B-53153, NOVEMBER 26, 1945, 25 COMP. GEN. 419

B-53153, NOVEMBER 26, 1945, 25 COMP. GEN. 419

CLASSIFICATION - EXECUTIVE ORDER POSITIONS; REALLOCATIONS - EMPLOYEES ON MILITARY FURLOUGH - EFFECT ON AUTOMATIC PROMOTIONS UNDER SECTION 5 OF EXECUTIVE ORDER NO. 8882, ISSUED PURSUANT TO THE WITHIN-GRADE SALARY ADVANCEMENT STATUTE OF AUGUST 1, 1941, RELATING TO THE AUTOMATIC PROMOTION RIGHTS OF "ANY EMPLOYEE OF THE FEDERAL GOVERNMENT" ON MILITARY FURLOUGH, AN EMPLOYEE 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 CIVILIAN SERVICE. 21 COMP. GEN. 1007, AMPLIFIED. WHERE A FIELD SERVICE POSITION OF AN EMPLOYEE ON MILITARY FURLOUGH HAS BEEN REALLOCATED, IN ABSENTIA, RESULTING IN AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, THE WAITING PERIOD FOR A WITHIN-GRADE PROMOTION UNDER SAID ACT BEGAN TO RUN FROM THE EFFECTIVE DATE OF SUCH REALLOCATION RATHER THAN FROM THE DATE THE EMPLOYEE WAS RESTORED TO HIS CIVILIAN POSITION. THE FACT THAT CERTAIN EXISTING CLASSIFIED FIELD POSITIONS OF VETERINARIANS AND THEIR ASSISTANTS IN THE BUREAU OF ANIMAL INDUSTRY, DEPARTMENT OF AGRICULTURE, WERE VACANT AT THE TIME WHEN IDENTICAL OCCUPIED POSITIONS WERE ADMINISTRATIVELY REALLOCATED TO HIGHER GRADES-- WITH NO CHANGE IN THE DUTIES OR THE NATURE OF THE WORK--- DID NOT PRECLUDE THE REALLOCATION OF ALL SUCH POSITIONS AT THE SAME TIME; RATHER, ALL SUCH IDENTICAL VACANT POSITIONS MUST BE CONSIDERED AS HAVING BEEN REALLOCATED AS OF THE SAME DATE, IRRESPECTIVE OF THE FACT THAT ADMINISTRATIVE ACTION ASSIGNING SUCH VACANT POSITIONS TO THE HIGHER GRADES WAS EFFECTED AT A LATER DATE. WHERE, ON THE BASIS OF THE DUTIES ACTUALLY PERFORMED, ADMINISTRATIVE ACTION WAS TAKEN TO CREATE ,NEW" OR "ADDITIONAL" FIELD SERVICE POSITIONS FOR EMPLOYEES ON MILITARY FURLOUGH IN LIEU OF POSITIONS FORMERLY HELD BY THEM, AND SUCH ACTION RESULTED IN AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE WITHIN-GRADE PROMOTION ACT OF AUGUST 1, 1941, THE WAITING PERIOD FOR WITHIN-GRADE PROMOTION PURPOSES IN THE NEW OR ADDITIONAL POSITIONS BEGAN ON THE DATE ON WHICH SUCH ACTION WAS ADMINISTRATIVELY APPROVED OR SUCH LATER DATE AS MAY HAVE BEEN ADMINISTRATIVELY DESIGNATED. THE ADMINISTRATIVE CONVERSION OF CERTAIN POSITIONS FROM GRADES UNDER THE SALARY SCHEDULE PRESCRIBED BY EXECUTIVE ORDER NO. 6746 TO CLASSIFICATION ACT GRADES DOES NOT AUTOMATICALLY EFFECT A LIKE CONVERSION OF ALL SIMILAR POSITIONS IN THE SAME AGENCY OR APPROPRIATION UNIT, THE CONVERSION FROM THE EXECUTIVE ORDER GRADES BEING DEPENDENT UPON AFFIRMATIVE ADMINISTRATIVE ACTION IN EACH PARTICULAR CASE.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF AGRICULTURE, NOVEMBER 26, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 5, 1945, AS FOLLOWS:

FOR A NUMBER OF YEARS THE DEPARTMENT OF AGRICULTURE WAS CONFRONTED WITH A VERY SERIOUS SITUATION WITH RESPECT TO ALLOCATION OF CERTAIN OF ITS FIELD PERSONNEL ENGAGED IN INSPECTION WORK WHO WERE PAID FROM APPROPRIATIONS MADE TO THE BUREAU OF ANIMAL INDUSTRY OF THIS DEPARTMENT AND WHICH REQUIRED THE SERVICES OF TRAINED VETERINARIANS AND THEIR LAY ASSISTANTS.

IT WAS RECOGNIZED BY THE CIVIL SERVICE COMMISSION AND THE DEPARTMENT THAT GENERALLY THESE POSITIONS WERE NOT PROPERLY ALLOCATED. ALTHOUGH FUNDS WERE AVAILABLE UNDER SOME APPROPRIATIONS, OTHER APPROPRIATIONS WERE SO FULLY ENCUMBERED AS TO RENDER IT IMPOSSIBLE TO REALLOCATE ALL POSITIONS THEN IN SUBSTANDARD GRADES WITHOUT ADDITIONAL FUNDS, WHICH WERE MADE AVAILABLE FOR THE FIRST TIME IN THE AGRICULTURAL APPROPRIATION ACT FOR THE FISCAL YEAR 1945, APPROVED JUNE 28, 1944.

GENERALLY, REALLOCATIONS WERE PROCESSED EFFECTIVE JULY 1, 1944, FOR ALL PERSONNEL ACTUALLY ON DUTY. THE ALLOCATION OF POSITIONS WHOSE INCUMBENTS WERE ON MILITARY FURLOUGH WAS NOT TAKEN UP AT THAT TIME, ALTHOUGH THE POSITIONS THEMSELVES WERE THE SAME AS THOSE WHICH WERE ACTUALLY REALLOCATED. LATER, IN VIEW OF THE APPARENT INTENT OF LEGISLATION REGARDING REEMPLOYMENT RIGHTS OF EMPLOYEES IN THE ARMED FORCES, IT WAS DECIDED THAT THOSE POSITIONS OCCUPIED BY EMPLOYEES ON MILITARY FURLOUGH WHICH STARTED PRIOR TO JULY 1, 1944, SHOULD BE REALLOCATED IMMEDIATELY INSTEAD OF AWAITING THE RETURN OF THE EMPLOYEES TO DUTY. THESE REALLOCATIONS, INVOLVING APPROXIMATELY 230 EMPLOYEES (206 VETERINARIANS AND 24 LAY ASSISTANTS), WERE HANDLED DURING THE MONTHS OF AUGUST AND SEPTEMBER, 1944. FORMAL PAPERS WERE ISSUED IN EACH CASE SHOWING THE CHANGE OF GRADE EFFECTIVE AS OF SEPTEMBER 16, 1944. THIS DATE WAS SET WITHOUT A FULL REALIZATION OF THE FACT THAT IT MIGHT ADVERSELY AFFECT THE RIGHTS OF THE PERSONS ABSENT ON MILITARY FURLOUGH TO RECEIVE THE FULL BENEFITS OF THE REALLOCATIONS ENJOYED BY THE OTHER EMPLOYEES AND WITHOUT ANY INTENTION TO DENY THOSE ABSENTEES THE SAME SALARY LEVEL BEING ENJOYED BY THE INCUMBENTS.

DUE TO THE ACUTE MANPOWER SITUATION, PARTICULARLY WITH REGARD TO VETERINARIANS WHO MUST BE GRADUATES OF AN APPROVED VETERINARY COLLEGE, VERY FEW OF THE POSITIONS OCCUPIED BY INSPECTION PERSONNEL WHO HAVE GONE ON MILITARY FURLOUGH HAVE BEEN FILLED. RATHER, IT HAS BEEN NECESSARY TO CURTAIL OUR WORK DUE TO LACK OF SUFFICIENT PERSONNEL.

WE SHOULD LIKE TO EMPHASIZE THAT THE ACTIONS WE HAVE IN MIND ARE THOSE INVOLVING A REALLOCATION OF A POSITION WITHOUT CHANGE IN DUTIES, RATHER THAN THE TRANSFER IN ABSENTIA OF AN EMPLOYEE FROM ONE POSITION TO ANOTHER EXISTING POSITION OF A HIGHER GRADE IN CONNECTION WITH WHICH NO ALLOCATION OR REALLOCATION ACTION IS NECESSARY, AS WAS THE CASE IN 24 COMP. GEN. 729. WE REALIZE THAT THE DECISIONS OF YOUR OFFICE RECOGNIZE THE PRINCIPLE THAT THE REALLOCATION OF A POSITION DOES NOT AUTOMATICALLY BESTOW UPON THE INCUMBENT THEREOF THE DUTIES AND BENEFITS OF THE POSITION AS REALLOCATED. SEE, FOR INSTANCE, 24 COMP. GEN. 518; 23 ID. 445. HOWEVER, IN VIEW OF THE FACT THAT IT IS THE OFFICIAL CLASSIFICATION OF THE POSITION THAT CHANGES RATHER THAN THE DUTIES AND NATURE OF WORK, IT WOULD SEEM TO BE PROPER TO CONSIDER THE FORMAL ADMINISTRATIVE ACTION PLACING THE INCUMBENT OF THE POSITION IN THE REALLOCATED POSITION AS BEING MORE ACCURATELY A DETERMINATION AND APPROVAL OF QUALIFICATIONS RATHER THAN A PROMOTION AS THAT TERM IS GENERALLY USED. UNDER SUCH AN INTERPRETATION, WE BELIEVE THAT THE DETERMINATION OF QUALIFICATIONS COULD RELATE BACK TO THE DATE OF THE REALLOCATION ACTION AND THAT IF AS OF THAT DATE THE EMPLOYEE WERE FOUND TO BE QUALIFIED HE COULD BE PLACED IN THE POSITION UNDER THE NEW CLASSIFICATION AS OF THAT DATE, EVEN THOUGH ABSENT ON MILITARY FURLOUGH. THE COMPUTATION OF AUTOMATIC WITHIN-GRADE PROMOTIONS FROM SUCH DATE WOULD THEREUPON APPEAR TO BE PROPER AND IN ACCORDANCE WITH THE REGULATIONS COVERING WITHIN-GRADE SALARY ADVANCEMENTS ( SECTION 5, E.O. 8882, DATED SEPTEMBER 3, 1941).

SOME INDICATION THAT THE BENEFIT OF A REALLOCATION ACCRUES TO AN EMPLOYEE WHILE ON MILITARY FURLOUGH IS FOUND IN 21 COMP. GEN. 1007, 1010, WHEREIN IT IS STATED,

"THEREFORE, AS AN EMPLOYEE WOULD BE ENTITLED, UPON RESTORATION TO A CIVILIAN POSITION, TO THE BENEFIT OF THE REALLOCATION OF THE POSITION HE OCCUPIED WHEN HE ENTERED THE MILITARY OR NAVAL SERVICE, AS WELL AS TO ANY AUTOMATIC PROMOTIONS WHICH WOULD HAVE BEEN DUE DURING ABSENCE IN THE ARMED FORCES HAD HE REMAINED IN CIVILIAN SERVICE, THERE WOULD BE NO LEGAL OR ACCOUNTING OBJECTION TO THE RECORDING OF SUCH CHANGE.'

IN VIEW, HOWEVER, OF THE FACT THAT THE DECISION IS ONE INVOLVING POST OFFICE DEPARTMENT EMPLOYEES, FOR WHOM AUTOMATIC PROMOTIONS ARE BASED ON LAWS AND REGULATIONS DIFFERENT FROM THOSE APPLICABLE TO EMPLOYEES OF THIS DEPARTMENT, WE ARE IN DOUBT AS TO THE EXTENT TO WHICH THE STATEMENT IS CONSIDERED BY YOUR OFFICE AS GENERALLY APPLICABLE.

APPARENT AUTHORITY FOR GRANTING TO EMPLOYEES WHILE ON MILITARY FURLOUGH THE BENEFITS OF THE REALLOCATION OF THEIR POSITIONS IS ALSO FOUND IN UNITED STATES CIVIL SERVICE COMMISSION DEPARTMENT CIRCULAR NO. 532, DATED JULY 31, 1945. IN THAT CIRCULAR, THE COMMISSION, IN ACCORDANCE WITH AUTHORITY CONTAINED IN A LETTER FROM THE PRESIDENT UNDER DATE OF FEBRUARY 26, 1944, TO ISSUE INSTRUCTIONS INDICATING THE RIGHTS OF RETURNING VETERANS, WHICH AUTHORITY IS REFERRED TO IN THE FIRST PARAGRAPH OF THE CIRCULAR, STATES, IN PART II AT PAGE II-4,

"IF THE POSITION HELD FORMERLY BY A RETURNING VETERAN HAS BEEN REALLOCATED TO A HIGHER LEVEL WITHOUT SUBSTANTIAL CHANGE IN DUTIES AND RESPONSIBILITIES, THE VETERAN IS ENTITLED TO ALL BENEFITS OF THE REALLOCATION.'

DEPARTMENTAL CIRCULAR NO. 532 SUPERSEDES DEPARTMENTAL CIRCULAR 483, REVISION NO. 1, SUPPLEMENT NO. 7 OF WHICH CONTAINED SUBSTANTIALLY THE SAME STATEMENT AS TO BENEFITS OF REALLOCATED POSITIONS AND CITED AS AUTHORITY YOUR DECISION IN 21 COMP. GEN. 1007. IN VIEW OF THE UNCERTAINTY OF THE APPLICABILITY OF THAT DECISION, AS INDICATED ABOVE, THERE IS, OF COURSE, SOME QUESTION AS TO THE MEANING OF THE INSTRUCTION IN THE CIRCULAR.

SPECIFICALLY, WE HAVE FOR CONSIDERATION THE CASE OF A VETERINARIAN IN GRADE P-1, WHO ON OCTOBER 1, 1941, RECEIVED A WITHIN-GRADE PROMOTION FROM $2,100 TO $2,200 PER ANNUM. HE WAS PLACED ON MILITARY FURLOUGH ON OCTOBER 12, 1942, AND WE NOW HAVE INFORMATION FROM THE WAR DEPARTMENT THAT HE WILL BE RELEASED ON OCTOBER 15, 1945. HIS POSITION HAS NOT BEEN FILLED DURING HIS ABSENCE. IT IS POSSIBLE THAT HE WILL BE RESTORED TO OUR ROLLS AS EARLY AS OCTOBER 16, 1945. THE POSITION HE OCCUPIED WAS REALLOCATED FROM GRADE P-1 TO GRADE P-2, WHICH REALLOCATION WAS APPROVED IN THE DEPARTMENT ON AUGUST 22, 1944. FORMAL PERSONNEL ACTION COVERING THE REALLOCATION WAS JOURNALIZED UNDER DATE OF AUGUST 25, 1944, EFFECTIVE SEPTEMBER 16, 1944.

IF THIS EMPLOYEE IS RESTORED ON OCTOBER 16, 1945, TO THE SAME POSITION WHICH HE OCCUPIED AT THE TIME HE WENT ON MILITARY FURLOUGH, SHOULD HIS SALARY IN GRADE P-2 BE $2,980 PER ANNUM OR $3,090 PER ANNUM? THE ANSWER TO THIS QUESTION INVOLVES DETERMINATION AS TO WHETHER HIS WITHIN-GRADE PROMOTIONS WILL DATE FROM THE DATE HE RETURNS TO DUTY OR FROM THE TIME HIS POSITION WAS REALLOCATED IN ABSENTIA. IF THE LATTER, YOUR ADVICE IS DESIRED AS TO WHETHER HIS WITHIN-GRADE PROMOTIONS IN GRADE P-2 WILL DATE FROM JULY 1, 1944, THE DATE OF THE REALLOCATION OF IDENTICAL ACTIVE POSITIONS OCCUPIED BY TEN OTHER VETERINARIANS ASSIGNED TO THE SAME STATION WHO WERE REALLOCATED FROM GRADE P-1 TO GRADE P-2 ON JULY 1, 1944, AND RECEIVED WITHIN-GRADE PROMOTIONS TO $3,090 PER ANNUM, THE SECOND STEP IN THE GRADE, EFFECTIVE JULY 1, 1945. IF THIS EMPLOYEE IS NOT TO BE PENALIZED DUE TO HIS MILITARY SERVICE, IT WOULD APPEAR THAT THE ANSWER TO THIS QUESTION SHOULD BE IN THE AFFIRMATIVE.

WOULD YOUR ANSWERS BE DIFFERENT IF, INSTEAD OF REALLOCATING THE IDENTICAL POSITIONS HELD BY THE EMPLOYEES PRIOR TO MILITARY FURLOUGH, THE DEPARTMENT AS A MATTER OF ADMINISTRATIVE CONVENIENCE ALLOCATED NEW POSITIONS ON THE BASIS OF THE DUTIES BEING PERFORMED BY THE EMPLOYEES WITH THE INTENT THAT THE EMPLOYEES BE PLACED IN THE POSITIONS AS NEWLY ALLOCATED?

A SOMEWHAT RELATED PROBLEM IS PRESENTED BY REASON OF THE FOLLOWING CIRCUMSTANCES:

PRIOR TO DECEMBER 1, 1942, POSITIONS IN THE EMERGENCY CROP LOAN OFFICES OF THE FARM CREDIT ADMINISTRATION WERE ALLOCATED UNDER THE SALARY SCHEDULE IN EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934. ON DECEMBER 1, 1942, THE MAJORITY OF THESE POSITIONS WERE CONVERTED FROM THE EXECUTIVE ORDER GRADES TO GRADES FOR COMPARABLE WORK (FOR WHICH, HOWEVER, THE RATES OF COMPENSATION ARE GENERALLY HIGHER) UNDER THE PAY SCALES OF THE CLASSIFICATION ACT OF 1923, AS AMENDED. ONLY A FEW POSITIONS WERE NOT CONVERTED AT THAT TIME, THESE BEING MAINLY THE POSITIONS OF EMPLOYEES ON FURLOUGH FOR MILITARY TRAINING AND SERVICE. THE UNDERSTANDING WITH RESPECT TO SUCH POSITIONS WAS THAT NO ACTION SHOULD BE TAKEN WHICH MIGHT CLOUD THEIR IDENTITY UNTIL SUCH TIME AS IT WAS DEFINITELY KNOWN WHETHER OR NOT THEIR FORMER INCUMBENTS WOULD RETURN TO THEM. HOWEVER, AS EMPLOYEES DO RETURN TO THESE POSITIONS, IT BECOMES APPARENT THAT UNLESS THE POSITIONS MAY BE REGARDED AS HAVING BEEN CONVERTED TO THE CLASSIFICATION ACT GRADES AT THE SAME TIME AS THE OCCUPIED POSITIONS WERE, THE EMPLOYEES CONCERNED ARE AT A DISADVANTAGE AS COMPARED WITH THE EMPLOYEES IN THOSE OCCUPIED POSITIONS. IN OTHER WORDS, SERVICE IS CREDITABLE TOWARD PERIODIC WITHIN-GRADE SALARY ADVANCEMENTS OVER A LONGER PERIOD AND IS BASED ON A HIGHER RATE OF COMPENSATION IN THE CASE OF THE POSITIONS WHICH WERE OCCUPIED THAN IT IS IN THE CASE OF THOSE WHOSE INCUMBENTS WERE ON MILITARY FURLOUGH AT THE TIME OF CONVERSION. THIS IS TRUE EVEN THOUGH, AS BETWEEN TWO GROUPS OF POSITIONS, THERE IS NO DIFFERENCE EITHER AS TO THE NATURE OF THE DUTIES PERFORMED OR THE ORGANIZATIONAL LOCATION. CONSEQUENTLY, WE WOULD APPRECIATE YOUR DECISION AS TO WHETHER, BASED ON THE CONVERSION ACTION OF DECEMBER 1, 1942, COVERING THE OCCUPIED POSITIONS, SERVICE MAY BE CREDITED TOWARD PERIODIC WITHIN-GRADE SALARY ADVANCEMENTS FOR EMPLOYEES WHO WERE ON FURLOUGH FROM POSITIONS WHICH WERE, THEREFORE, NOT CONVERTED IN THE SAME ORGANIZATION, THE SAME AS IF SUCH CONVERSION HAD NEVERTHELESS TAKEN PLACE.

SECTION 5 OF EXECUTIVE ORDER NO. 8882, SEPTEMBER 3, 1941, ISSUED PURSUANT TO THE AUTHORITY OF SECTION 7 (G) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY THE ACT OF AUGUST 1, 1941, 55 STAT. 613, 614, PROVIDES:

ANY EMPLOYEE OF THE FEDERAL GOVERNMENT WHO IN ACCORDANCE WITH THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 ( PUBLIC NO. 783, 76TH CONGRESS), OR OF PUBLIC RESOLUTION NO. 96 APPROVED AUGUST 27, 1940, RELATING TO THE MOBILIZATION OF AUXILIARY MILITARY PERSONNEL, IS RESTORED TO THE SAME POSITION OR A POSITION OF LIKE SENIORITY, STATUS, AND PAY, WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO RECEIVE A SALARY AT A RATE OF NOT LESS THAN THE EMPLOYEE'S LATEST RATE PRIOR TO HIS ENTRANCE INTO ACTIVE MILITARY OR NAVAL DUTY PLUS ANY WITHIN-GRADE SALARY ADVANCEMENT OR ADVANCEMENTS TO WHICH HE WOULD HAVE BEEN ELIGIBLE UNDER THE PROVISIONS OF THE SAID SECTION 7 (B) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED.

BY ITS EXPRESS TERMS, THE QUOTED SECTION OF THE EXECUTIVE ORDER APPLIES TO "ANY EMPLOYEE OF THE FEDERAL GOVERNMENT" COMING WITHIN ITS PURVIEW. HENCE, WHILE THE DECISION OF MAY 11, 1942, 21 COMP. GEN. 1007, QUOTED IN PART IN YOUR LETTER, INVOLVED THE DETERMINATION OF THE REEMPLOYMENT RIGHTS OF AN EMPLOYEE OF THE POSTAL SERVICE, THE CONCLUSION REACHED THEREIN THAT, UNDER THE PROVISIONS OF THE EXECUTIVE ORDER, SUPRA, SUCH AN EMPLOYEE WOULD BE ENTITLED, UPON RESTORATION TO A CIVILIAN POSITION, TO THE BENEFITS OF THE REALLOCATION OF THE POSITION HE OCCUPIED WHEN HE ENTERED THE MILITARY OR NAVAL SERVICE AS WELL AS TO ANY AUTOMATIC PROMOTIONS WHICH WOULD HAVE BEEN DUE HAD HE REMAINED IN CIVILIAN SERVICE, EQUALLY IS APPLICABLE TO EMPLOYEES WHO ARE RESTORED TO CIVILIAN POSITIONS IN ANY OTHER DEPARTMENT OR AGENCY OF THE FEDERAL GOVERNMENT.

IT IS SETTLED THAT ALLOCATIONS AND REALLOCATIONS OF POSITIONS IN THE FIELD SERVICE ARE EFFECTIVE ON THE DATE OF APPROVAL THEREOF BY THE PROPER ADMINISTRATIVE OFFICER OR AT SUCH LATER DATE AS MIGHT BE ADMINISTRATIVELY FIXED. SEE 22 COMP. GEN. 526, AND THE DECISIONS CITED THEREIN. HENCE, THE VIEW EXPRESSED IN THE FIFTH PARAGRAPH OF YOUR LETTER TO THE EFFECT THAT WHERE THE POSITION OF AN EMPLOYEE ON MILITARY FURLOUGH HAS BEEN REALLOCATED, IN ABSENTIA, SERVICE FOR PURPOSES OF THE AUTOMATIC WITHIN- GRADE PROMOTION UNDER THE ACT OF AUGUST 1, 1941, 55 STAT. 613, SHOULD BE COMPUTED FROM THE EFFECTIVE DATE OF SUCH REALLOCATION RATHER THAN FROM THE DATE THE EMPLOYEE IS RESTORED TO HIS CIVILIAN POSITION--- ASSUMING THAT THE REALLOCATION RESULTS IN AN EQUIVALENT INCREASE IN COMPENSATION WITHIN THE MEANING OF THE SAID ACT OF AUGUST 1, 1941--- PROPERLY REFLECTS THE DECISIONS OF THIS OFFICE IN THE MATTER. IT IS UNDERSTOOD FROM YOUR LETTER THAT, EFFECTIVE JULY 1, 1944, POSITIONS OF VETERINARIANS AND THEIR LAY ASSISTANTS IN THE BUREAU OF ANIMAL INDUSTRY ADMINISTRATIVELY WERE REALLOCATED TO HIGHER GRADES. HOWEVER, IT IS STATED THAT SUCH ACTION WAS TAKEN ONLY WITH RESPECT TO THOSE POSITIONS ACTUALLY OCCUPIED AT THAT TIME AND THAT REALLOCATION OF THE REMAINING IDENTICAL POSITIONS, VACANT BY REASON OF THE FACT THAT FORMER INCUMBENTS WERE ON MILITARY FURLOUGH, WAS NOT EFFECTED UNTIL SEPTEMBER 16, 1944. THEREFORE, THE QUESTION ARISES WHETHER, UNDER SUCH CIRCUMSTANCES, THE ABOVE-MENTIONED RULE RESPECTING THE EFFECTIVE DATE OF ADMINISTRATIVE ACTION REALLOCATING POSITIONS IN THE FIELD SERVICE WOULD OPERATE SO AS TO DENY TO THOSE EMPLOYEES WHOSE POSITIONS WERE REALLOCATED WHILE THEY WERE ON MILITARY FURLOUGH THE BENEFITS OF THE EARLIER EFFECTIVE DATE OF REALLOCATION APPLICABLE TO POSITIONS OF VETERINARIANS AND LAY ASSISTANTS OCCUPIED ON JULY 1, 1944.

THE PURPOSE OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, IS TO PROVIDE A PLAN FOR THE CLASSIFICATION OF POSITIONS IN THE FEDERAL CIVILIAN SERVICE ACCORDING TO THEIR DUTIES AND RESPONSIBILITIES AND TO ESTABLISH UNIFORM COMPENSATION SCHEDULES ON THE BASIS OF THE GRADES ASSIGNED. THAT IS TO SAY, THE SAID ACT ESTABLISHES STANDARDS AND A POLICY FOR FIXING COMPENSATION OF POSITIONS IN THE FEDERAL SERVICE ON THE BASIS OF THE DUTIES AND QUALIFICATIONS REQUIRED SO THAT SALARIES FOR THE SAME WORK WOULD BE THE SAME AND THAT PERSONS PERFORMING THE MORE DIFFICULT OR COMPLEX DUTIES WOULD RECEIVE COMPENSATION AT A HIGHER RATE THAN THAT RECEIVED BY PERSONS PERFORMING LESS DIFFICULT DUTIES. THE TERM "POSITION" AS USED IN THAT ACT IS DEFINED AS "A SPECIFIC CIVILIAN OFFICE OR EMPLOYMENT, WHETHER OCCUPIED OR VACANT.' HENCE, THE FACT THAT CERTAIN EXISTING POSITIONS OF VETERINARIANS AND THEIR ASSISTANTS IN THE BUREAU OF ANIMAL INDUSTRY WERE VACANT AT THE TIME WHEN IDENTICAL OCCUPIED POSITIONS ADMINISTRATIVELY WERE REALLOCATED TO HIGHER GRADES--- WITH NO CHANGE IN THE DUTIES OR THE NATURE OF THE WORK -- DID NOT PRECLUDE THE REALLOCATION OF ALL SUCH POSITIONS AT THE SAME TIME. ON THE CONTRARY--- IN VIEW OF THE EXPRESSED PURPOSE OF THE SAID CLASSIFICATION ACT THAT IN DETERMINING THE SALARY FOR A POSITION IN THE CLASSIFIED SERVICE THE PRINCIPLE OF "EQUAL COMPENSATION FOR EQUAL WORK" SHALL BE FOLLOWED--- IT SEEMS EVIDENT THAT, SINCE THE OCCUPIED POSITIONS OF VETERINARIANS AND THEIR ASSISTANTS IN THE SAID BUREAU WERE REALLOCATED TO HIGHER GRADES EFFECTIVE JULY 1, 1944, ALL IDENTICAL VACANT POSITIONS IN THAT BUREAU LIKEWISE MUST BE CONSIDERED AS HAVING BEEN REALLOCATED AS OF THAT DATE IRRESPECTIVE OF THE FACT THAT ADMINISTRATIVE ACTION ASSIGNING SUCH VACANT POSITIONS TO THE HIGHER GRADES WAS EFFECTED AT A LATER DATE.

IN THE LIGHT OF THE FOREGOING, YOU ARE ADVISED THAT, WITH RESPECT TO THE EMPLOYEE MENTIONED IN THE EXAMPLE GIVEN IN YOUR LETTER WHO WAS ON MILITARY FURLOUGH FROM THE POSITION OF VETERINARIAN IN THE BUREAU OF ANIMAL INDUSTRY AT THE TIME THE IDENTICAL OCCUPIED POSITIONS OF VETERINARIANS WERE REALLOCATED, SUCH EMPLOYEE, UPON RESTORATION TO HIS CIVILIAN POSITION, WOULD BE ENTITLED TO THE BENEFITS OF THE REALLOCATION AS WELL AS THE WITHIN-GRADE PROMOTION IN THE SAME MANNER AS THE EMPLOYEES WHOSE POSITIONS ACTUALLY WERE REALLOCATED TO THE HIGHER GRADE EFFECTIVE JULY 1, 1944, REGARDLESS OF THE FACT THAT HIS PARTICULAR POSITION WAS ASSIGNED TO THE HIGHER GRADE EFFECTIVE SEPTEMBER 16, 1944.

THE ALTERNATE QUESTION PRESENTED BY YOU AS TO WHETHER THERE WOULD BE REQUIRED ANY DIFFERENT CONCLUSION THAN THAT HEREINBEFORE REACHED IF, INSTEAD OF REALLOCATING THE IDENTICAL POSITIONS HELD BY THE EMPLOYEES PRIOR TO MILITARY FURLOUGH,"NEW" POSITIONS WERE ALLOCATED ON THE BASIS OF THE DUTIES PREVIOUSLY PERFORMED BY THEM, IS NOT ENTIRELY CLEAR. HOWEVER, ASSUMING THAT YOUR QUESTION HAS REFERENCE TO A SITUATION WHERE, ON THE BASIS OF THE DUTIES ACTUALLY PERFORMED, ADMINISTRATIVE ACTION WAS TAKEN TO CREATE "NEW POSITIONS," FOR THE EMPLOYEES ON MILITARY FURLOUGH, THAT IS, POSITIONS WHICH PREVIOUSLY HAD NOT BEEN CARRIED ON THE RECORDS AS CURRENTLY EXISTING POSITIONS, IN LIEU OF THE POSITIONS FORMERLY HELD BY THEM, THE EFFECTIVE DATE OF THE ALLOCATION OF THE NEW POSITIONS WOULD BE THE DATE ON WHICH SUCH ACTION WAS APPROVED BY THE PROPER ADMINISTRATIVE OFFICIAL OR SUCH LATER DATE AS HE MIGHT DETERMINE--- SEPTEMBER 6, 1944, IN THE EXAMPLE GIVEN. IF THE DIFFERENCE IN SALARY RESULTING FROM THE REALLOCATION AMOUNTED TO AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE AUTOMATIC WITHIN-GRADE PROMOTION ACT OF AUGUST 1, 1941, 55 STAT. 613, THE PERIOD OF SERVICE FOR WITHIN-GRADE PROMOTION PURPOSES IN THE NEW POSITION WOULD COMMENCE SEPTEMBER 16, 1944. THE SAME RESULT WOULD OBTAIN IF, IN FACT, NEW POSITIONS WERE CREATED EFFECTIVE JULY 1, 1944, FOR THE OCCUPIED VETERINARIAN (OR LAY ASSISTANT) POSITIONS, AND ADDITIONAL" POSITIONS WERE CREATED EFFECTIVE SEPTEMBER 16, 1944, FOR THE EMPLOYEES ON MILITARY FURLOUGH.

WITH RESPECT TO THOSE EMPLOYEES OF THE EMERGENCY CROP LOAN OFFICES, REFERRED TO IN THE LAST PARAGRAPH OF YOUR LETTER, WHO WERE ON MILITARY FURLOUGH AND WHOSE POSITIONS, ALLOCATED TO GRADES UNDER THE SALARY SCHEDULE PRESCRIBED BY EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, WERE NOT CONVERTED AS OF DECEMBER 1, 1942, TO CLASSIFICATION ACT GRADES WAS DONE IN CASES OF CERTAIN OTHER EMPLOYEES OCCUPYING SIMILAR POSITIONS IN THAT AGENCY, IT MAY BE STATED THAT CONVERSIONS SUCH AS THOSE DESCRIBED ARE MATTERS GOVERNED ENTIRELY BY ADMINISTRATIVE CONSIDERATIONS IN EACH PARTICULAR CASE AND THE FACT THAT CERTAIN POSITIONS ADMINISTRATIVELY WERE CONVERTED TO CLASSIFICATION ACT GRADES IN NOWISE WOULD EFFECT A CONVERSION OF SIMILAR POSITIONS IN THE ABSENCE OF AFFIRMATIVE ADMINISTRATIVE ACTION RELATIVE THERETO. CHANGES IN GRADES OF THAT CHARACTER CLEARLY ARE DISTINGUISHABLE FROM THE REALLOCATIONS OF FIELD POSITIONS IN THE BUREAU OF ANIMAL INDUSTRY DISCUSSED ABOVE. IN THE LAST-MENTIONED CASES THE PURPOSE AND INTENT OF THE CLASSIFICATION ACT IS SUCH AS TO PRECLUDE ADMINISTRATIVE ACTION REALLOCATING CERTAIN POSITIONS WITHOUT REALLOCATING ALL IDENTICAL POSITIONS IN THE SAME BUREAU WHETHER OCCUPIED OR VACANT. IN OTHER WORDS, UNDER THE CIRCUMSTANCES STATED, THE REALLOCATION OF THE VACANT POSITIONS WAS EFFECTED BY OPERATION OF LAW AND NO SEPARATE ACTION WITH RESPECT THERETO WAS REQUIRED, WHEREAS THIS OFFICE IS AWARE OF NO STATUTORY REQUIREMENT THAT, IN AGENCIES WHERE AUTHORITY HAS BEEN GRANTED TO ALLOCATE POSITIONS UNDER THE EXECUTIVE ORDER GRADES AS WELL AS THE CLASSIFICATION ACT GRADES--- SUCH AS APPEARS TO BE THE SITUATION IN THE FARM CREDIT ADMINISTRATION--- THE CONVERSION OF CERTAIN POSITIONS TO GRADES ESTABLISHED BY THE CLASSIFICATION ACT AUTOMATICALLY EFFECTS A LIKE CONVERSION OF ALL SIMILAR POSITIONS IN THE SAME AGENCY OR APPROPRIATION UNIT. ACCORDINGLY, THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.