B-50007, JUNE 6, 1945, 24 COMP. GEN. 876

B-50007, JUNE 6, 1945, 24 COMP. GEN. 876

OFFICERS AND EMPLOYEES - REEMPLOYMENT BENEFITS AFTER MILITARY DUTY EVEN THOUGH AN EMPLOYEE ENTERED UPON ACTIVE DUTY WITH THE COAST GUARD FROM POSITION WITH THE TENNESSEE VALLEY AUTHORITY NOT SUBJECT TO THE WITHIN-GRADE PROMOTION STATUTE OF AUGUST 1, 1941, AND EXECUTIVE REGULATIONS THEREUNDER, AND WAS REEMPLOYED IN A POSITION WITH ANOTHER AGENCY SUBJECT TO SAID STATUTE AND REGULATIONS, UPON TERMINATION OF HER COAST GUARD SERVICE AND MEETING THE REEMPLOYMENT CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, SUCH EMPLOYEE MAY BE RESTORED AT THE SALARY RATE AT WHICH SHE WOULD HAVE BEEN RESTORED, BY REASON OF LENGTH OF SERVICE, INCLUDING COAST GUARD SERVICE, HAD SHE BEEN REEMPLOYED BY THE FORMER AGENCY. 24 COMP. GEN. 410, AMPLIFIED. WHERE, UPON MEETING THE REEMPLOYMENT CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, AN EMPLOYEE WHO HAD ENTERED THE COAST GUARD FROM A POSITION WITH THE TENNESSEE VALLEY AUTHORITY NOT SUBJECT TO THE WITHIN-GRADE PROMOTION STATUTE OF AUGUST 1, 1941, AND REGULATIONS THEREUNDER, WAS REEMPLOYED IN A POSITION WITH ANOTHER AGENCY SUBJECT TO SAID STATUTE AND REGULATIONS, AT THE SALARY RATE TO WHICH SHE AUTOMATICALLY WOULD HAVE BEEN ADVANCED FOR LENGTH OF SATISFACTORY SERVICE IN THE FORMER AGENCY HAD SHE NOT ENTERED THE COAST GUARD, THE WAITING PERIOD FOR HER NEXT WITHIN-GRADE PROMOTION IN THE POSITION IN WHICH REEMPLOYED COMMENCES WITH THE DATE SHE WOULD HAVE BEEN SO ADVANCED. AN EMPLOYEE WHO ENTERED UPON ACTIVE COAST GUARD DUTY FROM A POSITION WITH THE TENNESSEE VALLEY AUTHORITY AND WHO, UPON RELEASE FROM ACTIVE DUTY AND MEETING THE REEMPLOYMENT CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, WAS REEMPLOYED BY THE FEDERAL SECURITY AGENCY IS ENTITLED TO BE CREDITED IN HER PRESENT POSITION WITH THE SICK LEAVE ACCUMULATED PRIOR TO ENTRY ON DUTY WITH THE COAST GUARD.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, JUNE 6, 1945:

I HAVE YOUR LETTER OF MAY 23, 1945, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF NOVEMBER 24, 1944, TO THE SECRETARY OF WAR (B-45646, 24 COMP. GEN. 410) IN WHICH, IN THE LIGHT OF THE PERTINENT STATUTES, INCLUDING THE WITHIN-GRADE PROMOTION LAW, ACT OF AUGUST 1, 1941, 55 STAT. 613, AND REGULATIONS THEREUNDER, YOU CONCLUDED IN PART:

"* * * THAT A VETERAN WHO HELD "OTHER THAN A TEMPORARY POSITION" AND WHO HAS MET ALL THREE CONDITIONS PRESCRIBED BY LAW TO ENTITLE HIM TO RESTORATION TO A CIVILIAN POSITION AND WHO ACTUALLY IS RESTORED TO A POSITION * * * IN A DIFFERENT DEPARTMENT OR AGENCY THAN THE ONE FROM WHICH HE ENTERED THE ARMED FORCES, MAY HAVE RESTORED TO HIM AT SUCH TIME ALL UNLIQUIDATED ANNUAL LEAVE AND UNUSED SICK LEAVE, AND MAY COUNT SERVICE IN THE ARMED FORCES TOWARD AUTOMATIC PROMOTION.'

WE ARE IN DOUBT AS TO THE EXTENT THIS DECISION IS APPLICABLE IN DETERMINING THE RIGHTS OF AN INDIVIDUAL WHO WAS PREVIOUSLY EMPLOYED WITH THE TENNESSEE VALLEY AUTHORITY BUT WHO, UPON TERMINATION OF MILITARY SERVICE, WAS EMPLOYED BY THIS AGENCY. OUR DOUBTS ARISE PARTICULARLY IN VIEW OF THE FACT THAT THE TENNESSEE VALLEY AUTHORITY APPEARS NOT TO BE SUBJECT TO THE CLASSIFICATION ACT OF 1923 AS AMENDED BY THE ACT OF AUGUST 1, 1941, NOTED ABOVE, AND THE FACT THAT THROUGHOUT THE PERIOD THE INDIVIDUAL WAS IN MILITARY SERVICE, THERE WAS IN FORCE IN THE TENNESSEE VALLEY AUTHORITY AN AUTOMATIC SALARY INCREASE SYSTEM SUBSTANTIALLY DIFFERENT FROM THAT APPLICABLE TO THIS AGENCY. THE SPECIFIC FACTS OF OUR CASE ARE AS FOLLOWS:

MISS CATHERINE R. CONGDON, A PERMANENT EMPLOYEE OF THE TENNESSEE VALLEY AUTHORITY, ATTAINED WITH THAT AGENCY THE SALARY LEVEL OF $3200 PER ANNUM ON JANUARY 1, 1943, IN THE POSITION OF TRAINING OFFICER. THE GRADE OF THIS POSITION APPEARS COMPARABLE TO CAF-9 IN THE CLASSIFIED SERVICE. SHE LEFT THIS "OTHER THAN TEMPORARY" POSITION AT THE CLOSE OF BUSINESS ON FEBRUARY 9, 1943, AND WAS PAID FOR ACCUMULATED ANNUAL LEAVE THROUGH MARCH 13, 1943. SHE ENTERED ON ACTIVE DUTY WITH THE COAST GUARD ON FEBRUARY 13, 1943, AS LIEUTENANT ( SENIOR GRADE), CIVILIAN PERSONNEL OFFICER. DURING HER MILITARY SERVICE SHE WAS CARRIED IN A MILITARY FURLOUGH STATUS ON THE RECORDS OF THE TENNESSEE VALLEY AUTHORITY, AND HAD SHE BEEN RESTORED TO DUTY IN THAT AGENCY UPON TERMINATION OF HER MILITARY SERVICE, WE ARE INFORMED THAT HER BASIC SALARY WOULD HAVE BEEN SET AT THE RATE OF $3,500 PER ANNUM IN ACCORDANCE WITH ADMINISTRATIVE MEMORANDUM 123-1, ISSUED DECEMBER 9, 1941, BY THE GENERAL MANAGER OF THE TENNESSEE VALLEY AUTHORITY. WE HAVE RECEIVED A COMMUNICATION FROM THE TENNESSEE VALLEY AUTHORITY, BY GEORGE F. GANT, DIRECTOR OF PERSONNEL, UNDER DATE OF MARCH 28, 1945, A COPY OF WHICH IS ATTACHED, WHICH IN PART STATES AS FOLLOWS:

"PRIOR TO THE ADOPTION OF A NEW SALARY PLAN ON MARCH 1, 1945, ENTRANCE SALARIES WERE AUTOMATICALLY INCREASED TO STANDARD RATES AFTER ONE YEAR OF A SATISFACTORY SERVICE AT ONE GRADE. IN ACCORDANCE WITH THIS PROCEDURE, MISS CONGDON WAS ELIGIBLE FOR AN INCREASE TO THE SALARY RATE OF $4,128.33 A YEAR (BASED UPON A 48-HOUR WORK WEEK--- $3,500 NORMAL RATE) ON JANUARY 1, 1944.'

MISS CONGDON WAS PLACED IN INACTIVE DUTY STATUS WITH THE COAST GUARD AT THE CLOSE OF BUSINESS JANUARY 15, 1945. SHE DID NOT APPLY FOR A CIVILIAN POSITION WITH THE TENNESSEE VALLEY AUTHORITY BUT INSTEAD APPLIED FOR CIVILIAN EMPLOYMENT WITH THIS AGENCY, AND BEING FOUND TO HAVE MET ALL THE CONDITIONS PRESCRIBED BY SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT WAS EMPLOYED BY THIS AGENCY, ENTERING ON DUTY WITH THE SOCIAL SECURITY BOARD ON JANUARY 16, 1945, AT GRADE CAF-9, $3,200. MISS CONGDON'S EMPLOYMENT IN THIS AGENCY WAS AUTHORIZED BY THE CIVIL SERVICE COMMISSION AS A TRANSFER FROM THE TENNESSEE VALLEY AUTHORITY UNDER WAR SERVICE REGULATION IX, SECTION 2 (A), WITH REEMPLOYMENT BENEFITS. IT WAS AND IS OUR ADMINISTRATIVE INTENT TO RESTORE MISS CONGDON TO CIVILIAN EMPLOYMENT AT THE SALARY WITHIN GRADE CAF-9 TO WHICH SHE IS ENTITLED BY VIRTUE OF THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT AS EXTENDED BY THE ACT OF AUGUST 18, 1941, C. 362, SEC. 7, 55 STAT. 627.

IN VIEW OF THESE FACTS YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

1. IS MISS CONGDON ENTITLED TO BE PAID AT A BASIC RATE OF $3,500 PER ANNUM FROM JANUARY 16, 1945, THE DATE OF HER EMPLOYMENT WITH THIS AGENCY?

2. ON WHAT DATE DOES THE WAITING PERIOD FOR HER NEXT WITHIN-GRADE PROMOTION BEGIN TO RUN?

3. MAY MISS CONGDON BE CREDITED WITH THE SICK LEAVE THAT SHE ACCUMULATED PRIOR TO HER ENTRANCE INTO MILITARY SERVICE?

YOUR EARLY CONSIDERATION OF THESE QUESTIONS WILL BE APPRECIATED.

SECTION 2 (A) AND SECTION 5 OF THE REGULATIONS GOVERNING WITHIN GRADE SALARY ADVANCEMENTS ( EXECUTIVE ORDER 8882, DATED SEPTEMBER 3, 1941), ARE AS FOLLOWS:

SECTION 2. IN COMPUTING THE PERIODS OF SERVICE REQUIRED BY THE SAID SECTION 7 FOR WITHIN-GRADE ADVANCEMENTS THERE SHALL BE CREDITED TO SUCH SERVICE:

(A) CONTINUOUS CIVILIAN EMPLOYMENT IN ANY BRANCH, EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, AGENCY, OR CORPORATION OF THE FEDERAL GOVERNMENT OR IN THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA.

SECTION 5. 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.

WHILE THE DECISION OF NOVEMBER 24, 1944, 24 COMP. GEN. 410, FROM WHICH YOU QUOTE, WAS RENDERED IN THE CASE OF AN EMPLOYEE WHO WAS EMPLOYED BOTH BEFORE AND AFTER MILITARY SERVICE IN A POSITION SUBJECT TO THE CLASSIFICATION ACT, AS AMENDED, NEVERTHELESS, FOR THE REASON THAT THE ABOVE-QUOTED REGULATION AUTHORIZES THE COUNTING OF CONTINUOUS CIVILIAN SERVICE IN ANY BRANCH OF THE FEDERAL GOVERNMENT AS WELL AS MILITARY SERVICE, TOWARD WITHIN-GRADE SALARY ADVANCEMENTS, IT APPEARS REASONABLE TO CONCLUDE THAT THE RULE STATED IN THAT DECISION MAY BE APPLIED, ALSO, IN THE CASE HERE PRESENTED. IF THERE HAD BEEN A DIRECT TRANSFER OR REEMPLOYMENT BETWEEN THE TENNESSEE VALLEY AUTHORITY AND THE FEDERAL SECURITY AGENCY WITHOUT AN INTERVENING PERIOD OF MILITARY SERVICE, THE EMPLOYEE'S SERVICE WITH THE FORMER AGENCY CLEARLY COULD HAVE BEEN COUNTED TOWARD WITHIN-GRADE PROMOTION IN THE LATTER AGENCY WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE AND, ALSO, HER SICK LEAVE COULD HAVE BEEN TRANSFERRED. HENCE, IT WOULD APPEAR THAT SECTION 5 OF THE ABOVE-QUOTED REGULATIONS REASONABLY MAY BE APPLIED TO PRESERVE THAT RIGHT AND, ALSO, TO AUTHORIZE CREDIT OF THE INTERVENING MILITARY SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS AND TO PRESERVE THE RIGHT TO HAVE SICK LEAVE TRANSFERRED UPON THE SAME BASIS AS THOUGH THERE HAD BEEN NO INTERVENING PERIOD OF MILITARY SERVICE.

ACCORDINGLY, REFERRING TO QUESTION 1, SINCE MISS CONGDON WOULD HAVE BEEN ENTITLED TO $3,500 PER ANNUM BASIC COMPENSATION HAD SHE BEEN REEMPLOYED IN THE TENNESSEE VALLEY AUTHORITY ON OR AFTER JANUARY 1, 1944, SHE WAS ENTITLED TO THAT RATE OF BASIC COMPENSATION UPON HER RESTORATION TO CIVIL EMPLOYMENT IN THE FEDERAL SECURITY AGENCY JANUARY 16, 1945, FOLLOWING DISCHARGE FROM MILITARY SERVICE.

REFERRING TO QUESTION 2, AS THE EMPLOYEE IS ENTITLED TO CREDIT FOR HER ENTIRE PERIOD OF MILITARY SERVICE, THE WAITING PERIOD FOR HER NEXT WITHIN- GRADE SALARY ADVANCEMENT BEGINS TO RUN JANUARY 1, 1944, AND, UNDER EXISTING LAW, WILL END JUNE 30, 1945.