B-50261, JUNE 16, 1945, 24 COMP. GEN. 891

B-50261, JUNE 16, 1945, 24 COMP. GEN. 891

COMPENSATION - WITHIN-GRADE PROMOTIONS - SERVICE CREDITS - CIVILIAN PILOT TRAINING, ETC. AN EMPLOYEE WHO, AT THE TIME HE ENTERED THE ACTIVE MILITARY SERVICE, HAD BEEN IN A LEAVE WITHOUT PAY STATUS IN EXCESS OF ONE YEAR WHILE ENGAGED IN CIVILIAN PILOT TRAINING MAY, UPON RESTORATION TO HIS CIVILIAN POSITION AFTER MILITARY DUTY, COUNT THE PERIOD OF CIVILIAN PILOT TRAINING AS WELL AS THE SUBSEQUENT PERIOD OF MILITARY SERVICE TOWARD WITHIN-GRADE PROMOTION UNDER THE ACT OF AUGUST 1, 1941, AND THE EXECUTIVE REGULATIONS THEREUNDER. 23 COMP. GEN. 367, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, JUNE 16, 1945:

I HAVE YOUR LETTER OF JUNE 2, 1945, AS FOLLOWS:

THE REGULATIONS IN EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, FOR ADMINISTRATION OF THE WITHIN-GRADE SALARY ADVANCEMENT PLAN PROVIDE THAT IN COMPUTING THE PERIOD OF SERVICE REQUIRED FOR WITHIN GRADE ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941 (55 STAT. 613, 5 U.S.C. 667) 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.

(B) TIME ELAPSING ON ANNUAL, SICK, OR OTHER LEAVE WITH PAY.

(C) TIME ELAPSING IN A NON-PAY STATUS (INCLUDING BREAK IN SERVICE) NOT EXCEEDING 30 DAYS WITHIN ANY ONE TIME PERIOD OF 18 OR 30 MONTHS, AS THE CASE MAY BE.

(D) SERVICE RENDERED PRIOR TO ABSENCE ON FURLOUGH OR LEAVE WITHOUT PAY WHERE ABSENCE IS IN EXCESS OF 30 DAYS BUT NOT EXCEEDING 1 YEAR.

IN A DECISION RENDERED BY YOUR OFFICE (23 COMP. GEN. 367, 369) IT IS HELD THAT AN EMPLOYEE WHO HAS BEEN ON LEAVE WITHOUT PAY FOR MORE THAN A YEAR AT THE TIME HE ENTERED ACTIVE MILITARY SERVICE IS NOT ENTITLED, UNDER SECTION 5 OF EXECUTIVE ORDER NO. 8882, TO COUNT ACTIVE MILITARY SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENT, IN A CIVILIAN POSITION TO WHICH HE IS LATER RESTORED. IN SUCH A CASE, THE 18- OR 30-MONTH WAITING PERIOD WOULD BEGIN WITH THE DATE OF RESTORATION TO THE CIVILIAN POSITION.

QUESTION HAS ARISEN AS TO EFFECT OF NON-PAY STATUS OF THE ELIGIBILITY FOR WITHIN-GRADE SALARY ADVANCEMENTS UNDER SECTION 2 (B) OF THE ACT OF AUGUST 1, 1941, OF A NUMBER OF EMPLOYEES OF THIS DEPARTMENT WHO WERE GRANTED LEAVE WITHOUT PAY TO PERMIT THEM TO ENTER CIVILIAN PILOT TRAINING. MOST CASES SUCH LEAVE WITHOUT PAY HAS BEEN FOLLOWED BY FURLOUGH WITHOUT PAY FOR ACTIVE MILITARY DUTY.

A TYPICAL CASE IS THAT OF A PERMANENT EMPLOYEE WHOM WE RESTORED ON SEPTEMBER 15, 1944, TO HIS CIVILIAN POSITION IN THIS DEPARTMENT PURSUANT TO THE PROVISIONS OF PUBLIC RESOLUTION NO. 96 (50 U.S.C. WAR APPEN. SEC. 403), ASSUMING THAT THE EMPLOYEE WOULD NOT LOSE HIS REEMPLOYMENT RIGHTS UNDER THAT RESOLUTION EVEN THOUGH HE HAD BEEN ON LEAVE WITHOUT PAY FOR MORE THAN A YEAR. THE POSITION IS ONE TO WHICH HE HAD BEEN PROMOTED ON JUNE 22, 1942. HE ENLISTED IN THE AIR FORCE ENLISTED RESERVE ( CIVILIAN PILOT TRAINING) ON SEPTEMBER 18, 1942. HE WAS GRANTED ACCUMULATED AND ACCRUED ANNUAL LEAVE FROM SEPTEMBER 18, 1942, TO SEPTEMBER 30, 1942, INCLUSIVE, AND WAS GRANTED LEAVE WITHOUT PAY, EFFECTIVE OCTOBER 1, 1942.

FROM OCTOBER 1, 1942, THROUGH OCTOBER 19, 1943, THE EMPLOYEE WAS IN CIVILIAN PILOT TRAINING ON A FULL-TIME BASIS, WITH THE EXCEPTION OF SHORT BREAKS IN TRAINING WHILE HE WAS AWAITING REASSIGNMENTS TO OTHER COURSES. THE KURTZER FLYING SERVICE AT YAKIMA, WASHINGTON, WHERE THE EMPLOYEE WAS IN TRAINING, HAS FURNISHED INFORMATION TO THE EFFECT THAT HE RECEIVED PAY AT THE RATE OF $50 PER MONTH UNDER THE PROVISIONS OF PUBLIC LAW NO. 50, 78TH CONGRESS (57 STAT. 80) FROM DECEMBER 15, 1942, TO OCTOBER 20, 1943, THE DATE HE ENTERED ON ACTIVE DUTY WITH THE ARMY.

THIS EMPLOYEE REMAINED ON LEAVE WITHOUT PAY FROM HIS POSITION IN THIS DEPARTMENT DURING THE ENTIRE PERIOD OF TRAINING (FROM OCTOBER 1, 1942, THROUGH OCTOBER 19, 1943), AND HELD NO OTHER APPOINTMENT WITH THE GOVERNMENT DURING THIS TIME. SINCE THE EMPLOYEE WAS ORDERED TO REPORT FOR ACTIVE DUTY WITH THE UNITED STATES ARMY ON OCTOBER 20, 1943, HE WAS GRANTED A FURLOUGH WITHOUT PAY FOR MILITARY TRAINING AND SERVICE AS OF THAT DATE. HE RECEIVED AN HONORABLE DISCHARGE FROM THE ARMY EFFECTIVE AUGUST 16, 1944, AND WAS RESTORED TO HIS FORMER POSITION IN THIS DEPARTMENT EFFECTIVE SEPTEMBER 15, 1944, AS MENTIONED ABOVE.

FOR OUR GUIDANCE IN TAKING ACTION TO PAY THIS EMPLOYEE THE SALARY TO WHICH HE IS PROPERLY ENTITLED, AND IN CASES WHERE SIMILAR ACTION WILL HAVE TO BE TAKEN, WE SHALL APPRECIATE YOUR DECISION ON THE FOLLOWING QUESTIONS:

(1) WHEN DOES THE EMPLOYEE'S PERIOD OF ELIGIBILITY FOR A WITHIN GRADE PROMOTION BEGIN?

(2) MAY CREDIT BE ALLOWED FOR ANY OR ALL OF THE PERIOD OF EITHER LEAVE WITHOUT PAY OR FURLOUGH WITHOUT PAY, OR BOTH, IN COMPUTING LENGTH OF SERVICE FOR A WITHIN-GRADE SALARY ADVANCEMENT?

(3) IF LEAVE WITHOUT PAY IN EXCESS OF ONE YEAR FOR CIVILIAN PILOT TRAINING PRECLUDES THE COUNTING OF SERVICE PRIOR TO LEAVE WITHOUT PAY AND/OR SUBSEQUENT PERIODS OF LEAVE WITHOUT PAY AND MILITARY FURLOUGH, COULD ANY OR ALL OF SUCH PERIODS OF TIME BE COUNTED IF LEAVE WITHOUT PAY FOR CIVILIAN PILOT TRAINING HAD BEEN LESS THAN ONE YEAR?

SECTION 5 OF EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, 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.

THE DECISION OF NOVEMBER 16, 1943, 23 COMP. GEN. 367, TO WHICH YOU REFER, WHEREIN WERE CONSIDERED CASES OF EMPLOYEES WHO WERE ON LEAVE OF ABSENCE WITHOUT PAY IMMEDIATELY PRIOR TO ENTRY INTO THE MILITARY SERVICE BECAUSE OF LACK OF WORK OR FUNDS, STATES IN PERTINENT PART, AT PAGE 369:

SECTION 5 OF EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, QUOTED IN YOUR LETTER, OPERATES, FOR THE PURPOSE OF THE WITHIN-GRADE PROMOTION LAW, TO AUTHORIZE THE COUNTING OF SERVICE IN THE ACTIVE MILITARY OR NAVAL FORCES TOWARD WITHIN-GRADE SALARY ADVANCEMENTS AS THOUGH SUCH SERVICE WERE A CONTINUATION OF CIVILIAN SERVICE. IT WOULD FOLLOW THAT THE OTHER PROVISIONS OF THE PRESIDENT'S REGULATIONS CONTAINED IN SAID EXECUTIVE ORDER PROPERLY ARE FOR APPLICATION IN THAT LIGHT, THAT IS, AS THOUGH ACTIVE MILITARY OR NAVAL SERVICE WERE A CONTINUATION OF CIVILIAN SERVICE. COMPARE 22 COMP. GEN. 969, AND DECISION OF OCTOBER 8, 1943, B-37199, 23 COMP. GEN. 265.

WHILE, STRICTLY SPEAKING, CIVILIAN PILOT TRAINING IS NOT MILITARY SERVICE, NEVERTHELESS, IT DOES CONSTITUTE A SERVICE UNDER THE GOVERNMENT, AND HAS A DIRECT RELATION TO, AND IN PREPARATION FOR, MILITARY SERVICE. CONSIDERING THE PROVISIONS OF EXECUTIVE ORDER 8882 AS A WHOLE, THE PURPOSE REASONABLY IS CLEAR THAT ALL CONTINUOUS CIVILIAN AND MILITARY SERVICE UNDER THE GOVERNMENT SHOULD BE CREDITED TOWARD LENGTH OF SERVICE TO A RETURNED VETERAN TOWARD WITHIN-GRADE SALARY ADVANCEMENT UPON RESTORATION TO HIS CIVILIAN POSITION. HENCE, THE CONCLUSION REACHED IN THE DECISION OF NOVEMBER 16, 1943, SUPRA, IS NOT FOR APPLICATION TO THE SITUATION HERE INVOLVED.

ACCORDINGLY, REFERRING TO QUESTION (2), ALL OF THE PERIOD OF LEAVE WITHOUT PAY WHILE THE EMPLOYEE WAS TAKING CIVILIAN PILOT TRAINING AS WELL AS ALL THE PERIOD OF THE SUBSEQUENT MILITARY SERVICE MAY BE CREDITED IN COMPUTING LENGTH OF SERVICE OF THE EMPLOYEE TOWARD WITHIN GRADE SALARY ADVANCEMENT IN THE POSITION TO WHICH HE WAS PROMOTED JUNE 22, 1942, AND TO WHICH IT IS UNDERSTOOD HE WAS RESTORED.

THE ANSWER TO QUESTION (2) RENDERS UNNECESSARY ANY ANSWERS TO QUESTIONS (1) AND (3).