B-18411, JULY 24, 1941, 21 COMP. GEN. 66

B-18411, JULY 24, 1941, 21 COMP. GEN. 66

ACTIVE MILITARY AND NAVAL SERVICE OF DISTRICT OF COLUMBIA POLICEMEN, FIREMEN, AND TEACHERS - INCLUSION FOR RETIREMENT AND AUTOMATIC PROMOTION PURPOSES MILITARY OR NAVAL SERVICE RENDERED BY POLICEMEN, FIREMEN AND TEACHERS OF THE DISTRICT OF COLUMBIA PURSUANT TO THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 OR PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, MAY NOT BE COUNTED IN COMPUTING LONGEVITY FOR RETIREMENT UNDER STATUTES APPLICABLE TO SUCH PERSONNEL, AND, THEREFORE, THEY ARE NOT REQUIRED OR AUTHORIZED TO CONTRIBUTE TO THEIR RETIREMENT FUNDS, EITHER CURRENTLY WHILE IN THE MILITARY OR NAVAL SERVICE OR UPON RESTORATION TO THEIR CIVILIAN POSITIONS, FOR THE PERIOD OF SUCH SERVICE. DISTRICT OF COLUMBIA POLICEMEN, FIREMEN, AND TEACHERS WHO RENDER MILITARY OR NAVAL SERVICE PURSUANT TO THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 OR PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, ARE ENTITLED, IF AND WHEN RESTORED TO THEIR CIVILIAN POSITIONS IN ACCORDANCE WITH THE PROVISIONS OF SAID STATUTES UPON COMPLETION OF THE MILITARY OR NAVAL SERVICE REQUIRED THEREUNDER, TO BE RESTORED WITH THE AUTOMATIC GRADE OR SALARY TO WHICH THEY WOULD HAVE BEEN ADVANCED HAD THEIR MILITARY OR NAVAL SERVICE BEEN CIVILIAN SERVICE.

COMPTROLLER GENERAL WARREN TO THE ACTING PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, JULY 24, 1941:

THE LATE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, SUBMITTED FOR MY CONSIDERATION THE MATTERS PRESENTED IN HIS LETTER OF JUNE 24, 1941, AS FOLLOWS:

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ARE DESIROUS OF DETERMINING THE RETIREMENT DEDUCTIONS AND LONGEVITY STATUS OF MEMBERS OF THE POLICE AND FIRE DEPARTMENTS, AND PUBLIC SCHOOL TEACHERS CALLED TO ACTIVE MILITARY SERVICE PURSUANT TO THE ACT OF AUGUST 27, 1940, AND THE SELECTIVE TRAINING AND SERVICE ACT OF SEPTEMBER 16, 1940.

UNDER THE ACT OF JULY 1, 1930 (46 STAT. 839) PRIVATES IN THE POLICE AND FIRE DEPARTMENTS ARE ENTITLED TO LONGEVITY INCREASES UNTIL THEY REACH THE MAXIMUM OF THE GRADE. UNDER THE T,"PRIVATES ENTER THE SERVICE AT THE BASIC SALARY OF $1,900.00 PER ANNUM, WITH ANNUAL INCREASES OF $100.00 IN SALARY FOR FIVE YEARS, OR UNTIL A MAXIMUM SALARY OF $2,400.00 IS REACHED.'

UNDER SECTION 5 OF THIS ACT, 3 1/2 PERCENT OF THE MONTHLY SALARIES OF THE MEMBERS ARE DEDUCTED FOR THE BENEFIT OF THE POLICEMEN AND FIREMEN'S RELIEF, AND BY SECTION 6, THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ARE EMPOWERED TO DETERMINE AND FIX THE AMOUNT OF PENSION RELIEF. OTHER ALLOWANCES ARE PROVIDED BY THE ACT OF SEPTEMBER 1, 1916, AS AMENDED.

AT THE PRESENT TIME, THERE ARE EIGHT MEMBERS OF THE METROPOLITAN POLICE DEPARTMENT WHO ARE, OR SHORTLY WILL BE, IN SELECTIVE TRAINING AND WHO ARE RECEIVING SALARIES BELOW THE MAXIMUM OF THE GRADE FOR PRIVATES. A NUMBER OF PRIVATES IN THE FIRE DEPARTMENT WILL BE SIMILARLY AFFECTED. IN THE CASE OF A DETECTIVE SERGEANT WHO ENTERED THE MILITARY SERVICE AND WAS PLACED IN A FURLOUGH OR LEAVE WITHOUT PAY STATUS, INQUIRED AS TO WHETHER AS A MEMBER OF THE METROPOLITAN POLICE DEPARTMENT HE COULD DEPOSIT THE CUSTOMARY 3 1/2 PERCENT OF HIS SALARY TO THE RETIREMENT FUND IN ORDER TO ENJOY THE BENEFITS ACCRUING FROM THAT FUND, AS WELL AS LONGEVITY PLACEMENT ON RETURN TO THE SERVICE. ON THIS POINT, THE CORPORATION COUNSEL, UNDER DATE OF FEBRUARY 6, 1941, HELD:

"THE GRANTING OF MILITARY LEAVE TO A MEMBER OF THE POLICE DEPARTMENT WITHOUT PAY IS ONLY A TEMPORARY SEPARATION FROM THE SERVICE AND NOT SUCH A "SEPARATION" AS REFERRED TO IN THE FOREGOING PROVISION OF LAW. IT SEEMS ONLY FAIR THAT A MEMBER WHILE IN THE MILITARY SERVICE SHOULD NOT BE COMPELLED TO CONTRIBUTE TO THE POLICE AND FIREMEN'S RETIREMENT AND RELIEF FUND, AS HE UNDOUBTEDLY RECEIVES BENEFITS BY REASON OF MILITARY SERVICE AND DOES NOT REQUIRE OR RECEIVE BENEFITS FROM THE RELIEF FUND. IT WOULD THEREFORE APPEAR THAT YOUR OPINION IS CORRECT. ON THE OTHER HAND, IT WOULD NOT BE FAIR TO TAKE INTO CONSIDERATION THE PERIOD OF TIME SUCH MEMBER WAS ON MILITARY LEAVE AND GIVE HIM CREDIT FOR THAT PERIOD IN ALLOWING HIM BENEFITS UNDER THE RETIREMENT LAW FOR THE POLICE DEPARTMENT. FOR EXAMPLE, ASSUMING THAT A MAN HAS REACHED THE AGE OF FIFTY-FIVE YEARS AND HAD TWENTY-FIVE YEARS ACTIVE SERVICE IN THE POLICE DEPARTMENT, TWO YEARS OF SUCH TIME HAVING BEEN SPENT IN THE MILITARY SERVICE, HE WOULD NOT HAVE PAID INTO THE FUND THE SAME AMOUNT AS A MEMBER WHO HAD NOT BEEN ABSENT ON MILITARY LEAVE AND HAD SERVED TWENTY-FIVE YEARS IN THE POLICE DEPARTMENT. ACCORDINGLY, UPON HIS RETURN TO ACTIVE POLICE DUTY, A MEMBER WHO WISHES TO OBTAIN CREDIT FOR THE PERIOD OF TIME HE WAS ABSENT ON MILITARY DUTY SHOULD BE REQUIRED TO PAY INTO THE POLICEMEN AND FIREMEN'S RELIEF FUND THE AMOUNT WHICH WOULD HAVE BEEN DEDUCTED FROM HIS SALARY HAD HE BEEN ACTIVELY SERVING IN THE POLICE DEPARTMENT.'

IT SHOULD BE NOTED THAT THE 3 1/2 PERCENT DEDUCTIONS FROM SALARIES OF MEMBERS OF THE POLICE AND FIRE DEPARTMENTS SINCE THE REPEAL OF THE POLICEMEN AND FIREMEN'S RELIEF FUND BY THE PERMANENT APPROPRIATIONS REPEAL ACT OF JUNE 26, 1934 (48 STAT. 1224) HAVE BEEN DEPOSITED TO THE CREDIT OF THE MISCELLANEOUS REVENUES OF THE DISTRICT OF COLUMBIA, AND SINCE THAT TIME DIRECT APPROPRIATIONS HAVE BEEN MADE TO PAY THE BENEFITS ACCRUING UNDER THE ACT OF SEPTEMBER 1, 1916, AS AMENDED.

THE ACT OF JULY 1, 1930, PROVIDES "THAT NO ANNUAL INCREASE IN SALARY SHALL BE PAID TO ANY PERSON WHO, IN THE JUDGMENT OF THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA, HAS NOT RENDERED SATISFACTORY SERVICE.' UNDER THE CIRCUMSTANCES, THERE IS SOME QUESTION AS TO WHETHER THE COMMISSIONERS WOULD BE AUTHORIZED TO RESTORE PRIVATES WHO ARE IN ACTIVE MILITARY TRAINING WHO HAVE NOT REACHED THE MAXIMUM SALARY OF THE GRADE UPON THEIR RETURN TO SERVICE IN THE DEPARTMENTS AT A HIGHER SALARY THAN THEY WERE RECEIVING WHEN THEY BEGAN TRAINING. ON THIS POINT, I AM ENCLOSING COPY OF AN OPINION OF THE CORPORATION COUNSEL, WHICH WAS APPROVED BY THE COMMISSIONERS JUNE 2, 1941.

THE PUBLIC SCHOOL TEACHERS OF THE DISTRICT OF COLUMBIA ARE IN SOMEWHAT SIMILAR POSITION WITH RESPECT TO RETIREMENT DEDUCTIONS AND LONGEVITY INCREASES UNDER THE ACT OF JANUARY 15, 1920 (41 STAT. 387) AS AMENDED BY THE ACT OF JUNE 11, 1926 (44 STAT. 727) PROVIDING FOR THE RETIREMENT OF PUBLIC SCHOOL TEACHERS IN THE DISTRICT OF COLUMBIA. THE LATTER ACT PROVIDES FOR THE RETENTION OF DEDUCTIONS FROM THE SALARY, FOR INVESTMENT OF THESE FUNDS, AND THE ULTIMATE PAYMENT TO THE TEACHER UPON RETIREMENT OF AN ANNUITY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT.

THE TEACHERS' SALARY ACT OF JUNE 4, 1924 (43 STAT. 367) AS AMENDED BY THE ACT OF APRIL 10, 1936 (49 STAT. 1194) PROVIDES $100.00 ANNUAL INCREASE IN SALARY OF PUBLIC SCHOOL TEACHERS AND CERTAIN OTHER EMPLOYEES, WHICH NO DOUBT WILL BE HELD IN ABEYANCE UNTIL THEY RETURN TO POSITIONS FORMERLY OCCUPIED BY THEM. WHEN THEY RETURN TO SUCH DUTY, OF COURSE, THE QUESTION WILL IMMEDIATELY BE RAISED AS TO WHETHER OR NOT THEY ARE ENTITLED TO LONGEVITY PLACEMENT ACCRUING WHILE IN THE MILITARY SERVICE.

IN VIEW OF THE FOREGOING, THE COMMISSIONERS WOULD APPRECIATE YOUR EARLY ADVICE ON THE FOLLOWING QUESTIONS:

(1) WHETHER MEMBERS OF THE POLICE AND FIRE DEPARTMENTS CALLED INTO MILITARY SERVICE PURSUANT TO LAW ARE REQUIRED TO PAY INTO THE POLICEMEN AND FIREMEN'S RELIEF FUND MONTHLY DURING SUCH PERIOD OF TRAINING THE 3 1/2 PERCENT NORMALLY REQUIRED TO BE DEDUCTED FROM THEIR BASIC SALARIES;

(2) IF THE ANSWER TO THE FIRST QUESTION IS IN THE NEGATIVE, WHETHER UPON THEIR RETURN TO DUTY THEY ARE REQUIRED TO PAY INTO THE FUND A LUMP SUM AMOUNT EQUAL TO 3 1/2 PERCENT OF THEIR BASIC SALARIES FOR THE NUMBER OF MONTHS DURING WHICH THEY WERE IN THE MILITARY SERVICE;

(3) IF THE ANSWER TO THE FIRST QUESTION BE IN THE NEGATIVE, AND THE ANSWER TO THE SECOND BE IN THE AFFIRMATIVE, THEN WOULD IT BE PROPER TO PERMIT PAYMENT MONTHLY DURING THE PERIOD WHILE IN THE MILITARY SERVICE;

(4) IF THE ANSWERS TO QUESTIONS 1 AND 2 ARE BOTH IN THE NEGATIVE, WHETHER THE PERIOD DURING WHICH SUCH MEMBERS WERE ON MILITARY LEAVE SHALL BE INCLUDED IN COMPUTING THE SERVICE OF SUCH MEMBER IN HIS DEPARTMENT FOR THE PURPOSE OF DETERMINING HIS ELIGIBILITY FOR VOLUNTARY RETIREMENT;

(5) WHETHER PRIVATES OF THE POLICE AND FIRE DEPARTMENTS ARE ENTITLED, UPON RETURN TO DUTY IN THEIR DEPARTMENTS, TO OCCUPY THE POSITIONS FORMERLY HELD BY THEM AT THE ANNUAL SALARY INCREASES WHICH THEY WOULD HAVE RECEIVED HAD THEY REMAINED IN THE SERVICE;

(6) WHETHER PUBLIC SCHOOL TEACHERS AND OFFICIALS CALLED INTO ACTIVE MILITARY SERVICE PURSUANT TO LAW WOULD BE REQUIRED DURING THEIR TRAINING TO PAY INTO THE TEACHERS' RETIREMENT FUND MONTHLY THE USUAL RETIREMENT DEDUCTIONS REQUIRED TO BE MADE FROM THEIR SALARY;

(7) WHETHER PUBLIC SCHOOL TEACHERS AND OFFICIALS CALLED INTO MILITARY SERVICE PURSUANT TO LAW WOULD BE REQUIRED UPON THEIR RETURN TO THE PUBLIC SCHOOLS TO PAY INTO THE TEACHERS' RETIREMENT FUND THE USUAL RETIREMENT DEDUCTIONS REQUIRED TO BE MADE FROM THEIR SALARY BEFORE THEY WOULD BE ENTITLED TO RECEIVE THE BENEFITS OF SUCH SERVICES UNDER THE ACTS RELATING TO THE RETIREMENT OF PUBLIC SCHOOL TEACHERS AND OFFICIALS;

(8) WHETHER THE PUBLIC SCHOOL TEACHERS AND OFFICIALS UPON RETURN TO THE POSITIONS FORMERLY HELD BY THEM IN THE PUBLIC SCHOOLS WOULD BE ENTITLED TO LONGEVITY PLACEMENT CORRESPONDING TO THAT WHICH THEY WOULD HAVE RECEIVED HAD THEY NOT BEEN CALLED INTO THE MILITARY SERVICE.

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

SEC. 8. (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 COMPLETES 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 PARAGRAPHS (A) OR (B) OF SUBSECTION (B) SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING AND SERVICES 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.

(D) SECTION 3 (C) OF THE JOINT RESOLUTION ENTITLED " JOINT RESOLUTION TO STRENGTHEN THE COMMON DEFENSE AND TO AUTHORIZE THE PRESIDENT TO ORDER MEMBERS AND UNITS OF RESERVE COMPONENTS AND RETIRED PERSONNEL OF THE REGULAR ARMY INTO ACTIVE MILITARY SERVICE," APPROVED AUGUST 27, 1940, IS AMENDED TO READ AS FOLLOWS:

"/C) ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPHS (A) OR (B) OF SUBSECTION (B) SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF ACTIVE MILITARY SERVICE, 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 ORDERED INTO SUCH SERVICE, AND SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION.'

THE RETIREMENT OF POLICEMEN AND FIREMEN OF THE DISTRICT OF COLUMBIA IS CONTROLLED BY SECTION 12 OF THE ACT OF SEPTEMBER 1, 1916, 39 STAT. 718, AND SECTION 5 OF THE ACT OF JULY 1, 1930, 46 STAT. 839. THE EARLIER LAW APPEARS TO BE A CODIFICATION, OR REENACTMENT OF A NUMBER OF EARLIER LAWS GRANTING VARIOUS RETIREMENT BENEFITS. SEE THE ACTS OF FEBRUARY 25, 1885, 23 STAT. 316, 317; JUNE 11, 1896, 29 STAT. 404; FEBRUARY 28, 1901, 31 STAT. 820; MARCH 1, 1905, 33 STAT. 821; MARCH 31, 1906, 34 STAT. 95; FEBRUARY 27, 1907, 34 STAT. 1003; MAY 26, 1908, 35 STAT. 296; AND MARCH 4, 1909, 35 STAT. 1066.

THE RETIREMENT OF TEACHERS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA IS CONTROLLED BY THE ACT OF JANUARY 15, 1920, 41 STAT. 387, AS AMENDED BY THE ACT OF JUNE 11, 1926, 44 STAT. 727.

IN NONE OF THE RETIREMENT STATUTES APPLICABLE TO POLICEMEN, FIREMEN, OR TEACHERS OF THE DISTRICT OF COLUMBIA IS THERE ANY PROVISION EXPRESS OR IMPLIED AUTHORIZING THE COUNTING OF MILITARY OR NAVAL SERVICE IN COMPUTING LONGEVITY FOR RETIREMENT PURPOSES, OR WHICH AUTHORIZES THE PURCHASE OF SUCH SERVICE FOR RETIREMENT PURPOSES AT THE OPTION OF THE POLICEMEN, FIREMEN, OR TEACHERS THROUGH DEPOSIT OF RETIREMENT DEDUCTIONS THAT OTHERWISE WOULD HAVE BEEN MADE EXCEPT FOR SUCH MILITARY OR NAVAL SERVICE. COMPARE THE PROVISIONS OF SECTION 5 OF THE CIVIL RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 472, WHICH EXPRESSLY AUTHORIZES THE INCLUSION OF "PERIODS OF HONORABLE SERVICE IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES" AND PROVIDES THAT--- * * * IN THE CASE OF AN EMPLOYEE, HOWEVER, WHO IS ELIGIBLE FOR AND ELECTS TO RECEIVE A PENSION UNDER ANY LAW, OR RETIRED PAY ON ACCOUNT OF MILITARY OR NAVAL SERVICE, OR COMPENSATION UNDER THE WAR RISK INSURANCE ACT, THE PERIOD OF HIS MILITARY OR NAVAL SERVICE UPON WHICH SUCH PENSION, RETIRED PAY, OR COMPENSATION IS BASED SHALL NOT BE INCLUDED, BUT NOTHING IN THIS ACT SHALL BE SO CONSTRUED AS TO AFFECT IN ANY MANNER HIS OR HER RIGHT TO A PENSION, OR TO RETIRED PAY, OR TO COMPENSATION UNDER THE WAR RISK INSURANCE ACT IN ADDITION TO THE ANNUITY HEREIN PROVIDED.

IN VIEW OF THIS EXPRESS PROVISION IN THE CIVIL RETIREMENT ACT WHICH TENDS TO EVIDENCE THE FACT THAT WHEN THE CONGRESS INTENDS MILITARY OR NAVAL SERVICE TO BE INCLUDED IN DETERMINING RETIREMENT BENEFITS OF CIVILIAN EMPLOYEES IT EXPRESSLY SO PROVIDES, AND IN THE ABSENCE OF A CORRESPONDING PROVISION IN ANY STATUTE APPLICABLE TO POLICEMEN, FIREMEN, OR TEACHERS OF THE DISTRICT OF COLUMBIA, IT IS THE VIEW OF THIS OFFICE THAT UNDER EXISTING LAWS THE COUNTING OF SUCH MILITARY OR NAVAL SERVICE AS MAY BE RENDERED UNDER THE SELECTIVE TRAINING AND SERVICE ACT OR PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, 54 STAT. 858, IS NOT A BENEFIT COMING WITHIN CONTEMPLATION OF THE RASE,"BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES (POLICEMEN, FIREMEN, AND TEACHERS) ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON WAS INDUCTED INTO SUCH FORCES," APPEARING IN THE SELECTIVE TRAINING AND SERVICE ACT AND PUBLIC RESOLUTION NO. 96, SUPRA. NEITHER COULD THE COUNTING OF MILITARY OR NAVAL SERVICE TOWARD RETIREMENT REASONABLY BE REGARDED AS A RIGHT OF "SENIORITY" WHICH IS SAVED BY SAID STATUTES. FURTHERMORE, MILITARY OR NAVAL SERVICE MAY GIVE RISE TO CLAIMS FOR PENSIONS OR RETIREMENT PAY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES, WHICH FACT, IN THE ABSENCE OF A SPECIFIC STATUTE ON THE SUBJECT, SIMILAR TO THAT CONTAINED IN THE CIVIL RETIREMENT ACT, TENDS TO STRENGTHEN THE STATED VIEW. IT FOLLOWS, THEREFORE, THAT POLICEMEN, FIREMEN, AND TEACHERS OF THE DISTRICT OF COLUMBIA ARE NOT REQUIRED OR AUTHORIZED TO CONTRIBUTE TO THEIR RETIREMENT FUNDS EITHER CURRENTLY WHILE IN THE MILITARY OR NAVAL SERVICE, OR UPON RESTORATION TO THEIR CIVILIAN POSITIONS, FOR THE PERIOD OF MILITARY OR NAVAL SERVICE.

THE ACT OF JULY 1, 1930, 46 STAT. 839, SO FAR AS IT RELATES TO AUTOMATIC INCREASES IN COMPENSATION OF POLICEMEN AND FIREMEN, PROVIDES AS FOLLOWS:

THAT THE ANNUAL BASIC SALARIES OF THE OFFICERS AND MEMBERS OF THE METROPOLITAN POLICE FORCE SHALL BE AS FOLLOWS: * * * PRIVATES, A BASIC SALARY OF $1,900 PER YEAR, WITH AN ANNUAL INCREASE OF $100 IN SALARY FOR FIVE YEARS, OR UNTIL A MAXIMUM SALARY OF $2,400 IS REACHED. ALL ORIGINAL APPOINTMENTS OF PRIVATES SHALL BE MADE AT THE BASIC SALARY OF $1,900 PER YEAR, AND THE FIRST YEAR OF SERVICE SHALL BE PROBATIONARY.

SEC. 2. THAT THE ANNUAL BASIC SALARIES OF THE OFFICERS AND MEMBERS OF THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA SHALL BE AS FOLLOWS: * * * PRIVATES, A BASIC SALARY OF $1,900 PER YEAR, WITH AN ANNUAL INCREASE OF $100 IN SALARY FOR FIVE YEARS, OR UNTIL A MAXIMUM SALARY OF $2,400 IS REACHED. ALL ORIGINAL APPOINTMENTS OF PRIVATES SHALL BE MADE AT THE BASIC SALARY OF $1,900 PER YEAR, AND THE FIRST YEAR OF SERVICE SHALL BE PROBATIONARY.

SEC. 4. THAT NO ANNUAL INCREASE IN SALARY SHALL BE PAID TO ANY PERSON WHO, IN THE JUDGMENT OF THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA, HAS NOT RENDERED SATISFACTORY SERVICE, AND ANY PRIVATE WHO FAILS TO RECEIVE SUCH ANNUAL INCREASE FOR TWO SUCCESSIVE YEARS SHALL BE DEEMED INEFFICIENT AND FORTHWITH REMOVED FROM THE SERVICE BY THE COMMISSIONERS: * * *

THE ACT OF JUNE 4, 1924, 43 STAT. 367, FIXING THE SALARIES OF TEACHERS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA, PRESCRIBES A NUMBER OF CLASSES WITH A MINIMUM AND MAXIMUM SALARY RATE FOR EACH CLASS, AND PROVIDES FOR "AN ANNUAL INCREASE IN SALARY OF $100" FOR A VARYING NUMBER OF YEARS. THE ACT FURTHER PROVIDES IN SECTION 6 (Q) AND SECTION 7, RESPECTIVELY, 43 STAT. 373, AS FOLLOWS:

* * * THAT IN CREDITING EXPERIENCE IN TEACHING OF ANY PERSON WHO HAS BEEN ABSENT FROM HIS DUTIES AS A TEACHER BECAUSE OF MILITARY SERVICE THE SAID BOARD IS HEREBY AUTHORIZED TO INCLUDE NAVAL, MILITARY, OR OTHER SERVICE WITH THE ARMED FORCES OF THE UNITED STATES GOVERNMENT OR ITS ALLIES AS THE EQUIVALENT OF TEACHING EXPERIENCE: * * *

ARTICLE V.--- METHOD OF PROMOTION OF EMPLOYEES

SEC. 7. THAT ON JULY 1, 1925, AND ON THE FIRST DAY OF EACH FISCAL YEAR THEREAFTER, IF HIS WORK IS SATISFACTORY, EVERY PERMANENT TEACHER, SCHOOL OFFICER, OR OTHER EMPLOYEE SHALL RECEIVE AN ANNUAL INCREASE IN SALARY WITHIN HIS SALARY CLASS OR POSITION AS HEREINBEFORE PROVIDED WITHOUT ACTION OF THE BOARD OF EDUCATION.

BOTH THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, AND PUBLIC RESOLUTION NO. 96, DATED AUGUST 27, 1940, EXPRESSLY PROVIDE THAT EMPLOYEES "SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY.' IN DECISION OF MAY 20, 1941, 20 COMP. GEN. 789, WHEREIN WAS CONSIDERED A SIMILAR QUESTION RELATING TO EMPLOYEES OF THE POSTAL SERVICE ENTITLED TO AUTOMATIC PROMOTIONS, IT WAS STATED---

ADVANCEMENT IN AUTOMATIC GRADE AND SALARY RATE BASED ON LENGTH OF SERVICE IS A FORM OF BENEFIT BASED ON SENIORITY. IF THE EMPLOYEES WERE NOT ADVANCED UPON THEIR RETURN TO THEIR CIVILIAN POSITIONS BASED UPON LENGTH OF SERVICE WHILE IN THE MILITARY SERVICE, THEY WOULD LOSE SENIORITY, THAT IS, THEIR RELATIVE STANDING WITH THOSE EMPLOYEES WHO REMAINED IN THEIR CIVILIAN POSITIONS. ALSO, THE QUOTED PROVISION FROM THE SELECTIVE TRAINING AND SERVICE ACT AND THE CORRESPONDING PROVISION IN PUBLIC RESOLUTION OF AUGUST 27, 1940, MAY BE CONSIDERED IN THE LIGHT OF THE PROVISIONS OF SECTION 107 AND THE LAST PART OF SECTION 818, TITLE 39, U.S. CODE, SPECIFICALLY AUTHORIZING THE COUNTING OF MILITARY SERVICE IN THE WORLD WAR IN DETERMINING THE ADVANCEMENT OF REGULAR AND SUBSTITUTE POSTAL EMPLOYEES.

ACCORDINGLY, REFERRING TO THE CONCLUDING PARAGRAPH OF YOUR LETTER, NO ADMINISTRATIVE ACTION MAKING ADJUSTMENTS IN GRADE AND SALARY RATE OF POSTAL EMPLOYEES SHOULD BE TAKEN DURING THE ABSENCE OF THE EMPLOYEES ON MILITARY DUTY, THE BENEFITS OF THE SELECTIVE TRAINING AND SERVICE ACT AND PUBLIC RESOLUTION OF AUGUST 27, 1940, BEING AVAILABLE ONLY UPON RESTORATION TO CIVILIAN POSITIONS. HOWEVER, UPON RESTORATION TO THEIR CIVILIAN POSITIONS UNDER THE TERMS AND CONDITIONS OF SAID STATUTES, REGULAR POSTAL EMPLOYEES MAY BE ADVANCED TO THE GRADE AND SALARY RATE TO WHICH THEY WOULD HAVE BEEN ADVANCED HAD THEIR MILITARY SERVICE BEEN IN THE POSTAL SERVICE IN ACCORDANCE WITH EXISTING LAWS AND REGULATIONS.

WHAT WAS STATED IN THE DECISION JUST QUOTED IS PARTICULARLY APPLICABLE TO TEACHERS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA WHO ARE EXPRESSLY AUTHORIZED BY LAW TO COUNT MILITARY AND NAVAL SERVICE IN COMPUTING LONGEVITY FOR THE PURPOSE OF AUTOMATIC PROMOTIONS. SEE 7 COMP. GEN. 266. ALTHOUGH THERE IS NO CORRESPONDING EXPRESS PROVISION APPLICABLE TO POLICEMEN AND FIREMEN OF THE DISTRICT OF COLUMBIA I THINK THAT THE WORDS,"SHALL BE RESTORED WITHOUT LOSS OF SENIORITY," APPEARING IN THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AND PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, MANIFEST A CLEAR INTENTION ON THE PART OF THE CONGRESS THAT THE RIGHT GRANTED BY LAW TO FEDERAL OR DISTRICT OF COLUMBIA EMPLOYEES TO AUTOMATIC PROMOTIONS BASED ON LENGTH OF SERVICE, SHOULD NOT BE DISTURBED OR AFFECTED BY THE MILITARY OR NAVAL SERVICES RENDERED UNDER SAID SELECTIVE TRAINING AND SERVICE ACT OF 1940 AND PUBLIC RESOLUTION NO. 96, AND THAT IF AND WHEN RESTORED TO THEIR CIVILIAN POSITIONS IN ACCORDANCE WITH THE PROVISIONS OF SAID STATUTES UPON COMPLETION OF THE MILITARY OR NAVAL SERVICE REQUIRED UNDER SAID STATUTES THEY SHOULD BE RESTORED WITH THE AUTOMATIC GRADE OR SALARY TO WHICH THEY WOULD HAVE ADVANCED HAD THEIR MILITARY OR NAVAL SERVICE BEEN AS CIVILIAN OFFICERS OR EMPLOYEES.

IN THE LIGHT OF THE FOREGOING, QUESTIONS (1), (2), AND (4) ARE ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTION (3); QUESTION (5) IN THE AFFIRMATIVE; QUESTIONS (6) AND (7) IN THE NEGATIVE; AN QUESTION (8) IN THE AFFIRMATIVE.