B-48780, APRIL 14, 1945, 24 COMP. GEN. 749

B-48780, APRIL 14, 1945, 24 COMP. GEN. 749

COMPENSATION - WITHIN-GRADE PROMOTIONS - E. O. GRADE EMPLOYEES - SERVICE CREDIT FOR NON-PAY PERIODS IN THE ABSENCE OF SPECIFIC PROVISION IN EXECUTIVE ORDER NO. 8842 FOR THE COUNTING OF NON-PAY PERIODS AS SERVICE TOWARD WITHIN-GRADE PROMOTIONS IN THE CASE OF EMPLOYEES WHOSE POSITIONS ARE CLASSIFIED IN ACCORDANCE WITH THE SALARY SCHEDULE OF EXECUTIVE ORDER NO. 6746, NON PAY PERIODS MAY NOT BE INCLUDED IN THE COMPUTATION OF SERVICE FOR WITHIN-GRADE PROMOTION OF SUCH EMPLOYEES.

ACTING COMPTROLLER GENERAL YATES TO THE NATIONAL HOUSING ADMINISTRATOR, APRIL 14, 1945:

I HAVE YOUR LETTER OF MARCH 27, 1945, AS FOLLOWS:

YOUR DECISION IS RESPECTFULLY REQUESTED REGARDING A QUESTION WHICH HAS ARISEN IN THE FEDERAL HOME LOAN BANK ADMINISTRATION IN CONNECTION WITH THE APPLICATION OF EXECUTIVE ORDER NO. 8842 OF AUGUST 1, 1941 (REGULATIONS PERTAINING TO WITHIN-GRADE SALARY ADVANCEMENTS FOR EMPLOYEES CLASSIFIED UNDER THE SALARY SCHEDULE OF EXECUTIVE ORDER NO. 6746 OF JUNE 21, 1934).

THE QUESTION IS WHETHER AN EMPLOYEE IN A POSITION CLASSIFIED IN ACCORDANCE WITH THE SALARY SCHEDULE CONTAINED IN EXECUTIVE ORDER NO. 6746 WHO HAS NOT RECEIVED THE MAXIMUM RATE OF COMPENSATION TO WHICH THE POSITION IS ALLOCATED IS ENTITLED TO BE ADVANCED IN COMPENSATION ONE INCREMENT WITHIN THE GRADE WITHIN THE NEXT QUARTER FOLLOWING THE COMPLETION OF EIGHTEEN OR THIRTY MONTHS' SERVICE, AS THE CASE MAY BE, IF THE EMPLOYEE DURING SAID PERIOD OF EIGHTEEN OR THIRTY MONTHS WAS IN A NON- PAY STATUS (A) FOR A PERIOD EXCEEDING THIRTY DAYS OR (B) FOR A PERIOD NOT EXCEEDING THIRTY DAYS. THE FEDERAL HOME LOAN BANK ADMINISTRATION HAS A CASE OF AN EMPLOYEE FALLING IN CATEGORY (A), AND IT IS ANTICIPATED THAT CASES WILL ARISE IN CATEGORY (B).

IT IS NOTED THAT EXECUTIVE ORDER NO. 8882 OF SEPTEMBER 3, 1941, GOVERNING WITHIN-GRADE SALARY ADVANCEMENTS FOR EMPLOYEES WHOSE POSITIONS ARE WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, STATES THAT IN COMPUTING THE PERIODS OF SERVICE REQUIRED FOR WITHIN-GRADE ADVANCEMENTS THERE SHALL BE CREDITED TO SUCH SERVICE,"TIME ELAPSING IN A NON-PAY STATUS (INCLUDING BREAK IN SERVICE) NOT EXCEEDING THIRTY DAYS WITHIN ANY ONE TIME PERIOD OF EIGHTEEN OR THIRTY MONTHS, AS THE CASE MAY BE" (SECTION 2 (C) ). NO SIMILAR PROVISION IS FOUND IN EXECUTIVE ORDER NO. 8842.

THE TERM,"SERVICE," AS USED IN EXECUTIVE ORDER NO. 8842 AND, ALSO, IN THE ACT OF AUGUST 1, 1941, 55 STAT. 613, AMENDING THE CLASSIFICATION ACT TO PROVIDE FOR WITHIN-GRADE PROMOTIONS UPON THE BASIS OF LENGTH OF SERVICE, EFFICIENCY, AND SATISFACTORY SERVICE AND CONDUCT, NORMALLY MEANS SERVICE EXCLUSIVE OF PERIODS IN A NON-PAY STATUS. IT IS ONLY WHERE A STATUTE, OR REGULATION HAVING THE FORCE AND EFFECT OF LAW, SPECIFICALLY INCLUDES PERIODS IN A NON-PAY STATUS AS "SERVICE" THAT SUCH PERIODS MAY BE INCLUDED IN COMPUTING LONGEVITY. SECTION 2 (C) OF EXECUTIVE ORDER 8882 CONSTITUTES SUCH A REGULATION. SEE, ALSO, SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED 54 STAT. 1116. HOWEVER, UNLIKE EXECUTIVE ORDER 8882, EXECUTIVE ORDER 8842 DOES NO CONTAIN ANY SPECIFIC AUTHORITY TO COUNT AS SERVICE ANY PERIOD AN EMPLOYEE IS IN A NON-PAY STATUS FOR THE PURPOSE OF GRANTING WITHIN GRADE PROMOTIONS. THE REASON FOR THE ACTION OF THE PRESIDENT IN MAKING A DISTINCTION BETWEEN THE TWO EXECUTIVE ORDERS IS NOT APPARENT BUT, HOWEVER THAT MAY BE, THIS OFFICE HAS NO ALTERNATIVE BUT TO APPLY EXECUTIVE ORDER 8842 AS WRITTEN. IN OTHER WORDS, SAID EXECUTIVE ORDER MAY NOT BE ENLARGED BY CONSTRUCTION. TO ALLOW THE COUNTING OF ANY PERIOD IN A NON-PAY STATUS IN COMPUTING THE SERVICE REQUIRED FOR ADVANCEMENT UNDER THAT ORDER WOULD BE TANTAMOUNT TO PUTTING WORDS IN SAID ORDER THAT ARE NOT THERE. THAT, OF COURSE, MAY NOT BE DONE--- IT BEING POSSIBLE TO GIVE FULL EFFECT TO THE ORDER AS WRITTEN WITHOUT SUPPLYING A PROVISION SUCH AS APPEARS IN EXECUTIVE ORDER 8882 RESPECTING THE COUNTING OF 30 DAYS IN A NON-PAY STATUS.