B-46335, JANUARY 3, 1945, 24 COMP. GEN. 491

B-46335, JANUARY 3, 1945, 24 COMP. GEN. 491

COMPENSATION - WITHIN-GRADE PROMOTIONS - SERVICE CREDITS - WAR SERVICE APPOINTEES RESTORED TO POSITIONS AFTER MILITARY SERVICE IN VIEW OF THE ATTORNEY GENERAL'S OPINION OF MAY 26, 1943, THAT WAR SERVICE APPOINTEES HOLD ,TEMPORARY" POSITIONS WITHIN THE MEANING OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AND, HENCE, ARE NOT ENTITLED TO REEMPLOYMENT THEREUNDER AFTER MILITARY SERVICE, SECTION 5 OF EXECUTIVE ORDER NO. 8882, AUTHORIZING THE COUNTING OF MILITARY SERVICE TOWARD AUTOMATIC PROMOTION UNDER THE ACT OF AUGUST 1, 1941, IN THE CASE OF EMPLOYEES RESTORED TO CIVILIAN POSITIONS PURSUANT TO THE SELECTIVE TRAINING AND SERVICE ACT, HAS NO APPLICATION TO WAR SERVICE APPOINTEES RESTORED TO CIVILIAN POSITIONS AFTER MILITARY SERVICE UNDER AUTHORITY OF WAR SERVICE REGULATION XIII.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF LABOR, JANUARY 3, 1945:

I HAVE YOUR LETTER OF DECEMBER 14, 1944, AS FOLLOWS:

A WAR SERVICE EMPLOYEE OF THIS DEPARTMENT, WHOSE APPOINTMENT WAS LIMITED TO THE DURATION OF THE WAR AND SIX MONTHS THEREAFTER, RESIGNED EFFECTIVE OCTOBER 26, 1942, FOR THE PURPOSE OF ENTERING MILITARY SERVICE. HAVING RECEIVED AN HONORABLE DISCHARGE FROM THE MILITARY SERVICE ON OCTOBER 21, 1943, HE APPLIED FOR REEMPLOYMENT IN THE DEPARTMENT ON NOVEMBER 18, 1943; AND HE WAS RESTORED TO HIS POSITION ON NOVEMBER 30, 1943, UNDER AUTHORITY OF SECTION 1, WAR SERVICE REGULATION XIII, FOR A PERIOD NOT TO EXCEED THE DURATION OF THE WAR AND SIX MONTHS THEREAFTER.

THE AUTHORITY CONTAINED IN SECTION 5 OF EXECUTIVE ORDER 8882 FOR CREDITING TIME SPENT IN MILITARY SERVICE TO EMPLOYEES WHO ARE RESTORED IN ACCORDANCE WITH THE SELECTIVE TRAINING SERVICE ACT IS CLEAR AND WELL UNDERSTOOD. HOWEVER, I FIND NO EXPRESS AUTHORITY IN SECTION 5 OF EXECUTIVE ORDER NO. 8882 FOR CREDITING TIME SPENT IN MILITARY SERVICE TO EMPLOYEES WHO, ALTHOUGH NOT RESTORED IN ACCORDANCE WITH THE SELECTIVE SERVICE TRAINING AND SERVICE ACT, ARE RESTORED IN ACCORDANCE WITH WAR SERVICE REGULATION XIII.

IN ORDER THAT THIS EMPLOYEE MIGHT BE CREDITED WITH TIME SPENT IN MILITARY SERVICE AND THE 30 DAYS FOLLOWING HIS DISCHARGE THEREFROM, IT APPEARS THAT IT WOULD BE NECESSARY, UNDER THE PRESENT EXECUTIVE ORDER, FOR ME TO FIND THAT WAR SERVICE REGULATION XIII HAS THE LEGAL EFFECT OF EXTENDING THE COVERAGE OF SECTION 5 IN SUCH A WAY AS TO ENTITLE TO EMPLOYEES RESTORED PURSUANT TO REGULATION XIII TO "A SALARY AT A RATE OF NOT LESS THAN THE EMPLOYEE'S LATEST RATE PRIOR TO HIS ENTRANCE INTO ACTIVE MILITARY SERVICE * * * PLUS ANY WITHIN-GRADE SALARY ADVANCEMENT OR ADVANCEMENTS TO WHICH HE WOULD HAVE BEEN ELIGIBLE UNDER * * * SECTION 7 (B) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED.'

IT SEEMS ADVISABLE TO ACT UPON THIS INTERPRETATION WITHOUT YOUR SPECIFIC ADVICE, HOWEVER, BECAUSE THE WEIGHT OF YOUR DECISIONS TO DATE ON THE INTERPRETATION OF SECTION 5 OF EXECUTIVE ORDER NO. 8882, CONSIDERED IN THE LIGHT OF THE HISTORY OF WAR SERVICE REGULATION XIII, IS NOT FAVORABLE TO SUCH ACTION.

IN HIS OPINION OF MAY 26, 1943, THE ATTORNEY GENERAL RULED THAT WAR SERVICE APPOINTEES HELD TEMPORARY POSITIONS WITHIN THE MEANING OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940. INASMUCH AS THE RIGHT OF RESTORATION IS LIMITED BY THE TERMS OF THAT ACT TO EMPLOYEES OCCUPYING OTHER THAN TEMPORARY POSITIONS, IT FOLLOWS THAT WAR SERVICE EMPLOYEES CANNOT QUALIFY FOR RESTORATION AND THE ATTENDANT BENEFITS GRANTED BY THE ACT.

THE ATTORNEY GENERAL CONCLUDED HIS OPINION AS FOLLOWS:

"IN HOLDING THAT WAR SERVICE APPOINTEES ARE NOT ENTITLED TO DEMAND THE BENEFITS OF SECTION 8, I DO NOT MEAN TO IMPLY THAT SIMILAR BENEFITS CANNOT BE ADMINISTRATIVELY EXTENDED TO THEM IN PROPER CASES. IN MY OPINION, SUCH BENEFITS MAY AND SHOULD BE EXTENDED TO WAR SERVICE APPOINTEES WHENEVER ADMINISTRATIVELY POSSIBLE.' (ITALICS SUPPLIED.)

AS A RESULT OF THE OPINION OF THE ATTORNEY GENERAL, THE CIVIL SERVICE COMMISSION, IN DEPARTMENTAL CIRCULAR NO. 323, REVISED, SUPPLEMENT NO. 21, DATED JULY 19, 1943, PROMULGATED WAR SERVICE REGULATION XIII, WITH THE FOLLOWING STATEMENT:

"IN ORDER TO PROVIDE ADMINISTRATIVELY FOR REEMPLOYMENT BENEFITS TO WAR SERVICE APPOINTEES WHO ARE DISCHARGED FROM THE MILITARY SERVICE PRIOR TO THE CESSATION OF THE WAR, THE WAR SERVICE REGULATIONS ARE HEREBY AMENDED * * *.' (ITALICS SUPPLIED.)

AS EARLY AS APRIL 14, 1943, YOUR OFFICE SUGGESTED THE FEASIBILITY OF RESTORING ADMINISTRATIVELY EMPLOYEES WHO DID NOT OR COULD NOT QUALIFY FOR RESTORATION UNDER THE SELECTIVE TRAINING AND SERVICE ACT. THIS WAS IN 22 COMP. GEN. 969, 974; AND IT WAS STATED IN THAT DECISION THAT THERE IS NO AUTHORITY TO CREDIT AN EMPLOYEE SO RESTORED WITH THE TIME SPENT IN THE MILITARY SERVICE TOWARD ELIGIBILITY FOR PERIODIC WITHIN GRADE SALARY INCREASES UNDER THE ACT OF AUGUST 1, 1941. THE DECISION STATED, IN PART:

"OF COURSE, ANY EMPLOYEE REEMPLOYED OR REINSTATED ADMINISTRATIVELY NOT AS A RIGHT TO RESTORATION PURSUANT TO THE TERMS AND CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT, AFTER DISCHARGE FROM THE ARMY OR NAVY TO A PERMANENT POSITION COMING WITHIN THE PURVIEW OF THE CLASSIFICATION ACT, 42 STAT. 1488, WOULD BE ENTITLED THEREAFTER TO WITHIN-GRADE SALARY ADVANCEMENTS UPON MEETING THE TERMS AND CONDITIONS OF THE LAW AND REGULATIONS AS TO LONGEVITY, EFFICIENCY RATING, AND SERVICE AND CONDUCT, BUT HE COULD NOT COUNT HIS ACTIVE MILITARY OR NAVAL SERVICE FOR SUCH PURPOSE. THE RULE FOR FIXING THE INITIAL SALARY RATE UPON REINSTATEMENT UNDER SUCH CIRCUMSTANCES WOULD BE THE SAME AS THOUGH THE EMPLOYEE HAD NOT SERVED IN THE ACTIVE MILITARY OR NAVAL SERVICE.' (ITALICS SUPPLIED.)

SUBSEQUENT TO THE PROMULGATION OF WAR SERVICE REGULATION XIII YOUR OFFICE REAFFIRMED THIS PRINCIPLE IN 23 COMP. GEN. 367, IN WHICH IT WAS STATED ON PAGE 369:

"* * * THE EMPLOYEE MAY COUNT SUCH PERIOD OF LEAVE WITHOUT PAY AS WELL AS THE PERIOD OF HIS ACTIVE MILITARY SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENT UNDER THE PROVISIONS OF SECTIONS 2 (C) AND 5 OF THE REGULATIONS--- ASSUMING, OF COURSE, THE EMPLOYEE WAS ELIGIBLE TO BE, AND HAS BEEN RESTORED TO HIS CIVILIAN POSITION PURSUANT TO THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT.' (ITALICS SUPPLIED.)

AS I HAVE SOME DOUBT, IN VIEW OF THE DECISIONS OF YOUR OFFICE CITED ABOVE, REGARDING THE PROPRIETY OF THE INTERPRETATION PRESENTED IN THE THIRD PARAGRAPH I SHALL APPRECIATE RECEIVING YOUR DECISION AS TO WHETHER I AM AUTHORIZED BY WAR SERVICE REGULATION XIII, IN THE ABSENCE OF FURTHER ACTION BY THE PRESIDENT EXTENDING THE COVERAGE OF SECTION 5 OF EXECUTIVE ORDER NO. 8882, TO COUNT THE TIME THIS EMPLOYEE SPENT IN THE MILITARY SERVICE AND THE 30 DAYS FOLLOWING HIS DISCHARGE THEREFROM TOWARD ELIGIBILITY FOR PERIODIC SALARY INCREASE.

THE ONLY AUTHORITY FOR GRANTING WITHIN-GRADE SALARY ADVANCEMENTS IS FOUND IN THE ACT OF AUGUST 1, 1941, 55 STAT. 613, AMENDING SECTION 7 OF THE CLASSIFICATION ACT, AND THE REGULATIONS OF THE PRESIDENT, EXECUTIVE ORDER NO. 8882 OF SEPTEMBER 3, 1941, ISSUED PURSUANT TO THE AUTHORITY VESTED IN HIM BY THE STATUTE; AND THE ONLY AUTHORITY FOR GRANTING WITHIN-GRADE SALARY ADVANCEMENTS, BASED UPON MILITARY SERVICE, IS FOUND IN SECTION 5 OF SAID REGULATIONS, PROVIDING 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, (ITALICS SUPPLIED.)

AS HELD IN THE ATTORNEY GENERAL'S OPINION OF MAY 26, 1943, 40 OP. ATTY. GEN.--- NO. 66, WAR SERVICE APPOINTEES HOLD "TEMPORARY POSITIONS" WITHIN THE MEANING OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF SEPTEMBER 16, 1940, 54 STAT. 890, AND, THEREFORE, ARE NOT ENTITLED AS A MATTER OF RIGHT TO REEMPLOYMENT IN THEIR FORMER CIVILIAN POSITIONS OR IN CIVILIAN POSITIONS OF LIKE SENIORITY, STATUS, AND PAY UNDER SAID STATUTE. HENCE, SECTION 5 OF THE PRESIDENT'S REGULATIONS, REFERRED TO IN YOUR LETTER, CONSTITUTES NO AUTHORITY FOR COUNTING MILITARY SERVICE PERFORMED BY WAR SERVICE APPOINTEES TOWARD WITHIN GRADE SALARY ADVANCEMENT UPON REINSTATEMENT OR REEMPLOYMENT IN A CIVILIAN POSITION.

THE OPINION OF THE ATTORNEY GENERAL CONSIDERED THE QUESTION WHETHER WAR SERVICE APPOINTEES WERE ENTITLED AS A MATTER OF RIGHT TO REEMPLOYMENT UNDER THE SELECTIVE TRAINING AND SERVICE ACT AND DID NOT PURPORT TO CONSIDER ANY QUESTION INVOLVING WITHIN-GRADE SALARY ADVANCEMENTS--- A MATTER COMING WITHIN THE JURISDICTION OF THIS OFFICE. HENCE, THE LAST PARAGRAPH OF THE OPINION, QUOTED IN YOUR LETTER, RELATES ONLY TO REEMPLOYMENT OF WAR SERVICE APPOINTEES AND DOES NOT PURPORT TO HOLD OR SUGGEST THAT THE HEAD OF A DEPARTMENT BY ADMINISTRATIVE ACTION, OR THE CIVIL SERVICE COMMISSION BY REGULATION, MAY GRANT INCREASES IN COMPENSATION TO WAR SERVICE APPOINTEES NOT OTHERWISE AUTHORIZED BY LAW. IF SECTION (1) (3) (LAST PARAGRAPH) OF WAR SERVICE REGULATION XIII WAS INTENDED TO DO SO, IT IS WITHOUT ANY FORCE AND EFFECT TO THAT EXTENT.

IN VIEW OF WHAT HAS BEEN STATED ABOVE, THE QUESTION POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.