B-71423, DECEMBER 31, 1947, 27 COMP. GEN. 358

B-71423: Dec 31, 1947

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WHICH COULD NOT HAVE BEEN GRANTED WHILE ON MILITARY DUTY. - TO AUTOMATIC SALARY GRADES HIGHER THAN THOSE THAT WOULD HAVE BEEN ASSIGNED IF SUCH ADMINISTRATIVE PROMOTIONS HAD NOT BEEN GRANTED. THESE DISALLOWANCES INVOLVED 136 CLERKS WHO WERE PROMOTED TO THE POSITION OF SPECIAL CLERK WHILE ON MILITARY FURLOUGH. THERE EXISTS NO AUTHORITY OF LAW TO GRANT ADMINISTRATIVE PROMOTION WHILE ON SO-CALLED MILITARY FURLOUGH DURING WHICH TIME THE EMPLOYEE IS NOT IN A CIVILIAN POSITION. THE ABOVE EMPLOYEES WERE OVERPAID BY ONE GRADE FROM THE DATE OF THEIR RETURN.'. ONE CASE INVOLVED IS THAT OF WILLIAM J. WHICH IS THE FIRST IN THE LIST OF EXCEPTIONS AND IS TYPICAL OF THE GROUP. ADAMI WAS APPOINTED A SUBSTITUTE CLERK ON APRIL 1.

B-71423, DECEMBER 31, 1947, 27 COMP. GEN. 358

COMPENSATION - POSTAL SERVICE - ADMINISTRATIVE PROMOTIONS DURING MILITARY DUTY PROMOTIONS OF POSTAL SERVICE EMPLOYEES TO THE FORMER GRADES OF SPECIAL CLERK HAVING BEEN ADMINISTRATIVE, AS DISTINGUISHED FROM AUTOMATIC, PROMOTIONS, WHICH COULD NOT HAVE BEEN GRANTED WHILE ON MILITARY DUTY, OR BE GIVEN RETROACTIVE EFFECT UPON RESTORATION AFTER MILITARY DUTY, EMPLOYEES WHO HAD BEEN ADMINISTRATIVELY PROMOTED TO SPECIAL CLERK WHILE IN THE MILITARY SERVICE MAY NOT BE ASSIGNED, UPON RESTORATION TO CIVILIAN DUTY SUBSEQUENT TO THE EFFECTIVE DATE OF THE POSTAL SERVICE EMPLOYEES PAY STATUTE OF JULY 6, 1945--- WHICH DID NOT CONTINUE THE GRADES OF SPECIAL CLERK--- TO AUTOMATIC SALARY GRADES HIGHER THAN THOSE THAT WOULD HAVE BEEN ASSIGNED IF SUCH ADMINISTRATIVE PROMOTIONS HAD NOT BEEN GRANTED.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, DECEMBER 31, 1947:

CONSIDERATION HAS BEEN GIVEN YOUR PREDECESSOR'S UNDATED LETTER (REFERENCE 15), RECEIVED HERE NOVEMBER 24, 1947, AS FOLLOWS:

ON OR ABOUT NOVEMBER 5, 1947, THE POSTAL ACCOUNTS DIVISION OF YOUR OFFICE FORWARDED APPROXIMATELY 385 PAGES OF EXCEPTIONS TO THE POSTMASTER AT SAN FRANCISCO, CALIFORNIA, COVERING DISALLOWANCES TOTALING $19,597.09. THESE DISALLOWANCES INVOLVED 136 CLERKS WHO WERE PROMOTED TO THE POSITION OF SPECIAL CLERK WHILE ON MILITARY FURLOUGH. ON THE LAST PAGE OF THE EXCEPTIONS THERE APPEARS A NOTATION "PROMOTED TO SPECIAL CLERKS AT $2200 WHILE ON MILITARY FURLOUGH. THERE EXISTS NO AUTHORITY OF LAW TO GRANT ADMINISTRATIVE PROMOTION WHILE ON SO-CALLED MILITARY FURLOUGH DURING WHICH TIME THE EMPLOYEE IS NOT IN A CIVILIAN POSITION. THE ABOVE EMPLOYEES WERE OVERPAID BY ONE GRADE FROM THE DATE OF THEIR RETURN.'

ONE CASE INVOLVED IS THAT OF WILLIAM J. ADAMI, JR., A REGULAR CLERK IN THE SAN FRANCISCO, CALIFORNIA, POST OFFICE, WHICH IS THE FIRST IN THE LIST OF EXCEPTIONS AND IS TYPICAL OF THE GROUP. MR. ADAMI WAS APPOINTED A SUBSTITUTE CLERK ON APRIL 1, 1938, AND ADVANCED IN THE USUAL MANNER TO THE POSITION OF REGULAR CLERK AT $2100 EFFECTIVE APRIL 1, 1942. ON JULY 2, 1943, HE WAS PLACED ON MILITARY FURLOUGH BECAUSE OF HIS ENTRANCE INTO THE ARMED FORCES. ON SEPTEMBER 1, 1944, HE WAS REACHED IN REGULAR ORDER FOR PROMOTION TO THE POSITION OF SPECIAL CLERK, WHICH ACTION WAS JOURNALIZED TO THE POSTAL ACCOUNTS DIVISION ON SEPTEMBER 5, 1944, JOURNAL NO. 132. CLERK ADAMI WAS RESTORED TO DUTY AS A CLERK ON FEBRUARY 1, 1946, FOLLOWING HIS RELEASE FROM THE ARMED FORCES AND WAS REASSIGNED AT $3000 PER ANNUM; ON JULY 1, 1946, HE WAS PROMOTED AUTOMATICALLY TO $3100.

PARAGRAPH 3 (C) OF S.J.R. 286 DATED AUGUST 27, 1940, READS IN PART AS FOLLOWS:

"/C) ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISION OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY * * *.'

THIS PRINCIPLE WAS REITERATED IN PARAGRAPH 8 (C) OF PUBLIC LAW 783, APPROVED SEPTEMBER 16, 1940.

SECTION 25 OF THE ACT OF JULY 6, 1945, PUBLIC LAW 134 STATES IN PART AS FOLLOWS:

"THAT IN THE CASE OF EMPLOYEES WHO HAVE BEEN SEPARATED OR SHALL HEREAFTER BE SEPARATED FROM THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT FOR MILITARY DUTY, THE PERIODS OR TERMS OF SUCH SERVICE IMMEDIATELY PRECEDING ENTRY INTO THE MILITARY SERVICE AS WELL AS THE TIME ENGAGED IN MILITARY SERVICE SHALL BE CONSTRUED AS ALLOWABLE SERVICE AND PRO RATA CREDIT SHALL BE GIVEN FOR THE TIME ENGAGED IN MILITARY SERVICE FOR EACH YEAR OF SUCH SERVICE.'

WITH RESPECT TO THE APPOINTMENT OF SPECIAL CLERKS THE ACT OF FEBRUARY 28, 1925, STATED, THAT AS A REWARD FOR FAITHFUL AND MERITORIOUS SERVICE SPECIAL CLERKS MAY BE APPOINTED IN THE EXECUTIVE, FINANCE, MONEY ORDER, POSTAL SAVINGS, REGISTRY, MAILING AND OTHER DIVISIONS IN FIRST-CLASS OFFICES. PURSUANT TO THIS LAW INSTRUCTIONS REFLECTING THE POLICY OF THE DEPARTMENT CONCERNING THE APPOINTMENT OF SPECIAL CLERKS WERE ISSUED AND WERE SET OUT IN ARTICLE 87, PAGES 97-98 OF THE JULY 1943 OFFICIAL POSTAL GUIDE WHICH ARTICLE WAS CANCELED FOLLOWING THE PASSAGE OF PUBLIC LAW 134. A SCALE SHOWING THE QUOTA OF SPECIAL CLERKS THAT COULD BE APPOINTED WAS SET FORTH IN THAT ARTICLE WHICH, FOR OFFICES THE SIZE OF SAN FRANCISCO, ALLOWED ONE SPECIAL CLERK IN EVERY FIVE CLERICAL EMPLOYEES. THE INSTRUCTIONS FURTHER STATED THAT CERTAIN REQUIREMENTS WITH RESPECT TO EFFICIENCY MUST BE MET AND WHEN MET THE SENIOR EMPLOYEE SHOULD BE APPOINTED. THIS IN EFFECT MADE THE PROMOTION OF SPECIAL CLERK SIMILAR TO THE AUTOMATIC GRADES.

PURSUANT TO S.J.R. 286 THE DEPARTMENT ISSUED INSTRUCTIONS ON SEPTEMBER 10, 1940, CONCERNING THE POLICY TO BE ALLOWED WITH RESPECT TO LEAVE OF ABSENCE FOR MILITARY DUTY, WHICH INSTRUCTIONS WERE PUBLISHED IN THE POSTAL BULLETIN OF SEPTEMBER 11, 1940. UNDER THE CAPTION " PROMOTIONS" PARAGRAPH 6 STATES THAT EMPLOYEES ELIGIBLE FOR ADVANCEMENT TO SPECIAL CLERK OR OTHER COMPETITIVE POSITIONS WILL BE ADVANCED OR TRANSFERRED IN THE PROPER ORDER. THE INSTRUCTIONS WERE BASED ON TWO PRINCIPLES: FIRST, THE CLEAR INTENT OF CONGRESS THAT EMPLOYEES INDUCTED INTO THE ARMED FORCES FOR THE PURPOSE OF DEFENDING THEIR COUNTRY SHOULD NOT BE PENALIZED BECAUSE OF SUCH SERVICE AND, SECOND, THE POLICY ADOPTED BY THE DEPARTMENT CONCERNING SPECIAL CLERK PROMOTIONS WAS SUCH AS FOR ALL INTENTS AND PURPOSES TO PLACE THE PROMOTIONS THERETO IN THE AUTOMATIC GRADES WITHIN THE LIMITS OF THE NUMBER OF POSITIONS AUTHORIZED AT EACH FIRST-CLASS OFFICE.

IN VIEW OF THE CIRCUMSTANCES SET FORTH HEREIN IT WILL BE APPRECIATED IF YOU WILL REVIEW THIS MATTER AND ADVISE ME AS TO WHETHER YOU CONCUR IN THE CONCLUSIONS REACHED BY THE POSTAL ACCOUNTS DIVISION OF YOUR OFFICE CONCERNING THE ACTION OF THIS DEPARTMENT IN GIVING ITS EMPLOYEES WHO WERE ON MILITARY LEAVE THE RIGHTS AND BENEFITS TO WHICH THEY WERE ENTITLED.

THE POSTAL EMPLOYEES PAY ACT OF 1945, PUBLIC LAW 134, APPROVED JULY 6, 1945, DID NOT CONTINUE THE FORMER CLASSIFICATION OF CLERKS KNOWN AS SPECIAL CLERKS; AND PRIOR TO THAT ACT SPECIAL CLERKS WERE NOT EMBRACED IN THE AUTOMATIC GRADES, SUCH POSITIONS BEING FILLED BY SELECTION AND PROMOTION WITHIN THE DISCRETION OF THE HEAD OF THE DEPARTMENT. 3 COMP. GEN. 517. IN 20 COMP. GEN. 789, TO THE POSTMASTER GENERAL, IT WAS STATED, AT PAGE 792:

ACCORDINGLY, REFERRING TO THE CONCLUDING PARAGRAPH OF YOUR LETTER, NO ADMINISTRATIVE ACTION MAKING ADJUSTMENTS IN GRADE AND SALARY RATE OF POSTAL EMPLOYEES SHOULD BE TAKEN DURING THE ABSENCE OF THE EMPLOYEES ON MILITARY DUTY, THE BENEFITS OF THE SELECTIVE TRAINING AND SERVICE ACT AND PUBLIC RESOLUTION OF AUGUST 27, 1940, BEING AVAILABLE ONLY UPON RESTORATION TO CIVILIAN POSITIONS. HOWEVER, UPON RESTORATION TO THEIR CIVILIAN POSITIONS UNDER THE TERMS AND CONDITIONS OF SAID STATUTES, REGULAR POSTAL EMPLOYEES MAY BE ADVANCED TO THE GRADE AND SALARY RATE TO WHICH THEY WOULD HAVE BEEN ADVANCED HAD THEIR MILITARY SERVICE BEEN IN THE POSTAL SERVICE IN ACCORDANCE WITH EXISTING LAWS AND REGULATIONS.

SEE, ALSO, 26 COMP. GEN. 839, IN WHICH IT WAS HELD:

THE APPOINTMENT OF A SUBSTITUTE EMPLOYEE TO A REGULAR POSITION IS AN ADMINISTRATIVE PROMOTION. THERE EXISTS NO AUTHORITY OF LAW TO GRANT SUCH ADMINISTRATIVE PROMOTION WHILE ON SO-CALLED MILITARY FURLOUGH DURING WHICH THE EMPLOYEE IS NOT IN HIS CIVILIAN POSITION. PUBLIC LAW 134, 59 STAT. 435, AUTHORIZES AUTOMATIC PROMOTIONS TO EMPLOYEES OF THE POSTAL SERVICE FROM GRADE TO GRADE UNDER PARTICULAR CLASSIFICATIONS, SUCH AS REGULAR CLERKS, SUBSTITUTES, ETC., AFTER "SATISFACTORY SERVICE" IN A PARTICULAR POSITION, BUT THERE IS NOTHING THEREIN, OR ELSEWHERE SO FAR AS I AM ADVISED, WHICH REQUIRES THAT AN ADMINISTRATIVE PROMOTION FROM A SUBSTITUTE POSITION TO A REGULAR POSITION SHALL BE MADE BASED UPON SENIORITY OR BECAUSE OF MILITARY SERVICE.

UNDER THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, 54 STAT. 890, AS AMENDED, A RETURNING VETERAN WHO LEFT A POSITION, OTHER THAN TEMPORARY, TO ENTER THE ARMED FORCES IS ENTITLED TO "BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND Y.' ( ITALICS SUPPLIED.) THE RIGHT OF RESTORATION UNDER THAT STATUTE IS LIMITED TO THE SAME POSITION OR ONE OF "LIKE SENIORITY, STATUS, AND PAY," AND DOES NOT INCLUDE A POSITION TO WHICH THE EMPLOYEE MIGHT HAVE BEEN PROMOTED HAD HE NOT ENTERED THE MILITARY SERVICE, AS INDICATED IN YOUR LETTER.

AS THERE WAS NO AUTHORITY TO GRANT AN ADMINISTRATIVE PROMOTION WHILE THE EMPLOYEE IN THE CASE PRESENTED AS TYPICAL OF THOSE INVOLVED WAS IN THE MILITARY SERVICE, UPON HIS RESTORATION FEBRUARY 1, 1946, HIS SALARY WAS FOR COMPUTATION UNDER THE POSTAL EMPLOYEES PAY ACT OF 1945, PUBLIC LAW 134, AS AMENDED BY THE ACT OF MAY 21, 1946, PUBLIC LAW 386, 60 STAT. 203. SECTION 23 OF PUBLIC LAW 134, 59 STAT. 460, PROVIDES:

SEC. 23. IN THE READJUSTMENT OF SALARIES TO CONFORM TO THE PROVISIONS OF THIS ACT, REGULAR EMPLOYEES FOR WHOM SALARY STEPS, AUTOMATIC AND ADDITIONAL GRADES HAVE BEEN PROVIDED IN SECTIONS 12, 13, 14, 15, 16, 18, AND 19 SHALL BE ASSIGNED TO THE SALARY OF THEIR RESPECTIVE POSITIONS ON THE BASIS OF THEIR BASE SALARY PLUS 20 PERCENTUM, OR $400, WHICHEVER IS THE LESSER AMOUNT, BUT NOT LESS THAN &300: PROVIDED, THAT WHEN THE APPLICATION OF THE ABOVE FORMULA PRODUCES A SUM THAT IS NOT EQUAL TO A SALARY PROVIDED FOR THE POSITION, THE EMPLOYEE SHALL BE ASSIGNED TO THE NEXT HIGHER SALARY GRADE: PROVIDED FURTHER, THAT NO EMPLOYEE SHALL BE ASSIGNED TO A SALARY GRADE ABOVE THE MAXIMUM AUTOMATIC OR ADDITIONAL GRADE PROVIDED FOR THE POSITION:AND PROVIDED FURTHER, THAT CLERKS WHO ARE EMPLOYED NOT LESS THAN FORTY HOURS PER WEEK AT THIRD-CLASS POST OFFICES, AND WHO ARE APPOINTED TO THEIR REGULAR POSITIONS, SHALL BE ASSIGNED TO THE MINIMUM SALARY RATE PROVIDED FOR THE POSITION.

AS MR. ADAMI'S SALARY PRIOR TO HIS ENTERING THE MILITARY SERVICE WAS $2,100, IT PROPERLY WAS FOR INCREASING UNDER SECTION 23, SUPRA, TO $2,500, THE SALARY OF GRADE-9 AS PRESCRIBED BY SECTION 12 (A), PUBLIC LAW 134, 59 STAT. 433, PLUS $400 ADDITIONAL GRANTED BY PUBLIC LAW 386. AS HE HAD REACHED THE MAXIMUM AUTOMATIC GRADE PRIOR TO HIS ENTERING THE MILITARY SERVICE, HE WAS NOT IN A POSITION TO RECEIVE ANY CREDIT FOR MILITARY SERVICE UNTIL THE PASSAGE OF PUBLIC LAW 134, WHICH ESTABLISHED AUTOMATIC GRADES TO WHICH HE COULD BE ADVANCED BY REASON OF SATISFACTORY SERVICE OR CREDIT FOR MILITARY SERVICE. ACCORDINGLY, AS HIS RIGHT TO CREDIT FOR MILITARY SERVICE IS LIMITED TO SUCH SERVICE AS OCCURRED ON AND AFTER JULY 1, 1945, THE EFFECTIVE DATE OF PUBLIC LAW 134, THIS EMPLOYEE BECAME ENTITLED TO HIS FIRST AUTOMATIC INCREASE TO $3,000, GRADE-10, JULY 1, 1946, AND AN ADDITIONAL INCREASE JULY 1, 1947, TO GRADE-11 AT $3,100. IS THUS APPARENT THAT THE AUDIT ACTION IN TAKING EXCEPTION TO THE COMPENSATION PAID TO THIS EMPLOYEE IN EXCESS OF THE ABOVE RATES, AS WELL AS EXCESS SALARY PAYMENTS TO OTHERS WHO WERE GIVEN ADMINISTRATIVE PROMOTIONS TO SELECTIVE GRADES WHILE ABSENT IN THE MILITARY SERVICE, WAS CORRECT AND UPON REVIEW THAT ACTION MUST BE AND IS SUSTAINED.