B-96526, JULY 25, 1950, 30 COMP. GEN. 27

B-96526, JULY 25, 1950, 30 COMP. GEN. 27

OFFICERS AND EMPLOYEES - ERRONEOUS REEMPLOYMENT AFTER MILITARY SERVICE IN GRADE LOWER THAN THAT TO WHICH ENTITLED - RETROACTIVE SALARY ADJUSTMENT AN EMPLOYEE WHO, BECAUSE OF ADMINISTRATIVE MISUNDERSTANDING OR MISTAKE, WAS REEMPLOYED AFTER MILITARY SERVICE IN A GRADE LOWER THAN THAT TO WHICH HE WAS LAWFULLY ENTITLED AND WHO WAS ASSIGNED DUTIES IN ACCORDANCE WITH SUCH LOWER GRADE MAY NOT, UPON CORRECTIVE ADMINISTRATIVE ACTION BEING TAKEN TO PLACE HIM IN THE HIGHER GRADE, HAVE HIS COMPENSATION RETROACTIVELY ADJUSTED.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF AGRICULTURE, JULY 25, 1950:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 30, 1950, REQUESTING DECISION WHETHER THIS OFFICE WOULD BE REQUIRED TO OBJECT SHOULD YOUR DEPARTMENT GRANT A RETROACTIVE PAY ADJUSTMENT IN THE CASE OF A MEAT INSPECTOR OF THE BUREAU OF ANIMAL INDUSTRY WHO WAS RESTORED AFTER MILITARY SERVICE TO A GRADE LOWER THAN THAT TO WHICH HE LAWFULLY WAS ENTITLED. IT IS STATED THAT PRIOR TO HIS ENTERING THE MILITARY SERVICE HE HELD A POSITION CLASSIFIED IN SP-4, THAT DURING HIS MILITARY SERVICE THE JOBS OF MEAT INSPECTORS WERE RECLASSIFIED TO CAF-5, BUT THAT UPON HIS RETURN FROM SERVICE HE WAS PLACED IN A CAF-4 CLASSIFICATION AND WAS "ASSIGNED TO DUTY IN ACCORDANCE WITH HIS RATING.' IT NOW IS ADMINISTRATIVELY DETERMINED THAT HE SHOULD HAVE BEEN RESTORED TO A CAF 5 CLASSIFICATION JOB. YOU REFER TO THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF KEPHART V. UNITED STATES, 109 C.1CLS. 646, DECIDED DECEMBER 1, 1947, WHICH YOU BELIEVE IS AUTHORITY TO EFFECT RETROACTIVE ADJUSTMENT OF SALARY IN THIS CASE.

IN DECISION OF AUGUST 5, 1946, 26 COMP. GEN. 91, IT WAS HELD, QUOTING FROM THE SYLLABUS:

AN EMPLOYEE WHO, BECAUSE OF ADMINISTRATIVE MISUNDERSTANDING OR MISTAKE, WAS REEMPLOYED AFTER MILITARY DUTY IN A GRADE LOWER THAN THAT OF THE POSITION HE HELD UPON ENTERING THE ARMED FORCES IS NOT, BY THE MERE ACCEPTANCE OF SUCH EMPLOYMENT, TO BE CONSIDERED AS HAVING WAIVED HIS MANDATORY RIGHT UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, TO BE REINSTATED TO HIS FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS, AND PAY; HOWEVER, THE REINSTATEMENT IS EFFECTIVE ONLY FROM THE DATE OF CORRECTIVE ADMINISTRATIVE ACTION AND MAY NOT BE GIVEN RETROACTIVE EFFECT.

IN DECISION OF MARCH 2, 1947, 28 COMP. GEN. 489, RENDERED AFTER THE REFERRED-TO DECISION OF THE COURT OF CLAIMS, IT WAS HELD, QUOTING FROM THE SYLLABUS:

THE "CORRECTIVE ACTION" REQUIRED OF ADMINISTRATIVE OFFICERS IN ACCORDANCE WITH RECOMMENDATIONS MADE BY THE CIVIL SERVICE COMMISSION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, WITH RESPECT TO APPEALS OF PREFERENCE ELIGIBLES FOR RESTORATION TO DUTY, MAY NOT INCLUDE AN AUTHORIZATION FOR THE PAYMENT OF "BACK PAY" UPON RESTORATION AND THE ADJUSTMENT OF LEAVE ACCOUNTS IN CONNECTION WITH PERIODS OF SEPARATION OR SUSPENSION.

THIS OFFICE CONSISTENTLY HAS HELD THAT AN EMPLOYEE IS NOT ENTITLED TO COMPENSATION IN EXCESS OF THAT PRESCRIBED BY LAW FOR THE GRADE OF THE JOB HELD BY HIM, ESPECIALLY WHERE THE SERVICES ACTUALLY RENDERED WERE PROPERLY ALLOCABLE TO THAT GRADE. IN COLEMAN V. UNITED STATES, 100 C.1CLS. 41, THE COURT SAID:

THE SALARIES FIXED BY CONGRESS ARE THE SALARIES PAYABLE TO THOSE WHO HOLD THE OFFICE * * *. WHERE THE PLAINTIFF HAS RECEIVED THE SALARY OF THE OFFICE TO WHICH HE IS APPOINTED HE HAS RECEIVED ALL TO WHICH HE IS ENTITLED UNDER THE LAW.

HERE THE EMPLOYEE HAS RECEIVED THE SALARY OF THE OFFICE TO WHICH HE WAS APPOINTED. HE CANNOT RECEIVE THE SALARY OF AN OFFICE TO WHICH HE WAS NOT APPOINTED. IT IS PERTINENT TO NOTE IN CONNECTION WITH THE MATTER THAT THE CONGRESS IN PASSING THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, 62 STAT. 354, WHILE AUTHORIZING PAYMENT FOR PERIODS OF UNJUSTIFIED SEPARATION OR SUSPENSION, DID NOT INCLUDE THEREIN ANY AUTHORITY TO MAKE PAYMENT FOR PERIODS WHEN AN EMPLOYEE ERRONEOUSLY WAS PLACED IN OR DEMOTED TO A LOWER GRADE. THIS OFFICE CANNOT ACCEPT THE DECISION OF THE COURT OF CLAIMS IN THE KEPHART CASE AS CONTROLLING IN CASES SUCH AS THE ONE PRESENTED BY YOUR SUBMISSION.

SPECIFICALLY ANSWERING YOUR QUESTION, THEREFORE, THIS OFFICE WOULD BE REQUIRED TO OBJECT TO ANY RETROACTIVE ADJUSTMENT OF THE COMPENSATION IN THIS CASE.