B-48455, APRIL 9, 1945, 24 COMP. GEN. 729

B-48455, APRIL 9, 1945, 24 COMP. GEN. 729

OFFICERS AND EMPLOYEES - REINSTATEMENT AFTER MILITARY DUTY; ETC. AN EMPLOYEE WHO HAD A PERMANENT STATUS--- AS DISTINGUISHED FROM A WAR SERVICE STATUS--- WHEN PROMOTED TEMPORARILY TO PERFORM THE DUTIES OF ANOTHER EMPLOYEE DURING THE LATTER'S ABSENCE IN THE ARMED FORCES, AND WHO HIMSELF ENTERED THE ARMED FORCES WHILE HOLDING SUCH TEMPORARY STATUS, IS ENTITLED, UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AND STATUTES IN PARI MATERIA, TO BE RESTORED WITH REEMPLOYMENT BENEFITS IN HIS ORIGINAL PERMANENT POSITION, BUT NOT IN THE POSITION TEMPORARILY HELD WHEN HE ENTERED THE ARMED FORCES. A PERMANENT EMPLOYEE WHO HAD BEEN PROMOTED TEMPORARILY TO PERFORM THE DUTIES OF ANOTHER EMPLOYEE DURING THE LATTER'S ABSENCE IN THE ARMED FORCES, AND WHO HIMSELF ENTERED THE ARMED FORCES WHILE HOLDING SUCH TEMPORARY STATUS, NOT BEING ENTITLED AS A MATTER OF RIGHT, UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AND STATUTES IN PARI MATERIA, TO REEMPLOYMENT BENEFITS IN THE POSITION TEMPORARILY HELD, MAY NOT COUNT MILITARY SERVICE TOWARD A WITHIN-GRADE PROMOTION IN SUCH TEMPORARY HELD POSITION UPON REEMPLOYMENT THEREIN; HOWEVER, THAT RULE NEED NOT BE RETROACTIVELY APPLIED TO REQUIRE ADJUSTMENTS IN THE COMPENSATION OF EMPLOYEES WHO HAVE BEEN SO RESTORED AND GRANTED WITHIN GRADE PROMOTIONS. IN THE CASE OF A PERMANENT EMPLOYEE WHO, AT THE TIME OF HIS ENTRY INTO THE ARMED FORCES, WAS TEMPORARILY PERFORMING THE DUTIES OF A POSITION TO WHICH HE HAD BEEN PROMOTED FOR THE PERIOD OF ANOTHER EMPLOYEE'S ABSENCE IN THE ARMED FORCES, AND WHO SUBSEQUENTLY HAS BEEN RESTORED TO SUCH TEMPORARILY HELD POSITION, THE TIME SERVED THEREIN PRIOR TO THE BREAK IN CIVILIAN SERVICE OCCASIONED BY HIS ENTRY INTO THE ARMED FORCES MAY NOT BE COUNTED TOWARD A WITHIN-GRADE PROMOTION, UNDER THE RULE STATED IN DECISION IN 24 COMP. GEN. 688. AN EMPLOYEE WHO, AFTER MILITARY DUTY, IS RESTORED TO A POSITION TO WHICH HE PREVIOUSLY HAD BEEN PROMOTED FROM A PERMANENT POSITION TEMPORARILY TO PERFORM THE DUTIES OF ANOTHER EMPLOYEE ABSENT ON MILITARY DUTY, IN WHICH POSITION HE HAD NO STATUTORY REEMPLOYMENT RIGHTS, IS ENTITLED TO BE RECREDITED WITH PREVIOUSLY ACCRUED SICK LEAVE TO THE EXTENT OF ANY SUCH LEAVE THAT WAS TRANSFERABLE UNDER THE LEAVE REGULATIONS FROM THE PERMANENT POSITION ORIGINALLY HELD TO THE POSITION HE HELD WHEN HE ENTERED THE ARMED FORCES AND WHICH WAS TO HIS CREDIT AT THAT TIME. AS WAR SERVICE REGULATION IX AUTHORIZES TRANSFERS BETWEEN GOVERNMENT AGENCIES WITH REEMPLOYMENT BENEFITS, A PERMANENT EMPLOYEE WHO WAS TRANSFERRED TO ANOTHER AGENCY TEMPORARILY TO PERFORM THE DUTIES OF ANOTHER EMPLOYEE ON MILITARY FURLOUGH PRIOR TO HIS OWN ENTRY INTO THE ARMED FORCES HAS THE SAME STANDING, INSOFAR AS CONCERNS HIS REEMPLOYMENT RIGHTS UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 OR STATUTES IN PARI MATERIA, AS EMPLOYEES SIMILARLY PROMOTED WITHIN THE SAME AGENCY BEFORE ENTRY INTO THE ARMED FORCES AND, THEREFORE, IS SUBJECT TO THE SAME RULES, AS STATED HEREIN, RESPECTING RESTORATION AFTER MILITARY DUTY, SERVICE CREDIT FOR WITHIN-GRADE PROMOTION PURPOSES, AND RECREDITING OF PREVIOUSLY ACCRUED SICK LEAVE. THERE IS NO AUTHORITY OF LAW TO GRANT ADMINISTRATIVE PROMOTIONS TO CIVILIAN EMPLOYEES FROM GRADE TO GRADE UNDER THE CLASSIFICATION ACT WHILE ON MILITARY FURLOUGH, DURING WHICH PERIOD THE EMPLOYEES ARE NOT IN THEIR CIVILIAN POSITIONS. THERE IS NO AUTHORITY OF LAW FOR PROMOTION OF EMPLOYEES FROM GRADE TO GRADE UNDER THE CLASSIFICATION ACT BASED UPON SENIORITY, SUCH PROMOTIONS BEING MADE BY SELECTION OF INDIVIDUAL EMPLOYEES. IN THE CASE OF A PERMANENT EMPLOYEE ENTITLED TO REEMPLOYMENT RIGHTS UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 UPON RELEASE FROM MILITARY SERVICE, THE DATE OF A RECORD OR PAPER PROMOTION, BASED UPON "SENIORITY," FROM ONE CLASSIFICATION ACT GRADE TO ANOTHER WHILE THE EMPLOYEE WAS ABSENT FROM HIS CIVILIAN POSITION ON MILITARY DUTY MAY NOT BE RECOGNIZED AS THE DATE FROM WHICH THE WAITING PERIOD BEGINS TO RUN FOR A WITHIN-GRADE PROMOTION UNDER THE ACT OF AUGUST 1, 1941, IN THE HIGHER GRADE IN WHICH EMPLOYED AFTER MILITARY SERVICE. A PERMANENT EMPLOYEE WHO WAS PROMOTED TEMPORARILY TO PERFORM THE DUTIES OF ANOTHER EMPLOYEE ON MILITARY FURLOUGH, AND WHO, AFTER ENTRY INTO THE ARMED FORCES DURING THE CALENDAR YEAR 1942, WAS DEMOTED TO HIS FORMER GRADE WHILE ON PROPERLY APPLIED FOR AND GRANTED TERMINAL LEAVE FROM THE POSITION TEMPORARILY HELD, WAS ENTITLED UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, TO BE PAID FOR THE ENTIRE PERIOD OF TERMINAL ANNUAL LEAVE AT THE SALARY RATE OF THE POSITION FROM WHICH GRANTED THE TERMINAL LEAVE, RATHER THAN AT THE RATE OF HIS PERMANENT POSITION SUBSEQUENT TO DEMOTION; AND THE ADMINISTRATIVE ERROR MAY BE CORRECTED AT THIS TIME WITHOUT FURTHER CLAIM BY THE EMPLOYEE.

ACTING COMPTROLLER GENERAL YATES TO THE FEDERAL SECURITY ADMINISTRATOR, APRIL 9, 1945:

I HAVE YOUR LETTER OF MARCH 15, 1945, AS FOLLOWS:

NOTE HAS BEEN TAKEN OF YOUR DECISION B-46335 DATED JANUARY 3, 1945, WHICH STATES THAT WHILE AN EMPLOYEE RESTORED THROUGH OPERATION OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT IS ENTITLED TO COUNT HIS MILITARY SERVICE TOWARD WITHIN-GRADE SALARY AND ADVANCEMENT, AN EMPLOYEE RESTORED SOLELY THROUGH THE OPERATION OF WAR SERVICE REGULATION XIII IS NOT.

THIS AGENCY IS UNCERTAIN WHETHER CERTAIN EMPLOYEES WHO HAVE RETURNED FROM MILITARY SERVICE AND ARE NOW ON OUR ROLLS ARE ENTITLED TO CREDIT THEIR MILITARY SERVICE TOWARD WITHIN-GRADE INCREASES IN THE POSITIONS TO WHICH THEY WERE RETURNED. THE ANSWER TO THIS QUESTION WOULD APPARENTLY REST ON WHETHER THESE EMPLOYEES WERE RESTORED TO SUCH POSITIONS THROUGH THE OPERATION OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 OR PARALLEL ACTS. WE ARE ALSO NOT SURE WHETHER WE HAVE ACTED PROPERLY IN RECREDITING BALANCES OF SICK LEAVE TO THESE EMPLOYEES.

THE FOLLOWING SITUATIONS ARE ACTUAL CASES FROM OUR RECORDS. EACH OF THE EMPLOYEES CITED IN CASES 1, 2, AND 3 WAS HONORABLY DISCHARGED FROM MILITARY SERVICE, AND WAS REEMPLOYED WITHIN 30 DAYS AFTER HIS APPLICATION. THE EMPLOYEE CITED IN CASE 4 IS STILL IN MILITARY SERVICE. ALL THESE EMPLOYEES HELD PERMANENT POSITIONS BEFORE THE WAR AND HAVE HAD NO BREAK IN SERVICE SINCE LEAVING THESE PERMANENT POSITIONS.

CASE I: EMPLOYEE "A" WAS PROMOTED TO A PERMANENT POSITION AS GRADE CAF-3, $1,620, ON MAY 5, 1942. ON FEBRUARY 7, 1943, HE WAS PROMOTED TO GRADE CAF -4, $1,800, IN A TEMPORARY IDENTICAL-ADDITIONAL POSITION TO PERFORM DUTY DURING THE ABSENCE OF "B" WHO HAD ENTERED THE MILITARY SERVICE AND WAS CARRIED ON MILITARY FURLOUGH FROM THE CAF-4 POSITION. HE WAS RETURNED TO THE CAF-4 CIVILIAN POSITION ON DECEMBER 19, 1944. HIS MILITARY SERVICE WAS COUNTED TOWARD WITHIN-GRADE PAY INCREASES, AND PURSUANT TO WAR SERVICE REGULATION XIII HE WAS RETURNED AT A SALARY OF $1,860, SINCE HE WOULD HAVE ATTAINED THAT SALARY ON OCTOBER 1, 1944, IF HE HAD NOT BEEN IN THE MILITARY SERVICE.

QUESTIONS: (A) WAS "A-S" SALARY UPON RETURN TO CIVILIAN DUTY PROPERLY SET AT $1,860?

(B) IF YOUR ANSWER TO QUESTION (A) IS IN THE NEGATIVE, WHAT ACTION IS THIS AGENCY REQUIRED TO TAKE?

(C) IF YOUR ANSWER TO QUESTION (A) IS IN THE NEGATIVE, IS EMPLOYEE "A" ENTITLED TO COUNT SERVICE IN THE CAF-4 POSITION PRIOR TO HIS MILITARY FURLOUGH TOWARD HIS NEXT WITHIN-GRADE PAY INCREASE?

(D) EMPLOYEE "A" WAS RECREDITED UPON RETURN TO CIVILIAN DUTY WITH HIS SICK LEAVE ACCRUED PRIOR TO HIS MILITARY SERVICE. WAS HE ENTITLED TO SUCH CREDIT?

(E) WE HAVE EMPLOYEES WHO HAVE TRANSFERRED TO THIS AGENCY UNDER WAR SERVICE REGULATION IX, HAVE LATER ENTERED MILITARY SERVICE, AND UPON TERMINATION OF SUCH SERVICE, HAVE BEEN REEMPLOYED BY THIS AGENCY. IF "A- S" PERMANENT POSITION HAD BEEN IN ANOTHER AGENCY, AND HIS TRANSFER TO THIS AGENCY MADE UNDER WAR SERVICE REGULATION IX, WOULD YOUR ANSWERS TO THE FOREGOING QUESTIONS BE DIFFERENT?

CASE 2: EMPLOYEE "C" WAS PROMOTED TO A PERMANENT POSITION AT CAF 9, $3,200 ON DECEMBER 24, 1941. ON OCTOBER 24, 1942, HE WAS PROMOTED TO A TEMPORARY IDENTICAL-ADDITIONAL POSITION AT CAF-11, $3,800 TO PERFORM THE DUTIES OF "D" WHO WAS IN MILITARY SERVICE. ON MAY 1, 1943,"C" HAVING HIMSELF ENTERED MILITARY SERVICE, WAS PLACED ON MILITARY FURLOUGH. HE WAS SIMULTANEOUSLY DEMOTED TO HIS LAST PERMANENT POSITION IN GRADE CAF-9, $3,200 SINCE PRIOR TO THE PROMULGATION OF WAR SERVICE REGULATION XXII ON JULY 19, 1943, WE DID NOT THINK THAT AN EMPLOYEE WOULD HAVE REEMPLOYMENT RIGHTS IN A MILITARY DURATION POSITION. ON OCTOBER 23, 1944,"C" RETURNED FROM MILITARY SERVICE. ON THAT SAME DAY HIS DEMOTION WAS CANCELED AND "C" WAS ACCORDINGLY RESTORED AT CAF-11, $3,800, AS REQUIRED BY WAR SERVICE REGULATION XIII.

QUESTIONS: (A) WHEN WILL "C" BE ENTITLED TO A WITHIN-GRADE PAY INCREASE?

(B) "C" WAS CREDITED WITH HIS SICK LEAVE ACCRUED PRIOR TO MILITARY SERVICE. WAS HE ENTITLED TO SUCH CREDIT?

CASE 3: ON DECEMBER 1, 1942,"E" ENTERED MILITARY SERVICE FROM A PERMANENT CAF-8 POSITION. ON SEPTEMBER 22, 1944, HE RETURNED FROM MILITARY SERVICE AND WAS SIMULTANEOUSLY PROMOTED, ON A PERMANENT BASIS TO GRADE CAF-9, $3,200. OUR RECORDS SHOW THAT IF HE HAD NOT BEEN ABSENT FOR MILITARY SERVICE, WE WOULD HAVE TAKEN ACTION TO PROMOTE HIM TO THE CAF-9 POSITION ON MARCH 7, 1944.

QUESTIONS: (A) FROM WHAT DATE SHOULD "E-S" WAITING PERIOD FOR WITHIN- GRADE PAY INCREASE BE COUNTED?

(B) WE HAVE A SIMILAR CASE WHERE THE EMPLOYEE WAS PROMOTED TO A MILITARY DURATION POSITION RATHER THAN A PERMANENT POSITION UPON HIS RETURN. WOULD YOUR ANSWER TO QUESTION (A) ABOVE BE DIFFERENT IN SUCH A CASE?

CASE 4: EMPLOYEE "F" WAS PROMOTED TO A PERMANENT CAF-5 POSITION ON JUNE 1, 1940, AND RECEIVED A PERIODIC PAY INCREASE TO $2,100 PER ANNUM ON JANUARY 1, 1942. ON MARCH 1, 1942, HE WAS PROMOTED TO A TEMPORARY IDENTICAL-ADDITIONAL POSITION IN GRADE CAF-6, $2,300, TO PERFORM THE DUTIES OF "G" WHO WAS IN MILITARY SERVICE. ON NOVEMBER 9, 1942,"F" HIMSELF ENTERED ON ACTIVE DUTY WITH THE UNITED STATES ARMY. ON DECEMBER 26, 1942,"F" WAS DEMOTED BACK TO HIS LAST PERMANENT POSITION AT CAF-5, $2,100, BECAUSE WE DID NOT AT THAT TIME THINK THAT HE WOULD HAVE REEMPLOYMENT RIGHTS TO THE CAF-6 POSITION. "F-S" ANNUAL LEAVE EXPIRED AT 12:15 P.M. ON FEBRUARY 5, 1943, AND HE WAS PLACED ON MILITARY FURLOUGH FROM THE CAF-5 POSITION EFFECTIVE AT THAT DATE AND TIME. AS CAN BE SEEN FROM THE FOREGOING DATES, HE WAS PAID PART OF HIS TERMINAL ANNUAL LEAVE CONCURRENT WITH MILITARY SERVICE AT THE SALARY OF $2,300, AND THE REMAINDER OF SUCH LEAVE AT THE SALARY OF $2,100. THE CASE WAS SUBSEQUENTLY REVIEWED, AND IT WAS DECIDED THAT UNDER WAR SERVICE REGULATION XIII HE HAD REEMPLOYMENT RIGHTS TO THE CAF-6 POSITION. ACCORDINGLY, THE DEMOTION OF DECEMBER 26, 1942, WAS CANCELED BY JOURNAL ACTION DATED JANUARY 10, 1945. SIMULTANEOUSLY, ANOTHER JOURNAL ACTION WAS TAKEN TO CORRECT HIS MILITARY FURLOUGH TO SHOW HIM ON FURLOUGH FROM THE CAF-6 POSITION AT $2,300, RATHER THAN FROM THE CAF-5 POSITION AT $2,100.

QUESTIONS: (A) IS EMPLOYEE "F" ENTITLED TO THE DIFFERENCE IN SALARY BETWEEN $2,100 AND $2,300 PER ANNUM FOR THE PERIOD FROM DECEMBER 1942, TO 12:15 P.M. ON FEBRUARY 5, 1943, INCLUSIVE?

(B) IF YOUR ANSWER TO QUESTION (A) IS IN THE AFFIRMATIVE, SHOULD "F" BE PAID THE DIFFERENCE IN SALARY AT THIS TIME, OR SHOULD SUCH PAYMENT AWAIT HIS RESTORATION TO DUTY, OR, MUST "F" FILE A CLAIM FOR THE DIFFERENCE WITH YOUR OFFICE?

IN CONSIDERATION OF THE FOREGOING QUESTIONS, WE HAVE CONSIDERED THE ATTORNEY GENERAL'S OPINION OF MAY 26, 1943, PARTICULARLY WITH RESPECT TO HIS CONCERN WITH A CONSTRUCTION OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT THAT WOULD REQUIRE "THE REINSTATEMENT IN MANY CASES OF BOTH THE ORIGINAL AND THE INTERIM EMPLOYEE TO THE SAME POSITION.' THERE IS ALSO FOR CONSIDERATION THE FOLLOWING LANGUAGE OF THE DIRECTOR OF SELECTIVE SERVICE:

"GENERALLY SPEAKING, ONE WHO IS EMPLOYED TO FILL THE PLACE MADE VACANT BY A PERSON ENTERING SERVICE OCCUPIES A TEMPORARY STATUS AND HAS NO REEMPLOYMENT RIGHTS EVEN THOUGH HE SUBSEQUENTLY ENTERS SERVICE. THERE MAY BE EXCEPTIONS TO THIS, HOWEVER. FOR EXAMPLE, SUPPOSE THAT A, A PERMANENT EMPLOYEE, ENTERS SERVICE AND B, ALSO A PERMANENT EMPLOYEE IS UPGRADED OR TRANSFERRED INTO A'S PLACE AND THEN ENTERS SERVICE; IF THEY RETURN, THEY ARE ENTITLED TO REINSTATEMENT IN THEIR ORIGINAL PERMANENT POSITIONS. IS THE CHARACTER OF RELATIONSHIP BETWEEN THE EMPLOYER AND EMPLOYEE, WHETHER "TEMPORARY" OR "PERMANENT," THAT SHOULD GOVERN RATHER THAN THE PARTICULAR ASSIGNMENT BEING CARRIED OUT AT THE TIME OF ENTRY INTO SERVICE.' (SOURCE: PAMPHLET--- INFORMATION CONCERNING THE VETERANS' ASSISTANCE PROGRAM OF THE SELECTIVE SERVICE SYSTEM, NOVEMBER 24, 1944, P. 40.)

SO FAR AS I AM AWARE, NO DECISION HAS BEEN RENDERED BY COMPETENT AUTHORITY UPON THE QUESTION WHETHER AN EMPLOYEE WHO HAD A PERMANENT CLASSIFIED CIVIL SERVICE STATUS WITH THE GOVERNMENT, AS DISTINGUISHED FROM A STATUS UNDER A WAR SERVICE APPOINTMENT, AND WHO WAS PROMOTED ADMINISTRATIVELY PRIOR TO THE TIME HE ENTERED THE ARMED FORCES TO A SO CALLED TEMPORARY POSITION AS DESCRIBED IN THE CASES PRESENTED IN YOUR LETTER--- WHICH POSITION HE HELD AT THE TIME HE ENTERED THE ARMED FORCES-- - IS ENTITLED TO RESTORATION TO A CIVILIAN POSITION UNDER THE TERMS AND CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT AND STATUTES IN PARI MATERIA AS HAVING LEFT "A POSITION, OTHER THAN A TEMPORARY POSITION" (QUOTING FROM SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT, APPROVED SEPTEMBER 16, 1940, 54 STAT. 890, AS AMENDED BY THE ACT OF JULY 28, 1942, 56 STAT. 724). THE OPINION OF THE ATTORNEY GENERAL OF MAY 26, 1943, 40 OP. ATTY. GEN.--- NO. 66, TO WHICH YOU REFER, HOLDING THAT WAR SERVICE APPOINTEES ARE "TEMPORARY" WITHIN THE MEANING OF THE SELECTIVE TRAINING AND SERVICE ACT AND, THEREFORE, NOT ENTITLED TO RESTORATION AS A MATTER OF LAW, GAVE NO CONSIDERATION TO THE QUESTION ABOVE STATED. SEE, IN THAT CONNECTION, DECISION OF JANUARY 3, 1945, B-46335, 24 COMP. GEN. 491, TO WHICH YOU REFER, BASED UPON THE OPINION OF THE ATTORNEY GENERAL, HOLDING THAT WAR SERVICE APPOINTEES ARE NOT ENTITLED TO COUNT MILITARY SERVICE TOWARD WITHIN GRADE PROMOTIONS UPON REEMPLOYMENT IN CIVILIAN POSITIONS, AND, ALSO, THE DECISION OF MARCH 16, 1945, B-48144, 24 COMP. GEN. 688, HOLDING THAT THE DECISION OF JANUARY 3, 1945, SUPRA, NEED NOT BE APPLIED RETROACTIVELY EFFECTIVE TO DISTURB THE SALARY RATES FIXED FOR SUCH EMPLOYEES WITH CREDIT FOR MILITARY SERVICE TOWARD WITHIN-GRADE PROMOTIONS PURSUANT TO THE MISLEADING PROVISIONS OF WAR SERVICE REGULATION XIII.

IN THE ABSENCE OF ANY DECISION TO THE CONTRARY, SO FAR AS THE PRESENT MATTER IS CONCERNED IT APPEARS REASONABLE TO CONCLUDE THAT THE CONGRESS DID NOT INTEND TO DENY THE RIGHT OF RESTORATION WITH REEMPLOYMENT BENEFITS UNDER THE SELECTIVE TRAINING AND SERVICE ACT AND STATUTES IN PARI MATERIA TO AN EMPLOYEE HAVING A PERMANENT STATUS WITH THE GOVERNMENT SIMPLY BECAUSE AT THE TIME OF HIS ENTRY INTO THE ARMED FORCES HE HAD BEEN PROMOTED TEMPORARILY TO PERFORM THE WORK OF ANOTHER EMPLOYEE DURING THE LATTER'S ABSENCE IN THE ARMED FORCES. ON THE CONTRARY, SINCE WAR SERVICE REGULATION IX, ISSUED BY THE CIVIL SERVICE COMMISSION PURSUANT TO LAW, PROVIDES REEMPLOYMENT BENEFITS TO EMPLOYEES LEAVING PERMANENT POSITIONS TO OCCUPY OTHER POSITIONS TEMPORARILY BECAUSE OF THE WAR, IT IS REASONABLE TO CONCLUDE THAT SUCH AN EMPLOYEE HAVING A PERMANENT STATUS DOES NOT LOSE REEMPLOYMENT BENEFITS PROVIDED BY THE SELECTIVE TRAINING AND SERVICE ACT AND STATUTES IN PARI MATERIA WHEN HE ENTERS THE ARMED FORCES FROM A POSITION TEMPORARILY HELD RATHER THAN FROM HIS ORIGINAL PERMANENT POSITION. HOWEVER, THE RIGHT OF SUCH AN EMPLOYEE TO RESTORATION WITH REEMPLOYMENT BENEFITS RELATES TO HIS ORIGINAL PERMANENT POSITION RATHER THAN TO THE POSITION OF SOME OTHER EMPLOYEE ABSENT IN THE MILITARY SERVICE WHICH HE HELD TEMPORARILY AT THE TIME HE ENTERED THE ARMED FORCES. THIS OFFICE IS IN AGREEMENT WITH THE VIEWS EXPRESSED BY THE DIRECTOR OF SELECTIVE SERVICE QUOTED IN THE LAST PARAGRAPH OF YOUR LETTER.

ACCORDINGLY, IN CASE 1, EMPLOYEE "A" WAS NOT ENTITLED AS A MATTER OF RIGHT TO BE RESTORED TO THE TEMPORARY POSITION CREATED IN GRADE CAF-4 BASED UPON THE DUTIES OF EMPLOYEE "B," AND WAS NOT ENTITLED TO COUNT MILITARY SERVICE TOWARD A WITHIN-GRADE PROMOTION UPON REEMPLOYMENT IN THAT POSITION. QUESTION (A) IS ANSWERED IN THE NEGATIVE. REFERRING TO QUESTION (B), IN LINE WITH THE DECISION OF MARCH 16, 1945, B-48144, RELATING TO WAR SERVICE APPOINTEES, NO ADJUSTMENT IN THE PRESENT SALARY OF EMPLOYEE "A" IS REQUIRED. HOWEVER, QUESTION (C) MUST BE, AND IS, ANSWERED IN THE NEGATIVE. SEE ANSWER TO QUESTION 3 IN DECISION OF MARCH 16, 1945, B-48144. QUESTION (D) IS ANSWERED IN THE AFFIRMATIVE TO THE EXTENT OF ANY SICK LEAVE THAT WAS TRANSFERABLE UNDER THE LEAVE REGULATIONS FROM THE POSITION EMPLOYEE "A" ORIGINALLY HELD TO THE POSITION HE HELD AT THE TIME HE ENTERED THE ARMED FORCES AND WHICH WAS TO HIS CREDIT AT THAT TIME. COMPARE 24 COMP. GEN. 410. AS WAR SERVICE REGULATION IX AUTHORIZES TRANSFERS BETWEEN AGENCIES OF THE GOVERNMENT WITH REEMPLOYMENT BENEFITS, QUESTION (E) IS ANSWERED IN THE NEGATIVE.

REFERRING TO CASE 2, IN LINE WITH THE DECISION OF MARCH 16, 1945, B 48144, THE ADMINISTRATIVE ACTION TAKEN NEED NOT BE DISTURBED. HOWEVER, THE WAITING PERIOD OF 30 MONTHS IN GRADE CAF-11 BEGAN TO RUN OCTOBER 23, 1944, WHEN THE EMPLOYEE WAS REEMPLOYED IN THAT GRADE AND WILL EXPIRE APRIL 23, 1947, MAKING HIM ELIGIBLE UNDER EXISTING LAW, SO FAR AS LONGEVITY IS CONCERNED, FOR A WITHIN-GRADE PROMOTION EFFECTIVE JULY 1, 1947. SEE THE ANSWER TO QUESTION (C) UNDER CASE 1. QUESTION (B), THE ANSWER TO QUESTION (D) UNDER CASE 1 ANSWERS THIS QUESTION, ALSO. REFERRING TO CASE 3, THERE IS NO AUTHORITY OF LAW TO GRANT ADMINISTRATIVE PROMOTIONS TO CIVILIAN EMPLOYEES FROM GRADE TO GRADE UNDER THE CLASSIFICATION ACT WHILE ON SO- CALLED MILITARY FURLOUGH DURING WHICH PERIOD THE EMPLOYEES ARE NOT IN THEIR CIVILIAN POSITIONS. COMPARE DECISION OF JANUARY 30, 1945, B-46952, 24 COMP. GEN. 573. THE SELECTIVE TRAINING AND SERVICE ACT, 54 STAT. 890, AUTHORIZES RESTORATION TO THE SAME CIVILIAN POSITION OR "TO A POSITION OF LIKE SENIORITY, STATUS AND PAY.' THERE DOES NOT EXIST ANY AUTHORITY OF LAW FOR PROMOTION OF EMPLOYEES FROM GRADE TO GRADE UNDER THE CLASSIFICATION ACT BASED UPON SENIORITY, SIMILAR TO THE LAWS, OR REGULATIONS HAVING THE FORCE AND EFFECT OF LAW, APPLICABLE TO THE POSTAL SERVICE, BUT SUCH PROMOTIONS UNDER THE CLASSIFICATION ACT ARE MADE BY SELECTION OF INDIVIDUAL EMPLOYEES. HENCE,"SENIORITY" MAY NOT BE RECOGNIZED AS A RIGHT FOR ADVANCEMENT FROM GRADE TO GRADE UNDER THE CLASSIFICATION ACT AND, ACCORDINGLY, A RECORD OR PAPER PROMOTION OF A FORMER CIVILIAN EMPLOYEE FROM GRADE TO GRADE UNDER THE CLASSIFICATION ACT WHEN HE WAS OUT OF HIS CIVILIAN POSITION DURING SERVICE IN THE ARMED FORCES MAY NOT BE RECOGNIZED AS HAVING ANY LEGAL FORCE OR EFFECT FOR THE PURPOSE OF GRANTING WITHIN-GRADE PROMOTIONS IN THE HIGHER GRADE UPON REEMPLOYMENT AFTER DISCHARGE FROM THE ARMED FORCES. THEREFORE, IN CASE 3, THE DATE OF MARCH 7, 1944, MAY NOT BE RECOGNIZED AS THE DATE EMPLOYEE "E" WAS PROMOTED FROM GRADE CAF-8 TO GRADE CAF-9. YOU DO NOT STATE THE SALARY RATE RECEIVED BY THE EMPLOYEE IN THE GRADE OF CAF-8 AT THE TIME HE ENTERED THE ARMED FORCES. HIS MILITARY SERVICE AND PRIOR CIVILIAN SERVICE IN GRADE CAF-8 COULD BE COUNTED IN DETERMINING WHAT SALARY RATE HE WOULD HAVE RECEIVED IN GRADE CAF-8 HAD HE BEEN RESTORED IN THAT GRADE; AND AS THE SALARY RANGES OF GRADES CAF-8 AND CAF-9 OVERLAP IN PART, SUCH SALARY RATE MAY HAVE A BEARING UPON THE SALARY RATE THE EMPLOYEE MAY BE PAID IN GRADE CAF-9 IN WHICH HE WAS REEMPLOYED. QUESTIONS (A) AND (B) MAY NOT BE ANSWERED MORE SPECIFICALLY.

IT IS UNDERSTOOD THAT EMPLOYEE "F" IN CASE 4, IS STILL IN THE MILITARY SERVICE. IF SO, THE RECORD SHOULD BE ADJUSTED TO SHOW HIM ON MILITARY FURLOUGH OR AS HAVING BEEN SEPARATED FROM HIS PERMANENT POSITION IN GRADE CAF-5 EFFECTIVE AT THE EXPIRATION OF HIS TERMINAL ANNUAL LEAVE AT 12:15 P.M. ON FEBRUARY 5, 1943. PAYMENT FOR TERMINAL ANNUAL LEAVE WAS AUTHORIZED TO BE PAID UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, 56 STAT. 200, AT THE RATE RECEIVED IN THE POSITION EMPLOYEE "F" OCCUPIED WHEN HE ENTERED THE ARMED FORCES, NOVEMBER 9, 1942, WHICH IS UNDERSTOOD TO HAVE BEEN GRADE CAF-6, $2,300 PER ANNUM. REGARDLESS OF THE EFFECT OF WAR SERVICE REGULATION XIII UPON RIGHT TO RESTORATION, AND THE GRANTING OF REEMPLOYMENT BENEFITS, THERE WAS NO REQUIREMENT TO DENY PAYMENT TO EMPLOYEE "F" AT THE RATE OF $2,300 PER ANNUM IN GRADE CAF-6 FOR THE ENTIRE PERIOD OF THIS TERMINAL ANNUAL LEAVE CONCURRENTLY WITH MILITARY SERVICE BY DEMOTING HIM DECEMBER 26, 1942, WHILE HE WAS ON HIS TERMINAL ANNUAL LEAVE. QUESTION (A) IS ANSWERED IN THE AFFIRMATIVE. REFERRING TO QUESTION (B), IF THE EMPLOYEE'S PRESENT WHEREABOUTS CAN BE ASCERTAINED, IT IS NOT IMPROPER TO CORRECT THE ADMINISTRATIVE ERROR BY MAKING PAYMENT TO HIM FOR THE ENTIRE PERIOD OF HIS TERMINAL ANNUAL LEAVE AT THE RATE OF $2,300 PER ANNUM, PROVIDED SUCH LEAVE WAS APPLIED FOR AND ADMINISTRATIVELY GRANTED.