $1,560, AND APRIL 7, 1946, TO $1,902. (NOTE: GENERAL ACCOUNTING OFFICE DRAFT OF NOTICE OF EXCEPTION TO PERSONNEL ACTION TAKEN TO EFFECT THE RETURN OF HIS EMPLOYEE FROM MILITARY FURLOUGH STATED THAT ONLY HIS MILITARY SERVICE IS COUNTABLE TOWARD WITHIN-GRADE ADVANCES.)

IT WILL BE DEEPLY APPRECIATED IF YOU WILL REVIEW YOUR DECISION B 57081 OF JULY 13, 1946, AND ALSO DECISION B-61874 OF JANUARY 20, 1947, AND ADVISE WHETHER, IN THE LIGHT OF THE FOREGOING PRESENTATION, YOU WILL BE REQUIRED TO CONTINUE TO TAKE EXCEPTION TO THE GRANTING OF CREDIT FOR PRIOR CIVILIAN SERVICE IN SITUATIONS LIKE THOSE ON WHICH QUESTION (F) IN THE FORMER AND CASE II, EMPLOYEE B, IN THE LATTER DECISION ARE BASED. IN CASE THESE FORMER DECISIONS ON THE MATTER DO NOT HAVE TO BE FOLLOWED, IT WILL ALSO BE APPRECIATED IF YOU WILL ADVISE WHETHER IT WILL BE PROPER TO MAKE ADJUSTMENTS IN THE SALARY RATE OF EMPLOYEES IN CASES WHICH HAVE ALREADY BEEN SETTLED ON THE BASIS OF SUCH DECISIONS.

THE DECISIONS OF JULY 13, 1946, B-57081, AND JANUARY 20, 1947, B 61874, 26 COMP. GEN. 30 AND 506, RESPECTIVELY, REFERRED TO IN YOUR LETTER, HELD, IN EFFECT, THAT UNDER THE APPLICABLE REGULATIONS OF THE CIVIL SERVICE COMMISSION, A NON-PAY STATUS (INCLUDING A BREAK IN SERVICE) BETWEEN TERMINATION OF SERVICE WITH THE ARMED FORCES AND RESTORATION OR REEMPLOYMENT IN A CIVILIAN POSITION UNDER THE FEDERAL GOVERNMENT OPERATES TO DENY CREDIT FOR WITHIN-GRADE SALARY ADVANCEMENT PURPOSES FOR CIVILIAN SERVICE RENDERED PRIOR TO ENTRY INTO THE ARMED FORCES. THE HOLDING IN THOSE DECISIONS MERELY WAS AN APPLICATION OF THE RULE STATED IN DECISION OF JUNE 12, 1943, 22 COMP. GEN. 1104, ALSO REFERRED TO IN YOUR LETTER, WHICH WAS RENDERED WITH RESPECT TO THE EFFECT OF SUBSTANTIALLY SIMILAR PRIOR WITHIN-GRADE SALARY ADVANCEMENT REGULATIONS CONTAINED IN EXECUTIVE ORDER 8882, SEPTEMBER 3, 1941. IN THAT CONNECTION, IT MAY BE STATED THE PROVISION IN SUBSECTION 301 (E) OF THE SAID CIVIL SERVICE REGULATIONS THAT PERSONS ENTITLED TO CREDIT FOR MILITARY SERVICE ,SHALL ALSO BE ENTITLED TO CREDIT FOR CIVILIAN EMPLOYMENT PRIOR TO LEAVING HIS POSITION TO ENTER THE ARMED FORCES" IS NOT VIEWED AS GRANTING ANY GREATER RIGHT IN THAT RESPECT THAN THAT THERETOFORE GRANTED BY EXECUTIVE ORDER 8882 SINCE THE CREDITING OF SUCH PRIOR CIVILIAN SERVICE EXPRESSLY WAS MADE SUBJECT TO THE PROVISIONS OF SUBSECTIONS (A), (B), (C), AND (D) OF THOSE REGULATIONS WHICH CONTAIN LIMITATIONS SIMILAR TO THOSE IMPOSED BY THE SAID EXECUTIVE ORDER.

AS POINTED OUT IN YOUR LETTER, THE DECISION IN 22 COMP. GEN. 1104 WAS DIRECTED TO THE SITUATION WHEREIN THE NON-PAY STATUS (INCLUDING A BREAK IN SERVICE) OCCURRED IN THE WAITING PERIOD WHICH INCLUDED THE PRIOR CIVILIAN SERVICE SOUGHT TO BE COUNTED FOR WITHIN-GRADE SALARY ADVANCEMENT PURPOSES. HOWEVER, SUCH WERE NOT THE SITUATIONS CONSIDERED IN THE LATER DECISIONS OF JULY 13, 1946, AND JANUARY 20, 1947, SUPRA, IN RESPECT OF THE CASES ALLUDED TO IN THE CONCLUDING PARAGRAPH OF YOUR LETTER. IN SAID CASES THE BREAK IN SERVICE OCCURRED IN A WAITING PERIOD SUBSEQUENT TO THE WAITING PERIOD IN WHICH THE PRIOR CIVILIAN SERVICE WAS CREDITABLE. THAT POINT WAS NOT SPECIFICALLY BROUGHT OUT, AND WAS OVERLOOKED IN THE CONSIDERATION OF SAID CASES. NOW THAT THE POINT SPECIFICALLY HAS BEEN BROUGHT TO ATTENTION, IT SEEMS REASONABLY CLEAR IN THE LIGHT OF THE EXPLAINED PURPOSE OF THE REGULATIONS THAT FOR WITHIN-GRADE SALARY ADVANCEMENT PURPOSES EACH PRESCRIBED PERIOD OF SERVICE PROPERLY MAY BE CONSIDERED SEPARATELY; HENCE, ELIGIBILITY FOR SALARY ADVANCEMENT BASED THEREUPON PROPERLY MAY BE VIEWED AS UNAFFECTED BY CONDITIONS ARISING IN SUBSEQUENT PERIODS. THEREFORE, SINCE, IN THE ILLUSTRATION GIVEN IN YOUR LETTER, THE CIVILIAN SERVICE RENDERED BY THE EMPLOYEE PRIOR TO HIS ENTRY INTO THE ARMED FORCES, TOGETHER WITH APPROXIMATELY THE FIRST SEVEN (THIRTEEN) MONTHS OF HIS MILITARY SERVICE, COMPRISED A PRESCRIBED WAIT PERIOD FOR A WITHIN-GRADE SALARY ADVANCEMENT TO WHICH HE WAS ENTITLED UPON RESTORATION TO CIVILIAN DUTY, THE FACT THAT THERE WAS A NON-PAY STATUS (INCLUDING A BREAK IN SERVICE) BETWEEN THE TERMINATION OF MILITARY SERVICE AND RESTORATION TO CIVILIAN DUTY--- WHICH AFFECTED THE SERVICE CREDIT IN A WAITING PERIOD SUBSEQUENT TO THAT PERIOD IN WHICH THE PRIOR CIVILIAN SERVICE IS CREDITABLE--- SHOULD NOT OPERATE TO DENY TO THE EMPLOYEE SUCH SALARY ADVANCEMENT. TO THE EXTENT THAT THE DECISIONS OF JULY 13, 1946, AND JANUARY 20, 1947, SUPRA, APPLIED THE "BREAK IN SERVICE" RULE TO THE ENTIRE PERIOD INVOLVED INSTEAD OF TO THE SEPARATE WAITING PERIODS, THEY ARE MODIFIED ACCORDINGLY.

REFERRING TO THE CONCLUDING SENTENCE OF YOUR LETTER, YOU MAY BE ADVISED THAT THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO OTHERWISE PROPER ADJUSTMENTS IN THOSE CASES IN WHICH THE SALARY RATES OF EMPLOYEES WERE FIXED IN ACCORDANCE WITH THE REFERRED-TO HOLDINGS IN THE ABOVE-MENTIONED DECISIONS.