B-79031, SEPTEMBER 9, 1948, 28 COMP. GEN. 159

B-79031, SEPTEMBER 9, 1948, 28 COMP. GEN. 159

SELECTIVE SERVICE ACT OF 1948 - PROMOTION, SENIORITY, STATUS, ETC., RIGHTS NO OBJECTION IS PERCEIVED TO THE PROMULGATION OF REGULATIONS BY THE SERVICE ACT OF 1948, TO EFFECTUATE THE CONGRESSIONAL INTENT AS EXPRESSED SERVICE ACT OF 1948, TO EFFECTUATE THE CONGRESSIONAL INTENT AS EXPRESSED IN SECTION 9 (C) (2) OF THE ACT, WHICH WOULD REQUIRE AGENCIES TO CONSIDER FOR PROMOTION THOSE EMPLOYEES WHO HAVE ENTERED THE MILITARY SERVICE IN ACCORDANCE WITH SAID ACT, AND TO PROMOTE SUCH EMPLOYEES WHILE IN THE SERVICE PROVIDED THEY ARE OTHERWISE QUALIFIED, REGARDLESS OF WHETHER SUCH EMPLOYEES ARE CARRIED ON THE AGENCY ROLLS AS "ON MILITARY FURLOUGH" OR AS "SEPARATED FOR MILITARY SERVICE.' REGARDLESS OF THE NATURE OF THE ADMINISTRATIVE ACTION TAKEN UPON THE ENTRY OF EMPLOYEES INTO THE MILITARY SERVICE PURSUANT TO THE SELECTIVE SERVICE ACT OF 1948--- WHETHER TO PLACE SUCH EMPLOYEES ON FURLOUGH OR LEAVE WITHOUT PAY OR TO SEPARATE THEM FROM THE ROLLS--- THE RIGHTS OF THE EMPLOYEES WITH RESPECT TO SENIORITY, STATUS, AND PAY ARE FOR DETERMINATION AS OF THE TIME OF REEMPLOYMENT IN THE CIVILIAN POSITION UNDER SECTION 9 OF SAID ACT.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 9, 1948:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JULY 30, 1948, AS FOLLOWS;

UNDER SECTION 9 (E) (1) OF THE SELECTIVE SERVICE ACT OF 1948, OF 1948, ( PUBLIC LAW 759, EIGHTIETH CONGRESS, SECOND SESSION,APPROVED JUNE 24, 1948) THE COMMISSION IS AUTHORIZED AND DIRECTED TO ISSUE REGULATIONS GIVING FULL FORCE AND EFFECT TO THE PROVISIONS OF SECTION 9 INSOFAR AS THEY RELATE TO PERSONS ENTITLED TO BE RESTORED TO POSITIONS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT OR IN THE GOVERNMENT OF THE DISTRICT OF COLUMBIA. SECTION 9 (C) (2) OF THE ACT STATES THAT "1IT IS HEREBY DECLARED TO BE THE SENSE OF THE CONGRESS THAT ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHOULD BE SO RESTORED IN SUCH MANNER AS TO GIVE HIM SUCH STATUS IN HIS EMPLOYMENT AS HE WOULD HAVE ENJOYED IF HE HAD CONTINUED IN SUCH EMPLOYMENT CONTINUOUSLY FROM THE TIME OF HIS ENTERING THE ARMED FORCES UNTIL THE TIME OF HIS RESTORATION TO SUCH EMPLOYMENT.'

ONE OF THE DIFFICULTIES THAT WAS ENCOUNTERED IN CONNECTION WITH RESTORATIONS UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 HAD TO DO WITH THE DETERMINATION OF THE POSITION TO WHICH THE RETURNING VETERAN WAS ENTITLED. TO OBVIATE THIS PARTICULAR DIFFICULTY IN CONNECTION WITH RESTORATIONS UNDER THE 1948 STATUTE, THE COMMISSION IS CONSIDERING THE FEASIBILITY OF REQUIRING THAT AGENCIES CONSIDER FOR PROMOTION EMPLOYEES WHO ARE IN THE MILITARY SERVICE AND MAKE PROMOTIONS WHERE SUCH EMPLOYEES ARE FOUND TO BE QUALIFIED. THIS ACTION WOULD BE DONE IN CONTEMPLATION OF THE RESTORATION OF THE VETERAN UPON COMPLETION OF MILITARY SERVICE WITH THE STATUS HE WOULD HAVE ENJOYED IF HE HAD CONTINUED IN CIVILIAN EMPLOYMENT FROM THE TIME OF HIS ENTRY INTO THE ARMED FORCES.

A NUMBER OF DECISIONS OF YOUR OFFICE ON CASES ARISING UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 HAVE HELD THAT THERE IS NO AUTHORITY OF LAW FOR THE PROMOTION OF EMPLOYEES FROM GRADE TO GRADE UNDER THE CLASSIFICATION ACT BASED UPON SENIORITY, SUCH PROMOTIONS BEING MADE BY SELECTION OF INDIVIDUAL EMPLOYEES, AND THAT IN THE CASE OF A PERMANENT EMPLOYEE ENTITLED TO REEMPLOYMENT RIGHTS UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 UPON RELEASE FROM MILITARY SERVICE, THE DATE OF A PAPER OR RECORD PROMOTION BASED UPON SENIORITY FROM ONE CLASSIFICATION ACT GRADE TO ANOTHER WHILE THE EMPLOYEE WAS ABSENT FROM HIS POSITION ON MILITARY DUTY, MAY NOT BE RECOGNIZED AS THE DATE FROM WHICH THE WAITING PERIOD BEGINS TO RUN FOR A WITHIN-GRADE PROMOTION UNDER THE ACT OF AUGUST 1, 1941, IN THE HIGHER GRADE IN WHICH EMPLOYED AFTER MILITARY SERVICE (24 C.G. 729; 25 ID. 882; 26 ID. 100, 573).

IT WOULD, OF COURSE, BE HIGHLY UNDESIRABLE FOR THE COMMISSION TO ISSUE REGULATIONS REQUIRING THAT AGENCIES CONSIDER FOR PROMOTION AND PROMOTE EMPLOYEES WHO ARE ABSENT ON MILITARY DUTY IF YOUR OFFICE WERE TO DECIDE THAT THE PRINCIPLES THAT WERE APPLIED IN CASES ARISING UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 HAD EQUAL APPLICATION TO CASES UNDER THE SELECTIVE SERVICE ACT OF 1948.

THE COMMISSION WOULD THEREFOR APPRECIATE YOUR DECISION ON THE FOLLOWING QUESTIONS:

1. IN VIEW OF THE PROVISION OF SECTION 9 (C) (2) OF THE SELECTIVE SERVICE ACT OF 1948, THAT PERSONS RESTORED TO POSITIONS IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHOULD BE SO RESTORED IN SUCH MANNER AS THEIR EMPLOYMENT CONTINUOUSLY FROM THE TIME OF ENTRANCE INTO THE ARMED FORCES--- MAY EMPLOYEES WHO ARE ABSENT ON MILITARY DUTY BE PROMOTED FROM ONE CLASSIFICATION ACT GRADE TO ANOTHER AND MAY THE DATE OF SUCH PROMOTION BE RECOGNIZED AS THE DATE FROM WHICH THE WAITING PERIOD BEGINS TO RUN FOR A WITHIN-GRADE PROMOTION?

2. WOULD YOUR ANSWER TO QUESTION 1 BE AFFECTED BY THE FACT THAT THE PERSON INVOLVED WAS CARRIED ON THE ROLLS OF THE AGENCY ON "MILITARY FURLOUGH" RATHER THAN BEING CARRIED AS "SEPARATED FOR MILITARY SERVICE?

3. SHOULD YOUR ANSWERS TO QUESTIONS 1 AND 2 BE THAT EMPLOYEES MAY NOT BE PROMOTED WHILE IN THE MILITARY SERVICE, WHETHER CARRIED ON THE ROLLS OF THE AGENCIES AS ON "MILITARY FURLOUGH" OR AS ,SEPARATED FOR MILITARY SERVICE," THE COMMISSION WOULD APPRECIATE YOUR VIEWS AS TO WHAT EFFECT MIGHT BE GIVEN IN THE COMMISSION'S REGULATIONS TO SECTION 9 (C) (2), REFERRED TO ABOVE, SO AS TO MAKE CERTAIN THAT WHEN THE EMPLOYEE RETURNS FROM MILITARY SERVICE HE RECEIVES ALL THE BENEFITS CONTEMPLATED BY THE LAW.

AS INDICATED IN YOUR LETTER, THE DECISIONS TO WHICH YOU REFER (24 COMP. GEN. 729; 25 ID. 882; 26 ID. 100; ID. 573), AS WELL AS OTHER DECISIONS OF SIMILAR IMPORT, WERE BASED UPON THE PROPOSITION THAT THERE IS NO AUTHORITY UNDER THE CLASSIFICATION ACT TO GRANT ADMINISTRATIVE PROMOTIONS FROM GRADE TO GRADE TO CIVILIAN EMPLOYEES WHILE ABSENT FROM THEIR CIVILIAN POSITIONS ON SO-CALLED MILITARY FURLOUGH; AND NEITHER WAS THERE FOUND ANY PROVISION IN THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 885, AS AMENDED, OR OTHER RELATED PROVISIONS OF LAW-- PROVIDING FOR THE REEMPLOYMENT OF PERSONS WHO LEFT THEIR CIVILIAN EMPLOYMENT TO ENTER THE ARMED FORCES OF THE UNITED STATES--- WHICH WOULD HAVE AUTHORIZED SUCH PROMOTIONS. IT WAS POINTED OUT THAT THE PROMOTION OF EMPLOYEES FROM GRADE TO GRADE UNDER THE CLASSIFICATION ACT IS NOT BASED UPON SENIORITY AS IS THE CASE IN THE POSTAL SERVICE, BUT RATHER, SUCH PROMOTIONS ARE MADE BY SELECTION OF INDIVIDUAL EMPLOYEES. HOWEVER, THE PROVISIONS OF LAW CONSIDERED IN THOSE DECISIONS CONTAIN NO LANGUAGE COMPARABLE WITH THAT APPEARING IN SECTION 9 (C) (2) OF THE SELECTIVE SERVICE ACT OF 1948, PUBLIC LAW 759, APPROVED JUNE 24, 1948, 62 STAT. 615, QUOTED IN YOUR LETTER, SUPRA, AND NEITHER DO SUCH PROVISIONS PLACE UPON THE CIVIL SERVICE COMMISSION THE DUTY TO ISSUE REGULATIONS TO CARRY OUT THE PURPOSES THEREOF AS DOES SECTION 9 (E) (1) OF THE SELECTIVE SERVICE ACT OF 1948, 62 STAT. 616.

TO GIVE EFFECT TO THE DECLARED SENSE OF CONGRESS AS EXPRESSED IN SECTION 9 (C) (2) OF THE SELECTIVE SERVICE ACT OF 1948, NO OBJECTION IS PERCEIVED TO THE ISSUANCE OF REGULATIONS BY THE CIVIL SERVICE COMMISSION--- UNDER AUTHORITY PLACED IN THE COMMISSION BY SECTION 9 (E) (1) OF THE ACT--- WHICH REGULATIONS WOULD REQUIRE THAT EMPLOYEES, WHO HAVE LEFT THEIR CIVILIAN POSITIONS IN ORDER TO PERFORM MILITARY DUTY AS PROVIDED IN THE ACT, BE CONSIDERED FOR PROMOTION AND BE PROMOTED WHERE SUCH EMPLOYEES ARE FOUND TO BE OTHERWISE QUALIFIED. OBVIOUSLY, IN ORDER TO GIVE DUE EFFECT TO THE CONGRESSIONAL INTENT AS EXPRESSED IN SECTION 9 (C) (2) IT WOULD BE NECESSARY TO CONSIDER AT THE TIME THE OPPORTUNITY FOR PROMOTION ARISES THE QUALIFICATIONS OF AN EMPLOYEE WHO IS IN THE MILITARY SERVICE AND TO DETERMINE WHETHER HE WOULD HAVE BEEN PROMOTED IF PRESENT.

FURTHER, NO COGENT REASON APPEARS FOR CONCLUDING THAT A DIFFERENT ANSWER SHOULD OBTAIN WHERE THE EMPLOYEE IS CARRIED ON THE ROLLS OF THE AGENCY AS "ON MILITARY FURLOUGH" RATHER THAN BEING CARRIED AS "SEPARATED FOR MILITARY SERVICE.' IN THAT CONNECTION THERE IS FOR NOTING THAT SECTION 9 OF THE SELECTIVE SERVICE ACT OF 1948, LIKE SECTION 9 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 890, AS AMENDED, AND OTHER RELATED SECTIONS IN CONTEMPORANEOUS ACTS, PROVIDES THAT, UPON MEETING CERTAIN REQUIREMENTS, A PERSON WHO HAS LEFT OR LEAVES A CIVILIAN POSITION OTHER THAN TEMPORARY SHALL BE "RESTORED" TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY. UNDER THE EARLIER ACTS IT WAS HELD THAT WHETHER A PERSON ENTERING ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES SHALL BE PLACED ON FURLOUGH OR LEAVE WITHOUT PAY OR SEPARATED FROM THE ROLLS PRIMARILY IS A MATTER FOR ADMINISTRATIVE DETERMINATION. SEE 20 COMP. GEN. 158, ID. 167; ID. 847; 21 ID. 403; 27 ID. 115. REGARDLESS OF THE NATURE OF THE ACTION TAKEN, THE RIGHTS OF THE EMPLOYEES WITH RESPECT TO SENIORITY, STATUS, AND PAY ARE FOR DETERMINATION AS OF THE TIME OF REEMPLOYMENT IN THE CIVILIAN POSITION. THE SAME CONCLUSION IS REQUIRED UNDER THE ESSENTIALLY SIMILAR PROVISIONS OF SECTION 9 OF THE SELECTIVE SERVICE ACT OF 1948.

IN LINE WITH THE FOREGOING, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE, AND YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE, RENDERING UNNECESSARY AN ANSWER TO YOUR THIRD QUESTION.