B-25719, MAY 11, 1942, 21 COMP. GEN. 1007

B-25719, MAY 11, 1942, 21 COMP. GEN. 1007

OFFICERS AND EMPLOYEES ON MILITARY DUTY - AUTOMATIC PROMOTIONS; RECORDATION OF CIVILIAN STATUS CHANGES; ETC. A CIVILIAN EMPLOYEE ON ACTIVE MILITARY DUTY WHO BECOMES ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, AT THE BEGINNING OF A QUARTER OCCURRING WITHIN A PERIOD FOR WHICH HE IS PAID, CONCURRENTLY WITH MILITARY PAY, CIVILIAN COMPENSATION FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE GRANTED PURSUANT TO THE ACT OF AUGUST 1, 1941, PUBLIC LAW 202, AS AMENDED, IS ENTITLED TO BE PAID AT THE INCREASED SALARY RATE DURING SUCH PERIOD OF ANNUAL LEAVE FROM THE EFFECTIVE DATE OF THE SALARY ADVANCEMENT. THERE IS NO LEGAL OR ACCOUNTING OBJECTION TO THE ADMINISTRATIVE RECORDING OF CHANGES IN THE STATUS OF EMPLOYEES ON MILITARY DUTY WHO, WHEN RESTORED TO THEIR CIVILIAN POSITIONS, UNDER EXISTING LAW WILL BE ENTITLED TO THE BENEFIT OF ANY REALLOCATION OF THEIR POSITIONS, AND WHO, UNDER EXECUTIVE ORDER NO. 8882, SAVING TO THEM "WITHOUT LOSS OF SENIORITY" THE RIGHT TO WITHIN-GRADE SALARY ADVANCEMENTS AUTHORIZED BY THE ACT OF AUGUST 1, 1941, WILL BE ENTITLED TO ANY AUTOMATIC PROMOTIONS THAT WOULD HAVE ACCRUED TO THEM DURING THEIR ABSENCE HAD THEY REMAINED IN CIVILIAN SERVICE. 20 COMP. GEN. 789, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, MAY 11, 1942:

I HAVE YOUR LETTER OF APRIL 28, 1942, AS FOLLOWS:

IN THE RULING OF YOUR OFFICE DATED MAY 20, 1941 (20 C.G. 789), IT WAS STATED:

"* * * NO ADMINISTRATIVE ACTION MAKING ADJUSTMENTS IN GRADE AND SALARY RATE OF POSTAL EMPLOYEES SHOULD BE TAKEN DURING THE ABSENCE OF THE EMPLOYEES ON MILITARY DUTY, THE BENEFITS OF THE SELECTIVE TRAINING AND SERVICE ACT AND PUBLIC RESOLUTION OF AUGUST 27, 1940, BEING AVAILABLE ONLY UPON RESTORATION TO CIVILIAN POSITIONS. HOWEVER, UPON RESTORATION TO THEIR CIVILIAN POSITIONS UNDER THE TERMS AND CONDITIONS OF SAID STATUTES, REGULAR POSTAL EMPLOYEES MAY BE ADVANCED TO THE GRADE AND SALARY RATE TO WHICH THEY WOULD HAVE BEEN ADVANCED HAD THEIR MILITARY SERVICE BEEN IN THE POSTAL SERVICE IN ACCORDANCE WITH EXISTING LAWS AND REGULATIONS.'

IF THIS RULING IS STRICTLY FOLLOWED IN ALL INSTANCES, SITUATIONS WILL ARISE WHEREBY EMPLOYEES WILL BE DEPRIVED OF BENEFITS WHICH THEY WOULD NOT HAVE LOST OTHERWISE. FOR EXAMPLE, A POST OFFICE INSPECTOR WAS ENTITLED UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW NO. 200, 77TH CONGRESS, TO A WITHIN-GRADE PROMOTION EFFECTIVE APRIL 1, 1942. HOWEVER, HE ENTERED THE MILITARY SERVICE ON MARCH 27, 1942, AND BECAUSE OF THE RULING CITED THE WITHIN-GRADE PROMOTION WAS WITHHELD. AT THE TIME THIS INSPECTOR ENTERED THE MILITARY SERVICE HE HAD 19 DAYS OF ACCUMULATED AND ACCRUED ANNUAL LEAVE TO HIS CREDIT AND MADE APPLICATION FOR PAYMENT THEREOF. HE WILL, THEREFORE, BE IN A PAY STATUS FROM MARCH 27 TO APRIL 15, 1942. BY REASON OF THE WITHHOLDING OF THE WITHIN-GRADE PROMOTION DUE APRIL 1, HE WILL RECEIVE COMPENSATION AT A LOWER RATE FROM APRIL 1 TO 15, THAN THAT TO WHICH HE IS ENTITLED UNDER PUBLIC LAW NO. 200.

IT SEEMS CLEAR FROM THE WORDING OF THE SELECTIVE TRAINING AND SERVICE ACT AND PUBLIC RESOLUTION OF AUGUST 27, 1940, AND VARIOUS INTERPRETATIONS THEREOF, THAT IT WAS THE INTENT OF CONGRESS THAT NO EMPLOYEE SHOULD BE PENALIZED BY HIS MILITARY SERVICE. IT IS ASSUMED, THEREFORE, THAT IN SUCH INSTANCES EMPLOYEES SHOULD RECEIVE PROMOTIONS TO WHICH THEY ARE ENTITLED DESPITE THE FACT THAT THEY ARE IN THE MILITARY SERVICE RATHER THAN CIVILIAN EMPLOYMENT. IS THIS ASSUMPTION CORRECT?

THE RULING CITED ABOVE WAS MADE PRINCIPALLY IN CONNECTION WITH THE AUTOMATIC PROMOTION LAW BY WHICH THE COMPENSATION OF REGULAR POSTAL SERVICE EMPLOYEES IS GOVERNED AND WHICH PROMOTIONS ARE CONTINGENT UPON LENGTH OF SERVICE. IN SUCH CASES THERE IS NO PARTICULAR DIFFICULTY IN MAINTAINING RECORDS BY WHICH AN EMPLOYEE'S STATUS MAY BE DETERMINED UPON HIS RETURN TO CIVILIAN EMPLOYMENT. THE COMPENSATION OF EMPLOYEES WITHIN THE PURVIEW OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, HOWEVER, DEPENDS UPON THE POSITION WHICH THEY OCCUPY, AS WELL AS LENGTH OF SERVICE AND OTHER REQUIREMENTS. TO DEFER REALLOCATIONS UNDER THE CLASSIFICATION ACT, OR PROMOTIONS UNDER PUBLIC LAW 200, MAKES IT VERY DIFFICULT IN MANY INSTANCES TO MAINTAIN RECORDS WHICH WILL INSURE AN EMPLOYEE'S REEMPLOYMENT RIGHTS UPON RETURN TO CIVILIAN EMPLOYMENT.

FOR EXAMPLE, A NUMBER OF POST OFFICE INSPECTORS NOW ON ACTIVE MILITARY SERVICE ARE THE FIRST ELIGIBLES FOR REASSIGNMENT TO POSITIONS INVOLVING TERRITORIES OTHER THAN THE ONES THEY OCCUPIED AT THE TIME OF ENTERING MILITARY SERVICE AND THESE POSITIONS HAVE BEEN ALLOCATED TO HIGHER CLASSIFICATION GRADES. IF ONE OF THESE SOLDIERS IS SELECTED FOR ASSIGNMENT TO A POSITION IN THE HIGHER CLASSIFICATION GRADE, HIS REEMPLOYMENT RIGHTS AT THE HIGHER SALARY BECOME SO CLEARLY RECORDED THAT NO QUESTION CAN ARISE UPON HIS RETURN. AT THE SAME TIME, SOME OTHER PERSON CAN BE PROMOTED TO THE ASSIGNMENT FOR THE DURATION OF THE MILITARY SERVICE, AND BY RECORDING THIS LIMITATION IN THE PROMOTION ORDER AND ON THE CLASSIFICATION SHEET NO MISUNDERSTANDING CAN WELL BE ASSERTED LATER AS TO THE PERMANENCY OF THE PROMOTION. UNLESS THE PROMOTION OF THE SOLDIER CAN BE OFFICIALLY RECORDED BY CUSTOMARY JOURNAL ENTRY AND CLASSIFICATION SHEET, THE PROMOTION OF THE SECOND CHOICE WILL APPEAR ON THE RECORDS TO BE A PERMANENT PROMOTION AND THE ESTABLISHMENT OF THE REEMPLOYMENT RIGHT OF THE SOLDIER IN THE HIGHER GRADE ON HIS RETURN WILL BE DIFFICULT, IF NOT IMPRACTICAL. THE SAME DIFFICULTY EXISTS IN PRESERVING A PROPER RECORD OF THE ADVANCEMENT OF OTHER PERSONS INVOLVED IN CONSEQUENTIAL GRADE ADVANCES RESULTING FROM FILLING THE FIRST VACANCY.

IN A RULING OF YOUR OFFICE DATED OCTOBER 27, 1941 (21 C.G. 369), IT WAS STATED:

"AN EMPLOYEE WHO IS ON LEAVE OF ABSENCE WITHOUT PAY OCTOBER 1, 1941, SHOULD BE GIVEN THE PERIODIC INCREASE IN COMPENSATION FOR RECORD PURPOSES- -- PAYMENT TO BE MADE IF AND WHEN HE RETURNS TO A PAY STATUS-- PROVIDED ALL OTHER REQUIREMENTS FOR SUCH INCREASE ARE MET.'

SINCE REALLOCATIONS AND OTHER PROMOTIONS MADE MERELY FOR RECORD PURPOSES WOULD RESULT IN NO EXPENDITURES FROM APPROPRIATIONS UNTIL SUCH TIME AS EMPLOYEES COMPLY WITH THE REQUIREMENTS FOR REEMPLOYMENT SPECIFIED BY THE SELECTIVE TRAINING AND SERVICE ACT AND PUBLIC RESOLUTION OF AUGUST 27, 1940, IT IS BELIEVED THAT IN THE DISCRETION OF THE HEAD OF A DEPARTMENT SUCH REALLOCATIONS AND PROMOTIONS FOR RECORD PURPOSES SHOULD BE PERMITTED.

IT WILL BE APPRECIATED IF YOU WILL ADVISE ME AS SOON AS PRACTICABLE WHETHER THERE IS ANY LEGAL OR ACCOUNTING OBJECTION TO SUCH A PROCEDURE.

DECISIONS OF THIS OFFICE HAVE HELD THAT IT IS WITHIN ADMINISTRATIVE DISCRETION EITHER TO SEPARATE EMPLOYEES FROM THEIR CIVILIAN POSITIONS OR TO FURLOUGH THEM WITHOUT PAY DURING ABSENCE WHILE IN THE MILITARY OR NAVAL SERVICE. 20 COMP. GEN. 167; 21 ID. 403. IT IS UNDERSTOOD FROM YOUR LETTER, SUPRA, THAT THE POST OFFICE DEPARTMENT HAS ELECTED TO FURLOUGH EMPLOYEES WITHOUT PAY, RATHER THAN TO SEPARATE THEM FROM THE SERVICE.

THE DECISION OF MAY 20, 1941, 20 COMP. GEN. 789, A PORTION OF WHICH IS QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER, HELD THAT REGULAR EMPLOYEES OF THE POSTAL SERVICE WERE ENTITLED UPON RESTORATION TO THEIR CIVILIAN POSITIONS TO BE ADVANCED TO THE GRADE AND SALARY RATE TO WHICH THEY WOULD HAVE BEEN ADVANCED HAD THEIR MILITARY SERVICE BEEN IN THE POSTAL SERVICE IN ACCORDANCE WITH EXISTING LAWS AND REGULATIONS. THE DECISION WAS RENDERED PRIOR TO THE ACT OF AUGUST 1, 1941, PUBLIC LAW 202, 55 STAT. 616- -- SINCE AMENDED BY THE ACT OF APRIL 7, 1942, PUBLIC LAW 517, 56 STAT. 200 --- AUTHORIZING THE PAYMENT FOR ACCUMULATED OR CURRENT ACCRUED ANNUAL LEAVE CONCURRENTLY WITH THE RECEIPT OF MILITARY PAY AND PRIOR, ALSO, TO THE ACT OF AUGUST 1, 1941, PUBLIC LAW NO. 200, 55 STAT. 613, AUTHORIZING WITHIN-GRADE SALARY ADVANCEMENTS TO EMPLOYEES OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE CLASSIFICATION ACT. SAID DECISION DEALT PRIMARILY WITH THE MATTER AS STATED IN THE FIRST PART OF PARAGRAPH 4 OF YOUR LETTER AND WAS NOT INTENDED AS HOLDING THAT THE POST OFFICE DEPARTMENT COULD NOT KEEP A RECORD OF CHANGES IN STATUS OF EMPLOYEES BASED ON SENIORITY OR LONGEVITY DURING THEIR ABSENCE WHILE IN THE MILITARY SERVICE, SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, APPROVED SEPTEMBER 16, 1940, 54 STAT. 890, AUTHORIZING RESTORATION ,WITHOUT LOSS OF SENIORITY.'

REFERRING TO THE SECOND AND THIRD PARAGRAPHS OF YOUR LETTER, AN EMPLOYEE WHO BECAME ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT AT THE BEGINNING OF A QUARTER OCCURRING WITHIN THE PERIOD OF ANNUAL LEAVE GRANTED PURSUANT TO THE ACT OF AUGUST 1, 1941, PUBLIC LAW 202, 55 STAT. 616, AS AMENDED, IS ENTITLED TO BE PAID AT THE INCREASED RATE DURING THE PERIOD OF ANNUAL LEAVE FROM THE EFFECTIVE DATE OF THE WITHIN-GRADE SALARY ADVANCEMENT.

SECTION 5 OF EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, CONTAINING THE PRESIDENT'S REGULATIONS UNDER THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, PROVIDES AS FOLLOWS:

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.

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. THE KEEPING OF SUCH RECORD OF CHANGES IN STATUS OF EMPLOYEES IN THE MILITARY SERVICE IS PURELY AN ADMINISTRATIVE MATTER WITH WHICH THIS OFFICE IS NOT DIRECTLY CONCERNED, THERE NOT BEING INVOLVED THEREBY ANY EXPENDITURE OF APPROPRIATED MONEYS. HENCE, THE QUESTION IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.