B-65712, JUNE 23, 1947, 26 COMP. GEN. 946

B-65712, JUNE 23, 1947, 26 COMP. GEN. 946

COMPENSATION - WITHIN-GRADE SALARY ADVANCEMENTS - GRANT OF TO RETURNING VETERANS FOR COMPENSATION EQUALIZATION PURPOSES THE ADMINISTRATIVE AUTHORITY TO REEMPLOY RETURNING VETERANS IN POSITIONS OF HIGHER CLASSIFICATION THAN THAT OF THE POSITIONS HELD UPN ENTRY INTO THE ARMED FORCES MAY NOT BE VIEWED AS INCLUDING AUTHORITY TO GRANT WITHIN- GRADE SALARY ADVANCEMENTS AT THE TIME OF REEMPLOYMENT, OR AT ANY TIME THEREAFTER, WITHOUT REGARD TO LENGTH OF SERVICE, EFFICIENCY OR CONDUCT, IN CONTRAVENTION OF THE UNIFORM WITHIN-GRADE SALARY ADVANCEMENT PLAN PRESCRIBED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, SO AS TO PLACE RETURNING VETERANS ON A PARITY WITH NON VETERAN EMPLOYEES WHO OCCUPIED THE SAME STATUS AS THE VETERAN WHEN HE ENTERED THE ARMED FORCES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF LABOR, JUNE 23, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 17, 1947, AS FOLLOWS:

THE DEPARTMENT HAS BEEN ASKED BY THE HUGO WOHLHAGEN POST NO. 1258, THE AMERICAN LEGION, NEW YORK CITY, TO ADOPT A POLICY WHEREBY THE SALARIES OF VETERAN EMPLOYEES WHO HAVE ALREADY BEEN RESTORED TO DUTY AT SALARIES WHICH INCLUDED PERIODIC PAY INCREASES ACCRUED DURING MILITARY SERVICE AND WHO HAVE BEEN SUBSEQUENTLY PROMOTED TO HIGHER GRADE, WOULD NOW BE EQUALIZED BY MEANS OF SALARY INCREASES WITHIN THE GRADE WITH THOSE OF NON-VETERAN EMPLOYEES IN THE SAME GRADE WHOSE SALARIES ARE ABOVE THE MINIMUM OF THE GRADE. THE APPLICATION OF THIS POLICY WOULD RESULT EITHER IN THE GRANTING OF MORE THAN ONE EQUIVALENT INCREASE WITHIN ONE SERVICE PERIOD OF TWELVE MONTHS OR IN THE GRANTING OF AN INCREASE BEFORE THE COMPLETION OF THE SERVICE PERIOD.

TYPICALLY, THIS POLICY WOULD WORK OUT IN THE FOLLOWING MANNER:

EMPLOYEE A (WHO IS A NON-VETERAN) ENTERED ON DUTY AS A WAGE-HOUR INSPECTOR IN GRADE CAF-6 ON NOVEMBER 16, 1943, HE WAS PROMOTED TO GRADE CAF-8. THESE PROMOTIONS WERE IN ACCORD WITH THE DEPARTMENT'S POLICY UNDER WHICH THE GRADES 6 AND 7 ARE REGARDED AS TRAINING GRADES AND PROMOTIONS TO GRADE CAF-8 ARE BASED ON A SIX-MONTH PERIOD OF SERVICE IN EACH GRADE PLUS DEMONSTRATED ABILITY TO PERFORM SATISFACTORILY THE DUTIES REQUIRED AT EACH GRADE LEVEL. EMPLOYEE A HAS ACCRUED TWO PERIODIC PAY INCREASES IN GRADE CAF-8, SO THAT HIS PRESENT SALARY RATE IS $4,024.20 PER ANNUM.

EMPLOYEE B (WHO IS A VETERAN) ENTERED ON DUTY AS A WAGE-HOUR INSPECTOR AT THE SAME TIME AS EMPLOYEE A AND WAS PROMOTED TO GRADE CAF 7 AT THE SAME TIME AS EMPLOYEE A. HOWEVER, EMPLOYEE B LEFT HIS POSITION WAS DISCONTINUED. ON NOVEMBER 6, 1945, EMPLOYEE B RETURNED FROM MILITARY SERVICE AND WAS RESTORED TO DUTY IN A POSITION OF LIKE SENIORITY, STATUS, AND PAY ( GRADE CAF-7) PLUS ONE PERIODIC PAY INCREASE ACCRUED DURING MILITARY SERVICE. ON JANUARY 13, 1946, HE WAS GRANTED A SECOND PERIODIC PAY INCREASE IN GRADE CAF-7. EMPLOYEE B WAS PROMOTED TO GRADE CAF-8 ON APRIL 21, 1946, SO THAT HIS PRESENT SALARY RATE IS $3,773.40 PER ANNUM, $250.80 LESS THAN THE NON-VETERAN, EMPLOYEE A. IF PERMITTED TO ADOPT THE PROPOSED POLICY, THE DEPARTMENT WOULD IMMEDIATELY INCREASE THE SALARY RATE OF THE VETERAN, EMPLOYEE B, TWO

I HAVE YOUR LETTER OF MAY 28, 1947, AS FOLLOWS:

IN RESPONSE TO THE LEGION POST'S ORIGINAL REQUEST, THE DEPARTMENT ADVISED THAT THE ADOPTION OF THE PROPOSED POLICY WOULD BE INCONSISTENT WITH YOUR DECISION OF NOVEMBER 23, 1942 (22 COMP. GEN. 489). I UNDERSTAND, HOWEVER, THAT IN A LETTER TO THE LEGION POST (B 62280, JANUARY 24, 1947), REPLYING TO AN INQUIRY FROM IT IN THIS MATTER, YOU INDICATED THAT YOUR DECISION IN 22 COMP. GEN. 489 DID NOT INVOLVE THE RIGHTS OF RETURNING VETERANS, AND THAT YOUR DECISION OF JULY 1, 1946 (26 COMP. GEN. 30), IS MORE APROPOS TO THE SITUATION IN QUESTION. THIS DECISION HELD, QUOTING FROM THE SYLLABUS:

"AN EMPLOYEE WHO WAS RECEIVING THE MAXIMUM SALARY RATE OF GRADE CAF 5 PRIOR TO MILITARY SERVICE IS ENTITLED, UPON RESTORATION AFTER MILITARY SERVICE TO A POSITION IN GRADE CAF-7, THE ENTRANCE SALARY OF WHICH IS THE SAME AS THE MAXIMUM OF THE LOWER GRADE, TO BE RESTORED AT THE SALARY STEP OF THE HIGHER GRADE WHICH WILL ALLOW CREDIT FOR ALL MILITARY SERVICE AND OTHERWISE CREDITABLE PRIOR CIVILIAN SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945.'

SINCE THE APPLICATION OF THIS DECISION TO THE PROPOSED POLICY IS NOT CLEAR, I WOULD APPRECIATE HAVING YOUR DECISION AS TO WHETHER I AM AUTHORIZED TO TAKE ACTIONS IN ACCORDANCE WITH THE PROPOSED POLICY. SPECIFICALLY, IS THE DEPARTMENT AUTHORIZED TO GRANT A SALARY INCREASE OF $250.80 TO EMPLOYEE B AT THIS TIME IN ORDER TO RAISE HIS SALARY RATE TO THAT OF OF EMPLOYEE A? IF SO, MAY THE INCREASE BE MADE RETROACTIVELY EFFECTIVE ON APRIL 21, 1946, THE DATE OF PROMOTION TO GRADE CAF-8?

AS STATED IN THE LETTER OF JANUARY 24, 1947, B-62280, OF THIS OFFICE, TO THE COMMANDER, HUGO WOHLHAGEN POST NO. 1258, THE AMERICAN LEGION--- THE LETTER REFERRED TO IN YOUR LETTER, SUPRA--- THE DECISION IN 22 COMP. GEN. 489, RESPECTING THE FIXING OF SALARY RATES UPON THE TRANSFER, PROMOTION, OR DEMOTION OF EMPLOYEES UNDER THE FEDERAL GOVERNMENT DID NOT INVOLVE A CONSIDERATION OF THE RIGHTS OF RETURNING VETERANS. HENCE, THAT DECISION IS NOT NECESSARILY FOR APPLICATION TO THE MATTER PRESENTED IN YOUR LETTER.

SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 885, 890, AS AMENDED, PROVIDES, INTER ALIA, THAT ANY PERSON WHO LEAVES A POSITION, OTHER THAN A TEMPORARY POSITION, UNDER THE FEDERAL GOVERNMENT, UPON MEETING THE REQUIREMENTS THEREIN PRESCRIBED,"SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY.' UNDER THAT STATUTORY PROVISION, A RETURNING VETERAN, IF OTHERWISE QUALIFIED, IS ENTITLED, AS A MATTER OF RIGHT, TO RESTORATION TO HIS FORMER CIVILIAN POSITION OR TO ONE OF LIKE SENIORITY, STATUS, AND PAY. THAT IS TO SAY, HE IS ENTITLED TO BE PLACED BACK INTO THE PERMANENT POSITION WHICH HE OCCUPIED AT THE TIME OF ENTRY INTO THE ARMED FORCES; OR, IF FOR ANY REASON SUCH RESTORATION IS NOT FEASIBLE, HE IS ENTITLED TO BE PLACED INTO A POSITION SIMILAR IN ALL RESPECTS TO HIS FORMER CIVILIAN POSITION. THERE IS NOTHING IN THAT PROVISION, OR IN THE LEGISLATIVE HISTORY OF THE SAID SELECTIVE TRAINING AND SERVICE ACT WHICH REASONABLY MAY BE CONSTRUED AS AUTHORIZING, IN ANY EVENT, THE PLACING OF RETURNING VETERANS ON A PARITY, IN ALL RESPECTS, WITH NON VETERAN EMPLOYEES WHO OCCUPIED THE SAME CIVILIAN STATUS AS THE VETERAN AT THE TIME HE ENTERED THE ARMED FORCES. CONVERSELY, THERE IS NOTHING IN THAT PROVISION WHICH IN ANY WISE AFFECTS THE ADMINISTRATIVE AUTHORITY TO PLACE RETURNING VETERANS IN POSITIONS ALLOCATED TO GRADES ABOVE THOSE TO WHICH THEIR FORMER POSITIONS ARE ALLOCATED, PROVIDED THE VETERANS OTHERWISE ARE QUALIFIED TO PERFORM THE DUTIES AND DISCHARGE THE RESPONSIBILITIES OF SUCH HIGHER GRADE POSITIONS. SUCH ADMINISTRATIVE AUTHORITY HAS BEEN RECOGNIZED IN DECISIONS OF THIS OFFICE. SEE 26 COMP. GEN. 30; ID. 506. AND IT WAS IN RESPECT OF SUCH PROPOSITION THAT ATTENTION WAS INVITED, IN THE REFERRED-TO OFFICE LETTER OF JANUARY 24, 1947, TO THE DECISION IN 26 COMP. GEN. 30.

THE ADMINISTRATIVE AUTHORITY THUS RECOGNIZED TO REEMPLOY RETURNING VETERANS IN POSITIONS OF HIGHER CLASSIFICATION THAN THAT OF THE POSITIONS HELD BY THEM AT THE TIME OF ENTRY INTO THE ARMED FORCES, PROPERLY MAY NOT BE VIEWED AS INCLUDING AUTHORITY TO GRANT SUCH VETERANS WITHIN-GRADE SALARY ADVANCEMENTS AT THE TIME OF REEMPLOYMENT, OR AT ANY TIME THEREAFTER, IN CONTRAVENTION OF THE PROVISIONS OF EXISTING LAW GOVERNING SUCH MATTERS. BY THE ACT OF AUGUST 1, 1941, 55 STAT. 613, AMENDING SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, THE CONGRESS PRESCRIBED A UNIFORM PROCEDURE APPLICABLE TO ALL EMPLOYEES UNDER THE CLASSIFICATION ACT, FOR THE GRANTING OF WITHIN GRADE SALARY ADVANCEMENTS BASED UPON LENGTH OF SERVICE, EFFICIENCY, AND CONDUCT. HENCE, IT IS ONLY IN ACCORDANCE WITH THAT SECTION, AS FURTHER AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, THAT WITHIN-GRADE SALARY ADVANCEMENTS NOW MAY BE AUTHORIZED FOR SUCH EMPLOYEES. SEE 21 COMP. GEN. 118, 541; 22 ID. 489. ACCORDINGLY, THE FIRST QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE, THUS RENDERING UNNECESSARY ANY ANSWER TO THE SECOND QUESTION PRESENTED THEREIN.