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benefit extended contrary to the intent and spirit of the legislation under which this appellant has made claim.

In view of the foregoing, your decision is respectfully requested respecting the right of this claimant, under the circumstances as stated in the foregoing, to include in computation for purposes of section 6 of the Retirement Act of May 29, 1930, any period of time, subsequent to his separation from the service, during which he is in receipt of benefits under the United States Employees' Compensation Act.

In decision of August 24, 1926, 6 Comp. Gen. 156, it was stated: It has been held that an absence on account of an injury such as would entitle the employee to the benefits of the act of September 7, 1916, does not ipso facto break the continuity of service for leave purposes of an employee who thereafter returns to duty. 26 Comp. Dec. 763. Where an employee is sick or disabled for a long-continued period, the question whether he should be continued on the rolls as in service or be dropped as an employee is one primarily of administration. 27 Comp. Dec. 100. See also 5 Comp. Gen. 404.

In commenting on the foregoing decision it was stated in decision of April 30, 1932, 11 Comp. Gen. 409:

That decision dealt with the leave status of employees partially or temporarily disabled in the service who were receiving the benefits of the Employees' Compensation Act. As to all such employees, it is clear that service credit accrues under the Civil Retirement Act for any period of authorized absence from active duty during which disability compensation is paid under the Employees' Compensation Act. The purpose of the statute is to save the loss of service credit toward retirement for a period of temporary absence on account of injury incurred in the service where there is an expectation of a return to active duty. However, there is no purpose shown to save to employees permanently and totally disabled with no expectation of returning to active duty, service credit during the period while in receipt of disability compensation under the Employees' Compensation Act, in many cases covering a number of years. An official rating of permanent total disability, under any Federal statute authorizing such rating, is wholly inconsistent with further active duty, and ipso facto separates the employee from the public service from and after its date, even where there is a statute prohibiting the administrative office from separating the employee from service because of illness during a fixed period, such as the act of July 28, 1916, 39 Stat. 413, applicable to the Postal Service.

Answering your question specifically, you are advised that in computing length of service under the Civil Retirement Act, there should be excluded all periods from and after the date of an official rating of permanent total disability specifically authorized to be made under any Federal statute, whether the name of the employee has or has not been dropped from the rolls of the department under which employed.

It is not stated in your submission whether Banister has been declared to be permanently and totally disabled, but in view of the fact that he has not rendered service since August 18, 1923, and has been in receipt of disability compensation from November 23, 1923, and now alleges total disability, his status appears that of permanently and totally disabled. Furthermore, any action taken in 1928, purporting to revoke the order issued in 1924, separating the employee from the service was without force or effect. I have to advise, therefore, that no period of time subsequent to the former employee's separation from the service in 1924 may legally be counted for purposes of retirement under section 6 of the Retirement Act of May 29, 1930, 46 Stat. 472.

(A-56413)

POSTAL SERVICE-COMPENSATION OF SUBSTITUTE AND TEMPORARY RURAL LETTER CARRIERS

The basic rates of compensation fixed in subsection (a) of the act of June 25, 1934, 48 Stat. 1212, are the rates payable to substitute and temporary rural letter carriers under any conditions without reference to the saving clause in subsection (d) of the same act limiting the amount by which salary rates being paid on June 30, 1934, may be reduced, which is for the benefit of individual carriers, except that the saving clause is applicable in computing the salary rates of substitute and temporary carriers for service on routes on which serving July 1, 1934.

Comptroller General McCarl to the Postmaster General, July 5, 1934:

There has been received your letter of June 27, 1934, as follows: The act of June 25, 1934, to adjust the salaries of rural letter carriers, which becomes effective July 1, 1934, provides that "(d) In the case of any carrier in the Rural Mail Delivery Service on the date this act takes effect, who serves six days a week a rural route of less than thirty miles, or who serves three days a week a rural route of less than sixty miles or two routes of a combined length of less than sixty miles, the annual salary of such carrier shall not be reduced more than $180 by operation of subsection (a) of this section."

A ruling is requested whether in the case of a substitute or temporary carrier serving during the absence on leave, either with pay or without pay, of a regular carrier whose salary because of the provision of law quoted above has been reduced only $180 per annum should be paid at the same rate of salary as that allowed the regular carrier or whether he should receive the base pay provided by law according to the mileage of the route served; also whether the $180 provision applies to a temporary carrier in the service on July 1, 1934, on a route for which there is no permanently appointed carrier.

It will be appreciated if your ruling covering these questions is rendered within the shortest time possible, in order that we may proceed with the issuance of necessary instructions to field officers of the Postal Service.

Subsection (a) of section 1 of the act of June 25, 1934, 48 Stat. 1212, provides as follows:

That (a) the first paragraph of section 8 of the act entitled "An act reclassifying the salaries of postmasters and employees of the Postal Service, readjusting their salaries and compensation on an equitable basis, increasing postal rates to provide for such readjustment, and for other purposes ", approved February 28, 1925, as amended (U.S.C., title 39, sec. 197), is amended to read as follows:

"SEC. 8. The salary of carriers in the Rural Mail Delivery Service for serving a rural route of thirty miles six days a week shall be $1,800; on routes less than thirty miles, $60 per mile per annum for each mile or major fraction thereof. Each rural carrier assigned to a route served six days in a week shall receive $20 per mile per annum for each mile or major fraction thereof said route is in excess of thirty miles, based on actual mileage, and each rural carrier assigned to a route served three days in the week shall receive $10 per mile per annum for each mile or major fraction thereof said route is in excess of thirty miles, based on actual mileage."

Sections 202 and 203, title 39, United States Code, provide as follows:

Rate of compensation of temporary carriers.—Acting or substitute rural letter carriers shall be paid at the usual rate for each day's service. (Mar. 2, 1907, c. 2513, 34 Stat. 1213.)

Carriers; leave of absence; substitutes.-Rural letter carriers after twelve months' service shall be allowed annual leave with pay not to exceed fifteen days; the substitutes for carriers on vacation to be paid during said service at the rate paid the carrier. (Mar. 2, 1907, c. 2513, 34 Stat. 1215.)

Section 974, Postal Laws and Regulations, 1932, provides in part as follows:

substitutes for (rural) carriers on vacation to be paid during said service at the rate paid the carrier.

2. A substitute carrier who performs service for a regular carrier absent with pay shall be paid at the same rate paid the regular carrier for each day's service, exclusive of Sundays and authorized holidays.

3. A temporary carrier serving a route for which there is no regular carrier, or in place of a regular carrier absent without pay, shall be paid at the same rate paid the regular carrier, Sundays and holidays included, except at the beginning or ending of the period of employment.

Subsection (a) of section 1 of the act of June 25, 1934, is general legislation fixing the basis for determining the rate of compensation to be paid regular and substitute rural carriers, whereas subsection (d) is merely a "saving clause" for the benefit of carriers in the Rural Mail Delivery Service on July 1, 1934, the effective date of the act. That is to say, it is intended to limit the amount by which certain salaries being paid on June 30, 1934, may be reduced. Therefore, it has no application to any substitute or temporary carrier unless on and prior to July 1, 1934, he was serving the route of a regular carrier to which the saving clause applies and then only so long as he continues to serve on that route. In other words, the basis for the salary rates of substitute and temporary carriers "at the usual rate for each day's service" (sec. 202, title 39, U.S.C.), or "at the rate paid the carrier " (sec. 203, title 39, U.S.C.), is the statutory rates fixed for the service of a regular carrier based on the length of the route, etc., without reference to any saving clause for the benefit of individual carriers.

Therefore, the basic rates fixed in subsection (a) of the act of June 25, 1934, supra, are the rates payable to a substitute or temporary carrier under any conditions without reference to the saving clause in subsection (d), except that the saving clause is applicable in computing their salary rates for service on routes on which serving July 1, 1934.

The questions presented are answered accordingly.

(A-55907)

COMPENSATION-ADMINISTRATIVE PROMOTIONS-EXECUTIVE

ORDER CLASSIFICATION

In fixing classification salary rates pursuant to the provisions of Executive Order No. 6440 of November 18, 1933, now superseded by Executive Order No. 6746, dated June 21, 1934, there may not result increases in compensation which amount to "administrative promotions" in violation of section 7 of the act of March 3, 1933, 47 Stat. 1515, amended for the fiscal year 1935 by section 24 of the act of March 28, 1934, 48 Stat. 523. The provision in the Executive Order No. 6746, dated June 21, 1934, defining the term "adjustments' to include increases in compensation, must be considered in the light of the decisions of the Comptroller General ren

dered prior thereto giving effect to the economy law, and, in consequence, any "adjustments" upward thereunder may be merely those minor adjustments not constituting violations of the Economy Act as determined in said decisions.

Decision by Comptroller General McCarl, July 5, 1934:

There are for consideration in the audit of voucher no. 75, pay roll of employees of the Federal Power Commission, for the period March 1 to 15, 1934, certain questions concerning classification of positions and the fixing of salary rates under the provisions of Executive Order No. 6440, of November 18, 1933, which has now been superseded by Executive Order No. 6746, dated June 21, 1934. These questions relate to five specific cases, the material facts in which are set forth as follows:

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Fayette S.War

ner.

George

Hart

Morse.

neer.

M. F. Hether- 2-6 ington, Jr.

neer.

1-8 E.O. 17-engineer econ-
omist (division chief).

1-13 E.O. 16-head engineer
(division chief).

2-16 E.O. 11-associate engi

$6,800, less $300 $255
15 per-
cent.
$6,000, less

15 per-
cent.

1-8 Engineer econ- $6,500, less
omist.
15 per-
cent.
1-10 Principal engi- $5,800, less
15 per-
cent.
Associate engi- $3,000, less
15 per-
cent.
$1,500, less 3-17 E.O. 5-assistant clerk. $1,620, less
15 per-
cent.
3-26 E.O. 4-junior stenog- $1,440, less
rapher.
15 per-
cent.

Laura S. Voor- 2-23 Assistant
hees.

clerk.

Jennie Schnei- 3-1 Junior stenogder.

15 per-
cent.
$1,320, less

rapher.

15 percent.

neer.

200 170

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It will be noted that the compensation of each of the above employees was increased to the rate fixed by Executive Order No. 6440 (the salary schedule in Executive Order No. 6746, dated June 21, 1934, being the same) for the respective Executive order grade to which his position was allocated on March 1, 1934, and that the compensation of the above employees, as well as all other employees of the Federal Power Commission paid from funds allotted under authority of the National Industrial Recovery Act was made subject to 15-percent reduction (10 percent effective February 1, 1934), prior to the classification of their positions under the Executive order. (13 Comp. Gen. 63-65, answer to question 2.)

In decision of March 17, 1934 (13 Comp. Gen. 243, 245), after quoting section 7 of the act of March 3, 1933 (47 Stat. 1515), and a portion of Executive Order No. 6440, it was held:

Therefore, in applying the provisions of said order to officers and employees in the service when it became effective there must not result a promotion within the meaning of the provisions of section 7, supra. Where, however, under the adjustment, the net salary rate to be paid after withholding the

applicable percentage reduction does not exceed the net salary previously paid for performance of substantially the same duties by an amount equal to or in excess of the amount of one salary step in the corresponding salary grade under the Classification Act, viz, $60, $100, $200, or $500 per annum, as the case may be, such an adjustment would not constitute an administrative promotion within the meaning of said section 7 of the act of March 3, 1933. See decision of March 12, 1934, A-54227.

And in decision of March 31, 1934, A-54605, after quoting the above-quoted portion of decision of March 17, 1934, it was held:

This principle was intended to be, and was, limited to cases in which the proper adjustment authorized by the Executive order would not increase the net salary rate previously paid more than the amount of one salary step in the corresponding classification grade. Where the proper adjustment—that is, based solely upon the duties of the position-would result in an increase of more than one salary step in the corresponding classification grade, the proper grade should be shown on the pay roll but the rate of compensation to be paid should remain the same so long as the position is held by the same employee and the statutory inhibition against promotions continues. The mere fact that an employee's former salary is between two salary rates prescribed in the Executive order does not authorize placing the position in the higher of the two grades or leaving the salary unchanged. The fixing of the grade for the position should be based on the duties, responsibilities, etc., without reference to the former salary of the incumbent; and if the salary fixed in the Executive order for the grade to which so allocated is lower than the salary theretofore being received, such is to be reduced accordingly.

It will be noted that in only 2 of the 5 cases in question were the employees' designations changed, and the administrative office does not claim that there has been a material change in the duties and responsibilities of any of the employees in question.

The net increase in compensation of Fayette S. Warner and George Hart Morse as a result of classification in E.O. grades 17 and 16, respectively, pursuant to the Executive Order 6440, was less than $500, the amount of the salary step in the corresponding salary grades under the Classification Act-notwithstanding that no corresponding Classification Act grade is stated in the Executive order for grade 17. Hence, there was involved no "administrative promotion", and no objection will be made in the audit to payments of the increased salary rates in said cases.

However, the net increases in compensation in the cases of M. F. Hetherington, Jr., Laura S. Voorhees, and Jennie Schneider, as a result of classification in E.O. grades 11, 5, and 4, respectively, was in excess of the amounts of the salary step in the corresponding Classification Act grades, viz, $100 and $60. Accordingly, under the principle stated in the quoted decisions, credit must be withheld in the audit of accounts for payments of salary to these three employees in excess of the rates of $3,000, $1,500, and $1,320 per annum, respectively, the total or basic rates paid prior to March 1, 1934, less 10 percent, from and after March 1, 1934, and until June 30, 1934.

The following provision appears in Executive Order No. 6746, dated June 21, 1934, which superseded Executive Order No. 6440:

The term "adjustments" as used herein shall include increases as well as decreases in rates of compensation. *

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