B-57699, AUGUST 8, 1946, 26 COMP. GEN. 100

B-57699, AUGUST 8, 1946, 26 COMP. GEN. 100

COMPENSATION - WITHIN-GRADE PROMOTIONS - SERVICE CREDIT FOR MILITARY DUTY WHERE THE POSITION OF AN EMPLOYEE ON MILITARY FURLOUGH WAS ALLOCATED TO A HIGHER GRADE ON THE BASIS OF INCREASED RESPONSIBILITIES ATTACHING BEFORE AND AFTER ENTERING MILITARY SERVICE, THE ALLOCATION ACTION MUST BE REGARDED AS CREATING AN ENTIRELY NEW POSITION RATHER THAN AS CONSTITUTING REALLOCATION, AND, UPON RESTORATION OF THE EMPLOYEE AFTER MILITARY SERVICE TO THE POSITION AS SO ALLOCATED, THE RESULTING INCREASE IN COMPENSATION--- MORE THAN THE EQUIVALENT OF THE WITHIN GRADE ADVANCEMENTS WHICH WOULD HAVE ACCRUED DURING MILITARY SERVICE--- HAS THE EFFECT OF ELIMINATING ALL MILITARY SERVICE FROM CONSIDERATION FOR WITHIN-GRADE ADVANCEMENT PURPOSES UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. (AMPLIFIED BY 26 COMP. GEN. 573.)

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, AUGUST 8, 1946:

I HAVE YOUR LETTER OF JULY 24, 1946, AS FOLLOWS:

THANK YOU FOR YOUR DECISION OF JUNE 18, 1946 (B-57699) (25 COMP. GEN. 882) IN ANSWER TO A NUMBER OF QUESTIONS RELATING TO THE APPLICATION OF SECTION 402 (B) (4) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. THE FOLLOWING ADDITIONAL QUESTIONS PRESENT THEMSELVES:

CASE NO. 1.

IN CASE NO. 1, PRACTICALLY FROM THE TIME THE EMPLOYEE ENTERED ON DUTY IN THE CAF-12 POSITION ON OCT. 16, 1942, UNTIL IT WAS ABSORBED INTO THE CAF- 13 POSITION ON NOV. 11, 1944, THERE WAS A GRADUAL EVOLUTION IN THE POSITION IN THE WAY OF INCREASING RESPONSIBILITIES. AT THE TIME THE INCUMBENT LEFT THE POSITION TO ENTER ON MILITARY LEAVE WITHOUT PAY ON MAY 26, 1943, IT IS NOT KNOWN EXACTLY TO WHAT STAGE OF THE EVOLUTION THE POSITION HAD ADVANCED. SOME INCREASED RESPONSIBILITY HAD ATTACHED TO THE POSITION PRIOR TO MAY 26, 1943, BUT BECAUSE RESPONSIBILITY CONTINUED TO INCREASE GRADUALLY OVER THE PERIOD FROM OCT. 16, 1942, UNTIL IT WAS SUPERSEDED BY THE CAF-13 POSITION, WE HAVE NO INFORMATION AS TO THE POSITION'S EXACT GRADE VALUE ON MAY 26, 1943, WHEN INCUMBENT LEFT FOR MILITARY SERVICE.

WOULD THE ABOVE ADDITIONAL INFORMATION MODIFY YOUR REPLY OF JUNE 18, WHICH STATES IN PART THAT: "IT IS ASSUMED FROM THE STATEMENT OF FACTS, FOR THE PURPOSE OF ANSWERING QUESTION 1, THAT THE INCREASED RESPONSIBILITY HAD ATTACHED TO THE INVOLVED POSITION PRIOR TO THE EMPLOYEE'S ENTRANCE INTO THE MILITARY SERVICE.' ( ITALIC HAS BEEN ADDED BY THIS OFFICE.)

WOULD THE ABOVE ADDITIONAL INFORMATION CHANGE YOUR ANSWER TO QUESTION 1 OF CASE NO. 1? TO QUESTION 4 OF CASE NO. 1?

IN THE LAST SENTENCE ON PAGE 4 OF YOUR DECISION ON CASE NO. 2, YOU STATE "ANSWERS TO QUESTIONS 2 AND 4 IN CASE NO. 1 ARE EQUALLY APPLICABLE HERE.'

YOUR ANSWER TO QUESTION 4 OF CASE NO. 1 WAS IN THE AFFIRMATIVE, THAT IS, CREDIT FOR FUTURE WITHIN-GRADE SALARY ADVANCEMENTS WOULD RUN FROM THE EFFECTIVE DATE OF REALLOCATION OF THE POSITION.

HOWEVER, YOUR DECISION IN CASE NO. 2 IS THAT,"CREDIT FOR FUTURE WITHIN- GRADE SALARY ADVANCEMENTS WOULD RUN FROM THE DATE OF HIS REEMPLOYMENT.'

SINCE THERE APPEARS TO BE A CONTRADICTION HERE, WE WOULD APPRECIATE FURTHER CLARIFICATION OF THE LAST SENTENCE ON PAGE 4 TO THE EFFECT THAT THE ANSWER TO QUESTION 4 IN CASE NO. 1 IS EQUALLY APPLICABLE TO CASE NO. 2.

CASE NO. 1 AND THE FOUR QUESTIONS POSED THEREUNDER IN YOUR LETTER OF MAY 3, 1946, WERE STATED, AS FOLLOWS:

CASE NO. 1

(A) EMPLOYEE WAS PROMOTED FROM CAF-11, $3800, TO CAF-12, $4600, OCT. 16, 1942; (B) HE WAS PLACED ON LEAVE WITHOUT PAY TO ENTER THE ARMED FORCES MAY 26, 1943; (C) WHILE ON MILITARY LEAVE WITHOUT PAY, HIS POSITION WAS CLASSIFIED AT CAF-13, $5600, NOV. 11, 1944. THIS WAS NOT A REALLOCATION IN THE TECHNICAL MEANING OF THE WORD; THAT IS, THE CAF-12 ALLOCATION WAS NOT CONSIDERED TO HAVE BEEN MADE IN ERROR. RATHER, THE CAF-13 POSITION, BEARING THE SAME TITLE AND LOCATED IN THE SAME SPOT ORGANIZATIONALLY AS THE CAF-12 POSITION, WAS CONSIDERED AS AN OUTGROWTH OF THE CAF-12 POSITION WITH INCREASED RESPONSIBILITY. (D) EMPLOYEE MET ALL CONDITIONS FOR MANDATORY RESTORATION AND WAS RESTORED TO THE CAF-13 POSITION ON NOV. 23, 1945.

QUESTION 1: IN RESTORING SUCH EMPLOYEES TO DUTY, (1) SHOULD THEY BE RESTORED AT THE ENTRANCE LEVEL OF THE HIGHER GRADE, OR (2) SHOULD THEY BE RESTORED IN THE HIGHER GRADE AT SUCH STEP AS WOULD GIVE THEM CREDIT FOR ALL MILITARY SERVICE, OR (3) AT SUCH STEP IN THE HIGHER GRADE AS WOULD GIVE THEM CREDIT FOR ALL MILITARY SERVICE SINCE THE DATE OF THE BEGINNING OF THE PAY PERIOD IN WHICH THE POSITION WAS ALLOCATED TO THE HIGHER GRADE?

QUESTION 2: WOULD YOUR ANSWER TO QUESTION 1 BE THE SAME IF THIS EMPLOYEE HAD BEEN RESTORED TO AN ENTIRELY DIFFERENT CAF-13 POSITION, EVEN THOUGH THE CAF-13 POSITION WHICH WAS AN OUTGROWTH OF HIS CAF-12 POSITION EXISTED AT THE TIME HE APPLIED FOR RESTORATION?

QUESTION 3: IF THE EMPLOYEE WERE RESTORED NOV. 23, 1945, AT $6440 (THE SECOND STEP OF GRADE CAF-13) BASED ON MILITARY SERVICE FROM MAY 26, 1943, WOULD HE BE ENTITLED TO ANOTHER STEP AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING 18 MONTHS OF SERVICE FROM NOV. 23, 1945, OR FOLLOWING 18 MONTHS OF SERVICE FROM JULY 1, 1945--- THE DATE THAT THE INCREASE OF ONE STEP WOULD HAVE BEEN EARNED, BASED ON SERVICE FROM MAY 26, 1943?

QUESTION 4: IF THE EMPLOYEE WERE RESTORED NOV. 23, 1945 AT $6230 (THE INITIAL STEP OF GRADE CAF-13), WOULD HE BE ENTITLED TO A WITHIN GRADE ADVANCEMENT AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING 18 MONTHS OF SERVICE FROM NOV. 1, 1944--- THE EFFECTIVE DATE OF THE RECLASSIFICATION OF HIS POSITION TO CAF-13?

AS IT NOW APPEARS THAT ALL OF THE INCREASED RESPONSIBILITIES OF THE EMPLOYEE COVERED BY CASE NO. 1 IN FACT DID NOT ATTACH TO THE POSITION PRIOR TO THE DATE THE EMPLOYEE WAS INDUCTED INTO THE MILITARY SERVICE, THE ACTION OF NOVEMBER 11, 1944, WOULD NOT CONSTITUTE A REALLOCATION OF THE POSITION OCCUPIED BY HIM BUT, RATHER, CREATED AN ENTIRELY NEW POSITION, SEPARATE AND APART THEREFROM. ACCORDINGLY, IN ANSWER TO QUESTION 1 OF CASE NO. 1, UPON THE PRESENT STATEMENT OF FACTS, THE CHANGE IN COMPENSATION FROM $4,600 IN CAF-12 TO $5,600 IN CAF-13 CONSTITUTED A PROMOTION WHICH WAS NOT EFFECTIVE UNTIL THE DATE OF THE EMPLOYEE'S RESTORATION TO DUTY, 25 COMP. GEN. 228 (502), AND AS IT WAS THE EQUIVALENT OF FIVE WITHIN-GRADE INCREASES, IT ELIMINATED FROM CONSIDERATION ALL CREDIT FOR SERVICE PRIOR TO THAT DATE, AND ANY SUBSEQUENT WITHIN-GRADE ADVANCES BEYOND THE INITIAL SALARY IN CAF-13 MUST REST UPON SERVICE RENDERED IN CAF-13, BEGINNING WITH THE DATE OF HIS REINSTATEMENT. THIS ALSO REQUIRES A NEGATIVE ANSWER TO QUESTION 4 IN CASE NO. 1 INSTEAD OF THE AFFIRMATIVE ANSWER GIVEN IN THE PRIOR DECISION BASED UPON THE FACTS THEN ASSUMED.

AS THE FORMER ANSWER TO QUESTION 4 (CASE NO. 1) WAS BASED UPON THE SAME ASSUMPTION AS STATED IN ANSWER TO QUESTION 1 UNDER THE SAME CASE, NAMELY, THAT THE INCREASED RESPONSIBILITY HAD, IN FACT, ATTACHED TO THE POSITION PRIOR TO THE EMPLOYEE'S ENTRANCE INTO THE MILITARY SERVICE, AND AS THAT WAS NOT THE SITUATION IN CASE NO. 2, IT NOW DEVELOPS THAT THE STATEMENT IN THE FORMER DECISION THAT ANSWERS TO QUESTIONS 2 AND 4 IN CASE NO. 1 WERE EQUALLY APPLICABLE TO CASE NO. 2 WAS NOT CORRECT SO FAR AS CONCERNED THE ANSWER TO QUESTION 4. YOUR RESTATEMENT OF FACTS IN CASE NO. 1 NOW MAKES THAT CASE IN ALL RESPECTS SIMILAR TO CASE NO. 2, AND THE RESPECTIVE EMPLOYEES WOULD BE GOVERNED BY THE SAME RULES WITH RESPECT TO CREDIT FOR MILITARY SERVICE PRIOR TO THE DATE OF REEMPLOYMENT, AS WELL AS THE WAITING TIME REQUIRED AFTER REEMPLOYMENT FOR FUTURE WITHIN-GRADE ADVANCES.