B-50260, JUNE 25, 1945, 24 COMP. GEN. 930

B-50260, JUNE 25, 1945, 24 COMP. GEN. 930

OFFICERS AND EMPLOYEES - REINSTATEMENT AFTER MILITARY DUTY IN THE CASE OF PERMANENT EMPLOYEES OF THE WAR DEPARTMENT WHO, WHEN THEY ENTERED UPON MILITARY DUTY, WERE FURLOUGHED OR SEPARATED FROM THE HIGHER POSITIONS IN WHICH THEY WERE SERVING ON ACCOUNT OF THE ABSENCE OF OTHER EMPLOYEES ON MILITARY DUTY, NONE OF THE ORIGINAL POSITIONS BEING EARMARKED" FOR ANY PARTICULAR EMPLOYEE, REEMPLOYMENT BENEFITS MAY BE GRANTED UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, ON THE BASIS OF THE POSITION LAST OCCUPIED. 24 COMP. GEN. 729, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, JUNE 25, 1945:

I HAVE YOUR LETTER OF JUNE 4, 1945, AS FOLLOWS:

YOUR DECISION OF APRIL 9, 1945 (B-48455) TO THE FEDERAL SECURITY ADMINISTRATOR HAS BEEN NOTED AND IT IS CONSIDERED MOST ESSENTIAL THAT THE FACTS WHICH OBTAIN IN THIS DEPARTMENT BE SUBMITTED FOR YOUR REVIEW. FEEL THAT THESE FACTS VARY SUBSTANTIALLY FROM THOSE WHICH EXISTED IN THE FEDERAL SECURITY AGENCY AND WE ARE OF THE OPINION THAT THE PRINCIPLES ANNOUNCED IN CONNECTION WITH CASE 1 AS DISCUSSED IN YOUR DECISION CANNOT BE APPLIED HERE WITHOUT SERIOUS INJUSTICE AND IMPAIRMENT OF OUR WORKING FORCE.

IN ANY ORGANIZATION WHICH HAS EXPANDED AS MUCH AND AS RAPIDLY AS HAS THE WAR DEPARTMENT IN THE PAST FOUR YEARS, IT IS MOST NATURAL THAT THE CADRE GROUP OF PERMANENT EMPLOYEES SHOULD HAVE BEEN PROMOTED TO POSITIONS OF GREATER RESPONSIBILITY. IN ADDITION TO THESE BROADENED OPPORTUNITIES FOR ADVANCEMENT, PREVAILING UNSTABLE CONDITIONS HAVE RESULTED IN A VERY HIGH RATE OF TURNOVER THEREBY INCREASING THE NUMBER OF PROMOTIONS FOR COMPETENT EMPLOYEES WHO REMAIN. A SUBSTANTIAL PART OF THESE PROMOTIONS WITHIN THE SERVICE HAVE BEEN BROUGHT ABOUT BY THE REPLACEMENT OF PERSONS ENTERING THE MILITARY SERVICE BUT, IN GENERAL, THIS LATTER CONTINGENCY HAS BEEN OVERSHADOWED BY OTHER CAUSES FOR PROMOTIONS.

THE ORIGINAL INSTRUCTIONS ISSUED BY THE DEPARTMENT TO GOVERN REPLACEMENT OF EMPLOYEES ON MILITARY FURLOUGH PROVIDED THAT ALL SUCH ASSIGNMENTS SHOULD BE DESIGNATED AS OF INDEFINITE DURATION PENDING RETURN OF THE ORIGINAL INCUMBENT. AT THAT TIME IT WAS CONTEMPLATED THAT THE EMPLOYEE WOULD BE ABSENT FOR THE YEAR'S TRAINING STIPULATED BY THE THEN RECENT SELECTIVE TRAINING AND SERVICE ACT OF 1940; THE NEED FOR APPLICATION OF THAT ACT AND ITS PROCEDURAL IMPLEMENTATIONS TO A WAR-TIME ORGANIZATION WAS NOT FORESEEN. BASICALLY, IT WAS REQUIRED THAT POSITIONS BE ,EARMARKED" FOR THE ABSENT TRAINEES, A PRACTICE WHICH APPEARS TO HAVE BEEN PRACTICABLE AND DESIRABLE FOR THE FEDERAL SECURITY AGENCY. AS A COROLLARY TO THIS REQUIREMENT, OF COURSE, THE INCUMBENT WHO REPLACED THE FURLOUGHED EMPLOYEE WAS REDUCED TO HIS FORMER POSITION, IF ANY, PRIOR TO HIS (THE LATER INCUMBENT-S) FURLOUGH FOR MILITARY SERVICE.

IT WILL BE APPARENT THAT THIS PRACTICE WAS FEASIBLE SO LONG AS THE DEPARTMENT REMAINED STABLE BOTH AS TO SIZE AND ORGANIZATION. IN THE YEARS THAT HAVE ELAPSED, HOWEVER, SO MANY CHANGES HAVE OCCURRED THAT WITH FEW EXCEPTIONS, THE ORIGINAL "EARMARKING" PRACTICE HAS BECOME UNSUPPORTABLE. MOREOVER, THIS PRACTICE CAME TO BE REGARDED AS MANIFESTLY UNJUST TO THE EMPLOYEE, WHETHER PERMANENT OR WAR SERVICE, WHO ENTERED THE SERVICE DURING OCCUPANCY IN A POSITION PREVIOUSLY HELD BY A FURLOUGHEE. THIS INEQUITY CAN BEST BE ILLUSTRATED BY THE FOLLOWING SITUATIONS WHICH ARE KNOWN TO HAVE OCCURRED IN NUMEROUS INSTANCES:

EXAMPLE 1

A, AN EMPLOYEE IN CAF-5 POSITION, ENTERS THE ARMED FORCES AND B, A CAF-4, IS PROMOTED TO REPLACE HIM, HIS TENURE CONTINGENT OF A'S RETURN. AFTER A'S DEPARTURE, THE VOLUME OF WORK INCREASES AND THREE ADDITIONAL CAF-5 POSITIONS ARE JUSTIFIED. C, A CAF-4, IS PROMOTED TO FILL ONE OF THEM. LATER B ENTERS THE ARMED FORCES AND IS DEMOTED TO CAF-4 AND FURLOUGHED. ALSO ENTERS THE SERVICE BUT IS FURLOUGHED FROM CAF-5 BECAUSE HIS POSITION IS NOT ENCUMBERED. UPON THE RETURN OF THESE MEN, A HAS A LEGAL RIGHT TO THE ORIGINAL POSITION AND C MUST BE PLACED IN THE OTHER CAF-5 POSITION, IF IT STILL EXISTS, OR TO ONE OF LIKE SENIORITY, STATUS, AND PAY, IF RETRENCHMENT HAS REQUIRED ITS ABOLITION. B, ON THE OTHER HAND, HAS RIGHTS ONLY IN HIS CAF-4 POSITION DESPITE HIS APPARENT PRIORITY OVER C.

EXAMPLE 2

O WAS A CAF-11 RATE ANALYST IN THE ARMY TRANSPORT SERVICE, QUARTERMASTER CORPS, AND WAS FURLOUGHED FOR MILITARY SERVICE. P A CAF 9 ANALYST WAS PROMOTED TO REPLACE HIM AND WAS, IN TURN, FURLOUGHED. AFTER P'S DEPARTURE THE ARMY TRANSPORT SERVICE WAS ABOLISHED AND ITS FUNCTIONS INCORPORATED IN A NEWLY CREATED TRANSPORTATION CORPS. TREMENDOUSLY INCREASED WORK LOAD REQUIRED THAT SEVERAL CAF-11 RATE *ANALYST POSITIONS BE ESTABLISHED. AND P WERE NOT SPECIFICALLY IDENTIFIED WITH ANY OF THE NEW POSITIONS IN THE TRANSPORTATION CORPS, ALTHOUGH IT WAS RECOGNIZED THAT THEY BECAME REEMPLOYMENT LIABILITIES OF THAT ORGANIZATION. UNDER THE DEPARTMENT'S REEMPLOYMENT POLICY, P WOULD HAVE PRIORITY OVER THE INCUMBENTS OF THE NEW CAF-11 POSITIONS UPON HIS RETURN, BUT BECAUSE HE HAD HELD THE ORIGINAL POSITION SUBJECT TO O'S RETURN, YOUR DECISION INDICATES THAT HE MAY NOT BE GRANTED FULL BENEFITS AFTER REEMPLOYMENT. ANY LATER INCUMBENT IN ONE OF THE CAF-11 POSITIONS WHO ENTERED MILITARY SERVICE WOULD RECEIVE SUCH BENEFITS UPON MEETING ALL OF THE CONDITIONS FOR RESTORATION.

EXAMPLE 3

X, AN ENGINEER AT P-4, IS COMMISSIONED IN THE ARMY AND Y, HIS P-3 ASSISTANT, IS PROMOTED TO REPLACE HIM ON AN INDEFINITE BASIS. LATER Y IS INDUCTED INTO THE SERVICE AND IS DEMOTED PRIOR TO FURLOUGH. AT THE TIME OF HIS DEPARTURE A CHANGE IN THE INSTALLATION'S MISSION REQUIRES EXTENSIVE REORGANIZATION AND THE POSITIONS OF X AND Y ARE ABOLISHED. THREE NEW P-4 POSITIONS, ANY OF WHICH EITHER X OR Y IS COMPETENT TO FILL, ARE CREATED AND Z, A FORMER P-3 IS PROMOTED TO FILL ONE OF THEM. HE IS LATER FURLOUGHED AND UPON THE RETURN OF THE THREE MEN, X AND Z ARE ENTITLED TO P -4 POSITIONS IN THE NEW ORGANIZATION. Y, UNDER YOUR RECENT DECISIONS, MUST BE PLACED IN A JOB OF LIKE SENIORITY, STATUS, AND PAY TO HIS ABOLISHED P-3 POSITION IF HE IS TO BE GIVEN CREDIT FOR THE TIME SPENT IN MILITARY SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENT.

THE ABOVE EXAMPLES ARE STATED IN TERMS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, BUT THE CONDITION IS NOT RESTRICTED TO THAT CATEGORY. ON THE CONTRARY, THE SITUATION IN THE UNGRADED SERVICE IS MORE COMPLEX, IF ANYTHING, BECAUSE OF THE GREATER DEGREE OF OPERATING FLEXIBILITY WHICH THAT SERVICE PERMITS.

BECAUSE OF ITS GREAT EXPANSION AND FAR-REACHING REORGANIZATIONS, THE WAR DEPARTMENT HAS NOT CONSIDERED IT FEASIBLE TO DESIGNATE PARTICULAR POSITIONS AS PERMANENT OR TEMPORARY. SUCH A BOOKKEEPING PROCESS WOULD REQUIRE AN EXTENSIVE STAFF WITH NO SUBSTANTIAL OPERATING ADVANTAGE. SIMILARLY, PROMOTIONS IN THE DEPARTMENT HAVE NOT BEEN DISTINGUISHED AS TO PERMANENT OR WAR SERVICE DURATION, NOR DOES IT APPEAR THAT SUCH AN ARRANGEMENT IS CONTEMPLATED BY WAR SERVICE REGULATION VI OR OTHER CONTROLLING CIVIL SERVICE DIRECTIVES. IT IS FULLY APPRECIATED THAT THE LIQUIDATION OF WAR-TIME ORGANIZATION WILL REQUIRE WHOLESALE READJUSTMENT OF OUR POSITION STRUCTURE, REDUCTIONS IN FORCE, REASSIGNMENTS AND DEMOTIONS. THIS TREMENDOUS TASK CANNOT BE ACCOMPLISHED ON AN INDIVIDUAL POSITION BASIS, HOWEVER, AND NEITHER THE EFFICIENCY OF THE SERVICE NOR EQUITY TO EMPLOYEES WOULD BE SERVED BY SUCH A PROCESS. RATHER, WE FIRMLY BELIEVE THAT THESE ADJUSTMENTS CAN ONLY BE MADE ON AN ORGANIZATION-WIDE BASIS, USING THE CRITERIA PROVIDED BY LAW AND CIVIL SERVICE REGULATIONS (THE RELATIVE EMPLOYMENT TENURE, VETERANS' PREFERENCE, LENGTH OF SERVICE, AND EFFICIENCY OF COMPETING INDIVIDUALS).

THE CIRCUMSTANCES DESCRIBED ABOVE RESULTED IN A VERY BAD ADMINISTRATIVE SITUATION WHENEVER FIELD APPOINTING OFFICERS ATTEMPTED TO FOLLOW THE DEPARTMENT'S INSTRUCTIONS REGARDING "EARMARKING" THE POSITIONS OF EMPLOYEES IN THE MILITARY SERVICE. IT WAS RECOGNIZED THAT THE PRACTICE OF DEMOTING AN EMPLOYEE PRIOR TO FURLOUGH WAS DESTRUCTIVE TO HIS MORALE AND POSSIBLY IN CONFLICT WITH THE APPARENT INTENT OF CONGRESS THAT THE RIGHTS OF EMPLOYEES ENTERING THE SERVICE SHOULD BE LIBERALLY CONSTRUED. NON- COMPLIANCE WITH THIS ASPECT OF THE DEPARTMENT'S PERSONNEL INSTRUCTIONS DEVELOPED ON A VERY BROAD SCALE AND WITH THE FULL KNOWLEDGE OF THIS OFFICE. IN VIEW OF THAT CONDITION AND SINCE MOST OF THE ORIGINAL POSITIONS OF THE DEPARTMENT HAD LOST THEIR IDENTITY DURING EXPANSION AND REORGANIZATION, IT WAS CONSIDERED NECESSARY AND DESIRABLE TO ABANDON THE ORIGINAL PLAN TO "EARMARK" SPECIFIC POSITIONS. THE CIVILIAN PERSONNEL REGULATIONS OF THE DEPARTMENT NOW PROVIDE THAT:

"THE EMPLOYEE ENTERING ON ACTIVE DUTY IN THE ARMED FORCES WILL BE FURLOUGHED OR SEPARATED FROM THE POSITION LAST OCCUPIED EXCEPT IN THOSE CASES WHERE HE HAD BEEN PROMOTED, DEMOTED, OR REASSIGNED TO THAT POSITION FOR A TEMPORARY PERIOD OF SPECIFIED DURATION. IN THE LATTER INSTANCE, HE WILL BE RETURNED TO HIS REGULAR POSITION PRIOR TO FURLOUGH OR SEPARATION.'

IT IS NOT NOW REQUIRED, THEREFORE, THAT AN EMPLOYEE BE DEMOTED PRIOR TO FURLOUGH WHEN HE OCCUPIES A POSITION PREVIOUSLY HELD BY ANOTHER EMPLOYEE IN THE MILITARY SERVICE. THIS APPEARS ENTIRELY PROPER AND WORKABLE SINCE, IN THE EVENT THE ORIGINAL INCUMBENT DOES NOT RETURN, THE REPLACEMENT WOULD BE ENTITLED TO THE POSITION UNDER THAT PROVISION OF WAR SERVICE REGULATION XIII WHICH ASSURES TO HIM ANY PROMOTIONS WHICH WOULD HAVE BEEN GRANTED HAD HE NOT ENTERED THE MILITARY SERVICE. THE FACT OF PRIOR PROMOTION IS AMPLE EVIDENCE OF HIS RIGHT TO THE HIGHER GRADE POSITION. THE CONTINGENCY OF BOTH OR SEVERAL EMPLOYEES RETURNING TO THE SAME POSITION CAN BE MET BY PROVIDING A POSITION OF LIKE SENIORITY, STATUS AND PAY TO THE LATER INCUMBENTS OR BY DEMOTION OF SUCH LATER INCUMBENTS WHICH CAN BE JUSTIFIED ON THE BASIS OF THE EARLIER POSITION ADJUSTMENTS AND CURRENT NEEDS OF THE SERVICE.

YOU WILL APPRECIATE THAT THIS DEPARTMENT FACES A VERY SERIOUS PROBLEM IN MEETING ITS RESPONSIBILITY TO THE THOUSANDS OF EMPLOYEES WHO HAVE LEFT ITS SERVICE TO ENTER THE ARMED FORCES. THE SATISFACTORY ADJUSTMENT OF RESTORED VETERANS DEMANDS THAT ALL SOURCES OF POTENTIAL FRICTION BE ERADICATED WHEREVER POSSIBLE. IN VIEW OF THE FACTUAL SITUATION DESCRIBED ABOVE, IT IS MOST CERTAIN THAT ANY ATTEMPT TO DEPRIVE AN EMPLOYEE OF WITHIN-GRADE SALARY INCREASE BECAUSE OF THE ACCIDENT OF HIS PRIOR OCCUPANCY IN A POSITION PREVIOUSLY HELD BY ANOTHER FURLOUGHEE WILL CREATE SUCH FRICTION. EMPLOYEES B, P, AND Y IN THE EXAMPLES OUTLINED ABOVE WILL NOT BE CONVINCED OF THE NECESSITY FOR DRAWING FINE LINES OF DISTINCTION UNDER STATUTES WHICH PURPORT TO PROTECT THEM AGAINST ANY LOSS AS A RESULT OF MILITARY SERVICE. IN VIEW OF THE FACT THAT NO ACTUAL SERVICE HAS BEEN RENDERED AT A LOWER SALARY RATE AND IF THE EMPLOYEE IS RESTORED TO THE POSITION LAST HELD IN AN ACTIVE DUTY CAPACITY OR AT THE SAME LEVEL, THE DEPARTMENT WOULD FIND IT MOST DIFFICULT TO DEFEND THE LOGIC OF WITHHOLDING THE BENEFITS APPARENTLY AUTHORIZED BY LAW.

UNLESS YOU FIND THAT THIS FACTUAL CONDITION DOES NOT WARRANT A DIFFERENT CONCLUSION FROM THAT REACHED IN YOUR DECISION OF APRIL 9, 1945, IT IS FIRMLY BELIEVED THAT A DIFFERENT APPLICATION SHOULD BE AUTHORIZED HERE. YOUR DECISION ON THIS QUESTION IS RESPECTFULLY SOLICITED.

IT IS UNDERSTOOD FROM THE SECOND PARAGRAPH OF YOUR LETTER THAT THE SEVERAL PROBLEMS PRESENTED RELATE EXCLUSIVELY TO OLD LINE PERMANENT EMPLOYEES OF THE WAR DEPARTMENT AND THAT YOU DO NOT CONTEND THAT EMPLOYEES COMING INTO THE SERVICE OF THE WAR DEPARTMENT DURING THE PERIOD OF THE WAR UNDER WAR SERVICE APPOINTMENTS ARE ENTITLED, AS A MATTER OF RIGHT, TO REEMPLOYMENT BENEFITS.

THE DECISION OF APRIL 9, 1945, B-48455, 24 C.G. 729, TO WHICH YOU REFER, HELD SO FAR AS HERE MATERIAL, AS FOLLOWS:

* * * THE RIGHT OF SUCH AN EMPLOYEE TO RESTORATION WITH REEMPLOYMENT BENEFITS RELATES TO HIS ORIGINAL PERMANENT POSITION RATHER THAN TO THE POSITION AT THE TIME HE ENTERED THE ARMED FORCES. THIS OFFICE IS IN AGREEMENT WITH THE VIEWS EXPRESSED BY THE DIRECTOR OF SELECTIVE SERVICE QUOTED IN THE LAST PARAGRAPH OF YOUR LETTER.

THE VIEWS OF THE DIRECTOR OF SELECTIVE SERVICE, THUS CONCURRED IN, WERE STATED AS FOLLOWS:

GENERALLY SPEAKING, ONE WHO IS EMPLOYED TO FILL THE PLACE MADE VACANT BY A PERSON ENTERING SERVICE OCCUPIES A TEMPORARY STATUS AND HAS NO REEMPLOYMENT RIGHTS EVEN THOUGH HE SUBSEQUENTLY ENTERS SERVICE. THERE MAY BE EXCEPTIONS TO THIS, HOWEVER. FOR EXAMPLE, SUPPOSE THAT A, A PERMANENT EMPLOYEE, ENTERS SERVICE AND B, ALSO A PERMANENT EMPLOYEE IS UPGRADED OR TRANSFERRED INTO A'S PLACE AND THEN ENTERS SERVICE; IF THEY RETURN, THEY ARE ENTITLED TO REINSTATEMENT IN THEIR ORIGINAL PERMANENT POSITIONS. IS THE CHARACTER OF RELATIONSHIP BETWEEN THE EMPLOYER AND EMPLOYEE, WHETHER "TEMPORARY" OR "PERMANENT," THAT SHOULD GOVERN RATHER THAN THE PARTICULAR ASSIGNMENT BEING CARRIED OUT AT THE TIME OF ENTRY INTO SERVICE. ( SOURCE: PAMPHLET--- INFORMATION CONCERNING THE VETERANS' ASSISTANCE PROGRAM OF THE SELECTIVE SERVICE SYSTEM, NOVEMBER 24, 1944, P. 40).

SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT APPROVED SEPTEMBER 16, 1940, 54 STAT. 890, AS AMENDED BY THE ACT OF JULY 28, 1942, 56 STAT. 724, CLEARLY AND DEFINITELY LIMITS REEMPLOYMENT BENEFITS TO THOSE WHO OCCUPY POSITIONS OTHER THAN TEMPORARY WHEN THEY ENTERED THE ARMED FORCES. IN TAKING OFFICIAL ACTION WITH RESPECT TO PAYMENTS OR PROPOSED PAYMENTS IN SUCH CASES, THIS OFFICE HAS NO CHOICE BUT TO APPLY THE LAW AS IT IS WRITTEN TO THE FACTS PRESENTED IN A PARTICULAR SITUATION. THERE IS REALIZED THE IMPRACTICABILITY OF ADOPTING A DEFINITE FORMULA THAT COULD BE FOLLOWED STRICTLY IN EVERY SITUATION WHICH MAY ARISE IN MAKING THE SALARY ADJUSTMENTS NECESSITATED BY THE RETURN FROM MILITARY SERVICE OF PERSONS HAVING REEMPLOYMENT RIGHTS UNDER THE LAW. ALSO, THERE IS APPRECIATED THE DESIRABILITY OF EFFECTUATING THE REEMPLOYMENTS REQUIRED UNDER THE LAW WITH THE LEAST POSSIBLE DISTURBANCE OF OTHER EMPLOYEES IN THE ORGANIZATION. THE DECISION OF APRIL 9, 1945, SUPRA, CONSIDERATION WAS GIVEN TO THE PROVISIONS OF THE LAW WITH RELATION TO THE FACTS THERE PRESENTED, WHICH DISCLOSED THAT THE ORIGINAL POSITION OF EACH OF THE EMPLOYEES ENTERING THE ARMED FORCES HAD BEEN EARMARKED FOR HIM--- A PRACTICE WHICH YOU STATE IS NOT BEING FOLLOWED IN THE WAR DEPARTMENT. REFERENCE IS MADE PARTICULARLY TO THAT PORTION OF THE STATEMENT OF THE DIRECTOR OF SELECTIVE SERVICE, WITH WHICH THIS OFFICE AGREES, THAT "IT IS THE CHARACTER OF RELATIONSHIP BETWEEN THE EMPLOYER AND THE EMPLOYEE WHETHER "TEMPORARY" OR "PERMANENT," THAT SHOULD GOVERN RATHER THAN THE PARTICULAR ASSIGNMENT BEING CARRIED OUT AT THE TIME OF ENTRY INTO SERVICE.' HENCE, IF THE EMPLOYEES OF THE WAR DEPARTMENT REGARDING WHOM YOUR PRESENT SUBMISSION IS MADE, WERE SERVING UNDER PERMANENT APPOINTMENTS, AS DISTINGUISHED FROM TEMPORARY OR WAR SERVICE APPOINTMENTS (SEE OPINION OF THE ATTORNEY GENERAL OF MAY 26, 1943, 40 OP. ATTY. GEN.---, NO. 66; 24 COMP. GEN. 491) THIS OFFICE WOULD NOT OBJECT TO ADMINISTRATIVE ACTION GRANTING REEMPLOYMENT BENEFITS TO THEM ON THE BASIS OF THE POSITION LAST OCCUPIED IN ACCORDANCE WITH THE CIVILIAN PERSONNEL REGULATIONS OF THE WAR DEPARTMENT QUOTED IN YOUR LETTER.