B-54166, JANUARY 5, 1946, 25 COMP. GEN. 495

B-54166, JANUARY 5, 1946, 25 COMP. GEN. 495

COMPENSATION - WITHIN-GRADE PROMOTION AFTER MILITARY DUTY - ELIGIBILITY AS AFFECTED BY PROMOTION TO FORMER GRADE AFTER REEMPLOYMENT AT MAXIMUM OF LOWER GRADE WHERE, AFTER MILITARY DUTY, AN EMPLOYEE WAS REEMPLOYED UNDER A TEMPORARY APPOINTMENT AT THE MAXIMUM SALARY RATE OF A GRADE LOWER THAN THAT OF THE POSITION HE HELD UPON ENTERING THE ARMED FORCES--- SUCH FORMER POSITION HAVING BEEN ABOLISHED--- AND WAS SUBSEQUENTLY PROMOTED TO A POSITION IN HIS FORMER OR LIKE GRADE WITH A RESULTANT "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE WITHIN-GRADE SALARY ADVANCEMENT PROVISIONS OF SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, THE EMPLOYEE MAY NOT COUNT HIS ACTIVE MILITARY SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENT IN THE LATTER POSITION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, JANUARY 5, 1946:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF NOVEMBER 23, 1945, AS FOLLOWS:

ON OCTOBER 24, 1943, ONE OF OUR EMPLOYEES LEFT OTHER THAN A TEMPORARY POSITION, WITHIN THE MEANING OF THE SELECTIVE TRAINING AND SERVICE ACT, AS AMENDED, TO PERFORM ACTIVE MILITARY SERVICE. THE POSITION HE LEFT WAS ALLOCATED IN GRADE P-6 AT $5,600 PER ANNUM. SUBSEQUENTLY, THE ORGANIZATIONAL SEGMENT IN WHICH HE WAS EMPLOYED WAS LIQUIDATED. NOW, HAVING BEEN HONORABLY DISCHARGED, HE HAD MADE APPLICATION FOR RESTORATION TO DUTY. INASMUCH AS HIS POSITION HAS BEEN ABOLISHED, WE ARE ENDEAVORING TO FIND A POSITION OF LIKE SENIORITY, STATUS AND PAY FOR HIM.

DESIROUS OF COOPERATING AS FULLY AS POSSIBLE IN ASSISTING US TO RESTORE HIM TO DUTY WITHIN THE PRESCRIBED PERIOD OF TIME, THE RETURNING VETERAN HAS EXPRESSED HIS WILLINGNESS TO ACCEPT TEMPORARILY A POSITION IN GRADE CAF-12 AT THE RATE OF $6,020 PER ANNUM, UNTIL HE CAN BE PLACED IN POSITION EQUIVALENT TO THAT WHICH HE LEFT UPON ENTERING THE ARMED FORCES.

PRIOR TO PERFORMING MILITARY SERVICE, HIS LAST PROMOTION WAS FROM P 5, $4,600 ANNUALLY, TO P-6, $5,600 ANNUALLY, ON JUNE 24, 1942. IF HE WERE RESTORED IMMEDIATELY TO AN EQUIVALENT POSITION IN GRADE P-6 HE WOULD BE ENTITLED TO ONE AUTOMATIC PROMOTION. HOWEVER, IF HE IS RESTORED TEMPORARILY AT THE MAXIMUM RATE OF GRADE CAF-12, IT IS EVIDENT THAT HE CANNOT RECEIVE THE AUTOMATIC PROMOTION TO WHICH HE IS ENTITLED AT THIS TIME.

THEREFORE, YOUR DECISION IS REQUESTED AS TO THE LEGALITY OF GRANTING HIM THE AUTOMATIC PROMOTION TO WHICH BY LAW HE WOULD OTHERWISE HAVE BEEN ENTITLED AT THE TIME OF HIS RETURN TO DUTY FROM MILITARY SERVICE UPON HIS PROMOTION FROM CAF-12, $6,020 ANNUALLY, TO CAF-13 OR P-6, MINIMUM RATE OF WHICH NOW IS $6,230 ANNUALLY, AND WHICH ACTION ORDINARILY WOULD BE AN EQUIVALENT INCREASE.

THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, 50 U.S.C. 308, PROVIDES IN PERTINENT PART AS FOLLOWS:

(B) IN THE CASE OF ANY SUCH PERSON WHO, IN ORDER TO PERFORM SUCH TRAINING AND SERVICE, HAS LEFT OR LEAVES A POSITION, OTHER THAN A TEMPORARY POSITION, IN THE EMPLOY OF ANY EMPLOYER AND WHO (1) RECEIVES SUCH CERTIFICATE, (2) IS STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION, AND (3) MAKES APPLICATION FOR REEMPLOYMENT WITHIN FORTY DAYS AFTER HE IS RELIEVED FROM SUCH TRAINING AND SERVICE---

(A) IF SUCH POSITION WAS IN THE EMPLOY OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA, SUCH PERSON SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY;

SECTION 5 OF THE REGULATIONS GOVERNING WITHIN-GRADE SALARY ADVANCEMENT ( EXECUTIVE ORDER 8882 DATED SEPTEMBER 6, 1941) PROVIDES 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, 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. SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, 59 STAT. 299, PROVIDES:

SUBSECTION (B) OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, IS AMENDED TO READ AS FOLLOWS:

"/B) ALL EMPLOYEES COMPENSATED ON A PER ANNUM BASIS, AND OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT, WHO HAVE NOT ATTAINED THE MAXIMUM RATE OF COMPENSATION FOR THE GRADE IN WHICH THEIR POSITIONS ARE RESPECTIVELY ALLOCATED, SHALL BE ADVANCED IN COMPENSATION SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN THE GRADE AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE COMPLETION OF (1) EACH TWELVE MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE LESS THAN $200, OR (2) EACH EIGHTEEN MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE $200 OR MORE, SUBJECT TO THE FOLLOWING CONDITIONS:

"/1) THAT NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD, EXCEPT INCREASE MADE PURSUANT TO SUBSECTION (F) OF THIS SECTION;

"/2) THAT AN EMPLOYEE SHALL NOT BE ADVANCED UNLESS HIS CURRENT EFFICIENCY IS "GOOD" OR BETTER THAN "GOOD; "

"/3) THAT THE SERVICE AND CONDUCT OF SUCH EMPLOYEE ARE CERTIFIED BY THE HEAD OF THE DEPARTMENT OR AGENCY OR SUCH OFFICIAL AS HE MAY DESIGNATE AS BEING OTHERWISE SATISFACTORY; AND

"/4) THAT ANY EMPLOYEE, (A) WHO, WHILE SERVING UNDER PERMANENT, WAR SERVICE, TEMPORARY, OR ANY OTHER TYPE OF APPOINTMENT, HAS LEFT HIS POSITION TO ENTER THE ARMED FORCES OR THE MERCHANT MARINE, OR TO COMPLY WITH A WAR TRANSFER AS DEFINED BY THE CIVIL SERVICE COMMISSION, (B) WHO HAS BEEN SEPARATED UNDER HONORABLE CONDITIONS FROM ACTIVE DUTY IN THE ARMED FORCES, OR HAS RECEIVED A CERTIFICATE OF SATISFACTORY SERVICE IN THE MERCHANT MARINE, OR HAS A SATISFACTORY RECORD ON WAR TRANSFER, AND (C) WHO, UNDER REGULATIONS OF THE CIVIL SERVICE COMMISSION OR THE PROVISIONS OF ANY LAW PROVIDING FOR RESTORATION OR REEMPLOYMENT, OR UNDER OTHER ADMINISTRATIVE PROCEDURE WITH RESPECT TO EMPLOYEES NOT SUBJECT TO CIVIL SERVICE RULES AND REGULATIONS, IS RESTORED, REEMPLOYED, OR REINSTATED IN ANY POSITION SUBJECT TO THIS SECTION, SHALL UPON HIS RETURN TO DUTY BE ENTITLED TO WITHIN-GRADE SALARY ADVANCEMENTS WITHOUT REGARD TO PARAGRAPHS (2) AND (3) OF THIS SUBSECTION, AND TO CREDIT SUCH SERVICE IN THE ARMED FORCES, IN THE MERCHANT MARINE, AND ON WAR TRANSFER, TOWARD SUCH WITHIN- GRADE SALARY ADVANCEMENTS. AS USED IN THIS PARAGRAPH THE TERM "SERVICE IN THE MERCHANT MARINE" SHALL HAVE THE SAME MEANING AS WHEN USED IN THE ACT ENTITLED "AN ACT TO PROVIDE REEMPLOYMENT RIGHTS FOR PERSONS WHO LEAVE THEIR POSITIONS TO SERVE IN THE MERCHANT MARINE, AND OTHER PURPOSES," APPROVED JUNE 23, 1943 ( U.S.C., 1940 EDITION, SUPP. IV, TITLE 50 APP., SEC. 1471 TO 1475, INC. ).'

AS IT IS INDICATED IN YOUR LETTER THAT THE EMPLOYEE INVOLVED HAS COMPLIED WITH ALL THE TERMS AND CONDITIONS PROVIDED FOR IN THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, SUPRA, HE IS ENTITLED TO BE RESTORED TO THE POSITION HE HELD PRIOR TO HIS ENTRANCE IN THE ARMED FORCES OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY. MOREOVER, UPON RESTORATION TO SUCH POSITION, HE WOULD BE ENTITLED TO WITHIN-GRADE SALARY ADVANCEMENTS AS PROVIDED FOR IN THE FEDERAL EMPLOYEES PAY ACT OF 1945, SUPRA. IN THE EVENT SUCH EMPLOYEE BE REEMPLOYED IN A POSITION OF LOWER SENIORITY, STATUS, OR PAY, AS PROPOSED IN YOUR LETTER, HE ALSO WOULD BE ENTITLED TO ALL WITHIN-GRADE SALARY ADVANCEMENTS WHICH ACCRUED TO HIS BENEFIT BY REASON OF HIS SERVICE IN THE ARMED FORCES. HOWEVER, IN THE INSTANT CASE, IT IS PROPOSED TO REEMPLOY THE RETURNED VETERAN IN A POSITION OF A LOWER GRADE THAN THAT FORMERLY HELD BY HIM BUT AT THE MAXIMUM SALARY RATE PROVIDED FOR IN THAT GRADE. IN THAT EVENT, IT CORRECTLY IS STATED IN YOUR LETTER THAT HE CANNOT RECEIVE THE AUTOMATIC PROMOTION IN VIEW OF THE SPECIFIC PROVISION OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, SUPRA, WHICH EXCLUDES FROM ITS PURVIEW EMPLOYEES WHO HAVE "ATTAINED THE MAXIMUM RATE OF COMPENSATION FOR THE GRADE.'

IT FOLLOWS, THEREFORE, THAT ALTHOUGH THE EMPLOYEE HERE INVOLVED APPEARS TO BE ENTITLED UNDER EXPRESS PROVISIONS OF LAW TO REEMPLOYMENT IN HIS FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS, AND PAY, YET IF HE ACTUALLY IS REEMPLOYED, AS PROPOSED BY YOU, AT THE MAXIMUM RATE IN A LOWER GRADE (CAF-12 $6,020 PER ANNUM), HE MAY NOT BE GRANTED THE WITHIN-GRADE SALARY ADVANCEMENTS TO WHICH HE OTHERWISE WOULD BE ENTITLED. FURTHERMORE, YOUR PROPOSAL TO EFFECT A TEMPORARY APPOINTMENT OF THIS EMPLOYEE AT THE MAXIMUM RATE OF CAF-12 WITH THE VIEW TO REINSTATING HIM TO HIS FORMER GRADE AT A LATER DATE ALSO WOULD OPERATE TO DEFEAT HIS RIGHT TO AN AUTOMATIC PROMOTION UPON SUCH REINSTATEMENT FOR THE REASON THAT SUCH REINSTATEMENT TO HIS FORMER GRADE WOULD CONSTITUTE A PROMOTION WITH A RESULTANT "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THOSE WORDS AS USED IN THE FEDERAL EMPLOYEES PAY ACT OF 1945, SUPRA. SEE 21 COMP. GEN. 285, ID. 369.

SPECIFICALLY, THEREFORE, YOU ARE ADVISED THAT THERE IS NO AUTHORITY OF LAW WHEREBY THE EMPLOYEE REFERRED TO IN YOUR LETTER MAY BE GRANTED AN AUTOMATIC PROMOTION SHOULD HE BE REEMPLOYED AT THE MAXIMUM RATE OF GRADE CAF-12 ($6,020 PER ANNUM) AND SUBSEQUENTLY PROMOTED TO CAF-13 OR P-6 ($6,230 PER ANNUM) UNTIL THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE EXPIRATION OF 18 MONTHS FROM THE DATE OF SUCH PROMOTION. SEE, GENERALLY, DECISION OF MAY 23, 1945, B-49671.