B-45472, NOVEMBER 9, 1944, 24 COMP. GEN. 369

B-45472, NOVEMBER 9, 1944, 24 COMP. GEN. 369

COMPENSATION - INITIAL SALARY RATES - RETRANSFER TO FORMER POSITION AFTER PROMOTION TO FILL VACANCY CREATED BY ANOTHER EMPLOYEE'S ENTRANCE INTO MILITARY SERVICE UPON RETRANSFER OF AN EMPLOYEE, NOT ENTITLED TO REEMPLOYMENT BENEFITS UNDER THE WAR SERVICE REGULATIONS, TO HIS FORMER POSITION AFTER HIS PROMOTION TO FILL A VACANCY OCCASIONED BY ANOTHER EMPLOYEE'S ENTRANCE INTO MILITARY SERVICE, IT IS ENTIRELY WITHIN ADMINISTRATIVE DISCRETION WHETHER THE INITIAL SALARY RATE WILL BE FIXED AT A PRESCRIBED RATE ABOVE THE MINIMUM FOR THE GRADE TO WHICH RETRANSFERRED, NOT IN EXCESS OF THE RATE RECEIVED IN THE POSITION TEMPORARILY OCCUPIED, OR AT THE MINIMUM RATE--- THE LATTER RATE BEING THE ONLY REQUIRED TO BE PAID. 23 COMP. GEN. 201, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, NOVEMBER 9, 1944:

I HAVE YOUR LETTER OF OCTOBER 24, 1944, AS FOLLOWS:

IN RE: COMPENSATION - INITIAL SALARY RATES - RETRANSFER TO FORMER POSITION AFTER PROMOTION TO FILL VACANCY CREATED BY ANOTHER EMPLOYEE'S ENTRANCE IN MILITARY, ETC. SERVICE.

THERE HAS BEEN PRESENTED TO THE COMMISSIONERS FOR DECISION AS A MATTER OF POLICY THE PROPER SALARY RATE TO BE ASSIGNED AN EMPLOYEE UNDER THE FOLLOWING CIRCUMSTANCES:

EMPLOYEE "A" OCCUPIED A POSITION CLASSIFIED AS CAF-5 ($2,000 TO $2,600) UNTIL OCTOBER 1, 1941, WHEN HE WAS GRANTED MILITARY LEAVE TO ENTER THE ARMED FORCES. AT THAT TIME HE WAS RECEIVING AN ANNUAL SALARY OF $2,100, HAVING RECEIVED ONE WITHIN-GRADE PROMOTION UNDER THE ACT OF AUGUST 1, 1941. ON OCTOBER 26, 1941, EMPLOYEE "B" WHO WAS CLASSIFIED CPC-5 ($1,680 TO $2,040) AND WHO WAS RECEIVING $1,680, THE MINIMUM OF CPC-5, WAS PROMOTED TEMPORARILY TO THE CAF-5 POSITION AND ASSIGNED THE SALARY RATE OF $2,000. ON JULY 1, 1943, EMPLOYEE "B" RECEIVED A WITHIN-GRADE PROMOTION TO $2,100 UNDER THE ACT OF AUGUST 1, 1941, WHICH HE IS NOW RECEIVING.

THERE HAS BEEN CALLED TO THE ATTENTION OF THE COMMISSIONERS YOUR DECISION OF SEPTEMBER 18, 1943 TO THE SECRETARY OF WAR, 23 COMP. GEN. 201. THE FIRST PARAGRAPH OF THE LETTER FROM THE SECRETARY OF WAR TO YOUR OFFICE READS:

"IN ACCORDANCE WITH YOUR DECISION OF SEPTEMBER 20, 1940 (20 COMP. GEN. 167), THE DEPARTMENT HAS EXERCISED THE ADMINISTRATIVE DISCRETION OUTLINED THEREIN BY ADOPTING THE POLICY OF GRANTING MILITARY FURLOUGH STATUS TO CIVILIAN EMPLOYEES WHO ENTER ON ACTIVE MILITARY, NAVAL, OR MERCHANT MARINE DUTY. SINCE SUCH EMPLOYEES REMAIN, TECHNICALLY, INCUMBENTS IN THEIR ORIGINAL POSITIONS, IT HAS BECOME NECESSARY TO CREATE IDENTICAL POSITIONS FOR REPLACEMENTS AND TO FILL THEM ON AN INDEFINITE BASIS, THAT IS, FOR THE DURATION OF THE FURLOUGHED EMPLOYEES MILITARY OR NAVAL SERVICE. IN A SUBSTANTIAL NUMBER OF CASES THESE REPLACEMENTS ARE MADE BY PROMOTION OR REASSIGNMENT OF EMPLOYEES ALREADY IN THE SERVICE. YOUR ASSISTANCE IS REQUESTED IN SOLVING A PROBLEM WHICH HAS ARISEN IN CONNECTION WITH THE PROCEDURE TO BE FOLLOWED WHEN THESE LATTER EMPLOYEES ARE THEMSELVES CALLED INTO THE ARMED FORCES.'

THE SPECIFIC QUESTIONS ASKED BY THE SECRETARY OF WAR WERE:

"/A). UNDER THE CIRCUMSTANCES OUTLINED ABOVE, MAY AN EMPLOYEE WHO IS REDUCED IN GRADE AFTER PROMOTION DURING THE MILITARY FURLOUGH STATUS OF ANOTHER EMPLOYEE BE PERMITTED TO RETAIN THE SALARY OF THE HIGHER POSITION PROVIDED THAT IT REPRESENTS ONE OF THE SALARY STEPS OF THE LOWER GRADE?

"/B). MUST HE BE REDUCED TO THE MINIMUM OF HIS PERMANENT GRADE, OR TO THE SALARY RATE HE HELD PRIOR TO PROMOTION?

"/C). IF QUESTION A IS ANSWERED IN THE NEGATIVE, MAY THE PERIOD SPENT IN THE HIGHER GRADE BE CREDITED TOWARD WITHIN GRADE SALARY INCREASE IN THE LOWER GRADE?

"/D). WOULD THE ANSWERS TO THE ABOVE QUESTIONS BE APPLICABLE TO ALL CASES OF TEMPORARY PROMOTION OR REASSIGNMENT OR ARE THE PRINCIPLES LIMITED IN EFFECT TO REDUCTIONS PRIOR TO FURLOUGH FOR MILITARY SERVICE?

THE QUESTIONS WERE ANSWERED AS FOLLOWS:

"ACCORDINGLY, IN THE LIGHT OF THE FOREGOING CONSIDERATIONS, QUESTION A IS ANSWERED IN THE AFFIRMATIVE, AND QUESTION B IS ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTION C. QUESTION D IS STATED TOO BROADLY TO PERMIT OF A SPECIFIC ANSWER.

"THE RULE STATED HEREIN IS TO BE REGARDED AS LIMITED TO THE CLASS OF EMPLOYEES REPRESENTED BY THE CASE PRESENTED IN THE FIRST PARAGRAPH OF YOUR LETTER.'

THE FOLLOWING IS EXCERPTED FROM YOUR DECISION OF SEPTEMBER 18, 1943:

"THE PROMOTION OR REASSIGNMENT OF EMPLOYEES ALREADY IN THE SERVICE TO FILL VACANCIES CAUSED BY OTHER EMPLOYEES ENTERING THE ACTIVE MILITARY OR NAVAL SERVICE MAY BE FOR A SHORT, LONG OR INDEFINITE PERIOD. IN VIEW OF SUCH UNCERTAINTIES, AND AS IT IS UNDERSTOOD THAT ALL DEPARTMENTS AND AGENCIES OF THE GOVERNMENT DO NOT FURLOUGH EMPLOYEES WITHOUT PAY WHEN THEY ENTER THE ACTIVE MILITARY OR NAVAL SERVICE--- SOME AGENCIES SEPARATING THE EMPLOYEES IN SUCH CASES--- THERE IS PERCEIVED NO SOUND REASON WHY SUCH PROMOTIONS OR REASSIGNMENTS MAY NOT BE REGARDED AS BEING UPON THE SAME BASIS AS ANY OTHER PROMOTION OR REASSIGNMENT INVOLVING A GRADE CHANGE FOR THE PURPOSE OF FIXING THE INITIAL SALARY RATES IN THE GRADES TO WHICH SUCH EMPLOYEES ARE RETURNED UPON TERMINATION OF SUCH SERVICES AT THE TIME THE OTHER EMPLOYEES RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE. THAT IS TO SAY, THE GENERAL RULE STATED IN THE DECISIONS OF THE OFFICE FOR FIXING INITIAL SALARY RATES OF EMPLOYEES UPON DEMOTIONS FROM ONE GRADE TO ANOTHER --- OTHER THAN FOR DISCIPLINARY REASONS--- ARE APPLICABLE IN THE SITUATIONS PRESENTED.

"TRANSFERS, PROMOTIONS, AND DEMOTIONS ARE NOT REGARDED AS NEW APPOINTMENTS SUCH AS ARE REQUIRED TO BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE. 20 COMP. GEN. 626; 22 ID. 925. THE GENERAL RULE FOR DETERMINING THE SALARY RATE INITIALLY APPLICABLE WHEN AN EMPLOYEE IS TRANSFERRED, PROMOTED, OR DEMOTED BETWEEN CLASSIFICATION ACT POSITIONS IS THAT THE EMPLOYEE MAY BE PAID INITIALLY IN THE GRADE TO WHICH TRANSFERRED, PROMOTED, OR DEMOTED, (A) WITHOUT LOSS OF SALARY RATE PAID THE EMPLOYEE IN HIS FORMER POSITION, INCLUDING ANY PERIODIC OR MERITORIOUS SALARY ADVANCEMENT, PROVIDING HIS FORMER SALARY RATE, ALSO, IS A STANDARD RATE IN THE NEW GRADE, OR (B) WITH AS LITTLE LOSS OF SALARY AS IS NECESSARY TO PAY A RATE PRESCRIBED FOR THE GRADE, OR (B) WITH AS LITTLE LOSS OF SALARY AS IS NECESSARY TO PAY A RATE PRESCRIBED FOR THE GRADE TO WHICH TRANSFERRED, PROMOTED OR REDUCED. SEE 20 COMP. GEN. 579; 21 ID. 791, 796; 22 ID. 489, AND THE DECISIONS THEREIN CITED.' (ITALICS SUPPLIED.)

HAVING IN MIND THAT "THE GENERAL RULE FOR DETERMINING THE SALARY RATE INITIALLY APPLICABLE WHEN AN EMPLOYEE IS TRANSFERRED, PROMOTED OR DEMOTED BETWEEN CLASSIFICATION ACT POSITIONS IS THAT THE EMPLOYEE MAY BR PAID INITIALLY IN THE GRADE TO WHICH TRANSFERRED, PROMOTED OR DEMOTED * * *. (B) WITH AS LITTLE LOSS OF SALARY AS IS NECESSARY TO PAY A RATE PRESCRIBED FOR THE GRADE TO WHICH TRANSFERRED, PROMOTED, OR REDUCED.' (ITALICS SUPPLIED), AND THE FACT THAT A NEGATIVE ANSWER WAS GIVEN TO THE QUESTION OF THE SECRETARY OF WAR WHICH READS "B. MUST HE BE REDUCED TO THE MINIMUM OF HIS PERMANENT GRADE, OR TO THE SALARY RATE HELD PRIOR TO PROMOTION? (ITALICS SUPPLIED), THE COMMISSIONERS ARE IN DOUBT, IN THE EXAMPLE CITED ABOVE, AS TO WHETHER THEY MAY PROPERLY ORDER THE REASSIGNMENT OF EMPLOYEE "B" TO THE MINIMUM RATE OF HIS PERMANENT POSITION IN CPC-5 ($1,680), UPON THE RETURN TO DISTRICT SERVICE AND RESTORATION TO HIS CAF-5 POSITION OF EMPLOYEE "A.'

SPECIFICALLY, THE COMMISSIONERS REQUEST TO BE ADVISED:

(1) IF EMPLOYEE "A" RETURNS TO DISTRICT SERVICE AND IS RESTORED ON NOVEMBER 1, 1944, TO HIS POSITION CLASSIFIED CAF-5, TO WHICH SALARY RATE IN CPC-5 IS IT REQUIRED THAT EMPLOYEE "B" BE ASSIGNED?

(2) ON THE RESTORATION OF EMPLOYEE "A" TO HIS CAF-5 POSITION, DOTHE COMMISSIONERS HAVE IT WITHIN THEIR DISCRETION TO ASSIGN EMPLOYEE "B" TO SUCH SALARY RATE IN CPC-5, AS THEY SEE FIT, THAT IS, TO $1,680, $1,740, $1,800, $1,860, $1,920, $1,980 OR $2,040 PER ANNUM.

(3) MAY SUCH PROMOTIONS THAT HAVE BEEN OCCASIONED BY THE ENTRANCE OF AN INDIVIDUAL INTO THE MILITARY SERVICE BE ADMINISTRATIVELY REGARDED AS TEMPORARY AND THEREFORE NOT INCLUDED IN THE PROVISIONS OF THE DECISIONS CITED HEREIN, AS WELL AS THE "SERIES" OR "CHAIN" OF PROMOTIONS THAT MAY HAVE RESULTED FROM SUCH ACTION?

IN THE DECISION OF SEPTEMBER 18, 1943, 23 COMP. GEN. 201, FROM WHICH YOU QUOTE, RELATIVE TO FIXING THE INITIAL SALARY RATE OF AN EMPLOYEE UPON RETRANSFER OR REAPPOINTMENT TO HIS FORMER POSITION IN A LOWER GRADE FROM A POSITION IN A HIGHER GRADE OCCUPIED DURING THE ABSENCE OF THE REGULAR INCUMBENT IN THE ARMED FORCES OF THE UNITED STATES, THERE WAS APPLIED THE SAME GENERAL RULE THAT HAS BEEN IN FORCE FOR MANY YEARS FOR FIXING THE INITIAL SALARY RATE UPON TRANSFER, PROMOTION, OR DEMOTION OF EMPLOYEES FROM ONE POSITION TO ANOTHER. THAT IS TO SAY, THE TRANSFER AND RETRANSFER OF EMPLOYEES OCCASIONED BY THE ABSENCE OF OTHER EMPLOYEES IN THE ARMED FORCES OF THE UNITED STATES IS TO BE REGARDED AS HAVING NO DIFFERENT STATUS IN APPLYING THE GENERAL RULE FOR FIXING INITIAL SALARY RATES THAN ON ORDINARY TRANSFER, WHICH GENERAL RULE IS STATED IN THAT PORTION OF THE DECISION OF SEPTEMBER 18, 1943, QUOTED IN YOUR LETTER, SUPRA. IN ALL THE DECISIONS OF THIS OFFICE STATING OR APPLYING THE GENERAL RULE, IT HAS BEEN WITH THE THOUGHT THAT THE RULE IS DISCRETIONARY, RATHER THAN MANDATORY, WITH THE ADMINISTRATIVE OFFICE. AN EMPLOYEE HAS NO VESTED RIGHT TO BE PAID INITIALLY AT ANY SALARY RATE OF A GRADE TO WHICH HE IS TRANSFERRED, RETRANSFERRED, APPOINTED, REAPPOINTED, PROMOTED OR DEMOTED EXCEPT THE MINIMUM SALARY RATE OF THE GRADE PROVIDED THE EMPLOYEE DOES NOT HAVE REEMPLOYMENT BENEFITS UNDER THE WAR SERVICE REGULATIONS. AS TO THAT SITUATION, SEE 23 COMP. GEN. 265, 471, 594. EVEN AFTER THE ENACTMENT OF THE WITHIN-GRADE PROMOTION LAW IT WAS HELD THAT THE APPLICATION OF THE GENERAL RULE IS DISCRETIONARY. SEE THE DECISION OF FEBRUARY 21, 1943, 21 COMP. GEN. 791, WHEREIN IT WAS HELD, INTER ALIA, AS FOLLOWS:

THE VESTED RIGHT OF AN EMPLOYEE TO RETAIN A PERIODIC OR MERITORIOUS WITHIN-GRADE SALARY ADVANCEMENT GRANTED PURSUANT TO THE ACT OF AUGUST 1, 1941, MAINTAINS ONLY SO LONG AS HE REMAINS IN THE POSITION IN WHICH THE ADVANCEMENT WAS GRANTED, BUT, UPON THE TRANSFER, PROMOTION, OR REDUCTION OF AN EMPLOYEE FROM ONE POSITION TO ANOTHER WITH DIFFERENT DUTIES AND RESPONSIBILITIES, WHETHER IN THE SAME OR DIFFERENT GRADE, IT IS WITHIN ADMINISTRATIVE DISCRETION UNDER SECTION 10 OF THE CLASSIFICATION ACT OF 1923 TO FIX HIS INITIAL SALARY IN THE NEW POSITION AT SUCH PRESCRIBED RATE OF THE GRADE AS WILL SAVE TO HIM THE BENEFIT OF A WITHIN-GRADE SALARY ADVANCEMENT TO WHICH HE PREVIOUSLY HAD BECOME ENTITLED.

CF. DECISION OF NOVEMBER 2, 1944, B-45244, 24 COMP. GEN. 341, TO THE SECRETARY OF WAR.

REFERRING TO QUESTION (1), ONLY THE MINIMUM SALARY RATE OF $1,680 PER ANNUM IN GRADE CPC-5 IS REQUIRED TO BE PAID INITIALLY TO EMPLOYEE B.

UNDER THE GENERAL RULE, QUESTION (2) IS ANSWERED IN THE AFFIRMATIVE, THE RATE RECEIVED IN GRADE CAF-5 HAVING BEEN $2,100 PER ANNUM--- MORE THAN ANY OF THE SALARY RATES IN GRADE CPC-5.

UNDER THE RULE STATED IN THE DECISION OF SEPTEMBER 18, 1943, QUOTED IN YOUR LETTER, QUESTION (3) IS ANSWERED IN THE NEGATIVE.