B-45311, NOVEMBER 6, 1944, 24 COMP. GEN. 357

B-45311, NOVEMBER 6, 1944, 24 COMP. GEN. 357

OFFICERS AND EMPLOYEES - REINSTATEMENT AFTER MILITARY DUTY - LEAVE/WITHOUT PAY STATUS; WITHIN-GRADE PROMOTION RIGHTS IN VIEW OF THE REQUIREMENT IN SECTION 2 OF WAR SERVICE REGULATIONS XIII THAT ANY PERSON ENTITLED TO THE REEMPLOYMENT BENEFITS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 MUST BE RESTORED TO CIVILIAN POSITION "WITHIN THIRTY DAYS OF HIS APPLICATION FOR REEMPLOYMENT," WHERE IS NO AUTHORITY AS STATED IN CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 451 TO CONTINUE AN EMPLOYEE IN A MILITARY FURLOUGH STATUS FOR RECUPERATIVE PURPOSES BEYOND SUCH 30-DAY PERIOD; RATHER, THERE MUST BE AN ACTUAL RESTORATION WITHIN THAT PERIOD TO ENTITLE HIM TO REEMPLOYMENT BENEFITS, INCLUDING THE RIGHT TO COUNT MILITARY SERVICE TOWARDS WITHIN GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941. PURSUANT TO THE ADMINISTRATIVE DISCRETION TO GRANT LEAVE OF ABSENCE WITHOUT PAY IN RESPECT OF ANY PERIOD OF TIME, AN EMPLOYEE ENTITLED TO THE REEMPLOYMENT BENEFITS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AFTER MILITARY OR NAVAL SERVICE MAY BE RESTORED TO A CIVILIAN POSITION IN A LEAVE-WITHOUT-PAY STATUS, PROVIDED IT BE DETERMINED ADMINISTRATIVELY THAT ALL OF THE STATUTORY CONDITIONS ENTITLING HIM TO RESTORATION ARE THEN MET, INCLUDING A DETERMINATION THAT HE IS PHYSICALLY AND MENTALLY QUALIFIED TO PERFORM THE DUTIES OF THE POSITION TO WHICH HE IS RESTORED. AN EMPLOYEE WHO WAS IN A NON-PAY STATUS FOR A PERIOD IN EXCESS OF 30 DAYS BETWEEN DISCHARGE FROM THE ACTIVE MILITARY SERVICE AND RESTORATION TO A CIVILIAN POSITION IN ACCORDANCE WITH THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 IS ENTITLED, UNDER SECTION 2 (C) OF EXECUTIVE ORDER NO. 8882, ISSUED PURSUANT TO THE WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, TO COUNT ONLY 30 DAYS OF SUCH PERIOD TOWARD THE SERVICE REQUIRED FOR A WITHIN-GRADE SALARY ADVANCEMENT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF LABOR, NOVEMBER 6, 1944:

I HAVE YOUR LETTER OF OCTOBER 21, 1944, AS FOLLOWS:

AN EMPLOYEE OF THIS DEPARTMENT WAS PROMOTED TO THE POSITION OF ASSISTANT ECONOMIST, 1-2, ON OCTOBER 16, 1942, FURLOUGHED TO ENTER MILITARY SERVICE ON JANUARY 6, 1943, AND DISCHARGED FROM MILITARY SERVICE ON NOVEMBER 27, 1943. HE APPLIED FOR RESTORATION TO HIS FORMER POSITION IN THE DEPARTMENT ON DECEMBER 14, 1943, STATING IN HIS APPLICATION THAT "DISCHARGE WAS FOR PHYSICAL DISABILITY ARISING FROM AN ALLERGIC CONDITION WHICH DEVELOPED AFTER INDUCTION AND WHICH WILL IN NO WAY INTERFERE WITH MY ABILITY TO PERFORM THE DUTIES OF MY POSITION.'

THIS EMPLOYEE WAS DISCHARGED BEFORE THE CURE OF THE ALLERGIC CONDITION HAD BEEN COMPLETED, AND IN HIS APPLICATION FOR RESTORATION, HE STATED THAT THE ALLERGIC CONDITION WOULD "IN NO WAY INTERFERE WITH MY ABILITY TO PERFORM THE DUTIES OF MY POSITION IN THE WAGE AND HOUR DIVISION.' HOWEVER, AS STATED BY HIM IN SUBSEQUENT CORRESPONDENCE, THE REGULAR DAILY TREATMENT REQUIRED WAS NOT AVAILABLE AT HIS OFFICIAL STATION. IN ORDER THAT THESE TREATMENTS MIGHT NOT BE INTERRUPTED, THE DEPARTMENT CONTINUED HIM ON MILITARY FURLOUGH. THIS WAS IN HARMONY WITH THE DEPARTMENTAL CIRCULAR NO. 451, NOVEMBER 13, 1943, IN WHICH THE CIVIL SERVICE COMMISSION INSTRUCTED DEPARTMENTS TO ALLOW EMPLOYEES RETURNING FROM MILITARY SERVICE TIME IN WHICH TO RECUPERATE FROM RECENT DISEASE OR INJURY BY CONTINUING THEM ON MILITARY FURLOUGH OR LEAVE WITHOUT PAY, AND CONSONANT WITH EXECUTIVE ORDER 5396, JULY 17, 1930, WHICH MAKES IT MANDATORY TO GRANT DISABLED VETERANS ALL AVAILABLE ANNUAL OR SICK LEAVE AND ALL THE LEAVE WITHOUT PAY NECESSARY TO PROVIDE TIME OFF FOR MEDICAL TREATMENTS. MARCH 13, 1944, THE EMPLOYEE NOTIFIED THE DEPARTMENT THAT TREATMENTS WERE NO LONGER NECESSARY. HE SUBMITTED A MEDICAL CERTIFICATE ON APRIL 5TH AND WAS RESTORED TO DUTY ON APRIL 17TH, FOUR MONTHS AFTER MAKING APPLICATION FOR RESTORATION.

UNDER SECTION V OF EXECUTIVE ORDER 8882, AN EMPLOYEE RESTORED IN ACCORDANCE WITH THE SELECTIVE TRAINING AND SERVICE ACT MAY HAVE TIME SPENT IN MILITARY SERVICE COUNTED TOWARD ELIGIBILITY FOR WITHIN-GRADE SALARY ADVANCEMENTS. THIS RULE HAS BEEN APPLIED IN A NUMBER OF DECISIONS OF YOUR OFFICE (20 (21) COMP. GEN. 1007, 22 COMP. GEN. 969, 23 COMP. GEN. 617). IN DECISION B-33419, 22 COMP. GEN. 969, IT IS HELD THAT:

"WHILE CONTROLLING STATUTES DO NOT REQUIRE THAT RESTORATION TO A CIVILIAN POSITION BE MADE WITHIN 40 DAYS AFTER DISCHARGE FROM ACTIVE MILITARY OR NAVAL SERVICE, THE STATUTES DO CLEARLY CONTEMPLATE PROMPT REENTRY INTO A CIVILIAN POSITION TO SAVE THE EMPLOYEE THE BENEFITS OF SENIORITY, LONGEVITY AND LEAVE BENEFITS. HENCE SHOULD AN EMPLOYEE BE OFFERED A POSITION BASED ON AN APPLICATION FOR RESTORATION FILED IN TIME AND REFUSE OR DELAY ACCEPTING THE POSITION FOR PERSONAL REASONS, HE WOULD LOSE HIS RIGHT TO COUNT ACTIVE MILITARY OR NAVAL SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS, SHOULD HE THEREAFTER BE RESTORED OR APPOINTED TO A POSITION IN THE SERVICE.'

OBVIOUSLY THIS RULE WAS INTENDED TO PREVENT CAPRICIOUS DELAY ON THE PART OF THE EMPLOYEE. IT DOES NOT APPEAR, HOWEVER, THAT THE RULE IS APPLICABLE TO THE FACTS HERE SUBMITTED. IN THIS CASE, DELAY WAS NOT FOR PERSONAL CONVENIENCE OF THE EMPLOYEE. POSTPONEMENT OF RESTORATION WAS AN ACT OF THE DEPARTMENT TAKEN BECAUSE TREATMENT FOR A CONDITION ARISING OUT OF MILITARY SERVICE COULD NOT BE OBTAINED AT THE DUTY STATION. IN VIEW OF THE FACT THAT THE SELECTIVE TRAINING AND SERVICE ACT CONTAINS NO SPECIFIC TIME LIMIT WITHIN WHICH A RESTORATION TO DUTY MUST BE ACCOMPLISHED, IT IS BELIEVED THAT THIS EXERCISE OF ADMINISTRATIVE DISCRETION WAS NOT IN VIOLATION OF THE SELECTIVE TRAINING AND SERVICE ACT AND SHOULD NOT RESULT IN IN THE LOSS OF THE BENEFITS OF THAT ACT TO THE EMPLOYEE INVOLVED.

YOUR DECISION IS REQUESTED, THEREFORE, AS TO WHETHER THIS EMPLOYEE WAS RESTORED IN ACCORDANCE WITH THE SELECTIVE TRAINING AND SERVICE ACT SO AS TO SAVE HIM THE BENEFITS OF SECTION V OF EXECUTIVE ORDER NO. 8882. IF SO, MAY THE INTERVAL BETWEEN DISCHARGE AND RESTORATION BE COUNTED TOWARD ELIGIBILITY FOR WITHIN-GRADE SALARY ADVANCEMENTS?

UNDER THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT APPROVED SEPTEMBER 16, 1940, 54 STAT. 890, AS EXTENDED BY SECTION 7 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 627, A RETURNING VETERAN IS ENTITLED TO REEMPLOYMENT BENEFITS IN HIS FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS AND PAY, PROVIDED (1) THAT HE RECEIVES A CERTIFICATE OF SATISFACTORY SERVICE, (2) THAT HE IS PHYSICALLY AND MENTALLY QUALIFIED TO PERFORM THE DUTIES OF THE POSITION, AND (3) THAT HE APPLIES WITHIN FORTY (40) DAYS OF THE DATE OF HIS DISCHARGE FROM THE MILITARY SERVICE. SEE 21 COMP. GEN. 403; ID. 566; ID 1007.

SECTION 2 OF WAR SERVICE REGULATIONS XIII OF THE CIVIL SERVICE COMMISSION (PAGE 41.01, CIVIL SERVICE RULES) PROVIDES IN MATERIAL PART AS FOLLOWS:

TIME LIMIT.--- ANY PERSON WHO IS ENTITLED TO REEMPLOYMENT IN THE GOVERNMENT SERVICE UNDER SECTION 1 OF THIS REGULATION, (TAKEN FROM THE SELECTIVE TRAINING AND SERVICE ACT) OR UNDER ANY PROVISIONS OF REGULATION IX SHALL BE REEMPLOYED AS PROVIDED IN THESE REGULATIONS WITHIN THIRTY DAYS OF HIS APPLICATION FOR REEMPLOYMENT. * * *

THE PORTION OF THE REGULATION QUOTED WAS IN EFFECT DECEMBER 14, 1943, WHEN THE EMPLOYEE WHOSE CASE IS HERE PRESENTED MADE APPLICATION FOR RESTORATION WITHIN FORTY (40) DAYS FROM NOVEMBER 27, 1943, REPORTED AS DATE OF HIS DISCHARGE FROM THE MILITARY SERVICE. SEE DEPARTMENTAL CIRCULAR OF THE CIVIL SERVICE COMMISSION NO. 323, REVISED, SUPPLEMENT 21, DATED JULY 19, 1943.

CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 451, DATED NOVEMBER 13, 1943 (PAGE 142.01, CIVIL SERVICE RULES), TO WHICH YOU REFER, CONTAINS THE FOLLOWING:

IN CASES WHERE A FORMER EMPLOYEE WHO IS ENTITLED TO REEMPLOYMENT RIGHTS APPLIES FOR SUCH RIGHTS WITHIN 40 DAYS AFTER DISCHARGE AND MAKES A STATEMENT, ACCOMPANIED BY SUCH EVIDENCE (IF ANY) AS THE AGENCY DEEMS NECESSARY, THAT HE NEEDS ADDITIONAL TIME TO RECUPERATE FROM RECENT DISEASE OR INJURY, IT IS SUGGESTED THAT THE AGENCY CONTINUE HIS NAME ON MILITARY FURLOUGH OR ON LEAVE WITHOUT PAY WITH THE UNDERSTANDING THAT THE VETERAN WILL REPORT BACK TO THE AGENCY WITHIN A REASONABLE TIME AS TO HIS PROGRESS AND THE PROBABLE DATE WHEN HE WILL BE ABLE TO RETURN TO WORK. (ITALICS SUPPLIED.)

IN VIEW OF THE REQUIREMENT OF THE WAR SERVICE REGULATION, SUPRA (WHICH THE CIVIL SERVICE COMMISSION HAD AUTHORITY TO PROMULGATE AND WHICH HAS THE FORCE AND EFFECT OF LAW) FOR RESTORATION OF AN EMPLOYEE TO A CIVILIAN POSITION "WITHIN THIRTY DAYS OF HIS APPLICATION FOR REEMPLOYMENT," AND IN ORDER TO CARRY OUT THE CLEAR PURPOSE AND INTENT OF THE SELECTIVE TRAINING AND SERVICE ACT, IT MUST BE CONCLUDED THAT THERE IS NO AUTHORITY, SUCH AS COVERED IN THE ITALICIZED PORTION OF CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 451, TO CONTINUE AN EMPLOYEE IN A MILITARY FURLOUGH STATUS BEYOND 30 DAYS FROM THE DATE OF FILING APPLICATION FOR RESTORATION, BUT THERE MUST BE AN ACTUAL RESTORATION OF THE EMPLOYEE TO HIS FORMER POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY WITHIN 30 DAYS OF HIS APPLICATION FOR RESTORATION TO ENTITLE HIM TO REEMPLOYMENT BENEFITS, INCLUDING THE RIGHT TO COUNT MILITARY SERVICE TOWARDS AUTOMATIC PROMOTION. HOWEVER, AN EMPLOYEE MAY BE RESTORED TO THE ROLLS IN SUCH A CIVILIAN POSITION WITHIN 30 DAYS OF FILING APPLICATION, EITHER ON AN ACTIVE DUTY STATUS, OR IN A LEAVE WITHOUT PAY STATUS, PROVIDED IT BE DETERMINED ADMINISTRATIVELY THAT ALL THREE OF THE STATUTORY CONDITIONS ENTITLING HIM TO RESTORATION ARE THEN MET, INCLUDING AN ADMINISTRATIVE DETERMINATION THAT THE EMPLOYEE IS PHYSICALLY AND MENTALLY QUALIFIED TO PERFORM THE DUTIES OF THE CIVILIAN POSITION TO WHICH HE IS RESTORED. COMP. GEN. 832. THAT IS TO SAY, THE GRANTING OF LEAVE OF ABSENCE WITHOUT PAY IS WITHIN ADMINISTRATIVE DISCRETION IN RESPECT OF ANY PERIOD OF TIME, INCLUDING A PERIOD IMMEDIATELY FOLLOWING RESTORATION OF AN EMPLOYEE TO HIS CIVILIAN POSITION AFTER DISCHARGE FROM THE ACTIVE MILITARY OR NAVAL SERVICE, ALTHOUGH AN EMPLOYEE DOES NOT HAVE A VESTED RIGHT TO SUCH LEAVE OF ABSENCE WITHOUT PAY.

IN VIEW OF THE MISINFORMATION CONTAINED IN THE ITALICIZED PORTION OF CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 451, SUPRA, REGARDING EXTENSION OF MILITARY FURLOUGH--- INCONSISTENT WITH THE WAR SERVICE REGULATION REQUIRING RESTORATION WITHIN 30 DAYS--- AND WITH THE UNDERSTANDING THAT IT WAS DETERMINED ADMINISTRATIVELY THAT THE EMPLOYEE WAS NOT PHYSICALLY OR MENTALLY DISQUALIFIED TO PERFORM THE DUTIES OF THE CIVILIAN POSITION WHEN HE MADE APPLICATION FOR RESTORATION, NOTWITHSTANDING HIS ALLERGIC CONDITION, IT MAY BE ASSUMED, IN THE CASE PRESENTED, THAT THE EMPLOYEE ACTUALLY WAS RESTORED TO A CIVILIAN POSITION UNDER THE TERMS AND CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT WITHIN THE TIME ALLOWED BY THE WAR SERVICE REGULATIONS AND WAS GRANTED, ADMINISTRATIVELY, LEAVE OF ABSENCE WITHOUT PAY UNTIL APRIL 17, 1944, FOR THE PURPOSE STATED IN CIVIL SERVICE CIRCULAR NO. 451, SUPRA.

BUT, ON THE OTHER HAND, IF IT WERE ADMINISTRATIVELY DETERMINED THAT THE EMPLOYEE WAS DISQUALIFIED, EITHER PHYSICALLY OR MENTALLY, FOR RESTORATION WITHIN 30 DAYS OF HIS FILING OF APPLICATION, THERE WOULD BE REQUIRED THE CONCLUSION THAT HE HAS NOT BEEN RESTORED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF LAW AND MAY NOT BE GRANTED ANY REEMPLOYMENT BENEFITS BY REASON OF HIS FORMER CIVILIAN 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, AMENDED BY THE ACT OF AUGUST 1, 1941, 55 STAT. 613, 614, PROVIDES:

ANY EMPLOYEE OF THE FEDERAL GOVERNMENT WHO IN ACCORDANCE WITH THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 ( PUBLIC NO. 683, 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 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.)

IT HAS BEEN HELD THAT THE PERIOD IN A NON-PAY STATUS BETWEEN TERMINATION OF ACTIVE MILITARY SERVICE AND RESTORATION TO A CIVILIAN STATUS IS TO BE REGARDED THE SAME AS ANY OTHER PERIOD IN A NON-PAY STATUS WITHIN THE MEANING OF SECTION 2 (C) OF SAID EXECUTIVE ORDER NO. 8882 OF SEPTEMBER 3, 1941, PROVIDING:

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: * * * * *

(C) TIME ELAPSING IN 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.

SEE 23 COMP. GEN. 617. THAT IS TO SAY, UNDER SECTION 5 OF THE PRESIDENT'S REGULATIONS ABOVE QUOTED, ALL OF ACTIVE MILITARY SERVICES MAY BE COUNTED TOWARD AUTOMATIC PROMOTION, BUT UNDER SECTION 2 (C) OF THE SAME REGULATIONS, AN EMPLOYEE MAY COUNT ONLY 30 DAYS OF A LONGER PERIOD IN A NON-PAY STATUS BETWEEN DISCHARGE FROM THE ACTIVE MILITARY SERVICE AND RESTORATION TO ACTIVE CIVILIAN SERVICE FOR THE PURPOSE OF AUTOMATIC PROMOTION.

ACCORDINGLY, IF THE EMPLOYEE WHOSE CASE IS HERE PRESENTED MET ALL THE STATUTORY CONDITIONS ENTITLING HIM TO REEMPLOYMENT AND OTHERWISE PROPERLY WAS RESTORED TO DUTY, HE MAY COUNT TOWARDS AUTOMATIC PROMOTION ONLY THE PERIOD OF HIS MILITARY SERVICE FROM JANUARY 6, 1943, TO NOVEMBER 27, 1943, BOTH DATES INCLUSIVE, AND, ALSO, NOT TO EXCEED 30 DAYS IN NON-PAY STATUS THEREAFTER, THAT IS, THROUGH DECEMBER 27, 1943. HE MAY NOT COUNT ANY OF THE PERIOD FROM DECEMBER 28, 1943, THROUGH APRIL 16, 1944, PRIOR TO HIS RETURN TO ACTIVE DUTY, WHEN HE WAS IN A NON-PAY STATUS.