B-107894, MAY 13, 1952, 31 COMP. GEN. 592

B-107894: May 13, 1952

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A VETERAN IS NOT ENTITLED TO THE BENEFITS OF THE ACT WHERE A LOWER ELIGIBLE RECEIVED A PROBATIONAL APPOINTMENT. 1952: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4. IS ENTITLED TO THE BENEFITS OF THE ACT OF JULY 31. TRIPPET WAS IN THE MILITARY SERVICE. WAS CONVERTED TO A PROBATIONAL INDEFINITE APPOINTMENT UNDER A PROCEDURE WHICH SHOULD HAVE BEEN DISCONTINUED ON DECEMBER 12. TRIPPET'S ELIGIBILITY FOR PROBATIONAL APPOINTMENT WAS RESTORED AFTER MILITARY SERVICE UPON THE BASIS OF SUCH CONVERSION. BECAUSE OF MILITARY SERVICE AND WHO WAS CERTIFIED FOR PROBATIONAL APPOINTMENT PURSUANT TO EXECUTIVE ORDER NO. 9538. OR APPLICABLE CIVIL SERVICE REGULATIONS AND SUBSEQUENTLY WAS GIVEN SUCH APPOINTMENT IS ENTITLED TO CERTAIN SENIORITY AND COMPENSATION BENEFITS.

B-107894, MAY 13, 1952, 31 COMP. GEN. 592

APPOINTMENTS - INITIAL SALARY RATES, ETC. - PERSONS WHO PREVIOUSLY LOST OPPORTUNITY FOR APPOINTMENT BY REASON OF MILITARY SERVICE UNDER THE ACT OF JULY 31, 1946, AS AMENDED, PROVIDING FOR THE PLACING IN AN APPROPRIATE STATUS OF A VETERAN WHO LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT IN THE POSTAL SERVICE BECAUSE OF BEING IN MILITARY SERVICE, IT MUST BE ESTABLISHED THAT THE VETERAN ACTUALLY LOST AN OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF BEING IN THE MILITARY SERVICE, AND THEREFORE, A VETERAN IS NOT ENTITLED TO THE BENEFITS OF THE ACT WHERE A LOWER ELIGIBLE RECEIVED A PROBATIONAL APPOINTMENT, NOT AS A RESULT OF A DIRECT CERTIFICATION FROM A REGISTER OF ELIGIBLES, BUT BECAUSE OF AN ERRONEOUS CONVERSION FROM A WAR SERVICE APPOINTMENT.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, MAY 13, 1952:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4, 1952, REFERENCE 12, REQUESTING A DECISION AS TO WHETHER MR. WILLIAM A. TRIPPET, CITY LETTER CARRIER IN THE POST OFFICE, ORLANDO, FLORIDA, IS ENTITLED TO THE BENEFITS OF THE ACT OF JULY 31, 1946, PUBLIC LAW 577, 60 STAT. 749, AS AMENDED BY THE ACT OF APRIL 29, 1950, PUBLIC LAW 492, 64 STAT. 93, BY VIRTUE OF THE ERRONEOUS CONVERSION OF A LOWER ELIGIBLE FROM A WAR SERVICE APPOINTMENT TO A PROBATIONAL APPOINTMENT ON MAY 1, 1945.

IT APPEARS FROM THE RECORD NOW BEFORE ME THAT NO LOWER RANKING ELIGIBLE RECEIVED A PROBATIONAL APPOINTMENT AS A RESULT OF DIRECT CERTIFICATION FROM THE REGISTER WHILE MR. TRIPPET WAS IN THE MILITARY SERVICE; THAT ON MAY 1, 1945, THE WAR SERVICE APPOINTMENT OF AN EMPLOYEE WHO HAD BEEN SERVING IN THE POSITION OF LETTER CARRIER SINCE JULY 17, 1943, AND WHO STOOD LOWER ON THE ORIGINAL REGISTER THAN MR. TRIPPET, WAS CONVERTED TO A PROBATIONAL INDEFINITE APPOINTMENT UNDER A PROCEDURE WHICH SHOULD HAVE BEEN DISCONTINUED ON DECEMBER 12, 1944, THE EFFECTIVE DATE OF EXECUTIVE ORDER NO. 9506; THAT MR. TRIPPET'S ELIGIBILITY FOR PROBATIONAL APPOINTMENT WAS RESTORED AFTER MILITARY SERVICE UPON THE BASIS OF SUCH CONVERSION; AND THAT HE RECEIVED A PROBATIONAL APPOINTMENT AS A SUBSTITUTE CARRIER IN FEBRUARY 1948.

THE ACT OF JULY 31, 1946, AS AMENDED, PROVIDES THAT AN ELIGIBLE WHO LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT IN THE POSTAL SERVICE AT ANY TIME BETWEEN MAY 1, 1940, AND OCTOBER 23, 1943, BECAUSE OF MILITARY SERVICE AND WHO WAS CERTIFIED FOR PROBATIONAL APPOINTMENT PURSUANT TO EXECUTIVE ORDER NO. 9538, APRIL 13, 1945 (SUPERSEDED BY EXECUTIVE ORDER NO. 9733, JUNE 4, 1946), OR APPLICABLE CIVIL SERVICE REGULATIONS AND SUBSEQUENTLY WAS GIVEN SUCH APPOINTMENT IS ENTITLED TO CERTAIN SENIORITY AND COMPENSATION BENEFITS.

IT HAS BEEN STATED THAT THE PRIMARY PURPOSE OF THE ACT IS TO PLACE THE VETERAN WHO LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF HIS MILITARY SERVICE IN A STATUS WITH RESPECT TO COMPENSATION AND SENIORITY COMPARABLE WITH THE STATUS WHICH HE MIGHT HAVE ATTAINED HAD HE NOT ENTERED THE MILITARY SERVICE. SEE 26 COMP. GEN. 315; 27 ID. 399, 402. ALSO, IN ORDER TO RECEIVE THE BENEFITS OF THE ACT IT MUST BE ESTABLISHED THAT A PERSON OTHERWISE ELIGIBLE THERETO LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF HIS MILITARY SERVICE. IT HAS BEEN HELD THAT A SUBSEQUENT APPOINTMENT PURSUANT TO EXECUTIVE ORDER NO. 9538 OR EXECUTIVE ORDER NO. 9733 DOES NOT PER SE RENDER AN EMPLOYEE ELIGIBLE FOR SUCH BENEFITS. SEE 26 COMP. GEN. 485, 487.

IN THE INSTANT CASE A LOWER ELIGIBLE WAS APPOINTED WHILE MR. TRIPPET WAS IN THE MILITARY SERVICE, BUT THE APPOINTEE WAS GIVEN A WAR SERVICE APPOINTMENT. AS INDICATED ABOVE NO LOWER RANKING ELIGIBLE RECEIVED A PROBATIONAL APPOINTMENT AS A RESULT OF DIRECT CERTIFICATION FROM THE REGISTER. THUS, IT APPEARS THAT MR. TRIPPET DID NOT ACTUALLY LOSE AN OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF MILITARY SERVICE SO AS TO BRING HIM WITHIN THE PROVISIONS OF THE ACT. SUCH A SITUATION SHOULD BE DISTINGUISHED FROM THE ONE CONSIDERED IN 26 COMP. GEN. 315, WHERE A TEMPORARY RURAL CARRIER WAS APPOINTED TO SERVE THE ROUTE WHEN THE VETERAN ELIGIBLE COULD NOT ACCEPT BECAUSE OF MILITARY SERVICE, AND IT WAS SHOWN THAT THE ELIGIBLE ACTUALLY LOST AN OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF MILITARY SERVICE. IF THE BENEFITS OF PUBLIC LAW 577, AS AMENDED, WERE EXTENDED SOLELY UPON THE BASIS OF THE PROBATIONAL APPOINTMENT ERRONEOUSLY GIVEN TO THE LOWER ELIGIBLE, IT APPEARS THAT MR. TRIPPET WOULD ACQUIRE A STATUS GREATER THAN THE ONE WHICH HE PROBABLY WOULD HAVE ACQUIRED HAD HE NOT ENTERED THE MILITARY SERVICE. THERE IS NO BASIS, OF COURSE, FOR EXTENDING THE BENEFITS OF THE ACT UPON THE BASIS OF A PROBATIONAL APPOINTMENT ERRONEOUSLY GIVEN.

ACCORDINGLY, IN THE ABSENCE OF A SHOWING THAT MR. TRIPPET ACTUALLY LOST AN OPPORTUNITY FOR PROBATIONAL APPOINTMENT DURING THE PERIOD MAY 1, 1940, TO OCTOBER 23, 1943, BECAUSE OF MILITARY SERVICE, HE MAY NOT BE CONSIDERED AS ENTITLED TO THE BENEFITS OF PUBLIC LAW 577, AS AMENDED.