B-59772, AUGUST 27, 1946, 26 COMP. GEN. 138

B-59772, AUGUST 27, 1946, 26 COMP. GEN. 138

COMPENSATION - WITHIN-GRADE PROMOTIONS - SERVICE CREDIT FOR MILITARY, MERCHANT MARINE, ETC., DUTY - EXPIRATION OF MANDATORY RESTORATION RIGHTS AN ADMINISTRATIVE OFFICE, UPON THE REINSTATEMENT OR REEMPLOYMENT OF FORMER EMPLOYEES AFTER MILITARY, MERCHANT MARINE, OR WAR TRANSFER SERVICE, MAY IN ITS DISCRETION GIVE CREDIT FOR SUCH SERVICE TOWARD WITHIN-GRADE ADVANCEMENTS UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, NOTWITHSTANDING THE FACT THAT ANY MANDATORY RESTORATION RIGHTS WHICH THE EMPLOYEES MAY HAVE HAD EXPIRED PRIOR TO REINSTATEMENT OR REEMPLOYMENT. (AMPLIFIED BY 26 COMP. GEN. 754.)

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF AGRICULTURE, AUGUST 27, 1946:

I HAVE YOUR LETTER OF AUGUST 5, 1946, AS FOLLOWS:

THIS DEPARTMENT NOW HAS FOR CONSIDERATION THE PROPRIETY OF CREDITING SERVICE IN THE MERCHANT MARINE AND IN THE ARMED FORCES TOWARD AUTOMATIC WITHIN-GRADE PROMOTIONS IN THOSE CASES WHERE THE EMPLOYEES HAVE RETURNED TO POSITIONS IN THIS DEPARTMENT BUT SUCH RETURN HAS NOT BEEN BASED UPON MANDATORY RESTORATION RIGHTS. TO ILLUSTRATE:

ON JANUARY 1, 1944, A WAR SERVICE EMPLOYEE WAS PROMOTED FROM A CAF 2, $1440, TO A CAF-3, $1620 PER ANNUM POSITION IN THIS DEPARTMENT. HE WAS FURLOUGHED FROM THIS CAF-3 POSITION FOR SERVICE IN THE ARMED FORCES ON OCTOBER 23, 1944. HE WAS HONORABLY DISCHARGED, EFFECTIVE NOVEMBER 10, 1944. HE APPLIED FOR RESTORATION TO HIS POSITION ON DECEMBER 7, 1944, AND WAS RESTORED AND PLACED ON LEAVE WITHOUT PAY, EFFECTIVE DECEMBER 21, 1944, PENDING ORDER TO ACTIVE DUTY IN THE MERCHANT MARINE. HE WAS FURLOUGHED FOR MERCHANT MARINE SERVICE ON FEBRUARY 7, 1945, AND SEPARATED FROM THAT SERVICE MAY 27, 1946. HE APPLIED FOR RESTORATION TO HIS FORMER POSITION IN THIS DEPARTMENT JULY 11, 1946, WITH THE REQUEST THAT IT BE EFFECTIVE JULY 15, 1946. HE REPORTED FOR DUTY ON THAT DATE. IT WILL BE NOTED THAT THE APPLICATION WAS MADE SUBSEQUENT TO THE EXPIRATION OF THE 40-DAY PERIOD SPECIFIED BY THE STATUTE GRANTING REEMPLOYMENT RIGHTS TO PERSONS WHO LEAVE CIVILIAN POSITIONS TO ENTER MERCHANT MARINE SERVICE (57 STAT. 162, 59 U.S.C. SUPP. V, WAR APPEN. 1471). HIS RIGHT TO MANDATORY RESTORATION HAD THEREFORE LAPSED.

BECAUSE OF THE SHORTENING OF THE WAITING PERIOD FROM 18 TO 12 MONTHS, EFFECTIVE JULY 1, 1945, THE EMPLOYEE'S FIRST PAY INCREASE WITHIN THE GRADE WOULD NOT BE DELAYED BY THE 88 DAYS OF FURLOUGH AND LEAVE WITHOUT PAY BETWEEN NOVEMBER 10, 1944, AND FEBRUARY 7, 1945. HAD HE REMAINED IN HIS POSITION, HE WOULD HAVE RECEIVED PAY ADJUSTMENT AND PAY INCREASE (PERIODIC), EFFECTIVE JULY 1, 1945, TO $1968 PER ANNUM, AND THE PAY ADJUSTMENT UNDER THE ACT OF 1946 WOULD HAVE BROUGHT HIS SALARY TO $2243.52.

HOWEVER, THERE ARE 10 DAYS OF NON-PAY STATUS DURING THE PERIOD BETWEEN THE DATE THE EMPLOYEE FINISHED HIS MERCHANT MARINE SERVICE AND RESTORATION FOR WHICH HE WILL NOT RECEIVE CREDIT UNDER THE WITHIN GRADE ADVANCEMENT REGULATIONS, AS AMENDED (11 FR 7396, 7397, EFFECTIVE JULY 1, 1946), IN COMPUTING THE DATE FOR ANOTHER SUCH PROMOTION. THIS WOULD MAKE THAT PROMOTION FALL DUE AT THE BEGINNING OF THE PAY PERIOD FOLLOWING JULY 26, 1946, OR ON JULY 28, 1946.

THIS CASE APPEARS TO BE SIMILAR TO CASE 5 IN YOUR DECISION B-57699, DATED JUNE 18, 1946. IN THAT DECISION IT WAS HELD THAT AN EMPLOYEE WHO FAILED TO APPLY FOR RESTORATION WITHIN THE 90-DAY PERIOD FOLLOWING HIS DISCHARGE FROM MILITARY SERVICE COULD, NEVERTHELESS, BE CREDITED WITH MILITARY SERVICE FOR AUTOMATIC PAY INCREASE PURPOSES. WE NOTE, HOWEVER, THAT IN REACHING SUCH A CONCLUSION, IT WAS ASSUMED THAT THE EMPLOYEE WAS REEMPLOYED OR RESTORED "UNDER REGULATIONS OF THE CIVIL SERVICE COMMISSION OR THE PROVISIONS OF ANY LAW PROVIDING FOR RESTORATION OR REEMPLOYMENT.'

IN REGULATIONS MADE EFFECTIVE ON AND AFTER JULY 1, 1946 (11 FR 7394), THE CIVIL SERVICE COMMISSION DEFINES SERVICE CREDITABLE FOR AUTOMATIC PAY INCREASE PURPOSES AS FOLLOWS:

"SECTION 26.231 SERVICE TO BE CREDITED. IN COMPUTING THE PERIODS OF SERVICE REQUIRED FOR WITHIN-GRADE SALARY ADVANCEMENTS THERE SHALL BE CREDITED TO SUCH SERVICE:

"/F) SERVICE IN THE ARMED FORCES, IN THE MERCHANT MARINE, OR ON WAR TRANSFER SUBJECT TO THE FOLLOWING CONDITIONS: THE EMPLOYEE MUST HAVE * * * (3) BEEN RESTORED, REEMPLOYED, OR REINSTATED * * * UNDER REGULATIONS OF THE COMMISSION WHICH PROVIDE FOR MANDATORY RESTORATION OR REEMPLOYMENT, OR THE PROVISIONS OF ANY LAW PROVIDING FOR MANDATORY RESTORATION OR REEMPLOYMENT, OR ANY OTHER ADMINISTRATIVE PROCEDURE * * *" (ITALICS SUPPLIED.)

THE PRECISE MEANING OF THIS PART OF THE REGULATIONS IS EXPLAINED IN DEPARTMENTAL CIRCULAR NO. 554, SUPPLEMENT NO. 1, DATED JULY 1, 1946, IN THE FOLLOWING WORDS:

"* * * A PERSON HAS THE RIGHT TO HAVE SUCH SERVICE CREDITED ONLY IF HE POSSESSES THE RIGHT TO REEMPLOYMENT AND EXERCISES THAT RIGHT IN SECURING REEMPLOYMENT.'

INASMUCH AS THE REGULATION SPECIFIES THE CONDITIONS UNDER WHICH SERVICE "SHALL BE" CREDITED TOWARD AUTOMATIC PAY INCREASES AND, WITH RESPECT TO THE CREDITING OF MILITARY OR MERCHANT MARINE SERVICE FOR SUCH PURPOSES, APPEARS TO LIMIT SUCH CREDIT TO THOSE CASES WHERE THE RESTORATION OR REEMPLOYMENT IS "MANDATORY," THE QUESTION ARISES AS TO WHETHER MILITARY OR MERCHANT MARINE SERVICE MAY BE CREDITED WHEN THE MANDATORY RIGHT HAS BEEN LOST.

IN YOUR DECISION OF JANUARY 3, 1945 (24 COMP. GEN. 491, 493), IT IS STATED THAT:

"THE ONLY AUTHORITY FOR GRANTING WITHIN-GRADE SALARY ADVANCEMENTS IS FOUND IN THE ACT OF AUGUST 1, 1941, 55 STAT. 613, AMENDING SECTION 7 OF THE CLASSIFICATION ACT, AND THE REGULATIONS OF THE PRESIDENT, EXECUTIVE ORDER NO. 882 OF SEPTEMBER 3, 1941, ISSUED PURSUANT TO THE AUTHORITY VESTED IN HIM BY THE STATUTE; AND THE ONLY AUTHORITY FOR GRANTING WITHIN- GRADE SALARY ADVANCEMENTS, BASED UPON MILITARY SERVICE, IS FOUND IN SECTION 5 OF SAID REGULATIONS * * *.'

WE RECOGNIZE THE FACT THAT SUBSEQUENT TO THE DATE OF THAT DECISION, SECTION 7 OF THE CLASSIFICATION ACT WAS AMENDED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND THAT THE CIVIL SERVICE REGULATION QUOTED ABOVE WAS ISSUED PURSUANT TO THE PROVISIONS OF THE ACT AS SO AMENDED. HOWEVER, IN VIEW OF THE SIMILARITY OF THE PHRASES "SHALL BE ENTITLED" IN EXECUTIVE ORDER NO. 8882 AND ,SHALL BE CREDITED" IN SECTION 26.231 ABOVE, IT SEEMS REASONABLE TO CONCLUDE THAT IN CASES WHERE EMPLOYEES FAIL TO MEET THE CONDITIONS OF THE PRESENT REGULATIONS REQUIRING THE GRANTING OF CREDIT FOR MILITARY SERVICE, SUCH SERVICE MAY NOT BE CREDITED TOWARD AUTOMATIC WITHIN -GRADE SALARY ADVANCEMENTS FOR THE SAME REASONS AS WERE GIVEN IN 24 COMP. GEN. 491. ON THE OTHER HAND, WE FIND THAT IN A RECENT DECISION (24 COMP. GEN. 930) YOUR OFFICE INDICATED THAT IT WOULD NOT OBJECT "TO ADMINISTRATIVE ACTION GRANTING REEMPLOYMENT BENEFITS" IN CERTAIN CASES. SEE, ALSO, B-50988, AUGUST 3, 1945. PRESUMABLY THE TERM "REEMPLOYMENT BENEFITS" INCLUDES THE CREDITING OF MILITARY SERVICE TOWARD AUTOMATIC WITHIN-GRADE SALARY ADVANCEMENTS. IF SUCH AN INTERPRETATION IS CORRECT, IT WOULD SEEM THAT SOME LEEWAY MIGHT BE PERMITTED UNDER THE PRESENT REGULATIONS FOR ADMINISTRATIVE ACTION ALLOWING CREDIT FOR MILITARY SERVICE EVEN THOUGH SUCH CREDIT IS NOT MANDATORY.

IT HAS BEEN THE POLICY OF THIS DEPARTMENT, IN CASES INVOLVING MILITARY OR MERCHANT MARINE SERVICE, TO RESTORE FORMER EMPLOYEES WITHOUT LOSS OF CREDIT TOWARD AUTOMATIC PAY INCREASES. IN VIEW OF THAT POLICY, WOULD YOUR OFFICE BE REQUIRED TO OBJECT, UNDER THE NEW REGULATIONS CITED ABOVE, TO OUR ADMINISTRATIVELY GRANTING CREDIT FOR MILITARY OR MERCHANT MARINE SERVICE IN CASES SUCH AS THAT OUTLINED ABOVE WHERE MANDATORY RIGHTS HAVE LAPSED?

SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, PROVIDES:

SEC. 402. 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:

"/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 ANY 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 FOR OTHER PURPOSES," APPROVED JUNE 23, 1943 (1U.S.C., 1940 EDITION, SUPP. IV, TITLE 50 APP., SECS. 1471 TO 1475, INC.).'

PRIOR TO JULY 1, 1946, CIVIL SERVICE DEPARTMENTAL CIRCULAR 529, DATED JUNE 29, 1945, PROVIDED AS FOLLOWS WITH RESPECT TO CREDIT FOR MILITARY AND MERCHANT MARINE SERVICE:

SECTION 301. * * *

(D) SERVICE IN THE ARMED FORCES, IN THE MERCHANT MARINE, OR ON WAR TRANSFER SUBJECT TO THE FOLLOWING CONDITIONS: THE EMPLOYEE MUST HAVE (1) LEFT HIS POSITION TO ENTER THE ARMED FORCES OR THE MERCHANT MARINE, OR TO COMPLY WITH A WAR TRANSFER, (2) BEEN SEPARATED UNDER HONORABLE CONDITIONS FROM ACTIVE DUTY IN THE ARMED FORCES, OR HAVE RECEIVED A CERTIFICATE OF SATISFACTORY SERVICE IN THE MERCHANT MARINE, OR HAVE A SATISFACTORY RECORD ON WAR TRANSFER, AND (3) BEEN RESTORED, REEMPLOYED, OR REINSTATED IN ANY PERMANENT POSITION WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, UNDER REGULATIONS OF THE CIVIL SERVICE COMMISSION, OR THE PROVISIONS OF ANY LAW PROVIDING FOR RESTORATION OR REEMPLOYMENT, OR ANY OTHER ADMINISTRATIVE PROCEDURE WITH RESPECT TO EMPLOYEES NOT SUBJECT TO CIVIL SERVICE RULES AND REGULATIONS. ANY EMPLOYEE ENTITLED TO BE CREDITED WITH SERVICE UNDER THIS SUBSECTION SHALL ALSO BE ENTITLED TO CREDIT FOR CIVILIAN EMPLOYMENT PRIOR TO LEAVING HIS POSITION TO ENTER THE ARMED FORCES OR THE MERCHANT MARINE, OR TO COMPLY WITH A WAR TRANSFER, IN ACCORDANCE WITH SUBSECTIONS (A), (B), (C), AND (D) OF THIS SECTION.

SECTION 401. ELIGIBILITY REQUIREMENTS AND EFFECTIVE DATE.

OFFICERS AND EMPLOYEES TO WHOM THESE REGULATIONS APPLY SHALL BE ADVANCED IN COMPENSATION SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN THE GRADE AT THE BEGINNING OF THE NEXT PAY PERIOD (INCLUDING JULY 1, 1945) FOLLOWING THE COMPLETION OF (A) EACH TWELVE MONTHS OF SERVICE IF SUCH OFFICERS OR EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE LESS THAN $200 PER ANNUM OR (B) EACH EIGHTEEN MONTHS OF SERVICE IF SUCH OFFICERS OR 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 ERIOD;

(2) THAT AN OFFICER OR EMPLOYEE SHALL NOT BE ADVANCED UNLESS HIS CURRENT EFFICIENCY RATING IS ,GOOD" OR BETTER THAN "GOOD.'

(3) THAT THE SERVICE AND CONDUCT OF SUCH OFFICER OR EMPLOYEE ARE CERTIFIED BY THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OR AGENCY, OR GOVERNMENT-OWNED OR CONTROLLED CORPORATION, OR SUCH OFFICIAL AS HE MAY DESIGNATE, AS BEING OTHERWISE SATISFACTORY.

SECTION 402. EXCEPTIONS TO CONDITIONS (2) AND (3) STATED IN SECTION 401.

CONDITIONS (2) AND (3) OF SECTION 401 SHALL NOT APPLY UPON THE RETURN TO DUTY OF ANY OFFICER OR EMPLOYEE (A) WHO, WHILE SERVING UNDER PERMANENT, WAR SERVICE, TEMPORARY, OR ANY OTHER TYPE OF APPOINTMENT, LEFT HIS POSITION TO ENTER THE ARMED FORCES OR THE MERCHANT MARINE, TO TO COMPLY WITH A WAR TRANSFER, (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 SATISFACTORY RECORD ON WAR TRANSFER, AND (C) WHO, UNDER REGULATIONS OF THE COMMISSION OR THE PROVISIONS OF ANY LAW PROVIDING FOR RESTORATION OF REEMPLOYMENT, OR UNDER ANY OTHER ADMINISTRATIVE PROCEDURE WITH RESPECT TO OFFICERS AND EMPLOYEES NOT SUBJECT TO CIVIL SERVICE RULES AND REGULATIONS, IS RESTORED, REEMPLOYED, OR REINSTATED IN A PERMANENT POSITION WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, IN WHICH HE WOULD OTHERWISE BE ELIGIBLE FOR WITHIN-GRADE SALARY ADVANCEMENT UNDER THESE REGULATIONS. ( ITALICS SUPPLIED.) IN DECISION OF JUNE 18, 1946, B 57699, 25 COMP. GEN. 882, TO THE CIVIL SERVICE COMMISSION, IT WAS STATED WITH REFERENCE TO CASE NO. 5 THEREIN CONSIDERED, AS FOLLOWS:

THE APPOINTMENT OF THIS EMPLOYEE IN THE CIVIL SERVICE COMMISSION TO THE POSITION IN GRADE CPC-3, MARCH 27, 1946, IS ASSUMED TO HAVE BEEN A PROPER RESTORATION OR REEMPLOYMENT "UNDER REGULATIONS OF THE CIVIL SERVICE COMMISSION OR THE PROVISIONS OF ANY LAW PROVIDING FOR RESTORATION OR REEMPLOYMENT" WITHIN THE MEANING OF THOSE WORDS AS USED IN SECTION 402 (B) (4), CONDITION C, OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND, THEREFORE, ENTITLED THE EMPLOYEE TO CREDIT FOR HIS MILITARY SERVICE IRRESPECTIVE OF THE ACT THAT HIS MANDATORY RESTORATION RIGHTS UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, MAY HAVE EXPIRED. SEE, PARTICULARLY, PARAGRAPH 27.9 OF THE TEMPORARY CIVIL SERVICE REGULATIONS, VOL. 11, FED. REG. 1429.

BY CIVIL SERVICE REGULATIONS ISSUED UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY THE FEDERAL EMPLOYEES PAY ACT OF 1946, EFFECTIVE JULY 1, 1946, 60 STAT. 216, AND PUBLISHED IN 11 F.R., PAGES 7394 TO 7399, IT IS PROVIDED IN PARAGRAPH 26.231:

SERVICE TO BE CREDITED. IN COMPUTING THE PERIODS OF SERVICE REQUIRED FOR WITHIN-GRADE SALARY ADVANCEMENTS THERE SHALL BE CREDITED TO SUCH SERVICE:

(F) SERVICE IN THE ARMED FORCES, IN THE MERCHANT MARINE, OR ON WAR TRANSFER SUBJECT TO THE FOLLOWING CONDITIONS: THE EMPLOYEE MUST HAVE (1) LEFT HIS POSITION TO ENTER THE ARMED FORCES OR THE MERCHANT MARINE, OR TO COMPLY WITH A WAR TRANSFER, (2) BEEN SEPARATED UNDER HONORABLE CONDITIONS FROM ACTIVE DUTY IN THE ARMED FORCES, OR HAVE RECEIVED A CERTIFICATE OF SATISFACTORY RECORD ON WAR TRANSFER, AND (3) BEEN RESTORED, REEMPLOYED, OR REINSTATED IN ANY PERMANENT POSITION WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, UNDER REGULATIONS OF THE COMMISSION WHICH PROVIDE FOR MANDATORY RESTORATION OR REEMPLOYMENT, OR THE PROVISIONS OF ANY LAW PROVIDING FOR MANDATORY RESTORATION OR REEMPLOYMENT, OR ANY OTHER ADMINISTRATIVE PROCEDURE HAVING A SIMILAR PURPOSE WITH RESPECT TO EMPLOYEES NOT SUBJECT TO CIVIL SERVICE RULES AND REGULATIONS. ANY EMPLOYEE ENTITLED TO BE CREDITED WITH SERVICE UNDER THIS SUBSECTION SHALL ALSO BE ENTITLED TO CREDIT NOT MORE THAN TWELVE OR EIGHTEEN MONTHS, AS THE CASE MAY BE, FOR CIVILIAN EMPLOYMENT PRIOR TO LEAVING HIS POSITION TO ENTER THE ARMED FORCES OR THE MERCHANT MARINE, OR TO COMPLY WITH A WAR TRANSFER. ( ITALICS SUPPLIED.)

IN CIVIL SERVICE DEPARTMENTAL CIRCULAR 529, REVISION NO. 1, ATTENTION IS DIRECTED TO THE ABOVE REGULATIONS, WHICH REGULATIONS FURTHER EXPLAINED IN PART AS FOLLOWS:

(F) THE LANGUAGE OF CONDITION (3) HAS BEEN CHANGED TO MAKE IT CLEAR THAT THE CREDITING TOWARD WITHIN-GRADE ADVANCEMENT OF MILITARY, MERCHANT MARINE AND WAR-TRANSFER SERVICE IS REQUIRED ONLY WHEN A PERSON IS REEMPLOYED THROUGH THE EXERCISE OF HIS RIGHT TO REEMPLOYMENT IN THE FEDERAL SERVICE. THIS PRINCIPLE IS BASED ON THE INTERPRETATION OF SECTION 402 (B) (4) OF THE 1945 PAY ACT (SECTION 7 (B) (4) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED), AND CONGRESSIONAL REPORTS ON THE PURPOSE OF THAT SECTION OF THE LAW.

FURTHER COMMENTS UPON THE REVISED CIVIL SERVICE REGULATIONS, SUPRA, WERE PROMULGATED IN CIVIL SERVICE DEPARTMENTAL CIRCULAR 554, SUPPLEMENT NO. 1, DATED JULY 1, 1946, IN WHICH IT WAS STATED WITH RESPECT TO CREDIT FOR MILITARY, MERCHANT MARINE, AND WAR TRANSFER SERVICE "IN OTHER WORDS A PERSON HAS THE RIGHT TO HAVE SUCH SERVICE CREDITED ONLY IF HE POSSESSES THE RIGHT TO REEMPLOYMENT AND EXERCISES THAT RIGHT IN SECURING REEMPLOYMENT.' ( EMPHASIS SUPPLIED.)

WITHOUT AT THIS TIME PASSING UPON THE VALIDITY OF THE CIVIL SERVICE REGULATIONS SO FAR AS THEY ATTEMPT TO DENY THE RIGHT OF A FORMER GOVERNMENT EMPLOYEE TO CREDIT FOR SERVICE IN THE ARMED FORCES, MERCHANT MARINE, OR WAR TRANSFER TOWARD A WITHIN-GRADE SALARY ADVANCE UPON REINSTATEMENT OR REEMPLOYMENT IN THE GOVERNMENT SERVICE UNDER CIVIL SERVICE REGULATIONS AUTHORIZING SUCH REINSTATEMENT OR REEMPLOYMENT UPON OTHER THAN A MANDATORY BASIS, IT WOULD SEEM THAT THE QUOTED REGULATIONS DO NOT DENY THE DISCRETIONARY AUTHORITY OF THE EMPLOYING OFFICE TO GIVE CREDIT FOR ALL SUCH SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS IF THEY SHOULD DESIRE TO EXERCISE THAT DISCRETION--- THERE APPEARING NOTHING IN THE PROVISIONS OF SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 OTHERWISE TO BAR THE GRANTING OF SUCH CREDIT.

ACCORDINGLY, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE DEPARTMENT OF AGRICULTURE GIVING CREDIT TO REINSTATED OR REEMPLOYED PERSONNEL FOR THEIR MILITARY, MERCHANT MARINE, OR WAR TRANSFER SERVICE TOWARD WITHIN- GRADE SALARY ADVANCES, NOTWITHSTANDING THAT THEIR MANDATORY RESTORATION RIGHTS HAVE LAPSED. THE QUESTION IN THE CLOSING PARAGRAPH OF YOUR LETTER IS ANSWERED ACCORDINGLY.