B-37199, OCTOBER 8, 1943, 23 COMP. GEN. 265

B-37199, OCTOBER 8, 1943, 23 COMP. GEN. 265

COMPENSATION - WITHIN-GRADE PROMOTION - RESTORATION IN FORMER AGENCY AFTER TRANSFER TO ANOTHER AGENCY AT INCREASE IN GRADE AND SALARY IN THE CASE OF AN EMPLOYEE WHO TRANSFERRED FROM ONE AGENCY TO ANOTHER AT AN INCREASE IN GRADE AND SALARY UNDER CONDITIONS ENTITLING HIM TO THE REEMPLOYMENT RIGHTS AND BENEFITS PROVIDED BY THE WAR SERVICE REGULATIONS ISSUED PURSUANT TO EXECUTIVE ORDER NO. 9063, AND WHO WAS SUBSEQUENTLY RESTORED TO A POSITION IN THE FORMER AGENCY AT THE SAME SALARY RATE AND GRADE HELD PRIOR TO HIS TRANSFER, THE SERVICE IN THE AGENCY TO WHICH HE TRANSFERRED MAY BE INCLUDED IN COMPUTING THE 18 OR 30 MONTH WAITING PERIOD PRESCRIBED BY THE WITHIN-GRADE SALARY ADVANCEMENT STATUTE OF AUGUST 1, 941; AND THE WAITING PERIOD WOULD DATE FROM THE LAST PROMOTION IN THE FORMER AGENCY RATHER THAN FROM THE DATE OF THE INCREASE IN GRADE AND SALARY UPON TRANSFER TO THE OTHER AGENCY. 21 COMP. GEN. 285, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, OCTOBER 8, 1943:

I HAVE YOUR LETTER OF SEPTEMBER 24, 1943, AS FOLLOWS:

AN EMPLOYEE OF THIS AGENCY WAS PROMOTED ON OCTOBER 16, 1942 TO A CAF-12 POSITION AT $4,600. ON NOVEMBER 18, 1942 (CORRECTED INFORMALLY TO READ JANUARY 18, 1943), HE WAS TRANSFERRED TO ANOTHER AGENCY AT CAF 13, $5,600, WITH REEMPLOYMENT RIGHTS GRANTED UNDER THE CIVIL SERVICE COMMISSION'S WAR- SERVICE REGULATIONS ISSUED IN PURSUANCE OF EXECUTIVE ORDER 9063. HE HAS NOW COMPLETED HIS WORK IN THAT AGENCY AND WITHIN THE 30-DAY LIMIT PRESCRIBED IN THE REGULATIONS, IS DESIROUS OF EXERCISING THE REEMPLOYMENT RIGHTS MENTIONED ABOVE BY A RETRANSFER TO THIS AGENCY WITHOUT A BREAK IN SERVICE.

REGULATION IX OF THE WAR-SERVICE REGULATIONS REFERRED TO ( SUBSECTION (A) (2) OF SECTION 5) PROVIDES THAT AN EMPLOYEE WHO TRANSFERS WITH REEMPLOYMENT RIGHTS "SHALL BE REINSTATED WITHIN 30 DAYS OF HIS APPLICATION IN THE SAME DEPARTMENT OR AGENCY AND TO THE MAXIMUM EXTENT PRACTICABLE, IN THE SAME LOCALITY, IN HIS FORMER POSITION, OR IN A POSITION OF LIKE SENIORITY, STATUS, AND PAY, IN SUCH MANNER, TO THE EXTENT CONSISTENT WITH LAW, THAT HE DOES NOT LOSE ANY OF THE RIGHTS OR BENEFITS TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN TRANSFERRED OR RELEASED, PROVIDED THAT SUCH A POSITION THEN EXISTS.' ( ITALICS SUPPLIED.)

HAVING IN MIND THE PROVISIONS OF SECTION 2 (B) OF THE ACT OF AUGUST 1, 1941 (55 STAT. 613), AMENDING SECTION 7 OF THE CLASSIFICATION ACT OF 1923 SO AS TO PROVIDE FOR PERIODIC INCREASES OF SALARY UNDER CERTAIN CONDITIONS, AND THE ABOVE-QUOTED PROVISIONS OF THE WAR-SERVICE REGULATIONS, AFTER HIS RETRANSFER IS HIS WAITING PERIOD FOR THE NEXT WITHIN-GRADE SALARY ADVANCEMENT TO BE COUNTED FROM OCTOBER 16, 1942 OR FROM NOVEMBER 18, 1942 (CORRECTED INFORMALLY TO READ JANUARY 18, 1943/?

THE WAR SERVICE REGULATIONS AMENDED TO MAY 19, 1943, PROVIDE FOR THE TRANSFER OF CIVILIAN EMPLOYEES BETWEEN FEDERAL AGENCIES UNDER CERTAIN CIRCUMSTANCES EITHER WITH OR WITHOUT REEMPLOYMENT BENEFITS IN THE AGENCY FROM WHICH TRANSFERRED. IT IS UNDERSTOOD FROM YOUR LETTER THAT THE INVOLVED EMPLOYEE WAS TRANSFERRED FROM THE FEDERAL SECURITY AGENCY TO THE OTHER AGENCY UNDER SUCH CONDITIONS AS TO ENTITLE HIM TO REEMPLOYMENT BENEFITS IN SUCH AGENCY AS PROVIDED BY THE REGULATIONS.

THE EVIDENT PURPOSE AND INTENT OF THAT PORTION OF THE WAR SERVICE REGULATION QUOTED IN YOUR LETTER--- PARTICULARLY THE UNDERSCORED PORTION-- - IS TO RESTORE AN EMPLOYEE TO A POSITION IN THE AGENCY FROM WHICH TRANSFERRED--- IN THIS CASE THE FEDERAL SECURITY AGENCY--- WITH THE SAME SENIORITY STATUS AND PAY AND WITHOUT THE LOSS OF ANY RIGHTS OR BENEFITS TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE CONTINUED TO SERVE IN SUCH AGENCY WHILE HE SERVED IN THE OTHER AGENCY. SAID REGULATION THUS RENDERS INAPPLICABLE THE GENERAL RULE STATED IN 21 COMP. GEN. 285, ET ALIA. OTHER WORDS, THE PURPOSE AND INTENT APPEARS TO HAVE BEEN TO PROVIDE SUBSTANTIALLY THE SAME BENEFITS IN THAT RESPECT AS IS AUTHORIZED BY LAW AND REGULATION FOR EMPLOYEES WHO ENTER THE ACTIVE MILITARY OR NAVAL FORCES, AS TO WHICH CLASS OF EMPLOYEES ATTENTION IS INVITED TO SECTION 5 OF THE PRESIDENT'S REGULATIONS GOVERNING WITHIN GRADE SALARY ADVANCEMENTS IN EXECUTIVE ORDER NO. 8882, PROVIDING:

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. ( ITALICS SUPPLIED.) ALSO, COMPARE 22 COMP. GEN. 969.

ACCORDINGLY, IN THE LIGHT OF THE APPLICABLE REGULATION QUOTED IN YOUR LETTER, IF THE EMPLOYEE REFERRED TO IS RESTORED TO A POSITION IN THE FEDERAL SECURITY AGENCY WITH SALARY RATE OF $4,600 PER ANNUM, THE MINIMUM RATE OF GRADE CAF-12, THE 30 MONTHS WAITING PERIOD FOR THE FIRST WITHIN- GRADE SALARY ADVANCEMENT WOULD DATE FROM OCTOBER 16, 1942, AND NOT FROM JANUARY 18, 1943--- THE SERVICE IN THE OTHER AGENCY BEING PROPERLY FOR INCLUDING WITHIN SUCH PERIOD REGARDLESS OF THE SALARY RATE RECEIVED IN THE OTHER AGENCY.