B-96674, AUGUST 18, 1950, 30 COMP. GEN. 82

B-96674: Aug 18, 1950

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- ARE ENTITLED. THE RECORDS OF SUCH EMPLOYEES SHOULD INDICATE THE WITHIN-GRADE SALARY ADVANCEMENTS THEY WOULD HAVE BEEN ENTITLED TO RECEIVE HAD THEY NOT BEEN PROMOTED. 1950: REFERENCE IS MADE TO YOUR LETTER OF JULY 7. OF CERTAIN TEMPORARY PROMOTIONS PROCESSED IN CONNECTION WITH THE TERRITORIAL ARMY COMMAND TEST AND WITH RESPECT TO WHICH THERE HAVE BEEN SUBMITTED THE FOLLOWING QUESTIONS: (1) IS IT REQUIRED THAT THERE BE A SETTLED ADMINISTRATIVE PRACTICE OF MAKING TEMPORARY PROMOTIONS? (2) SHOULD THE PRACTICE BE APPLIED TO PARTICULAR WORK SITUATIONS SUCH AS DISCUSSED IN 21 COMP. GEN. 730? (3) MUST THE PROMOTIONS BE OFFICIALLY DESIGNATED AS TEMPORARY? (4) MUST THE PERIOD FOR WHICH THE PROMOTION IS EFFECTIVE BE SPECIFICALLY STATED OR MAY IT BE INDEFINITE? (5) WOULD IT AFFECT THE SITUATION IF THE EMPLOYEES DID NOT OCCUPY THE SAME POSITIONS BUT WERE PROMOTED TO DIFFERENT POSITIONS AND RETURNED TO DIFFERENT P6SITIONS OF THE SAME OR DIFFERENT GRADE FROM THOSE HELD PRIOR TO THE TEMPORARY PROMOTIONS? (6) DECISION IS ALSO REQUESTED AS TO WHETHER PERIODIC STEP INCREASES RECEIVED WHILE IN THE HIGHER GRADE POSITIONS WOULD BE CONSIDERED EQUIVALENT INCREASES IN DETERMINING ELIGIBILITY FOR PERIODIC STEP INCREASES AFTER RETURN TO THE LOWER GRADE POSITIONS. (7) IF IT IS DETERMINED THAT THE SUBJECT PROMOTIONS DID CONSTITUTE EQUIVALENT INCREASES.

B-96674, AUGUST 18, 1950, 30 COMP. GEN. 82

COMPENSATION - WITHIN-GRADE ADVANCEMENTS - ELIGIBILITY AS AFFECTED BY TEMPORARY PROMOTIONS EMPLOYEES WHO RECEIVE PROMOTIONS FOR A DEFINITE OR APPROXIMATE PERIOD OF SHORT DURATION--- KNOWN IN ADVANCE TO BE TEMPORARY--- ARE ENTITLED, UPON RESTORATION TO THEIR POSITION OR POSITIONS OF THE SAME OR A DIFFERENT GRADE FROM THOSE HELD PRIOR TO SUCH PROMOTIONS, TO WITHIN-GRADE SALARY ADVANCEMENTS AFTER THE EXPIRATION OF THE REQUIRED WAITING PERIOD FROM THE LAST EQUIVALENT INCREASE RECEIVED IN THEIR REGULAR POSITIONS, EVEN THOUGH THEY RECEIVED WITHIN-GRADE SALARY ADVANCEMENTS WHILE IN THE HIGHER GRADE; ALSO, THE RECORDS OF SUCH EMPLOYEES SHOULD INDICATE THE WITHIN-GRADE SALARY ADVANCEMENTS THEY WOULD HAVE BEEN ENTITLED TO RECEIVE HAD THEY NOT BEEN PROMOTED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, AUGUST 18, 1950:

REFERENCE IS MADE TO YOUR LETTER OF JULY 7, 1950, REQUESTING DECISION AS TO THE EFFECT, FOR WITHIN-GRADE SALARY ADVANCEMENT PURPOSES, OF CERTAIN TEMPORARY PROMOTIONS PROCESSED IN CONNECTION WITH THE TERRITORIAL ARMY COMMAND TEST AND WITH RESPECT TO WHICH THERE HAVE BEEN SUBMITTED THE FOLLOWING QUESTIONS:

(1) IS IT REQUIRED THAT THERE BE A SETTLED ADMINISTRATIVE PRACTICE OF MAKING TEMPORARY PROMOTIONS?

(2) SHOULD THE PRACTICE BE APPLIED TO PARTICULAR WORK SITUATIONS SUCH AS DISCUSSED IN 21 COMP. GEN. 773 AND 28 COMP. GEN. 730?

(3) MUST THE PROMOTIONS BE OFFICIALLY DESIGNATED AS TEMPORARY?

(4) MUST THE PERIOD FOR WHICH THE PROMOTION IS EFFECTIVE BE SPECIFICALLY STATED OR MAY IT BE INDEFINITE?

(5) WOULD IT AFFECT THE SITUATION IF THE EMPLOYEES DID NOT OCCUPY THE SAME POSITIONS BUT WERE PROMOTED TO DIFFERENT POSITIONS AND RETURNED TO DIFFERENT P6SITIONS OF THE SAME OR DIFFERENT GRADE FROM THOSE HELD PRIOR TO THE TEMPORARY PROMOTIONS?

(6) DECISION IS ALSO REQUESTED AS TO WHETHER PERIODIC STEP INCREASES RECEIVED WHILE IN THE HIGHER GRADE POSITIONS WOULD BE CONSIDERED EQUIVALENT INCREASES IN DETERMINING ELIGIBILITY FOR PERIODIC STEP INCREASES AFTER RETURN TO THE LOWER GRADE POSITIONS.

(7) IF IT IS DETERMINED THAT THE SUBJECT PROMOTIONS DID CONSTITUTE EQUIVALENT INCREASES, MAY THE DEPARTMENT NOW ADJUST UPWARD THE SALARIES OF THE EMPLOYEES CONCERNED RETROACTIVELY TO THE DATE OF RETURN TO LOWER GRADE SO AS TO SAVE TO THEM A HIGHER SALARY IN THE LOWER GRADE POSITIONS WHICH WOULD MORE ADEQUATELY COMPENSATE THEM FOR THE ADDITIONAL TIME WHICH THEY WILL BE REQUIRED TO SPEND IN GRADE BEFORE THEY BECOME ELIGIBLE FOR ANOTHER PERIODIC STEP INCREASE?

(8) IF IT IS DETERMINED THAT THE SUBJECT TEMPORARY PROMOTIONS DID NOT CONSTITUTE EQUIVALENT INCREASES, IS IT MANDATORY THAT THE RECORDS OF THE SUBJECT EMPLOYEES BE CORRECTED TO SHOW THE PERIODIC STEP INCREASES TO WHICH THEY WOULD HAVE BECOME ENTITLED IF THEY HAD NOT BEEN TEMPORARILY PROMOTED?

YOU STATE THAT, IN THE LATTER PART OF 1948, THE DEPARTMENT OF THE ARMY BEGAN WHAT IS KNOWN AS THE TERRITORIAL ARMY COMMAND TEST, WHICH HAD THE EFFECT OF PLACING COMMAND FUNCTIONS FOR ALL INSTALLATIONS IN THE THIRD ARMY AREA UNDER THE COMMANDING GENERAL OF THE THIRD ARMY, AND THAT THE TEST WAS ORIGINALLY ESTABLISHED FOR APPROXIMATELY SIX MONTHS BUT WAS EXTENDED FOR SLIGHTLY MORE THAN ONE YEAR. IT IS STATED FURTHER THAT THE CHANGE OF COMMAND CREATED MANY NEW FUNCTIONS, DUTIES, AND RESPONSIBILITIES WHICH WERE ADDED TO THE POSITIONS AT THIRD ARMY HEADQUARTERS RESULTING IN THE NECESSARY RECLASSIFICATION OF MANY OF THOSE POSITIONS AND THE ESTABLISHMENT OF NEW POSITIONS. PROMOTIONS RESULTING FROM RECLASSIFICATION AND ASSIGNMENT TO THE NEW POSITIONS WERE MADE ON STANDARD FORMS 50, STATING: "THIS IS A TEMPORARY PROMOTION * * * FOR THE DURATION OF TCT.' AT THE END OF THE TERRITORIAL ARMY COMMAND TEST IN NOVEMBER 1949, THE DUTIES AND RESPONSIBILITIES IMPOSED BY THAT TEST WERE CURTAILED AND THE POSITIONS RECLASSIFIED AND SOME 45 EMPLOYEES WERE CHANGED TO A LOWER GRADE.

IN 21 COMP. GEN. 773, REFERRED TO IN YOUR SUBMISSION, IT WAS HELD BY THIS OFFICE, QUOTING FROM THE SYLLABUS:

CIVILIAN EMPLOYEES OF THE ENGINEER DEPARTMENT OF THE ARMY WHO, PURSUANT TO AN ADMINISTRATIVE REGULATION PROVIDING FOR TEMPORARY "UP AND DOWN" SALARY CHANGES AS DISTINGUISHED FROM SALARY CHANGES UNDER RULES AND REGULATIONS APPLICABLE TO GOVERNMENT AGENCIES GENERALLY, ARE TEMPORARILY ASSIGNED FOR 30 DAYS OR LESS TO POSITIONS--- EITHER WITHIN OR WITHOUT THE CLASSIFICATION ACT--- PAYING HIGHER OR LOWER SALARIES THAN THEIR REGULAR POSITIONS AND WHO ARE RESTORED TO THEIR REGULAR POSITIONS AND SALARIES UPON COMPLETION OF SUCH ASSIGNMENTS ARE ENTITLED, IF OTHERWISE ELIGIBLE, TO WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE ACT OF AUGUST 1, 1941, AFTER 18 OR 30 MONTHS FROM THE LAST EQUIVALENT COMPENSATION INCREASE RECEIVED IN THEIR REGULAR POSITIONS, WITHOUT REGARD TO THE SALARY CHANGES RESULTING FROM THE TEMPORARY ASSIGNMENTS. 21 COMP. GEN. 285 AND 21 COMP. GEN. 326, DISTINGUISHED.

IN 28 COMP. GEN. 730, ALSO REFERRED TO BY YOU, IT WAS STATED AT PAGE 732:

THE PRACTICE WHICH IS STATED AS BEING FOLLOWED IN THE CIVIL AERONAUTICS ADMINISTRATION APPEARS TO BE ANALOGOUS TO THE REGULATIONS CONSIDERED IN THE DECISION, SUPRA, IN THAT THE SALARY ADJUSTMENTS ARE OF A RECURRING NATURE, AND--- ALTHOUGH SOME ASSIGNMENTS HAVE LASTED AS LONG AS TWO YEARS- -- USUALLY ARE FOR SHORT PERIODS OF TIME. TO HOLD THAT ANY SUCH SALARY ADJUSTMENT CONSTITUTED AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF SECTION 7 (B) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, WOULD RESULT EITHER IN A COMPLETE DENIAL OF A PERIODIC WITHIN-GRADE SALARY ADVANCEMENT TO THE EMPLOYEE IN HIS REGULAR POSITION WITH NO COMPENSATING BENEFIT IN THAT POSITION, OR WOULD RESULT IN A COMPLETE CIRCUMVENTION OF THE PURPOSES OF THAT SECTION THROUGH APPLICATION OF THE RULE AS TO THE INITIAL SALARY RATE PAYABLE UPON TRANSFER, PROMOTION, DEMOTION, ETC., STATED IN 26 COMP. GEN. 368.

WHILE THE TEMPORARY PROMOTIONS CONSIDERED IN BOTH OF THE ABOVE DECISIONS WERE OF A RECURRING NATURE, THAT FACT ALO5E IS NOT NECESSARILY CONTROLLING AND THE PRINCIPLE OF THOSE DECISIONS IS FOR APPLICATION TO THE SITUATION MENTIONED IN YOUR LETTER. ACCORDINGLY, QUESTION 1, 2, 5, AND 6 ARE ANSWERED IN THE NEGATIVE. WITH RESPECT TO QUESTIONS 3 AND 4, THE PROMOTIONS SHOULD BE STATED AS TEMPORARY AND THE PERIOD FOR WHICH MADE SHOULD BE STATED AT LEAST APPROXIMATELY. QUESTION 8 IS ANSWERED IN THE AFFIRMATIVE. IN VIEW OF THOSE ANSWERS, NO ANSWER APPEARS NECESSARY TO QUESTION 7. ..END :