B-44808, OCTOBER 9, 1944, 24 COMP. GEN. 288

B-44808, OCTOBER 9, 1944, 24 COMP. GEN. 288

COMPENSATION - WITHIN-GRADE PROMOTIONS - PROBATIONARY EMPLOYEES RESTORED TO POSITIONS AFTER MILITARY SERVICE IN VIEW OF THE CIVIL SERVICE COMMISSION'S DETERMINATION THAT A PERSON SERVING UNDER A PROBATIONAL APPOINTMENT--- WHETHER FOR SIX MONTHS OR ONE YEAR--- WHEN HE ENTERS MILITARY SERVICE IS HOLDING A "PERMANENT" POSITION WITHIN THE MEANING OF THE REEMPLOYMENT PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, SUCH AN EMPLOYEE, UPON RESTORATION IN ACCORDANCE WITH THE ACT TO HIS FORMER POSITION OR TO ONE OF LIKE SENIORITY, STATUS, AND PAY, IS ENTITLED TO THE SALARY RATE RECEIVED WHEN HE ENTERED THE MILITARY SERVICE, PLUS ANY WITHIN-GRADE SALARY- ADVANCEMENT TO WHICH HE WOULD HAVE BEEN ENTITLED, AS PROVIDED BY SECTION 5 OF THE EXECUTIVE REGULATIONS UNDER THE ACT OF AUGUST 1, 1941. 21 COMP. GEN. 369, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, OCTOBER 9, 1944:

I HAVE YOUR LETTER OF SEPTEMBER 23, 1944, AS FOLLOWS:

THE MEAD-RAMSPECK ACT (55 STAT. 613, 5 U.S.C. 667) PROVIDES FOR WITHIN- GRADE SALARY ADVANCEMENTS TO EMPLOYEES COMPENSATED ON A PER ANNUM BASIS AND OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED. REGULATIONS GOVERNING THE ADMINISTRATION OF THE WITHIN-GRADE SALARY ADVANCEMENTS ARE SET FORTH IN EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941. SECTION 1 (A) OF THE REGULATIONS STATES THAT, " "PERMANENT POSITIONS" SHALL INCLUDE ALL POSITIONS EXCEPT THOSE DESIGNATED AS TEMPORARY BY LAW AND THOSE ESTABLISHED FOR DEFINITE PERIODS OF SIX MONTHS OR LESS.'

THERE ARE AT PRESENT ON MILITARY FURLOUGH FROM THE DEPARTMENT OF AGRICULTURE A LARGE NUMBER OF EMPLOYEES WHO WERE GIVEN PERMANENT APPOINTMENTS WITH A PROBATIONARY PERIOD JUST PRIOR TO ENTERING THE ARMED FORCES. THESE APPOINTMENTS WERE MADE IN MOST CASES FOLLOWING CONSIDERABLE PERIODS OF SERVICE BY THE EMPLOYEES IN SCHEDULE A POSITIONS IN WHICH THEY HAD PROVED THEIR WORTH. THE REQUIREMENT THAT THEY SERVE PROBATIONARY PERIODS, WHICH WERE FOR SIX MONTHS, HAD BEEN SERVED, THE EMPLOYEES WERE CALLED INTO MILITARY SERVICE.

THESE EMPLOYEES HAVE BEEN ON MILITARY FURLOUGH FOR TWO YEARS AND MORE. THEY HAVE SERVED LONG ENOUGH, THEREFORE, TO ENTITLE THEM, IF OTHERWISE ELIGIBLE, TO ONE OR MORE WITHIN-GRADE SALARY ADVANCEMENTS UPON RESTORATION TO THEIR FORMER POSITIONS. IN VIEW OF A DECISION RENDERED BY YOUR OFFICE (21 COMP. GEN. 369, 375), THERE IS SOME QUESTION WHETHER THE REQUIREMENT THAT THEY SERVE A SIX-MONTHS PROBATIONARY PERIOD EXCLUDES THEM FROM THE CATEGORY OF OCCUPYING "PERMANENT POSITIONS" PRIOR TO COMPLETION OF SUCH SERVICE AND THEREFORE PROHIBITS WITHIN-GRADE SALARY ADVANCEMENT TO THEM.

IN THE DECISION REFERRED TO, IT IS STATED THAT,

"WHILE THE POSITION IN WHICH AN EMPLOYEE IS RENDERING SERVICES UNDER A PROBATIONARY APPOINTMENT IS NOT "DESIGNATED AS TEMPORARY BY LAW" (QUOTING FROM SECTION 1 (A) OF THE REGULATIONS), IT MUST BE CONCLUDED THAT THE POSITION TO WHICH THE PROBATIONARY APPOINTMENT WAS MADE IS NOT A "PERMANENT POSITION" WITHIN THE MEANING OF THE DEFINITION OF THAT TERM APPEARING IN THE REGULATIONS, IF SUCH APPOINTMENT WAS ESTABLISHED FOR A DEFINITE PERIOD OF 6 MONTHS OR LESS PURSUANT TO THE ABOVE-QUOTED CIVIL SERVICE RULE.' THE CIVIL SERVICE RULE REFERRED TO IS SECTION 2 (C) OF RULE VII, AS AMENDED BY EXECUTIVE ORDER 8587, DATED NOVEMBER 7, 1940. THAT SECTION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/C) PROBATIONARY APPOINTMENT.--- A PERSON SELECTED FOR APPOINTMENT SHALL BE DULY NOTIFIED BY THE APPOINTING OFFICER AND UPON ACCEPTING AND REPORTING FOR DUTY SHALL RECEIVE FROM SUCH OFFICER A CERTIFICATE OF PROBATIONAL APPOINTMENT. THE FIRST SIX MONTHS OF SERVICE UNDER THIS APPOINTMENT SHALL BE A PROBATIONARY PERIOD * * *. IF AT THE END OF THE PROBATIONARY PERIOD THE PROBATIONER'S SERVICE RATING HAS BEEN SATISFACTORY, TO THE EXTENT REQUIRED BY REGULATION, A CERTIFICATE TO THAT EFFECT FILED WITHIN THE DEPARTMENT AND HIS RETENTION IN THE SERVICE SHALL CONFIRM HIS ABSOLUTE APPOINTMENT.' (ITALICS SUPPLIED.)

IT SEEMS TO US THAT, SINCE A PERSON UPON ACCEPTING AN APPOINTMENT IS REQUIRED, UNDER THE CIVIL SERVICE RULE QUOTED, TO SERVE A PROBATIONARY PERIOD DURING THE FIRST SIX MONTHS OF SERVICE UNDER THE APPOINTMENT, THERE IS A CLEAR IMPLICATION THAT THE APPOINTMENT IS NOT, IN FACT, "ESTABLISHED FOR A DEFINITE PERIOD OF SIX MONTHS OR LESS.' THIS CONCLUSION IS SUPPORTED BY THE FACT THAT NO AFFIRMATIVE PERSONNEL OR OTHER ACTION IS REQUIRED TO CHANGE THE EMPLOYEE'S APPOINTMENT FROM PROBATIONARY TO ABSOLUTE. THE ONLY ACTION NECESSARY WHERE AN EMPLOYEE IS BEING RETAINED AFTER COMPLETION OF HIS PROBATIONARY PERIOD OF SERVICE IS THE FILING OF A CERTIFICATE TO THE EFFECT THAT HIS SERVICE RATING HAS BEEN SATISFACTORY. THERE IS NO REQUIREMENT THAT THE CERTIFICATION BE MADE BY THE APPOINTING OFFICER. WE BELIEVE THAT THE PROVISION IN RULE VII THAT THE CERTIFICATE AND HIS RETENTION IN THE SERVICE SHALL CONFIRM HIS ABSOLUTE APPOINTMENT IS STRONG EVIDENCE THAT THE APPOINTMENT ITSELF IS NOT LIMITED TO SIX MONTHS OR LESS, BUT IS INCLUSIVE OF THE PROBATIONARY PERIOD. CERTAINLY, WHEN A PROSPECTIVE EMPLOYEE IS SELECTED FROM A CIVIL SERVICE REGISTER FOR SERVICE IN THIS OR ANY OTHER FEDERAL AGENCY AND IS GIVEN AN APPOINTMENT WITH A PROBATIONARY PERIOD, THE EMPLOYING AGENCY FULLY EXPECTS THE EMPLOYEE TO PROVE SATISFACTORY AND TO REMAIN ON ITS ROLLS AS A FULL-FLEDGED EMPLOYEE.

AN APPOINTMENT WHICH REQUIRES A SIX-MONTHS PROBATIONARY PERIOD IS, IT SEEMS TO US, COMPARABLE TO A WAR SERVICE APPOINTMENT WHICH REQUIRES A TRIAL PERIOD OF ONE YEAR. BOTH APPOINTMENTS ARE, IN FACT, INDEFINITE. BOTH REQUIRE PERIODS OF "ON TRIAL" SERVICE. NEITHER APPOINTMENT IS LIMITED TO OR ESTABLISHED SOLELY FOR THE DEFINITE LENGTH OF THE REQUIRED PERIOD OF "ON TRIAL" SERVICE. THE APPOINTMENTS DIFFER FROM EACH OTHER ONLY IN THAT ONE REQUIRES A PERIOD OF "ON TRIAL" SERVICE OF SIX MONTHS AND THE OTHER OF 12 MONTHS.

ALTHOUGH THE DECISION IN 21 COMP. GEN. 369, 375, APPARENTLY IS BASED UPON AN INFERENCE THAT THE CIVIL SERVICE COMMISSION INTENDED BY RULE VII 2 (C) TO CONSIDER PROBATIONARY APPOINTMENTS AS TEMPORARY RATHER THAN PERMANENT, SUCH AN INFERENCE MAY BE CONSIDERED AS REFUTED BY THE DEFINITIONS OF PROBATIONAL APPOINTMENT AND TEMPORARY APPOINTMENT PROMULGATED BY DEPARTMENT CIRCULAR NO. 473, ISSUED BY THE CIVIL SERVICE COMMISSION MARCH 16, 1944. A PROBATIONAL APPOINTMENT IS DEFINED THEREIN AS A " NON- TEMPORARY APPOINTMENT AUTHORIZED UNDER CIVIL SERVICE RULE VII * * *.' THE SAME CIRCULAR A TEMPORARY APPOINTMENT IS DEFINED AS "SPECIFICALLY ITED.'

IN VIEW OF THE FOREGOING STATEMENT OF OUR PROBLEM, WE SHALL APPRECIATE YOUR DECISION ON THE FOLLOWING QUESTION:

WHEN AN EMPLOYEE WHO WAS FURLOUGHED FOR MILITARY SERVICE PRIOR TO THE COMPLETION OF HIS SIX-MONTHS' PROBATIONARY PERIOD IS RESTORED TO HIS FORMER CIVILIAN POSITION, MAY HE BE PAID INITIALLY AT THE SALARY RATE WHICH HE PREVIOUSLY RECEIVED IN SUCH FORMER POSITION PLUS ANY WITHIN-GRADE SALARY ADVANCEMENTS WHICH HE WOULD HAVE RECEIVED HAD HE SERVED CONTINUOUSLY WITHIN SUCH FORMER POSITION?

THE DECISION OF OCTOBER 27, 1941, 21 COMP. GEN. 369, CASE 2, QUESTION AND ANSWER 1, TO WHICH YOU REFER, DID NOT DECIDE, OR GIVE CONSIDERATION TO, THE QUESTION HERE PRESENTED, NAMELY, WHETHER AN EMPLOYEE WHO ENTERED THE ACTIVE MILITARY OR NAVAL SERVICE PRIOR TO TERMINATION OF HIS SIX MONTHS' PROBATIONAL APPOINTMENT IS ENTITLED TO CREDIT FOR HIS ACTIVE MILITARY OR NAVAL SERVICE TOWARD AUTOMATIC PROMOTION UPON RESTORATION TO HIS CIVILIAN POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS AND PAY. WITH REGARD TO THE CITED DECISION, IT WAS STATED IN A LETTER OF APRIL 14, 1942, B- 20925, TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, AS FOLLOWS:

* * * THAT PART OF THE DECISION TO WHICH YOU HAVE TAKEN EXCEPTION INVOLVED ONLY THE QUESTION OF WHETHER, UNDER THE FACTS AND CIRCUMSTANCES THERE APPEARING, AN EMPLOYEE WOULD BE ENTITLED TO WITHIN GRADE AUTOMATIC INCREASE IN SALARY UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200--- A PAY STATUTE--- AND THE PRESIDENT'S REGULATIONS THEREUNDER, EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, AND WAS NOT INTENDED TO, AND DOES NOT, AFFECT IN ANY WAY THE PREVIOUS HOLDINGS OF THE COMMISSION OR OF THIS OFFICE WITH RESPECT TO THE STATUS OR RIGHTS OF AN EMPLOYEE DURING THE PERIOD OF PROBATION UNDER OTHER LAWS OR REGULATIONS--- IT BEING PARTICULARLY FOR NOTING THAT THE TERMINOLOGY "PERMANENT POSITION" OR "TEMPORARY POSITION" FOR CIVIL SERVICE PURPOSES IS NOT NECESSARILY CONTROLLING IN THE APPLICATION OF PAY STATUTES SUCH AS THE ACT OF AUGUST 1, 1941.

REEMPLOYMENT BENEFITS ARE AUTHORIZED BY SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 890, AS EXTENDED BY SECTION 7 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 627, FOR EMPLOYEES HOLDING "PERMANENT" POSITIONS, AS DISTINGUISHED FROM EMPLOYEES HOLDING "TEMPORARY" POSITIONS, WHEN THEY ENTER THE ACTIVE MILITARY OR NAVAL SERVICE. THE SELECTIVE TRAINING AND SERVICE ACT IS NOT A PAY STATUTE, AND ACCORDINGLY, IT IS COMPETENT FOR THE UNITED STATES CIVIL SERVICE COMMISSION TO DETERMINE WHETHER A PARTICULAR EMPLOYEE, OR CLASS OF EMPLOYEES, WAS HOLDING A "PERMANENT" OR A "TEMPORARY" POSITION WHEN ENTERING THE ACTIVE MILITARY OR NAVAL SERVICE -- THAT IS, WHETHER OR NOT REEMPLOYMENT BENEFITS ARE AUTHORIZED TO BE GRANTED TO A PARTICULAR EMPLOYEE OR CLASS OF EMPLOYEES. IN THAT CONNECTION, THE UNITED STATES CIVIL SERVICE COMMISSION HAS HELD AS FOLLOWS (QUOTING FROM PAGE 141 OF THE CIVIL SERVICE RULES AND REGULATIONS:

MANDATORY RESTORATION OF PROBATIONAL APPOINTEE.--- A PERSON WHO IS SERVING UNDER A PROBATIONAL APPOINTMENT IN A CLASSIFIED CIVIL SERVICE POSITION IS NOT REGARDED AS A TEMPORARY APPOINTEE WITHIN THE MEANING OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT AND SIMILAR MANDATORY REEMPLOYMENT PROVISIONS IN OTHER STATUTES. IF HE IS INDUCTED INTO THE MILITARY SERVICE DURING THE PROBATIONARY PERIOD, HE WILL BE ENTITLED TO RESTORATION UPON DISCHARGE FROM THE MILITARY SERVICE. UPON RESTORATION HE WILL BE REGARDED AS A PROBATIONARY EMPLOYEE UNTIL HE HAS COMPLETED HIS PROBATIONARY PERIOD (DEPARTMENTAL CIRCULAR NO. 438, OCTOBER 22, 1943).

SECTION 5 OF THE REGULATIONS OF THE PRESIDENT ( EXECUTIVE ORDER 8882, DATED SEPTEMBER 3, 1941), ISSUED PURSUANT TO THE AUTHORITY VESTED IN HIM BY SECTION 7 (G) OF THE CLASSIFICATION ACT, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 1, 1941, 55 STAT. 613, PROVIDES:

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.

AS IT HAS BEEN DETERMINED BY COMPETENT AUTHORITY THAT AN EMPLOYEE IS HOLDING A "PERMANENT" POSITION DURING SERVICE UNDER A PROBATIONAL APPOINTMENT WHEN HE ENTERS THE ACTIVE MILITARY OR NAVAL SERVICE--- NO DISTINCTION HAVING BEEN MADE BETWEEN A PROBATIONAL APPOINTMENT OF SIX MONTHS AND A PROBATIONAL APPOINTMENT FOR ONE YEAR--- AND THAT SUCH AN EMPLOYEE IS ENTITLED TO RESTORATION WHEN MEETING THE TERMS AND CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT, IT FOLLOWS THAT THE EMPLOYEE UPON RESTORATION TO A CIVILIAN POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY, IS ENTITLED TO THE BENEFITS OF SECTION 5 OF THE PRESIDENT'S REGULATIONS, SUPRA. UPON THAT BASIS, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.