B-33419, APRIL 14, 1943, 22 COMP. GEN. 969

B-33419, APRIL 14, 1943, 22 COMP. GEN. 969

CIVILIAN EMPLOYEES REEMPLOYED AFTER MILITARY OR NAVAL DUTY - WITHIN GRADE PROMOTION AND LEAVE RECREDIT RIGHTS A FORMER EMPLOYEE WHO, BY FAILING TO APPLY FOR RESTORATION TO HIS CIVILIAN POSITION WITHIN 40 DAYS AFTER HIS DISCHARGE FROM ACTIVE MILITARY OR NAVAL SERVICE, FORFEITED HIS RIGHT UNDER SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 TO RESTORATION "WITHOUT LOSS OF SENIORITY" IS NOT ENTITLED, IF SUBSEQUENTLY REEMPLOYED, TO THE BENEFITS OF SECTION 5 OF EXECUTIVE ORDER NO. 8882--- ISSUED PURSUANT TO THE WITHIN- GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941--- WHICH, IN EFFECT, AUTHORIZES THE COUNTING OF ACTIVE MILITARY OR NAVAL SERVICE TOWARD WITHIN- GRADE SALARY ADVANCEMENTS AS THOUGH SUCH SERVICE HAD BEEN CIVILIAN SERVICE. WHERE A FORMER EMPLOYEE, UPON DISCHARGE FROM MILITARY OR NAVAL SERVICE, HAS MET WITHIN 40 DAYS AFTER DISCHARGE THE CONDITIONS PRESCRIBED BY SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 ENTITLING HIM TO RESTORATION TO HIS CIVILIAN POSITION "WITHOUT LOSS OF SENIORITY," BUT, DUE TO ADMINISTRATIVE PROCEDURE, WAS NOT ACTUALLY REEMPLOYED UNTIL AFTER EXPIRATION OF THE 40-DAY PERIOD, HE MAY COUNT ALL OF THE MILITARY OR NAVAL SERVICE IN COMPUTING LONGEVITY FOR PURPOSES OF WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, AND EXECUTIVE ORDER NO. 8882 ISSUED THEREUNDER; HOWEVER, HE MAY NOT COUNT ANY OF THE PERIOD WHEN NOT IN A FEDERAL PAY STATUS BETWEEN THE MILITARY OR NAVAL SERVICE AND THE CIVILIAN SERVICE--- MORE THAN THE 30-DAY NON-PAY STATUS TIME AUTHORIZED IN SECTION 2 (C) OF THE EXECUTIVE ORDER. A FORMER EMPLOYEE WHO, UPON DISCHARGE FROM ACTIVE MILITARY OR NAVAL SERVICE, APPLIES FOR RESTORATION TO HIS CIVILIAN POSITION WITHIN THE 40 DAY PERIOD PRESCRIBED BY SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 TO ENTITLE HIM TO RESTORATION "WITHOUT LOSS OF IORITY," BUT WHO, SOLELY FOR PERSONAL REASONS, DELAYS IN ACCEPTING OR REFUSES TO ACCEPT REEMPLOYMENT, LOSES HIS RIGHT TO COUNT HIS ACTIVE MILITARY OR NAVAL SERVICE IN COMPUTING LONGEVITY FOR PURPOSES OF WITHIN GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, AND EXECUTIVE REGULATIONS THEREUNDER. WHERE A FORMER EMPLOYEE, OTHERWISE ENTITLED UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 TO RESTORATION TO HIS CIVILIAN POSITION AFTER DISCHARGE FROM THE ARMY, WAS PRECLUDED FROM IMMEDIATELY RETURNING TO SUCH POSITION UPON APPLICATION THEREFOR BECAUSE HIS DISCHARGE WAS CONDITIONED UPON EMPLOYMENT IN AN ESSENTIAL WAR INDUSTRY, INCLUDING AGRICULTURE, HE MAY, UPON SUBSEQUENT RESTORATION SOON AFTER HE TERMINATES HIS ESSENTIAL WAR INDUSTRY SERVICE, COUNT HIS ACTIVE MILITARY SERVICE IN COMPUTING LONGEVITY FOR PURPOSES OF WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, AND EXECUTIVE REGULATIONS THEREUNDER. WHERE A FORMER EMPLOYEE, UPON DISCHARGE FROM ACTIVE MILITARY OR NAVAL SERVICE, HAS MET WITHIN 40 DAYS THE CONDITIONS OF SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 TO ENTITLE HIM TO RESTORATION TO HIS CIVILIAN POSITION, BUT, DUE ENTIRELY TO ADMINISTRATIVE DELAY, WAS NOT REEMPLOYED UNTIL AFTER THE EXPIRATION OF 40 DAYS FROM THE DATE OF DISCHARGE, ANNUAL LEAVE TO HIS CREDIT ON ENTRY INTO ACTIVE MILITARY OR NAVAL SERVICE, SUBSEQUENT TO MAY 1, 1940, FOR WHICH PAYMENT WAS NOT MADE UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, MAY BE RECREDITED TO HIM IN THE POSITION IN WHICH REEMPLOYED. WHERE A FORMER EMPLOYEE, UPON DISCHARGE FROM THE ARMY, HAS MET THE CONDITIONS OF SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 TO ENTITLE HIM TO RESTORATION TO HIS CIVILIAN POSITION, BUT IS PRECLUDED FROM IMMEDIATELY RETURNING THERETO BECAUSE HIS DISCHARGE WAS CONDITIONED UPON EMPLOYMENT IN AN ESSENTIAL WAR INDUSTRY, INCLUDING AGRICULTURE, ANNUAL LEAVE TO HIS CREDIT ON ENTRY INTO ACTIVE MILITARY SERVICE, SUBSEQUENT TO MAY 1, 1940, FOR WHICH PAYMENT WAS NOT MADE UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, MAY BE RECREDITED TO HIM UPON SUBSEQUENT RESTORATION TO HIS FORMER POSITION SOON AFTER TERMINATION OF HIS ESSENTIAL WAR INDUSTRY SERVICE. IF A FORMER EMPLOYEE FAILS TO MAKE APPLICATION FOR RESTORATION TO HIS CIVILIAN POSITION WITHIN 40 DAYS AFTER DISCHARGE FROM ACTIVE MILITARY OR NAVAL SERVICE AS REQUIRED BY SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 TO ENTITLE HIM TO THE REEMPLOYMENT BENEFITS THEREUNDER, OR HAS REFUSED TO ACCEPT OR DELAYED IN ACCEPTING, SOLELY FOR PERSONAL REASONS, HIS FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS, AND PAY WHICH WAS OFFERED, ANNUAL LEAVE TO HIS CREDIT ON ENTRY INTO ACTIVE MILITARY OR NAVAL SERVICE FOR WHICH PAYMENT WAS NOT MADE UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, MAY NOT BE RECREDITED TO HIM UPON SUBSEQUENT REEMPLOYMENT.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, APRIL 14, 1943:

I HAVE YOUR LETTER OF MARCH 25, 1943, AS FOLLOWS:

MR. WILLIAM J. BERRY, PERMANENT HOSPITAL ATTENDANT, SP-2, WAS RECEIVING A SALARY OF $1260 PER ANNUM, VETERANS ADMINISTRATION, HINES, ILLINOIS, WHEN HE WAS PLACED ON FURLOUGH MAY 29, 1942, INCIDENT TO ENTRY ON ACTIVE DUTY IN THE MARINE CORPS. ON FEBRUARY 12, 1943 MR. BERRY PRESENTED AN HONORABLE DISCHARGE FROM THE MARINE CORPS AS OF AUGUST 31, 1942 AND REQUESTED THAT HE BE REINSTATED IN HIS FORMER POSITION. SINCE HE DID NOT MAKE APPLICATION FOR REEMPLOYMENT WITHIN 40 DAYS SUBSEQUENT TO DATE OF DISCHARGE, THE FOLLOWING QUESTIONS ARE PRESENTED:

1. ALTHOUGH IT IS REALIZED THAT MR. BERRY FORFEITED HIS MANDATORY REEMPLOYMENT RIGHTS BY NOT MAKING APPLICATION FOR RESTORATION TO DUTY WITHIN 40 DAYS FROM THE DATE OF DISCHARGE, NEVERTHELESS, HIS NAME HAS NOT BEEN REMOVED FROM THE ROLLS OF THE VETERANS ADMINISTRATION AND IF HE IS RESTORED TO DUTY IS HE ENTITLED TO BENEFITS OF AUTOMATIC INCREASES IN SALARY UNDER PUBLIC 200 77TH CONGRESS AS PROVIDED WHERE SUCH PERSONS MAKE APPLICATION FOR REEMPLOYMENT WITHIN 40 DAYS FROM DATE OF DISCHARGE FROM ACTIVE MILITARY OR NAVAL DUTY? IF ENTITLED TO BENEFITS OF AUTOMATIC INCREASES IN SALARY, WILL ALL OF THE PERIOD OF HIS ABSENCE BE COUNTED IN COMPUTING LENGTH OF SERVICE FOR PROMOTION IN SALARY PURPOSES? IF NOT, WHAT PORTION OF THE TIME WILL BE COUNTED?

2. IF MR. BERRY HAD MADE APPLICATION WITHIN 40 DAYS FROM THE DATE OF DISCHARGE, BUT WAS NOT REEMPLOYED UNTIL AFTER THE EXPIRATION OF 40 DAYS FROM THE DATE OF DISCHARGE BECAUSE OF ADMINISTRATIVE PROCEDURE IN CONNECTION WITH THE AVAILABILITY OF A POSITION, ETC., WOULD ANY OF THE PERIOD BETWEEN DATE OF DISCHARGE AND ACTUAL RESTORATION TO DUTY BE COUNTED IN COMPUTING LENGTH OF SERVICE FOR AUTOMATIC INCREASE IN SALARY UNDER PUBLIC 200, 77TH CONGRESS? IF SO, WHAT PORTION OF THE PERIOD BETWEEN DISCHARGE AND RESTORATION TO DUTY WOULD BE COUNTED IN COMPUTING LENGTH OF SERVICE FOR AUTOMATIC INCREASE IN SALARY?

3. IF MR. BERRY HAD MADE APPLICATION WITHIN 40 DAYS FROM THE DATE OF DISCHARGE AND WAS OFFERED A POSITION WITHIN THAT TIME BUT DID NOT ENTER ON DUTY UNTIL AFTER THE EXPIRATION OF 40 DAYS FROM THE DATE OF DISCHARGE TO SUIT HIS CONVENIENCE, WOULD HE BE ENTITLED TO BENEFITS OF AUTOMATIC INCREASES? IF SO, WOULD THE TIME OR ANY PORTION OF IT AFTER DISCHARGE UNTIL RESTORATION TO DUTY BE COUNTED IN COMPUTING LENGTH OF SERVICE FOR AUTOMATIC INCREASE IN SALARY?

4. IF A PERSON SECURES A DISCHARGE FROM THE ARMY BECAUSE HE IS 38 YEARS OF AGE OR OVER, AS OUTLINED IN WAR DEPARTMENT CIRCULAR NO. 397,DATED DECEMBER 7, 1942, AND IS RELEASED BY THE WAR DEPARTMENT FOR EMPLOYMENT IN AN ESSENTIAL WAR INDUSTRY, INCLUDING AGRICULTURE, AND MAKES APPLICATION FOR REEMPLOYMENT WITH THE VETERANS ADMINISTRATION WITHIN 40 DAYS FROM DATE OF DISCHARGE FROM THE ARMY, BUT IS NOT AVAILABLE FOR RETURN TO DUTY AT THE TIME TO HIS FORMER OR A LIKE POSITION BECAUSE OF EMPLOYMENT IN AN ESSENTIAL WAR INDUSTRY, INCLUDING AGRICULTURE, WHEN RESTORED TO DUTY IN THE VETERANS ADMINISTRATION AT A LATER DATE, IS HE ENTITLED TO BENEFITS OF AUTOMATIC INCREASES IN SALARY UNDER PUBLIC 200, 77TH CONGRESS AND IF SO WHAT PORTION OF THE TIME FROM DATE OF DISCHARGE FROM ACTIVE MILITARY DUTY UNTIL RESTORATION TO DUTY WITH THE VETERANS ADMINISTRATION IS COUNTED IN COMPUTING LENGTH OF SERVICE FOR AUTOMATIC INCREASE IN SALARY?

5. IN THE EVENT AN EMPLOYEE RESIGNS OR LEAVES WITHOUT FILING FORMAL RESIGNATION BECAUSE OF ENTRY ON ACTIVE MILITARY OR NAVAL DUTY AND DOES NOT MAKE APPLICATION FOR REEMPLOYMENT UNTIL AFTER 40 DAYS FROM THE DATE OF DISCHARGE FROM ACTIVE DUTY, BUT NEVERTHELESS IS RESTORED, WOULD HE BE ENTITLED TO BENEFITS OF AUTOMATIC INCREASES IN SALARY UNDER PUBLIC 200, 77TH CONGRESS AND IF SO WHAT PERIOD OF THE TIME FROM DATE OF DISCHARGE FROM MILITARY OR NAVAL DUTY WOULD BE COUNTED IN COMPUTING LENGTH OF SERVICE FOR AUTOMATIC INCREASE IN SALARY?

6. IN CIRCUMSTANCES LISTED IN PARAGRAPH 1, 2, 3, 4, AND 5 WILL THE EMPLOYEE BE ENTITLED TO RE-CREDIT OF ANY ANNUAL OR SICK LEAVE DUE AT THE TIME HE ENTERED ON MILITARY OR NAVAL DUTY AND FOR WHICH HE HAD NOT BEEN COMPENSATED?

SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 890, PROVIDES IN PERTINENT PART AS FOLLOWS:

(A) ANY PERSON INDUCTED INTO THE LAND OR NAVAL FORCES UNDER THIS ACT FOR TRAINING AND SERVICE, WHO, IN THE JUDGMENT OF THOSE IN AUTHORITY OVER HIM, SATISFACTORILY COMPLETED HIS PERIOD OF TRAINING AND SERVICE UNDER SECTION 3 (B) SHALL BE ENTITLED TO A CERTIFICATE TO THAT EFFECT UPON THE COMPLETION OF SUCH PERIOD OF TRAINING AND SERVICE, WHICH SHALL INCLUDE A RECORD OF ANY SPECIAL PROFICIENCY OR MERIT ATTAINED. IN ADDITION, EACH SUCH PERSON WHO IS INDUCTED INTO THE LAND OR NAVAL FORCES UNDER THIS ACT FOR TRAINING AND SERVICE SHALL BE GIVEN A PHYSICAL EXAMINATION AT THE BEGINNING OF SUCH TRAINING AND SERVICE AND A MEDICAL STATEMENT SHOWING ANY PHYSICAL DEFECTS NOTED UPON SUCH EXAMINATION; AND UPON THE COMPLETION OF HIS PERIOD OF TRAINING AND SERVICE UNDER SECTION 3 (B), EACH SUCH PERSON SHALL BE GIVEN ANOTHER PHYSICAL EXAMINATION AND SHALL BE GIVEN A MEDICAL STATEMENT SHOWING ANY INJURIES, ILLNESSES OR DISABILITIES SUFFERED BY HIM DURING SUCH PERIOD OF TRAINING AND SERVICE.

(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;

(C) ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES, SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON WAS INDUCTED INTO SUCH FORCES, AND SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION.

SECTION 7 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 627, PROVIDES:

ANY PERSON WHO, SUBSEQUENT TO MAY 1, 1940, AND PRIOR TO THE TERMINATION OF THE AUTHORITY CONFERRED BY SECTION 2 OF THIS JOINT RESOLUTION, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES SHALL BE ENTITLED TO ALL THE REEMPLOYMENT BENEFITS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 TO THE SAME EXTENT AS IN THE CASE OF PERSONS INDUCTED UNDER SAID ACT: PROVIDED, THAT THE PROVISIONS OF SECTION 8 (B) (A) OF SAID ACT SHALL BE APPLICABLE TO ANY SUCH PERSON WITHOUT REGARD TO WHETHER THE POSITION WHICH HE HELD SHALL HAVE BEEN COVERED INTO THE CLASSIFIED CIVIL SERVICE DURING THE PERIOD OF HIS MILITARY OR NAVAL SERVICE.

SECTION 5 OF THE " REGULATIONS GOVERNING WITHIN - GRADE SALARY ADVANCEMENTS," EXECUTIVE ORDER NO. 8882 OF SEPTEMBER 3, 1941, ISSUED BY THE PRESIDENT PURSUANT TO THE AUTHORITY VESTED IN HIM BY SECTION 7 (G) OF THE CLASSIFICATION ACT, AS AMENDED BY THE ACT OF AUGUST 1, 1941, 55 STAT. 613, 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. ( ITALICS SUPPLIED.)

PARTICULAR REFERENCE IS MADE TO THE ITALICIZED PORTION OF THE ABOVE QUOTED EXECUTIVE ORDER. SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT, SUPRA, SPECIFICALLY REQUIRES THAT THREE CONDITIONS MUST BE MET TO ENTITLE AN EMPLOYEE TO BE RESTORED TO HIS FORMER CIVILIAN POSITION WITHOUT LOSS OF SENIORITY, OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY, AFTER DISCHARGE FROM THE ACTIVE MILITARY OR NAVAL SERVICE. ONE OF THOSE CONDITIONS HERE FOR CONSIDERATION (DESIGNATED AS (3) IN THE STATUTE) IS THAT THE EMPLOYEE "MAKES APPLICATION FOR REEMPLOYMENT WITHIN FORTY DAYS AFTER HE IS RELIEVED FROM SUCH TRAINING AND SERVICE.' IF ANY ONE OF THE THREE CONDITIONS SPECIFIED, INCLUDING CONDITION (3), IS NOT MET BY AN EMPLOYEE, HE IS NOT ENTITLED AS A MATTER OF RIGHT TO BE RESTORED TO HIS FORMER CIVILIAN POSITION WITHOUT LOSS OF SENIORITY OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY. 21 COMP. GEN. 403, 566, 1007. COMPARE 20 COMP. GEN. 789, 21 ID. 66. HENCE, IF AN EMPLOYEE FAILS TO MAKE FORMAL OR INFORMAL APPLICATION WITHIN FORTY DAYS AFTER DISCHARGE FROM THE ACTIVE MILITARY OR NAVAL SERVICE, HE WOULD HAVE NO STATUTORY RIGHT OF RESTORATION AND ANY ADMINISTRATIVE REINSTATEMENT TO A CIVILIAN POSITION BASED UPON AN APPLICATION MADE MORE THAN FORTY DAYS AFTER DISCHARGE FROM THE MILITARY OR NAVAL SERVICE, WOULD NOT BE "WITHOUT LOSS OF SENIORITY" SO AS TO ENTITLE HIM TO THE BENEFITS OF SECTION 5 OF EXECUTIVE ORDER NO. 8882, ABOVE QUOTED, WHICH AUTHORIZES IN EFFECT THE COUNTING OF ACTIVE MILITARY OR NAVAL SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS AS THOUGH SUCH SERVICE HAD BEEN CIVILIAN SERVICE.

HENCE, REFERRING TO THE QUESTION IN PARAGRAPH NUMBERED 1, MR. BERRY IS NOT ENTITLED TO CREDIT FOR ANY OF THE TIME HE WAS AWAY FROM HIS CIVILIAN POSITION (INCLUDING THE PERIOD SERVED IN THE MARINE CORPS) FOR THE PURPOSE OF COMPUTING LONGEVITY TOWARD WITHIN-GRADE SALARY ADVANCEMENTS.

REFERRING TO THE QUESTION IN PARAGRAPH NUMBERED 2, IF MR. BERRY HAD MET ALL THREE OF THE STATUTORY CONDITIONS TO ENTITLE HIM TO RESTORATION TO A CIVILIAN POSITION WITHOUT LOSS OF SENIORITY, AND THE DELAY IN RESTORING HIM WAS DUE ENTIRELY TO THE ADMINISTRATIVE PROCEDURE, HE WOULD HAVE BEEN ENTITLED TO COUNT FOR AUTOMATIC PROMOTION PURPOSES ALL OF THE PERIOD SERVED IN THE MARINE CORPS. HOWEVER, HE WOULD NOT BE ENTITLED TO COUNT ANY OF THE PERIOD IN A NON-FEDERAL PAY STATUS BETWEEN THE MARINE CORPS SERVICE AND THE CIVILIAN SERVICE--- MORE THAN THIRTY DAYS--- IN COMPUTING LONGEVITY UNDER SECTION 5 OF THE EXECUTIVE ORDER, SUPRA. SEE SECTION 2 (C) OF EXECUTIVE ORDER NO. 8882 WHICH PROVIDES:

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

(C) 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.

REFERRING TO THE QUESTION IN PARAGRAPH NUMBERED 3, WHILE THE CONTROLLING STATUTES DO NOT REQUIRE THAT RESTORATION TO A CIVILIAN POSITION SHALL BE MADE WITHIN FORTY DAYS AFTER DISCHARGE FROM ACTIVE MILITARY OR NAVAL SERVICE, THE STATUTES DO CLEARLY CONTEMPLATE PROMPT REENTRY INTO A CIVILIAN POSITION IN ORDER TO SAVE TO THE EMPLOYEE THE BENEFITS OF SENIORITY OR LONGEVITY AND LEAVE BENEFITS. HENCE, SHOULD AN EMPLOYEE BE OFFERED A POSITION BASED UPON AN APPLICATION FOR RESTORATION FILED IN TIME AND REFUSE OR DELAY ACCEPTING THE POSITION SOLELY FOR PERSONAL REASONS, HE WOULD LOSE HIS RIGHT TO COUNT HIS ACTIVE MILITARY OR NAVAL SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS SHOULD HE THEREAFTER BE RESTORED OR APPOINTED TO A POSITION IN THE SERVICE.

WAR DEPARTMENT CIRCULAR NO. 397, DATED DECEMBER 7, 1942, REFERRED TO IN PARAGRAPH NUMBERED 4, PROVIDES IN PERTINENT PART:

II. DISCHARGE OF MEN 38 YEARS OF AGE AND OVER.--- 1. CERTAIN ENLISTED MEN WHO BY REASON OF ADVANCED AGE, 38 YEARS OF AGE AND OVER, ARE UNABLE SATISFACTORILY TO PERFORM MILITARY SERVICE, BUT WHO ARE QUALIFIED TO ASSIST THE NATIONAL WAR EFFORT IF DISCHARGED FROM THE ARMY.

2. AUTHORITY IS GRANTED BY THIS CIRCULAR TO DISCHARGE SUCH MEN FOR THE CONVENIENCE OF THE GOVERNMENT, SUBJECT TO CERTAIN LIMITATIONS. 3. THE BASIS FOR DECISION BY THE OFFICER HAVING DISCHARGE AUTHORITY TO DISCHARGE SUCH AN ENLISTED MAN WILL BE THAT THE ENLISTED MAN---

(C) HAS PRESENTED SATISFACTORY EVIDENCE THAT HE WILL BE EMPLOYED IN AN ESSENTIAL WAR INDUSTRY, INCLUDING AGRICULTURE, IF HE IS DISCHARGED FROM THE ARMY.

THERE IS NOTHING IN THAT CIRCULAR OR IN ANY STATUTE OR REGULATION HAVING THE FORCE AND EFFECT OF LAW AUTHORIZING THE COUNTING OF SERVICE "IN AN ESSENTIAL WAR INDUSTRY, INCLUDING AGRICULTURE" IN COMPUTING LONGEVITY FOR THE PURPOSE OF GRANTING WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE ACT OF AUGUST 1, 1941, AND THE PRESIDENT'S REGULATIONS. HOWEVER, IT IS REASONABLE TO CONCLUDE THAT A FORMER CIVILIAN EMPLOYEE SHOULD NOT BE REQUIRED TO LOSE HIS RIGHT TO COUNT SERVICE IN THE ACTIVE MILITARY OR NAVAL SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS WHEN HE IS PRECLUDED FROM RETURNING TO HIS CIVILIAN POSITION SOON AFTER HIS DISCHARGE FROM THE ACTIVE MILITARY SERVICE BECAUSE OF THE FACT THAT HIS DISCHARGE FROM THE ARMY, OTHERWISE HONORABLE, IS CONDITIONED UPON EMPLOYMENT IN AN ESSENTIAL WAR INDUSTRY, INCLUDING AGRICULTURE. ACCORDINGLY, THE ANSWER TO THE QUESTION IN PARAGRAPH NUMBERED 2 ANSWERS, ALSO, THE QUESTION IN PARAGRAPH NUMBERED 4. THAT IS TO SAY, THE EMPLOYEE, UPON SUBSEQUENT RESTORATION TO A CIVILIAN POSITION IN THE FEDERAL SERVICE SOON AFTER HE TERMINATES HIS SERVICE IN AN ESSENTIAL WAR INDUSTRY, INCLUDING AGRICULTURE, MAY COUNT ALL OF HIS ACTIVE MILITARY SERVICE FOR PURPOSES OF THE AUTOMATIC INCREASE IN SALARY PROVIDED FOR BY LAW.

THE QUESTION IN PARAGRAPH NUMBERED 5, IS UNDERSTOOD TO BE: WHETHER, UNDER THE STATED FACTS, THE EMPLOYEE MAY COUNT HIS ACTIVE MILITARY OR NAVAL SERVICE IN COMPUTING LONGEVITY UNDER THE WITHIN-GRADE PROMOTION LAW AND REGULATIONS, AND, AS SO UNDERSTOOD, IT IS ANSWERED IN THE NEGATIVE. SEE ANSWER TO THE QUESTION IN PARAGRAPH NUMBERED 1. OF COURSE, ANY EMPLOYEE REEMPLOYED OR REINSTATED ADMINISTRATIVELY, NOT AS A RIGHT TO RESTORATION PURSUANT TO THE TERMS AND CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT, AFTER DISCHARGE FROM THE ARMY OR NAVY TO A PERMANENT POSITION COMING WITHIN THE PURVIEW OF THE CLASSIFICATION ACT, 42 STAT. 1488, WOULD BE ENTITLED THEREAFTER TO WITHIN-GRADE SALARY ADVANCEMENTS UPON MEETING THE TERMS AND CONDITIONS OF THE LAW AND REGULATIONS AS TO LONGEVITY, EFFICIENCY RATING, AND SERVICE AND CONDUCT, BUT HE COULD NOT COUNT HIS ACTIVE MILITARY OR NAVAL SERVICE FOR SUCH PURPOSE. THE RULE FOR FIXING THE INITIAL SALARY RATE UPON REINSTATEMENT UNDER SUCH CIRCUMSTANCES WOULD BE THE SAME AS THOUGH THE EMPLOYEE HAD NOT SERVED IN THE ACTIVE MILITARY OR NAVAL SERVICE. SEE 16 COMP. GEN. 598.

THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, PUBLIC LAW 517, 56 STAT. 200, PROVIDES:

THAT EMPLOYEES OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING EMPLOYEES OF ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE UNITED STATES GOVERNMENT, OR ANY CORPORATION, ALL THE STOCK OF WHICH IS OWNED OR CONTROLLED BY THE UNITED STATES GOVERNMENT, OR ANY DEPARTMENT, AGENCY, OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), WHO, SUBSEQUENT TO MAY 1, 1940, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES BY VOLUNTARY ENLISTMENT OR OTHERWISE, SHALL BE ENTITLED TO RECEIVE, IN ADDITION TO THEIR MILITARY PAY, COMPENSATION IN THEIR CIVILIAN POSITIONS COVERING THEIR ACCUMULATED OR CURRENT ACCRUED LEAVE, OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE.

IN DECISION OF NOVEMBER 3, 1941, 21 COMP. GEN. 403, 407, IT WAS STATED:

IN SUBDIVISION (C) OF QUESTION 3 OF YOUR LETTER YOU INQUIRE AS TO WHETHER AN EMPLOYEE WHO VOLUNTARILY ENLISTS IN THE MILITARY OR NAVAL SERVICE, BUT WHO IS NOT RESTORED TO ACTIVE FEDERAL CIVILIAN DUTY AFTER DISCHARGE, MAY, UPON APPLICATION, BE RESTORED TO A CIVILIAN PAY STATUS ,EXPRESSLY FOR THE PURPOSE OF PAYING HIM FOR ACCUMULATED LEAVE UNUSED AT TIME OF ENLISTMENT.' IN THE ABSENCE OF THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, AND THEIR APPLICABILITY, BY VIRTUE OF THE TERMS OF SECTION 7 OF THE PUBLIC LAW 213, TO PERSONS WHO VOLUNTARILY ENLIST IN THE NAVAL OR MILITARY SERVICE, ANNUAL LEAVE TO THE CREDIT OF SUCH PERSONS AT THE DATE OF INDUCTION WOULD BE FORFEITED. 20 COMP. GEN. 257. THUS, IT IS ONLY BECAUSE OF SAID STATUTES THAT REEMPLOYMENT BENEFITS, INCLUDING CERTAIN LEAVE RIGHTS, ARE RESTORED TO THEM, AND THEY ARE RESTORED ONLY TO THE EXTENT AND SUBJECT TO THE CONDITIONS SET FORTH THEREIN. AS ABOVE NOTED, UPON COMPLIANCE WITH THOSE CONDITIONS THE EMPLOYEES ARE ENTITLED TO BE "RESTORED" TO THEIR FORMER CIVILIAN POSITION, OR TO A POSITION OF LIKE SENIORITY STATUS AND PAY; AND IT IS ONLY UPON SUCH RESTORATION THAT THERE MATERIALIZES A RIGHT TO "BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF ACTIVE MILITARY SERVICE" AND TO REACQUIRE THE LEAVE AND OTHER BENEFITS WHICH WOULD OTHERWISE HAVE BEEN LOST TO THEM. IN OTHER WORDS, IT IS ONLY IN THE EVENT THAT THE CONDITIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, HAVE BEEN COMPLIED WITH THAT SUCH AN EMPLOYEE IS ENTITLED TO BE RESTORED TO HIS POSITION; AND IT IS ONLY IN THE EVENT THAT HE BE SO RESTORED THAT HE IS ENTITLED TO BE CONSIDERED AS HAVING BEEN ON LEAVE OF ABSENCE FROM HIS POSITION AND TO BE RECREDITED WITH HIS ACCRUED LEAVE. COMPARE 22 COMP. GEN. 47.

ACCORDINGLY, REFERRING TO THE QUESTION IN PARAGRAPH NUMBERED 6, ANNUAL LEAVE TO THE CREDIT OF AN EMPLOYEE WHEN HE ENTERED ACTIVE MILITARY OR NAVAL SERVICE SUBSEQUENT TO MAY 1, 1940, FOR WHICH PAYMENT WAS NOT MADE UNDER THE PROVISIONS OF THE ABOVE-QUOTED STATUTE, MAY BE RECREDITED TO HIM UPON RESTORATION TO HIS FORMER CIVILIAN POSITION, OR ONE OF LIKE SENIORITY, STATUS, AND PAY, IN THE CIRCUMSTANCES LISTED IN PARAGRAPHS NUMBERED 2 AND 4, BUT NOT IN THE CIRCUMSTANCES LISTED IN PARAGRAPHS NUMBERED OF YOUR LETTER.