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members and units of any or all reserve components of the Army of the United States," it appears that administratively it has been recognized that members of the Regular Army Reserve are members of a reserve component of the Army of the United States.

Under the terms of section 8 of the Service Extension Act of 1941, supra, any enlisted personnel "of the National Guard of the United. States or of any other reserve component of the Army of the United States ordered into active military service under the authority of Public Resolution Numbered 96, approved August 27, 1940," is entitled to receive $10 for each month of "any such service so rendered by any such personnel in excess of 12 months." (Italics supplied.) In other words, the statute provides that reserve personnel rendering active military service ordered under Public Resolution No. 96, shall, after rendering 12 months of such service, be paid an additional $10 for each month of such service in excess of 12 months. Accordingly, a Regular Army reservist ordered into the active military service under authority of Public Resolution No. 96, approved August 27, 1940, must have had 12 months of active military service under authority of the said Public Resolution before he is entitled to the additional pay authorized by section 8(a) of the Service Extension Act of 1941, but it is immaterial whether the 12 months' service was rendered before or after August 18, 1941, the date of approval of the Service Extension Act of 1941.

Your second question relates to the effect of section 8 of the Service Extension Act of 1941 on the pay and allowances of Philippine Scouts. Section 36 of the act of February 2, 1901, 31 Stat. 757 (see 10 U. S. C. 334), provided, in part, as follows:

That when in his opinion the conditions in the Philippine Islands justify such action the President is authorized to enlist natives of those islands for service in the Army, to be organized as scouts, with such officers as he shall deem necessary for their proper control, or as troops or companies, as authorized by this act, for the Regular Army. The President is further authorized, in his discretion, to form companies organized as are companies of the Regu lar Army, in squadrons or battalions, with officers and non-commissioned officers corresponding to similar organizations in the cavalry and infantry

arms.

* The pay, rations, and clothing allowances to be authorized for the enlisted men shall be fixed by the Secretary of War, and shall not exceed those authorized for the Regular Army.

Section 36 was amended by the act of May 10, 1926, 44 Stat. 496, as follows:

That the last sentence of the second paragraph of section 36 of the act entitled "An act to increase the efficiency of the permanent Military Establishment of the United States," approved February 2, 1901 (Thirty-first Statutes at Large, page 757), be, and the same is hereby amended to read as follows: "The pay and allowances of whatever nature and kind to be authorized for the enlisted men of the Philippine Scouts shall be fixed by the Secretary of War and shall not exceed or be of other classes than those now or which may hereafter be authorized by law for enlisted men of the Regular Army: Provided, That payments of travel pay and of commutation of quarters, heat,

and light heretofore made to enlisted men of the Philippine Scouts, if not in excess of those authorized at the time for enlisted men of the Regular Army, be, and the same are hereby validated: And provided further, That any such payments of travel pay and commutation of quarters, heat, and light which have been collected back from enlisted men of the Philippine Scouts to whom originally paid shall be refunded to them."

In view of the provisions of the act of May 10, 1926, 10 U. S. C. 334, it is discretionary with the Secretary of War to provide for additional pay for Philippine Scouts under the conditions and limitations fixed for enlisted personnel of the Regular Army by sec tion 8 of the Service Extension Act of 1941, and the Secretary may fix the monthly rate of such pay at any amount not exceeding $10.

(B-20925)

COMPENSATION—WITHIN-GRADE PROMOTIONS—ELIGIBILITY; ETC. The tenure of employment of the individual employee under the terms of any applicable law, or under the terms and conditions of his appointment or contract of employment must control in determining whether the employee occupies a "permanent" or "temporary" position within the meaning of the within-grade salary-advancement statute of August 1, 1941, and the President's regulations thereunder.

Any appointment or employment made under a civil-service rule or regulation specifically designating an appointment as "temporary" constitutes a position "designation as temporary by law" within the meaning of the President's regulations under the uniform within-grade salary-advancement statute of August 1, 1941, defining "permanent positions" as including "all positions except those designated as temporary by law and those established for definite periods of 6 months or less."

If the civil-service rules or regulations do not specifically designate an appointment as "temporary," and the tenure of the appointment or employment is not otherwise designated as temporary by law or limited by the terms and conditions of the appointment or contract of employment to a period of 6 months or less, the employee should be regarded as occupying a "permanent position" within the meaning of the uniform within-grade salary-advancement statute of August 1, 1941, and the President's regulations thereunder. The President's definitions of "permanent position" under the statute, supra, and under the annual and sick leave statutes, distinguished. An employee should be regarded as occupying a "permanent position" within the meaning of the uniform within-grade salary-advancement statute of August 1, 1941, and the President's regulations thereunder, during the period between the time his position is covered into the competitive classified civil service and the time he qualifies or fails to qualify under section 6 of civil-service rule II for a competitive classified civil-service status in such position, since neither the said rule nor any other law or regulation designates such interim services as being under a temporary appointment. An employee serving under a probationary appointment of 6 months or less pursuant to section 2 (c) of rule VII, as amended, of civil-service rules and regulations is not occupying a "permanent position" within the meaning of the uniform within-grade salary-advancement statute of August 1, 1941, and the President's regulations thereunder, but an employee serving under a probationary appointment of more than 6 months is occupying a "permanent position" and entitled to the benefits of the statute if its other requirements are met, even though a current civil-service rule denies promotions during a probationary period.

A reduction in salary during the prescribed period that an employee must serve without an "equivalent increase in compensation" in order to be eligible for a within-grade salary advancement under the act of August 1, 1941, has no effect on the employee's eligibility to the increase, and where the re

duction follows a prior increase in salary, the said prescribed period continues to run from the effective date of the prior increase.

A restoration in compensation after a reduction is an "equivalent increase in compensation from any cause" within the meaning of the act of August 1, 1941, providing for uniform within-grade salary advancements, and the President's regulations thereunder, and the prescribed period that the employee must serve without such an equivalent increase in order to be eligible for a salary advancement under the act begins to run from the date of the restoration.

In computing the prescribed period that a per annum employee occupying a position within the scope of the within-grade salary-advancement provisions of the act of August 1, 1941, must serve in order to be eligible for a salary advancement under the act, prior service in a position for which the compensation is fixed on a per diem "when actually employed" basis may be counted, if the conditions as to continuity of service, etc., prescribed by the President's regulations under the act have been met. An administrative error in not granting an employee a within-grade salary advancement pursuant to the act of August 1, 1941, may not defeat or delay the right of the employee to the advancement on and after the beginning of any quarter he became qualified and entitled thereto, and administrative action retroactively correcting the error is not to be regarded as a retroactively effective promotion such as is prohibited under the general rule applicable to promotions. An employee paid on an annual basis who, at the beginning of a quarter, occupies a permanent part-time position (fractional part of a year) within the scope of the compensation schedules fixed by the Classification Act is entitled to a within-grade salary advancement under the act of August 1, 1941, if he has had the prescribed length of service without an equivalent increase in compensation, computed, with regard to intervening non-pay status or absence on furlough or leave without pay, in accordance with sections 2 (c) and (d) of the President's regulations promulgated pursuant to the statute, and if he is otherwise qualified under the terms and conditions of the statute.

If an employee resigned or was separated from a permanent position effective on October 1, 1941, from and after which date the first within-grade salary advancements under the act of August 1, 1941, are payable, he should not be considered for a promotion under the act, as of that date, but if the employee's separation was not effective until after October 1, 1941, he should be considered for promotion for the period from October 1, 1941, to the date he is separated.

An employee who is on leave of absence without pay on October 1, 1941, the effective date of the first within-grade salary advancements under the act of August 1, 1941, should be given the salary increase for record purposes payment to be made if and when he returns to a pay status-provided all other requirements for the increase are met.

An employee who, during the 18 months' period prior to October 1, 1941, was transferred from a field grade 8. $1,000, position in "the States" to a field grade 9, $2,000, position in Alaska where positions are administratively allocated one grade higher than similar positions in the States has received an "equivalent increase in compensation" within the meaning of the act of August 1, 1941, providing for uniform within-grade salary advancements, and, therefore, he is not entitled to a promotion as of October 1, 1941, under the act.

Comptroller General Warren to the Secretary of the Interior, October 27, 1941: I have your letter of October 1, 1941, as follows:

Some questions have arisen as to the interpretation to be placed upon the provisions of the Act of August 1, 1941, Public Law 200, 77th Congress, to amend the Classification Act of 1923, as amended. This law provides under certain circumstances for within-grade salary increases for all employees, with specified exceptions and limitations, compensated on a per annum basis and occupying permanent positions within the scope of the compensation schedules fixed by the Act. The principal question involved is whether the nature of the position is controlling, that is whether it is permanent or temporary as defined in Executive Order No. 8882 of September 3, 1941, or whether

the status of the employee is the governing factor as one of the constituents of eligibility. Some examples of the foregoing follow:

1. Prior to July 1, 1941, an employee was filling a position without time limit and without the bounds of civil-service rules. Funds were appropriated for the present fiscal year to continue the force of which the employee is a member in positions subject to civil-service rules, particularly section 6 of civilservice rule II. The propriety of classification under this rule has not yet been established by the Civil Service Commission, but that office has given temporary authority to continue the employee, pending the determination of the status of the position for civil-service classification. No time limit is placed upon the position the employee is occupying although his status in the position is temporary. Would he be promotable on October 1 if otherwise eligible?

2. An employee has been filling a position without time limit and excepted from civil-service rules. He became eligible through competitive civil-service examination and has been given a probational appointment in a nondefense agency. The period of probation will not have been completed by October 1. Under civil-service rules the appointee would not be eligible for an administrative increase during his probationary period. Would this employee be promotable on October 1 if otherwise eligible?

3. An employee has been appointed upon the authority of the Civil Service Commission, pending the establishment of a register of eligibles to fill the position permanently. The employee is therefore occupying a permanent position but with a temporary civil-service status. Would he be promotable on October 1 if otherwise eligible?

The Department is of the opinion that the tenure of the position is the governing factor and not the status of the employee. In this connection section 8 of the Act provides that insofar as they are inconsistent or in conflict with prior laws, the provisions of this Act shall control.

A second question arises concerning an employee who has had an increase in salary within 18 months prior to October 1, or other promotion date, but subsequent to that increase had a decrease in grade and salary. Would the 18-month period start to run from the effective date of the last increase notwithstanding the subsequent decrease in salary?

A third question is whether an employee who was demoted in grade and salary within the 18-month period prior to October 1, and later during the same period was restored to his former grade and salary, would be promotable if otherwise eligible. An illustration of this question would be an employee in grade CAF-3 at $1,620 per annum occupying an excepted position, who upon becoming eligible through civil-service examination, was given a probational appointment in grade CAF-2 at $1,440 per annum. After the probationary period had been completed, the employee was restored to his former grade and salary of CAF-3 at $1,620 per annum,

A fourth question concerns an employee who has been serving in a permanent position at a daily rate and paid when actually employed, who, prior to October 1 or other promotion date, will have been changed to a per annum rate, continuing in a permanent position. Would such an employee be eligible for an increase in salary if other requirements are met?

A fifth question concerns employees who may be eligible for an increase on October 1 or other promotion date, but who through oversight were not advanced in salary. Section 4 of Executive Order No. 8882 provides for retroactive increases upon a change or adjustment of efficiency rating. Do the provisions of the Act provide that a salary increase may be made effective on the first promotable date even though this date had passed at the time the error was discovered?

A sixth question is whether part-time employees whose positions are allocated to a classification grade with an annual salary, working a fractional part of the year, are promotable if otherwise eligible.

A seventh question concerns an employee who has resigned or who is being separated from a permanent position, effective on or after October 1. Should he be considered for promotion if otherwise eligible? Also, is an employee

on leave without pay extending over October 1 to be promoted? An eighth question pertains to an employee who has been transferred from the States to Alaska where positions are administratively allocated one grade higher than similar positions in the States because of the unusual working conditions. To illustrate the question: A nurse receiving $1,800 in field grade

8 with a salary range of $1,800 to $2,160 is transferred to Alaska at $2,000 in field grade 9 with a range of $2,000 to $2,600, this being the only salary change during the 18-month period prior to October 1. Does this transfer with resultant change in grade and salary constitute an increase in compensation within the meaning of the act?

The act of August 1, 1941, Public Law 200, 55 Stat. 613, provides in pertinent part, as follows:

SEC. 2. Section 7 of the said Act is hereby amended by inserting the letter "(a)" after the figure "7" at the beginning of said section, and by adding the following paragraphs as subsections thereof:

"(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 quarter, following the completion of: (1) Each eighteen months of service if such employees are in grades in which the compensation incre ments are $60 or $100, or (2) each thirty months of service if such employees are in grades in which the compensation increments are $200 or $250, subject to the following conditions:

"(1) That no equivalent increase in compensation from any cause was received during such period, except increase made pursuant to subsection (f) of this section;

"(e) Employees eligible under subsection (b) for compensation advancement by reason of service immediately preceding the effective date of this amendment shall be advanced to the next higher rate of compensation within the grade to which their positions are respectively allocated at the beginning of the next quarter immediately following the effective date of this amendment.

"(g) The President is hereby authorized to issue such regulations as may be necessary for the administration of this section."

Executive Order No. 8882 dated September 3, 1941, contains the following regulations promulgated by the President under authority of section 2 (g) of the statute:

SECTION 1. In the administration of the said section 7, the following definitions of terms used therein shall apply:

(a) "Permanent positions" shall include all positions except those designated as temporary by law and those established for definite periods of six months or less.

*

(d) "Equivalent increase in compensation" shall mean any increase or increases which in total are equal to or greater than the compensation increment in the lowest grade in which the employee has served during the time period of eighteen or thirty months, as the case may be.

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SECTION 2. In computing the periods of service required by the said section for within-grade advancements there shall be credited to such service:

(a) Continuous civilian employment in any branch, executive department, independent establishment, agency, or corporation of the Federal Government or in the municipal government of the District of Columbia.

(b) Time elapsing on annual, sick, or other leave with pay.

(c) Time elapsing in a nonpay status (including break in service) not exceeding thirty days within any one time period of eighteen or thirty months, as the case may be.

(d) Service rendered prior to absence on furlough or leave without pay where such absence is in excess of thirty days but not exceeding one year.

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