B-34464, MAY 20, 1943, 22 COMP. GEN. 1051

B-34464, MAY 20, 1943, 22 COMP. GEN. 1051

COMPENSATION - WITHIN-GRADE PROMOTION - PROMOTION AND SUBSEQUENT DEMOTION AS AFFECTING ELIGIBILITY PERIOD AN EMPLOYEE WHO WAS PROMOTED TEMPORARILY TO A HIGHER GRADE WITH A RESULTING INCREASE IN COMPENSATION AT A PER ANNUM RATE EXCEEDING A $100 ONE-STEP COMPENSATION INCREMENT IN THE LOWER GRADE HAS RECEIVED AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE WITHIN GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941--- AS DEFINED IN EXECUTIVE ORDER NO. 8882 AS BEING ,ANY INCREASE OR INCREASES WHICH IN TOTAL ARE EQUAL TO OR GREATER THAN THE COMPENSATION INCREMENT IN THE LOWEST GRADE * * *"--- RENDERING HIM INELIGIBLE FOR A PERIODIC WITHIN GRADE SALARY ADVANCEMENT UNTIL AFTER THE EXPIRATION OF 18 MONTHS FROM THE DATE OF THE TEMPORARY PROMOTION, EVEN THOUGH THE ACTUAL AMOUNT OF ADDITIONAL COMPENSATION RECEIVED DURING THE EFFECTIVE PERIOD OF THE PROMOTION WAS LESS THAN $100.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, MAY 20, 1943:

I HAVE YOUR LETTER OF MAY 11, 1943, AS FOLLOWS:

THERE ARE RESPECTFULLY SUBMITTED FOR DECISION QUESTIONS AS TO WHETHER AUTOMATIC INCREASES IN SALARY WHICH ARE OTHERWISE IN ORDER ARE AUTHORIZED UNDER THE PROVISIONS OF SECTION 2 (B) (1) OF PUBLIC LAW 200, 77TH CONGRESS IN THE FOLLOWING CASES:

(1) AN EMPLOYEE WHO WAS PROMOTED FROM CAF-7, $2700 PER ANNUM TO CAF 8, $2900 PER ANNUM, EFFECTIVE MARCH 11, 1942, AND DEMOTED FROM CAF-8, $2900 PER ANNUM TO HIS FORMER POSITION, CAF-7, $2700 PER ANNUM, EFFECTIVE MAY 25, 1942, AT HIS REQUEST.

(2) AN EMPLOYEE WHO WAS PROMOTED FROM CAF-3, $1740 PER ANNUM TO CAF-4, $1800, EFFECTIVE SEPTEMBER 5, 1942, AND DEMOTED FROM CAF-4, $1800 PER ANNUM TO HER FORMER POSITION, CAF-3, $1700 PER ANNUM, EFFECTIVE SEPTEMBER 12, 1942.

SECTION 2 (B) (1) OF PUBLIC LAW 200, SUPRA, PROVIDES:

"/1) THAT NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD, EXCEPT INCREASE MADE PURSUANT TO SUBSECTION (F) OF THIS SECTION.; "

THE PRESIDENT WAS AUTHORIZED BY SECTION 2 OF PUBLIC LAW 200, SUPRA, TO ISSUE THE NECESSARY REGULATIONS FOR THE ADMINISTRATION OF THE ACT, AND BY EXECUTIVE ORDER NO. 8882 DATED SEPTEMBER 3, 1941, SECTION 1 (D), THE TERM "EQUIVALENT INCREASE IN COMPENSATION" WAS DEFINED AS FOLLOWS:

"/D) "EQUIVALENT INCREASE IN COMPENSATION" SHALL MEAN ANY INCREASE OR INCREASES WHICH IN TOTAL ARE EQUAL TO OR GREATER THAN THE COMPENSATION INCREMENT IN THE LOWEST GRADE IN WHICH THE EMPLOYEE HAS SERVED DURING THE TIME PERIOD OF EIGHTEEN OR THIRTY MONTHS, AS THE CASE MAY BE.' ( ITALICS SUPPLIED.)

IT SEEMS APPARENT THAT THE TOTALS OF THE INCREASES IN COMPENSATION ACTUALLY RECEIVED IN THE FOREGOING CASES ARE NOT EQUAL TO OR GREATER THAN THE COMPENSATION INCREMENT IN THE GRADES FROM WHICH THE EMPLOYEES WERE TEMPORARILY PROMOTED, WHICH WERE THE LOWEST GRADES IN WHICH THESE EMPLOYEES HAD SERVED DURING THE GOVERNING TIME PERIODS, AND IT WOULD SEEM TO FOLLOW THAT THE TEMPORARY PROMOTIONS DO NOT FALL WITHIN THE ABOVE STATED DEFINITION OF "EQUIVALENT INCREASE IN COMPENSATION," AND WOULD NOT BAR THE RIGHTS OF SUCH EMPLOYEES TO THE AUTOMATIC PROMOTIONS PROVIDED FOR BY PUBLIC LAW 200, SUPRA.

NOTICE HAS BEEN TAKEN OF 21 COMP. GEN. 285, AND THE SUBSEQUENT DECISIONS BASED THEREON, BUT THE CIRCUMSTANCES IN THE CASES CITED ABOVE ARE BELIEVED TO BE DISTINGUISHABLE.

IN THE DECISION OF OCTOBER 27, 1941, 21 COMP. GEN. 369, THE FOLLOWING RULE WAS STATED (QUOTING FROM THE SYLLABUS ON PAGE 370):

A RESTORATION IN COMPENSATION AFTER A REDUCTION IS AN "EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, PROVIDING FOR UNIFORM WITHIN-GRADE SALARY ADVANCEMENTS, AND THE PRESIDENT'S REGULATIONS THEREUNDER, AND THE PRESCRIBED PERIOD THAT THE EMPLOYEE MUST SERVE WITHOUT SUCH AN EQUIVALENT INCREASE IN ORDER TO BE ELIGIBLE FOR A SALARY ADVANCEMENT UNDER THE ACT BEGINS TO RUN FROM THE DATE OF THE RESTORATION.

IN ADDITION TO THE DECISION CITED IN YOUR LETTER, REFERENCE IS MADE TO 21 COMP. GEN. 326, 478, 641. SEE, ALSO, THE DECISION OF FEBRUARY 14, 1942, 21 COMP. GEN. 773, 775, INVOLVING CIVILIAN EMPLOYEES OF THE ENGINEER DEPARTMENT OF THE ARMY CONTROLLED BY ADMINISTRATIVE REGULATIONS PROVIDING FOR TEMPORARY "UP AND DOWN" SALARY RATINGS, WHEREIN IT WAS STATED IN PERTINENT PART:

IN CASES SUCH AS HERE INVOLVED THE TEMPORARY ASSIGNMENT FOR A BRIEF PERIOD TO WORK PAYING A LOWER SALARY RATE WOULD NOT BE REGARDED AS A REDUCTION IN THE REGULAR SALARY RATE OF THE EMPLOYEE; NOR IS IT NECESSARY TO REGARD THE RESTORATION TO THE REGULAR DUTIES AND SALARY AFTER SUCH A REDUCTION AS AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, AND THE PRESIDENT'S REGULATIONS, BUT RATHER, SIMPLY AS A CONDITION OF THEIR EMPLOYMENT IN THE REGULAR POSITION.

THE RULE STATED IN THIS CASE WITH RESPECT TO THE "UP AND DOWN RATING" OF EMPLOYEES UNDER THE LONG EXISTING ADMINISTRATIVE REGULATION IS TO BE UNDERSTOOD AS NOT MODIFYING THE RULE STATED IN DECISIONS OF OCTOBER 2, 1941, 21 COMP. GEN. 285, AND OCTOBER 13, 1941, 21 COMP. GEN. 326, RELATING TO SALARY CHANGES UNDER THE GENERAL RULES AND REGULATIONS GOVERNING SUCH CHANGES. FOR INSTANCE, WHERE THERE IS NO ADMINISTRATIVE REGULATION PROVIDING FOR "UP AND DOWN RATING" OF EMPLOYEES INVOLVED, A TEMPORARY PROMOTION INVOLVING AN INCREASE OF COMPENSATION OF $60, $100, $200, OR $250 OR MORE PER ANNUM, AS THE CASE MAY BE, SUCH AS A TEMPORARY PROMOTION TO FILL A VACANCY CAUSED BY THE ABSENCE OF A REGULAR INCUMBENT IN THE MILITARY SERVICE, OR THE TEMPORARY PROMOTION OF AN EMPLOYEE ON ANOTHER ROLL ESTABLISHED UNDER A SPECIAL APPROPRIATION TO PERFORM A PARTICULAR JOB, WOULD CONSTITUTE AN "EQUIVALENT INCREASE INCOMPENSATION" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, AND UPON RESTORATION TO THE REGULAR ROLL THE PRESCRIBED PERIOD TO BE CONSIDERED FOR AUTOMATIC PROMOTION PURPOSES WOULD BEGIN TO RUN FROM THE DATE OF THE TEMPORARY PROMOTION.

REFERRING TO THE PENULTIMATE PARAGRAPH OF YOUR LETTER, YOU ARE ADVISED THAT THE WORDS ,EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE" APPEARING IN THE STATUTE AND THE WORD "ANY INCREASE OR INCREASES WHICH IN TOTAL ARE EQUAL TO OR GREATER THAN THE COMPENSATION INCREMENT" APPEARING IN SECTION 1 (D) OF THE PRESIDENT'S REGULATIONS, QUOTED IN YOUR LETTER, RELATE TO THE PER ANNUM RATE OF THE INCREASE IN COMPENSATION--- THE COMPENSATION INCREMENT IN THE SALARY GRADES PRESCRIBED BY THE CLASSIFICATION ACT BEING FIXED ON A PER ANNUM RATE OF COMPENSATION--- NOT TO THE ACTUAL AMOUNT OF ADDITIONAL COMPENSATION RECEIVED DURING THE PART OF A YEAR THAT THE PROMOTION OR INCREASE IN COMPENSATION MAY HAVE BEEN EFFECTIVE. ACCORDINGLY, I AM UNABLE TO CONCUR IN THE VIEW EXPRESSED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER.

IN CASE (1) THE TIME PERIOD OF 18 MONTHS BEGAN TO RUN FROM MARCH 11, 1942, AND IN CASE (2) FROM SEPTEMBER 5, 1942.