B-64489, MARCH 28, 1947, 26 COMP. GEN. 706

B-64489, MARCH 28, 1947, 26 COMP. GEN. 706

COMPENSATION - PROMOTIONS - RETROACTIVE IMMIGRATION PATROL INSPECTORS WHO ENTERED THE MILITARY SERVICE FROM PROBATIONAL POSITIONS PRIOR TO THE COMPLETION OF ONE YEAR'S SATISFACTORY SERVICE REQUIRED FOR PROMOTION TO THE NEXT HIGHER GRADE MAY NOT BE PROMOTED ADMINISTRATIVELY TO SUCH HIGHER GRADES AFTER RETURN FROM MILITARY SERVICE RETROACTIVE TO THE DATE OF THE CIVIL SERVICE REGULATION OF MARCH 12, 1946, WHICH PROVIDED FOR THE CREDITING OF MILITARY SERVICE FOR COMPLETION OF PROBATIONARY PERIODS.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, MARCH 28, 1947:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF MARCH 4, 1947 (A3-5), AS FOLLOWS:

THIS OFFICE REQUESTS ADVICE ON THE FOLLOWING QUESTION PRESENTED BY THE COMMISSIONER OF IMMIGRATION AND NATURALIZATION, INVOLVING THE PROPRIETY OF MAKING RETROACTIVE SALARY PAYMENTS TO CERTAIN EMPLOYEES FOLLOWING THEIR RETURN TO CIVILIAN DUTY FROM THE ARMED FORCES.

ON FEBRUARY 1, 1944, THERE WAS PLACED INTO EFFECT IN THE FIELD SERVICE A CLASSIFICATION PLAN COVERING IMMIGRATION PATROLMAN POSITIONS, GENERALLY REFERRED TO A PATROL INSPECTOR POSITIONS. AS PART OF THAT PLAN, TRAINEES WHO SATISFACTORILY COMPLETE THE PROBATIONARY OR TRIAL PERIOD OF ONE YEAR ARE PROMOTED FROM GRADE CAF-6 TO THE JOURNEYMAN GRADE, CAF-7. THIS PLAN WAS LATER INCORPORATED IN CLASS SPECIFICATION ISSUED BY TH CIVIL SERVICE COMMISSION IN AUGUST 1945 UNDER AUTHORITY OF EXECUTIVE ORDER 9512.

BY SECTION 7.113, THE CIVIL SERVICE COMMISSION ADDED TO PART 7, CHAPTER I, TITLE 5, OF THE CODE OF FEDERAL REGULATIONS ON MARCH 12, 1946, THE FOLLOWING:

"COMPLETION OF PROBATION BY EMPLOYEES WHO ENTER MILITARY SERVICE.--- EMPLOYEES WHO ENTER THE MILITARY SERVICE DURING PROBATION WILL, UPON RESTORATION TO THEIR CIVILIAN POSITIONS, BE GIVEN CREDIT TOWARD COMPLETION OF PROBATION WITH TIME SERVED IN THE MILITARY SERVICE.'

UPON ADVICE OF THE CIVIL SERVICE COMMISSION, THE ABOVE REGULATION WAS CONSTRUED TO ENTITLE PATROL INSPECTORS WHO HAD ENTERED THE ARMED FORCES DURING PROBATION TO BE RESTORED OR PROMOTED TO THE JOURNEYMAN GRADE CAF-7 UPON COMPLETION OF ONE YEAR OF SERVICE, INCLUDING BOTH CIVILIAN AND MILITARY SERVICE. THE FIRST CASES OF THIS TYPE WERE PROCESSED TO TAKE EFFECT ON SEPTEMBER 22, 1946. ALTHOUGH IT WAS FELT THAT THESE ACTIONS SHOULD HAVE BEEN MADE RETROACTIVE TO THE DATE OF THE COMMISSION'S REGULATION OF MARCH 12, 1946, RETROACTIVE ACTION WAS NOT TAKEN IN VIEW OF GENERAL RULINGS OF YOUR OFFICE AGAINST THE GRANTING OF RETROACTIVE PROMOTIONS. THERE WAS PARTICULARLY CONSIDERED YOUR DECISION B-59243 OF AUGUST 5, 1946 IN WHICH IT WAS HELD THAT AN EMPLOYEE WHO WAS REEMPLOYED AFTER MILITARY DUTY IN A GRADE LOWER THAN THAT OF THE POSITION HE HELD UPON ENTERING THE ARMED FORCES RETAINED HIS MANDATORY RIGHT UNDER THE SELECTIVE TRAINING AND SERVICE ACT TO BE REINSTATED TO HIS FORMER POSITION, OR ONE OF LIKE SENIORITY, STATUS AND PAY, BUT THAT THE REINSTATEMENT IS EFFECTIVE ONLY FROM THE DATE OF CORRECTIVE ADMINISTRATIVE ACTION AND MAY NOT BE GIVEN RETROACTIVE EFFECT.

IN THE ABOVE-MENTIONED DECISION OF AUGUST 5, 1946, THE EMPLOYEE WAS RESTORED TO A POSITION OF A LOWER GRADE THAN THE ONE TO WHICH HE WAS ENTITLED AND HE ACTUALLY PERFORMED THE DUTIES OF THE LOWER GRADE. IN THE CASES OF THE PATROL INSPECTORS HERE IN QUESTION, THERE WAS NOT INVOLVED A CHANGE IN THE DUTIES AND NATURE OF THE WORK BUT ONLY A CHANGE IN THE OFFICIAL CLASSIFICATION OF THE POSITION. IN THIS RESPECT, WE BELIEVE THE SITUATION IS SIMILAR TO THE ONE DISCUSSED IN 25 COMP. GEN. 419, IN WHICH IT WAS HELD THAT ANY EMPLOYEE OF THE FEDERAL GOVERNMENT ON MILITARY FURLOUGH WAS ENTITLED, UPON RESTORATION TO A CIVILIAN POSITION AFTER MILITARY DUTY, TO THE BENEFITS OF THE REALLOCATION OF THE POSITION HE OCCUPIED WHEN HE ENTERED THE MILITARY SERVICE, AS WELL AS TO ANY AUTOMATIC PROMOTIONS WHICH WOULD HAVE BEEN DUE HAD HE REMAINED IN THE CIVILIAN SERVICE. THERE HAS ALSO BEEN CONSIDERED THE GENERAL STATEMENT ON PAGE 689 OF 25 (24) COMP. GEN. 688, THAT ORDINARILY AN ORIGINAL CONSTRUCTION OF A STATUTE OR OF A REGULATION, HAVING THE FORCE AND EFFECT OF LAW, IS EFFECTIVE FROM THE DATE OF THE STATUTE OR REGULATION. THE REGULATION INVOLVED HERE IS THE ONE QUOTED ABOVE RELATING TO COMPLETION OF PROBATION BY EMPLOYEES WHO ENTER MILITARY SERVICE.

SPECIFICALLY, THE QUESTION RAISED IS WHETHER ACTION MAY NOT BE TAKEN TO ADJUST RETROACTIVELY TO MARCH 12, THE CASES OF THOSE PATROL INSPECTORS WHO WERE RESTORED TO DUTY BETWEEN MARCH 12 AND SEPTEMBER 22, 1946 AND WHO WERE NOT GIVEN THE BENEFIT OF THE COMMISSION'S REGULATION OF MARCH 12 UNTIL SEPTEMBER 22.

THERE IS NOT INVOLVED IN THE CASE PRESENTED ANY QUESTION OF AUTOMATIC WITHIN-GRADE ADVANCEMENT OR ANY QUESTION OF REALLOCATION OF POSITION WHILE IN THE MILITARY SERVICE. THE ADMINISTRATIVE ACTION PROMOTING ONE FROM ONE GRADE TO ANOTHER UPON HIS ATTAINING CERTAIN QUALIFICATIONS IS IN NO WAY COMPARABLE WITH A REALLOCATION ACTION, THE LATTER NOT BEING BASED UPON THE ATTAINING OF ADDITIONAL QUALIFICATIONS BUT RATHER UPON THE EVALUATION OF THE WORK REQUIRED IN THE PARTICULAR POSITION. HENCE, THE DECISION REPORTED IN 25 COMP. GEN. AT PAGE 419 HAS NO BEARING UPON THE QUESTION PRESENTED HERE. NOR IS IT UNDERSTOOD HOW THE RULE OF CONSTRUCTION REFERRED TO IN 24 (NOT 25) COMP. GEN. 688, AT PAGE 869, WOULD BE OF ASSISTANCE OR FOR APPLICATION HERE. THERE IS NO QUESTION BUT THAT THE CITED CIVIL SERVICE REGULATION REGARDING THE CREDITING OF MILITARY SERVICE FOR COMPLETION OF PROBATION PERIODS WOULD BE EFFECTIVE FROM ITS DATE, BUT THAT FACT DOES NOT CARRY WITH IT ANY RIGHT TO PROMOTION BETWEEN GRADES WHICH IS A MATTER ENTIRELY WITHIN THE ADMINISTRATIVE DISCRETION, SUBJECT, OF COURSE, TO THE ATTAINMENT BY THE EMPLOYEE OF THE NECESSARY QUALIFICATIONS FOR THE HIGHER GRADE POSITION AND, ALSO, THE AVAILABILITY OF FUNDS.

IN THE CIRCUMSTANCES SET FORTH IN YOUR SUBMISSION, ANY ADVANCEMENT FROM CAF-6 TO CAF-7 WOULD CONSTITUTE A PROMOTION AND SUCH ACTION LEGALLY MAY NOT BE MADE EFFECTIVE RETROACTIVELY.