B-148404, AUG. 18, 1966

B-148404, AUG. 18, 1966

TO THE POSTMASTER GENERAL:

WE REFER TO YOUR LETTER OF AUGUST 1, 1966, YOUR REFERENCE 600A, CONCERNING THE RIGHT OF FORMER EMPLOYEES OF THE POST OFFICE DEPARTMENT TO BE RESTORED TO THE POSITIONS THEY HELD AT THE TIME THEY WERE SEPARATED FOR THE PURPOSE OF ENTERING ACTIVE DUTY AS MEMBERS OF A RESERVE COMPONENT OF THE MILITARY FORCES UNDER THE PROVISIONS OF 5 U.S.C. 30R (B).

YOU REQUEST OUR DECISION WHETHER RESERVISTS WHO HAVE REMAINED ON ACTIVE DUTY FOR MORE THAN FOUR YEARS ARE ENTITLED TO RESTORATION TO THE POSITIONS THEY HELD OR TO POSITIONS OF LIKE SENIORITY STATUS AND PAY UNDER THAT PROVISION OF 5 U.S.C. 30R (B). THAT SUBSECTION PROVIDES:

"EACH PERSON COVERED BY SUBSECTION (A) OF THIS SECTION WHO IS ORDERED TO ACTIVE DUTY, OR TO DUTY UNDER SECTIONS 502-505 OF TITLE 32 IS ENTITLED, UPON RELEASE FROM DUTY, TO BE RESTORED TO THE POSITION HELD BY HIM WHEN ORDERED TO DUTY.'

IN OUR DECISION OF APRIL 27, 1966, B-158925, TO THE ADMINISTRATOR, FEDERAL AVIATION AGENCY (COPY ENCLOSED), WE SAID IN PART:

"WE HAVE HELD THAT THE RIGHT TO RESTORATION GIVEN BY 5 U.S.C. 30R (B) IS A RIGHT SEPARATE FROM AND IN ADDITION TO THE RESTORATION RIGHTS GIVEN FORMER EMPLOYEES BY SECTION 9 (G) (2) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, APPROVED JUNE 24, 1948, CH. 625, 62 STAT. 614, AS AMENDED, 50 U.S.C. APP. 459 (G) (2), AND THAT THE RIGHT GIVEN BY 5 U.S.C. 30R (B) IS NOT DEFEATED BY THE LENGTH OF TIME THE FORMER EMPLOYEE HAS BEEN IN MILITARY SERVICE. 43 COMP. GEN. 439. SEE ALSO THE REPORT OF THE COMMITTEE ON THE ARMED SERVICES, HOUSE OF REPRESENTATIVES DATED MARCH 1, 1966, ON THE BILL H.R. 11509, 89TH CONGRESS, HOUSE REPORT NO. 1303, 89TH CONGRESS, 2ND SESSION, PAGES 6 AND 7.

"WE HAVE NO AUTHORITY, HOWEVER, TO DIRECT THAT A PARTICULAR FORMER EMPLOYEE OF AN AGENCY BE RESTORED TO DUTY TO THE POSITION HELD BY HIM PRIOR TO ENTRY INTO THE MILITARY SERVICE. IN THE ABSENCE OF A PROVISION OF LAW VESTING SUCH AUTHORITY IN A PARTICULAR OFFICIAL THE RESPONSIBILITY OF REINSTATING ELIGIBLE INDIVIDUALS IS THAT OF THE HEADS OF THE GOVERNMENT DEPARTMENTS AND AGENCIES INVOLVED.

OUR JURISDICTION WITH REGARD TO RESTORATIONS MADE BY OTHER GOVERNMENT DEPARTMENTS AND AGENCIES UNDER THAT PROVISION OF LAW EXTENDS ONLY TO RATES OF COMPENSATION AND OTHER BENEFITS WHICH MAY BE ALLOWED TO RESTORED EMPLOYEES.'

THUS, OUR OPINION IS THAT UNDER THE PROVISIONS OF 5 U.S.C. 30R (B) A PERSON COMING WITHIN THE TERMS OF THAT SECTION IS ENTITLED TO BE RESTORED "TO THE POSITION HELD BY HIM WHEN ORDERED TO Y," BUT THAT THE RESPONSIBILITY OF REINSTATING ELIGIBLE INDIVIDUALS IS THAT OF THE HEAD OF THE PARTICULAR DEPARTMENT INVOLVED. THE SECTION GIVES A BARE RIGHT OF RESTORATION. NO RIGHT ACCRUES UNDER THE SECTION TO BE CONSIDERED AN OFFICER OR EMPLOYEE ON LEAVE OF ABSENCE DURING MILITARY SERVICE AS IS TRUE UNDER 50 U.S.C. APP. 459 (C). IN CASES OF RESTORATION WHICH ARE BASED SOLELY ON 5 U.S.C. 30R (B) ADDITIONAL RIGHTS PRESERVED WHEN CIVILIAN SERVICE IS INTERRUPTED BY MILITARY SERVICE MAY BE FOUND, HOWEVER, IN SPECIFIC AUTHORITY SUCH AS 39 U.S.C. 3552 (C) RELATING TO AUTOMATIC ADVANCEMENT BY STEP INCREASES.