B-106331, DECEMBER 18, 1951, 31 COMP. GEN. 226

B-106331, DECEMBER 18, 1951, 31 COMP. GEN. 226

COMPENSATION - INCREASES UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED - VETERANS ADMINISTRATION MEDICAL PERSONNEL UNDER SECTION 4 (A) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, INCREASING THE SALARY RATES PROVIDED BY THE ACT OF JANUARY 3, 1946 FOR OFFICERS AND EMPLOYEES IN THE DEPARTMENT OF MEDICINE AND SURGERY, VETERANS ADMINISTRATION BY 10 PERCENT SUBJECT TO MINIMUM AND MAXIMUM DOLLAR INCREASES PRESCRIBED BY THE ACT, THE NEW COMPENSATION RATES FOR EACH GRADE SHOULD BE ESTABLISHED BY ADDING TO EACH STEP WITHIN THE GRADE AN AMOUNT EQUAL TO 10 PERCENT OF THE MINIMUM RATE FOR EACH GRADE OR THE PRESCRIBED DOLLAR MINIMUM OR MAXIMUM AS THE CASE MAY BE. THE 25 PERCENT ALLOWANCE IN ADDITION TO COMPENSATION, AUTHORIZED UNDER SECTION 4 (B) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, FOR MEDICAL, SURGICAL AND DENTAL SPECIALISTS IN THE DEPARTMENT OF MEDICINE AND SURGERY, VETERANS ADMINISTRATION IS TO BE COMPUTED UPON THE BASIC COMPENSATION OF SUCH EMPLOYEES AS INCREASED BY SECTION 4 (A) OF THE ACT, SUBJECT TO THE $12,800 PER ANNUM AGGREGATE LIMITATION PRESCRIBED THEREIN. THE CERTIFICATE OF A MILITARY ESTABLISHMENT FURNISHING THE CURRENT ADDRESS OF A FORMER EMPLOYEE AND EVIDENCE THAT HE WAS IN THE MILITARY SERVICE ON OCTOBER 24, 1951, MAY BE ACCEPTED AS THE BASIS FOR PAYMENT BY A FORMER EMPLOYING AGENCY OF ANY RETROACTIVE COMPENSATION INCREASE WHICH MAY BE DUE, UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED, TO AN EMPLOYEE WHO WAS SEPARATED FROM HIS POSITION SUBSEQUENT TO THE EFFECTIVE DATE OF THE ACT FOR THE PURPOSE OF ENTERING THE MILITARY SERVICE. CERTIFICATES OF THE CIVIL SERVICE COMMISSION FURNISHING ADDRESSES OF RETIRED EMPLOYEES AND EVIDENCE THAT THEY WERE ON THE RETIREMENT ROLLS ON OCTOBER 24, 1951, ARE NOT REQUIRED IN SUPPORT OF PAYMENTS OF RETROACTIVE COMPENSATION INCREASES, UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED, TO EMPLOYEES WHO WERE RETIRED SUBSEQUENT TO THE EFFECTIVE DATE OF THE ACT, IN CASES WHERE DETERMINATION OF SUCH FACTS MAY BE MADE UPON THE BASIS OF ADMINISTRATIVE RECORDS. INASMUCH AS THE CLASSIFICATION ACT OF 1949, AS AMENDED, AUTHORIZING RETROACTIVE SALARY INCREASES DOES NOT REQUIRE THAT A RETIRED EMPLOYEE ACTUALLY OCCUPY THAT STATUS ON OCTOBER 21, 1951 (ENACTMENT DATE OF THE ACT), TO QUALIFY FOR THE RETROACTIVE INCREASE, WHERE AN EMPLOYEE WHO WAS RETIRED SUBSEQUENT TO THE EFFECTIVE DATE OF THE ACT DIED PRIOR TO OCTOBER 24, 1951, THE ADJUSTED AMOUNT MAY BE PAID TO HIS ESTATE OR DESIGNATED BENEFICIARY AS THE CASE MAY BE.

ACTING COMPTROLLER GENERAL YATES TO THE ADMINISTRATOR OF VETERANS AFFAIRS, DECEMBER 18, 1951:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 16, 1951, REQUESTING DECISION UPON SEVERAL QUESTIONS RESPECTING THE APPLICATION OF THE PROVISIONS OF THE ACT OF OCTOBER 24, 1951, 65 STAT. 612 ( PUBLIC LAW 201), INCREASING THE SALARY RATES OF OFFICERS AND EMPLOYEES IN THE DEPARTMENT OF MEDICINE AND SURGERY, VETERANS ADMINISTRATION.

THE FIRST QUESTION IS WHETHER THE NEW RATES FOR EACH GRADE ARE TO BE ESTABLISHED BY ADDING AN AMOUNT EQUAL TO 10 PERCENT OF THE MINIMUM IN EACH GRADE TO EACH STEP WITHIN THE GRADE OR WHETHER THE RATES FOR EACH GRADE ARE TO BE ESTABLISHED BY ADDING AN AMOUNT EQUAL TO 10 PERCENT OF EACH EXISTING STEP IN EACH GRADE--- SUBJECT IN EITHER EVENT TO THE MINIMUM AND MAXIMUM DOLLAR INCREASES PRESCRIBED BY THE SAID ACT. AS POINTED OUT IN YOUR LETTER, SECTION 7 (A) OF THE ACT OF JANUARY 3, 1946, PUBLIC LAW 293 (59 STAT. 677), AS AMENDED BY PUBLIC LAW 349 (63 STAT. 764), PRESCRIBES THE GRADES AND PER ANNUM SALARY RANGES--- STATED IN TERMS OF A MAXIMUM AND A MINIMUM--- FOR THE EMPLOYEES IN QUESTION, AND AS EVIDENCED BY THE EXCERPT FROM THE VETERANS ADMINISTRATION MANUAL ENCLOSED WITH YOUR LETTER, THE INTERVENING STEP RATES FOR EACH GRADE HAVE BEEN PRESCRIBED ADMINISTRATIVELY.

DOUBT AS TO THE APPLICATION OF THE INCREASES AUTHORIZED BY PUBLIC LAW 201, 65 STAT. 614, ARISES BY VIRTUE OF THE LANGUAGE USED IN SECTION 4 (A) OF THE ACT WHICH READS AS FOLLOWS:

THE RATES OF BASIC COMPENSATION OF OFFICERS AND EMPLOYEES IN THE DEPARTMENT OF MEDICINE AND SURGERY IN THE VETERANS' ADMINISTRATION WHOSE RATES OF BASIC COMPENSATION ARE PROVIDED BY PUBLIC LAW 293, SEVENTY-NINTH CONGRESS, APPROVED JANUARY 3, 1946, AS AMENDED, ARE HEREBY INCREASED BY 10 PERCENTUM, EXCEPT THAT IN NO CASE SHALL ANY SUCH RATE BE INCREASED BY LESS THAN $300 PER ANNUM OR BY MORE THAN $800 PER ANNUM.

THE TERM,"BASIC COMPENSATION," CONSISTENTLY HAS BEEN CONSTRUED BY THIS OFFICE AS ENCOMPASSING ALL AUTHORIZED SCHEDULED OR LONGEVITY STEPS IN A GRADE AND SUCH CONSTRUCTION HAS PREVAILED NOT ONLY AS TO SALARY GRADES PRESCRIBED BY THE CLASSIFICATION ACT BUT ALSO TO THOSE ESTABLISHED PURSUANT TO OTHER STATUTORY AUTHORITY OR UNDER ADMINISTRATIVE OR WAGE BOARD PROCEDURES. HOWEVER, IN CONSTRUING THE TERM,"RATES OF BASIC COMPENSATION," AS IT APPEARS IN SECTION 4 (A), SUPRA, IT IS NECESSARY TO CONSIDER THAT PRIMARILY, PUBLIC LAW 201 IS AN AMENDMENT TO THE CLASSIFICATION ACT AND THAT THE MINIMUM RATE FOR EACH GRADE CONSTITUTES THE BASIS FOR THE INCREASES REFLECTED IN THE NEW SALARY SCHEDULES PRESCRIBED THEREIN FOR EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT. THEREFORE, SINCE THE MAJOR GROUP OF EMPLOYEES COVERED BY PUBLIC LAW 201 ARE SUBJECT TO THE NEW SCHEDULES, IT IS ONLY REASONABLE TO PRESUME THAT NO GREATER OR LESS BENEFITS WERE INTENDED TO BE GRANTED TO THE RELATIVELY SMALL GROUP OF EMPLOYEES SUCH AS THOSE HERE INVOLVED, WHO, ALTHOUGH NOT SUBJECT TO THE CLASSIFICATION ACT, SPECIFICALLY WERE GRANTED INCREASES UNDER THE NEW ACT. ACCORDINGLY, AND IN THE ABSENCE OF ANY INDICATION OF A CONGRESSIONAL INTENT TO THE CONTRARY THE CONCLUSION APPEARS JUSTIFIED THAT THE TERM,"RATES OF BASIC COMPENSATION," AS IT APPEARS IN SECTION 4 (A), SUPRA, MEANS THE MINIMUM SALARY RATE FOR EACH GRADE. FROM SUCH CONCLUSION IT FOLLOWS, OF COURSE, THAT THE NEW COMPENSATION RATES FOR EMPLOYEES IN THE DEPARTMENT OF MEDICINE AND SURGERY SHOULD BE ESTABLISHED BY ADDING TO EACH STEP WITHIN THE GRADE AN AMOUNT EQUAL TO 10 PERCENT OF THE MINIMUM RATES FOR EACH GRADE OR THE PRESCRIBED DOLLAR MINIMUM OR MAXIMUM AS THE CASE MAY BE. THIS ANSWERS YOUR FIRST QUESTION.

FURTHER QUESTION IS PRESENTED BY YOU AS TO WHETHER THE 25 PERCENT SPECIALIST'S ALLOWANCE AUTHORIZED BY SECTION 8 (D) OF THE SAID ACT OF JANUARY 3, 1946, AS AMENDED BY PUBLIC LAW, 758, 64 STAT. 593, 81ST CONGRESS, IS TO BE COMPUTED UPON THE BASIC PAY AS INCREASED BY THE NEW PAY ACT ( P.L. 201), OR WHETHER IN VIEW OF THE MAXIMUM LIMITATION OF $800 PRESCRIBED BY PUBLIC LAW 201, THE COMPUTATION IS REQUIRED TO BE MADE UPON THE BASIS OF THE ORIGINAL RATES PROVIDED IN SECTION 7 (A) OF PUBLIC LAW 349, SUPRA, AS AMENDED. THE SAID SECTION 8 (D) AS AMENDED BY SECTION 4 (B) OF PUBLIC LAW 201, 65 STAT. 615, PROVIDES:

ANY PERSON, RATED AS A MEDICAL, SURGICAL, OR DENTAL SPECIALIST UNDER THE PROVISIONS OF THIS SECTION, SHALL RECEIVE, IN ADDITION TO HIS BASIC PAY, AN ALLOWANCE EQUAL TO 25 PERCENTUM OF SUCH PAY: PROVIDED, THAT IN NO EVENT SHALL THE PAY PLUS THE ALLOWANCE AUTHORIZED BY THIS SUBSECTION EXCEED $12,800 PER ANNUM.

FROM THE FOREGOING PROVISION, IT CLEARLY APPEARS THAT THE AMOUNT OF ALLOWANCE AUTHORIZED SHALL EQUAL 25 PERCENT OF THE EMPLOYEE'S BASIC PAY. MOREOVER, SINCE THE ADDITIONAL PAYMENT AUTHORIZED IS SPECIFICALLY DESIGNATED BY LAW AS AN ALLOWANCE, IT MAY NOT BE REGARDED AS BASIC COMPENSATION FOR ANY PURPOSE. THEREFORE, THE AMOUNT THEREOF IS NOT SUBJECT TO THE $800 MAXIMUM PER ANNUM LIMITATION ON THE TOTAL INCREASES ALLOWABLE UNDER THE PROVISIONS OF PUBLIC LAW 201. ACCORDINGLY, THE RATES OF BASIC COMPENSATION FOR ALL EMPLOYEES IN THE DEPARTMENT OF MEDICINE AND SURGERY HAVING BEEN INCREASED BY OPERATION OF THE SAID PUBLIC LAW 201, IT FOLLOWS THAT SUCH NEW BASIC RATES, RATHER THAN THOSE PREVIOUSLY IN EFFECT, ARE REQUIRED TO BE USED AS THE BASIS FOR COMPUTING THE SPECIALIST'S ALLOWANCE, SUBJECT, OF COURSE, TO THE AGGREGATE LIMITATION OF $12,800 PER ANNUM PRESCRIBED BY SECTION 8 (D), SUPRA. SEE OFFICE DECISION OF NOVEMBER 6, 1951, B-106337, 31 COMP. GEN. 166 QUESTION AND ANSWER 14.

AS TO GENERAL APPLICATION OF THE PROVISIONS OF PUBLIC LAW 201, YOU REFER TO THE SAID DECISION OF NOVEMBER 6, 1951, WHEREIN IT WAS STATED THAT THE AGENCY IN WHICH THE EMPLOYEE IS EMPLOYED ON THE ENACTMENT DATE OF THE ACT SHOULD CERTIFY SUCH FACT TO THE AGENCY FROM WHICH THE EMPLOYEE TRANSFERRED DURING THE PERIOD COVERED BY THE RETROACTIVE PROVISIONS OF THE ACT, FURNISHING HIS CURRENT ADDRESS. AND, UPON THE BASIS OF SUCH CERTIFICATION PAYMENT OF THE RETROACTIVE INCREASE WAS AUTHORIZED TO BE MADE BY SUCH FORMER EMPLOYING AGENCY. IN VIEW THEREOF, YOU REQUEST DECISION WITH RESPECT TO FURTHER QUESTIONS, AS FOLLOWS:

(1) MAY A SIMILAR CERTIFICATE FROM THE SERVICE DEPARTMENT BE ACCEPTED AS THE BASIS FOR PAYMENT OF ANY AMOUNT DUE UNDER THE PROVISIONS OF PUBLIC LAW 201 IN THE CASE OF AN EMPLOYEE WHO WAS SEPARATED SUBSEQUENT TO JULY 8, 1951, FOR THE PURPOSE OF ENTERING MILITARY SERVICE. SUCH CERTIFICATE TO SHOW THE FORMER EMPLOYEE'S CURRENT ADDRESS AND TO STATE THAT HE WAS IN THE MILITARY SERVICE ON OCTOBER 24, 1951, THE DATE OF APPROVAL OF THE ACT.

(2) MAY A SIMILAR CERTIFICATE FROM THE RETIREMENT DIVISION, CIVIL SERVICE COMMISSION, BE ACCEPTED AS THE BASIS FOR EFFECTING PAYMENT OF AMOUNTS DUE UNDER PUBLIC LAW 201, IN THE CASE OF EMPLOYEES RETIRED UNDER THE CIVIL SERVICE RETIREMENT ACT SUBSEQUENT TO JULY 8, 1951. IN THIS CASE THE CERTIFICATE SHOULD STATE THAT THE EMPLOYEE WAS ON THE RETIREMENT ROLLS OF THE CIVIL SERVICE COMMISSION ON OCTOBER 24, 1951, AND SHOULD GIVE THE EMPLOYEE'S CURRENT ADDRESS AS SHOWN IN THE RECORDS OF THE RETIREMENT DIVISION.

WHERE AN EMPLOYEE WHO WAS RETIRED SUBSEQUENT TO JULY 8, 1951, UNDER THE CIVIL SERVICE RETIREMENT ACT, DIED PRIOR TO OCTOBER 24, 1951, THE DATE OF ENACTMENT OF PUBLIC LAW 201, IS THE SURVIVING WIDOW, OTHER BENEFICIARY, OR HIS ESTATE ENTITLED TO AN AMOUNT EQUIVALENT TO THE AMOUNT OF THE RETROACTIVE PAY ADJUSTMENT FOR THE PERIOD FROM JULY 8, 1951 THROUGH THE DATE OF DEATH?

BY SPECIFIC PROVISION OF THE ACT OF OCTOBER 24, 1951, AN EMPLOYEE IN THE SERVICE OF THE UNITED STATES INCLUDING THE ARMED FORCES OF THE UNITED STATES, ON THE DATE OF ITS ENACTMENT, IS ELIGIBLE FOR THE RETROACTIVE SALARY INCREASE COVERING SERVICES RENDERED BY HIM IN A POSITION SUBJECT TO THE ACT DURING THE PERIOD OF ITS RETROACTIVITY. THEREFORE, SINCE ELIGIBILITY IN EITHER CASE--- IN THE SERVICE OF THE UNITED STATES OR IN THE ARMED FORCES--- IS DEPENDENT UPON THE INDIVIDUAL'S STATUS ON OCTOBER 24, 1951, THE EVIDENCE REQUIRED TO ESTABLISH SUCH ELIGIBILITY WOULD BE THE SAME IN BOTH CASES. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

THE PROVISION IN SECTION 6 (B) OF THE SAID ACT OF OCTOBER 24, 1951, 65 STAT. 615, RELATING TO RETIRED OFFICERS AND EMPLOYEES WAS INCLUDED AS AN EXCEPTION TO THE GENERAL REQUIREMENT THAT RETROACTIVE SALARY PAYMENT MAY BE MADE ONLY TO INDIVIDUALS WHO ARE IN THE SERVICE OF THE UNITED STATES, ETC., ON THE DATE THE LAW WAS ENACTED. IN DECISION OF DECEMBER 18, 1951, TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, B-106546, 31 COMP. GEN. 230, A RETIRED OFFICER OR EMPLOYEE WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 6 (B) WAS DEFINED AS A PERSON WHO IS IN RECEIPT OF AN ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT PRIOR TO OCTOBER 24, 1951, AS WELL AS ONE WHO, ON SEPARATION FROM THE SERVICE PRIOR TO SUCH DATE WAS ELIGIBLE TO RECEIVE AN ANNUITY EFFECTIVE ON THE FIRST DAY OF THE MONTH FOLLOWING SEPARATION. ACCORDINGLY, IN ANSWER TO QUESTION NO. 2, SINCE PAYMENT OF THE RETROACTIVE INCREASE TO RETIRED PERSONNEL MAY BE MADE ON THE BASIS OF ELIGIBILITY FOR IMMEDIATE ANNUITY ON THE DATE OF SEPARATION, CERTIFICATION OF SUCH ELIGIBILITY BY THE CIVIL SERVICE COMMISSION GENERALLY WILL NOT BE REQUIRED IN CASES WHERE DETERMINATION OF THE ESSENTIAL FACTS MAY BE MADE UPON THE BASIS OF ADMINISTRATIVE RECORDS.

INASMUCH AS THE ACT DOES NOT REQUIRE THAT A RETIRED EMPLOYEE ACTUALLY OCCUPY THAT STATUS ON THE ENACTMENT DATE OF THE ACT THE RIGHT TO RECEIVE PAYMENT OF THE RETROACTIVE SALARY INCREASE ACCRUES ON THE DATE SUCH STATUS IS ACQUIRED. ACCORDINGLY, IN ANSWER TO THE LAST QUESTION QUOTED ABOVE, IT APPEARING THAT THE EMPLOYEE INVOLVED EITHER RECEIVED AN ANNUITY OR WAS ELIGIBLE THEREFOR PRIOR TO OCTOBER 24, 1951, PAYMENT OF THE RETROACTIVE INCREASE MAY BE MADE TO HIS ESTATE OR THE DESIGNATED BENEFICIARY AS THE CASE MAY BE. SEE B-106546, SUPRA. ..END :