B-54297, JANUARY 3, 1946, 25 COMP. GEN. 477

B-54297, JANUARY 3, 1946, 25 COMP. GEN. 477

CLASSIFICATION - EXECUTIVE ORDER FIELD POSITIONS - EMPLOYEES ON MILITARY FURLOUGH - EFFECTIVE DATE WHERE AN EMPLOYEE'S FIELD SERVICE POSITION IN A GRADE UNDER A SALARY SCHEDULE PRESCRIBED BY EXECUTIVE ORDER WAS CONVERTED, PURSUANT TO A PRIOR ALLOCATION, TO A GRADE AT A HIGHER RATE UNDER THE CLASSIFICATION ACT AND ADMINISTRATIVELY APPROVED WHILE THE EMPLOYEE WAS ABSENT ON MILITARY FURLOUGH, THE EMPLOYEE, UPON REEMPLOYMENT AFTER MILITARY SERVICE, IS ENTITLED TO THE BENEFITS GRANTED BY SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, ACCRUING FROM THE CONVERSION OF HIS POSITION FROM THE DATE OF APPROVAL THEREOF, IRRESPECTIVE OF WHEN FORMAL PERSONNEL ACTION WAS TAKEN TO CONVERT THE GRADE OF THE EMPLOYEE.

COMPTROLLER GENERAL WARREN TO J. L. WILKINSON, DEPARTMENT OF AGRICULTURE, JANUARY 3, 1946:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 30, 1945, AS FOLLOWS:

THERE HAS BEEN PRESENTED TO ME FOR CERTIFICATION PURSUANT TO THE ACT OF DECEMBER 29, 1941 ( PUBLIC LAW 389--- 77TH CONGRESS) THE ENCLOSED PAY ROLL VOUCHER, STANDARD FORM NO. 1128, PREPARED TO COVER A SALARY PAYMENT OF $118.84 TO AN EMPLOYEE OF OUR EMERGENCY CROP AND FEED LOAN OFFICE, MEMPHIS, TENNESSEE, AT THE RATE OF $3,090 PER ANNUM FOR SERVICES RENDERED FROM OCTOBER 22, 1945, THE DATE OF HIS RETURN TO A CIVILIAN DUTY STATUS FROM MILITARY FURLOUGH, TO NOVEMBER 3, 1945, THE CLOSE OF OUR ESTABLISHED BIWEEKLY PAY PERIOD.

THE EMPLOYEE IN QUESTION WAS FURLOUGHED FROM HIS PERMANENT FIELD POSITION OF FIELD SUPERVISOR, MONTICELLO, ARKANSAS, GRADE EO-9, $2,400 PER ANNUM EFFECTIVE ONE HOUR AFTER THE BEGINNING OF BUSINESS MARCH 11, 1943, FOR MILITARY TRAINING AND SERVICE. ON APRIL 1, 1943, THE POSITION FROM HICH THIS EMPLOYEE WAS FURLOUGHED, ALONG WITH APPROXIMATELY 525 LIKE POSITIONS LOCATED THROUGHOUT THE UNITED STATES WAS CONVERTED FROM GRADE EO-9, $2,400 PER ANNUM TO GRADE CAF-7, $2,600 PER ANNUM ( ADMINISTRATIVE ASSISTANT) UNDER THE CLASSIFICATION ACT OF 1923 ON THE BASIS OF AN ALLOCATION THEREOF DATED FEBRUARY 27, 1943, WHICH WAS APPROVED BY AN OFFICIAL OF THE PERSONNEL OFFICE OF THE DEPARTMENT OF AGRICULTURE UNDER DELEGATED AUTHORITY FROM THE CIVIL SERVICE COMMISSION. THE SALARY OF THE INDIVIDUAL WHO HAD BEEN TRANSFERRED TO THE POSITION INVOLVED UPON THE MILITARY FURLOUGH OF THIS EMPLOYEE WAS ADJUSTED TO $2,600 PER ANNUM (GRADE CAF-7) EFFECTIVE APRIL 1, 1943.

AS THE EMPLOYEE LISTED ON THE ENCLOSED PAY ROLL VOUCHER WAS IN A MILITARY FURLOUGH STATUS ON THE EFFECTIVE DATE OF THE CONVERSION OF THIS POSITION THE NECESSITY FOR JOURNALIZING A PERSONNEL ACTION TO CHANGE HIS GRADE FROM EO-9, $2,400 PER ANNUM TO CAF-7, $2,600 PER ANNUM WAS OVERLOOKED ALONG WITH SEVERAL OTHER SIMILAR CASES BECAUSE THE NAMES OF SUCH EMPLOYEES HAD BEEN REMOVED FROM THE PAY ROLLS AND ACTIVE PERSONNEL RECORDS. HOWEVER, ON NOVEMBER 8, 1945, FORMAL PERSONNEL ACTIONS WERE TAKEN BY THE EMPLOYMENT OFFICER OF THE FARM CREDIT ADMINISTRATION TO CONVERT THE GRADE OF THIS EMPLOYEE FROM EO-9, $2,400 PER ANNUM TO CAF-7, $2,600 PER ANNUM RETROACTIVELY EFFECTIVE APRIL 1, 1943; TO GRANT TO HIM UNDER AUTHORITY OF SECTION 2 (B) OF THE ACT OF AUGUST 1, 1941, A WITHIN-GRADE SALARY ADVANCEMENT FROM CAF-7, $2,600 PER ANNUM TO CAF-7, $2,700 PER ANNUM, EFFECTIVE OCTOBER 1, 1944; AND TO ALSO GRANT TO HIM UNDER AUTHORITY OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, A PAY ADJUSTMENT FROM CAF-7, $2,700 PER ANNUM TO CAF-7, $3,090 PER ANNUM EFFECTIVE JULY 1, 1945. THESE ACTIONS DO NOT, OF COURSE REQUIRE ANY ADJUSTMENTS OF AMOUNTS PAID BECAUSE THE EMPLOYEE WAS IN A NON-PAY MILITARY FURLOUGH STATUS ON THE EFFECTIVE DATES THEREOF BUT THE FIRST MENTIONED ACTION PLACES THE EMPLOYEE IN A POSITION TO RECEIVE THE BENEFITS OF THE SECOND ACTION WHICH AFFECTS THE THIRD. INASMUCH AS THIS EMPLOYEE WAS DISCHARGED FROM THE ARMY ON JULY 22, 1945, BUT DID NOT RETURN TO A DUTY STATUS WITH THE FARM CREDIT ADMINISTRATION UNTIL OCTOBER 22, 1945, HE WILL NOT HAVE COMPLETED THE REQUIRED 12 MONTHS OF CREDITABLE SERVICE TOWARD ANOTHER WITHIN-GRADE SALARY ADVANCEMENT UNTIL DECEMBER 22, 1945.

IN HIS DECISION OF SEPTEMBER 28, 1931 (11 COMP. GEN. 115) FORMER COMPTROLLER GENERAL MCCARL STATED WITH RESPECT TO ADJUSTMENTS IN COMPENSATION INCIDENTAL TO THE ALLOCATION OR REALLOCATION OF POSITIONS IN THE FIELD SERVICE THAT "IT IS A WELL ESTABLISHED RULE THAT, IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING ADMINISTRATIVE CHANGES IN SALARY RATES MAY NOT BE MADE RETROACTIVELY EFFECTIVE. THE RULE IS APPLICABLE TO ALL SALARY ADVANCEMENTS INVOLVING EXCLUSIVELY THE ACTION OF THE ADMINISTRATIVE OFFICE, WHETHER IN THE DEPARTMENT OR FIELD SERVICE. YOU ARE ADVISED, THEREFORE, THAT THE FIRST OF THE MONTH IN WHICH THE ALLOCATION OF POSITIONS IN THE FIELD SERVICE IS APPROVED BY THE ADMINISTRATIVE OFFICE MAY NOT IN ALL CASES BE FIXED AS THE EFFECTIVE DATE OF SALARY ADVANCEMENTS NECESSITATED THEREBY BUT ONLY AS TO THOSE ALLOCATIONS OR REALLOCATIONS APPROVED ON THE FIRST OF THE MONTH.'

UNDER THE SELECTIVE TRAINING AND SERVICE ACT AN EMPLOYEE WHO MEETS THE CONDITIONS FOR ENTITLEMENT TO REEMPLOYMENT IN THE GOVERNMENT SERVICE IS TO BE RESTORED TO THE POSITION FROM WHICH FURLOUGHED FOR MILITARY TRAINING AND SERVICE WITHOUT LOSS OF SENIORITY, STATUS, AND PAY. SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 PROVIDES THAT ANY PERMANENT EMPLOYEE WHO HAS LEFT HIS POSITION TO ENTER THE ARMED FORCES AND WHO IS RESTORED TO ANY POSITION SUBJECT TO THAT SECTION SHALL UPON HIS RETURN TO DUTY BE ENTITLED TO CREDIT OF TIME IN THE ARMED FORCES TOWARD WITHIN-GRADE SALARY ADVANCEMENTS. ALSO, DEPARTMENTAL CIRCULAR NO. 532 ISSUED BY THE U.S. CIVIL SERVICE COMMISSION ON JULY 31, 1945, PROVIDES (11-4):

"IF THE POSITION HELD FORMERLY BY A RETURNING VETERAN HAS BEEN REALLOCATED TO A HIGHER LEVEL WITHOUT SUBSTANTIAL CHANGE IN DUTIES AND RESPONSIBILITIES, THE VETERAN IS ENTITLED TO ALL BENEFITS OF THE REALLOCATION.'

SINCE THE ABOVE CITED DECISION CASTS SOME DOUBT ON THE PROPRIETY OF PAYING THIS EMPLOYEE AT THE RATE OF &3,090 PER ANNUM BEGINNING OCTOBER 22, 1945, BECAUSE OF THE FACT THAT FORMAL PERSONNEL ACTION WAS NOT TAKEN TO CONVERT HIS GRADE UNTIL NOVEMBER 8, 1945, I SHALL APPRECIATE YOUR ADVISING ME IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3 OF THE ACT OF DECEMBER 29, 1941, AS TO WHETHER I, AS AN AUTHORIZED CERTIFYING OFFICER, MAY PROPERLY CERTIFY THE ENCLOSED PAY ROLL VOUCHER.

SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 890, AS AMENDED, PROVIDES THAT AN EMPLOYEE, WHO MEETS THE REQUIREMENTS OF THE ACT, UPON RETURN FROM MILITARY SERVICE IS ENTITLED TO BE RESTORED TO HIS FORMER POSITION OR TO ONE OF LIKE SENIORITY, STATUS AND PAY.

THE DECISION OF SEPTEMBER 28, 1931, 11 COMP. GEN. 115, REFERRED TO IN YOUR LETTER, STATES THE GENERAL RULE THAT ALLOCATIONS OR REALLOCATIONS OF POSITIONS IN THE FIELD SERVICE ARE EFFECTIVE ON THE DATE OF APPROVAL THEREOF BY THE PROPER ADMINISTRATIVE OFFICER OR AT SUCH LATER DATE AS MIGHT BE ADMINISTRATIVELY FIXED. FROM YOUR LETTER IT IS UNDERSTOOD THAT THE POSITION IN QUESTION ACTUALLY WAS CONVERTED ON APRIL 1, 1943, PURSUANT TO AN ALLOCATION DATED FEBRUARY 27, 1943, WHICH ALLOCATION WAS APPROVED BY AN OFFICIAL OF THE PERSONNEL OFFICE OF THE DEPARTMENT OF AGRICULTURE. THE ACTION TAKEN ON NOVEMBER 8, 1945, BY THE EMPLOYMENT OFFICER OF THE FARM CREDIT ADMINISTRATION RELATED TO THE PERSONNEL RECORDS OF THE SAID EMPLOYEE AND NOT TO THE POSITION INVOLVED. HENCE, AS THE CONTROLLING ACTION IS THE APPROVAL OF THE CONVERSION OF THE POSITION AND NOT THE PERSONNEL ACTION RELATING TO THE INDIVIDUAL EMPLOYEE, THIS LATER ACTION HAS NO BEARING UPON THE RIGHTS OF THE EMPLOYEE UNDER THE SELECTIVE TRAINING AND SERVICE ACT, SUPRA, AND HE IS ENTITLED TO THE BENEFITS ACCRUING FROM THE CONVERSION OF HIS POSITION WHILE ABSENT IN MILITARY SERVICE. COMPARE DECISION OF NOVEMBER 26, 1945, B-53153, 25 COMP. GEN. 419--- PARTICULARLY THAT PART THEREOF RELATING TO THE LAST PARAGRAPH OF THE DEPARTMENT'S LETTER.

IT IS NOTED THAT YOU SHOW THE NEXT WITHIN-GRADE SALARY ADVANCEMENT AS BEING DUE DECEMBER 22, 1945. THE BASIS OF THAT DETERMINATION IS NOT CLEAR BUT, AS THE DETERMINATION OF THAT DATE IS NOT PERTINENT TO THE QUESTION HERE PRESENTED, NOTHING HEREIN STATED IS TO BE CONSTRUED AS PASSING UPON THE CORRECTNESS OF THAT DETERMINATION.

THE VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT.