B-125973, B-128893, FEBRUARY 21, 1957, 36 COMP. GEN. 602

B-125973,B-128893: Feb 21, 1957

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WERE GIVEN PROBATIONAL APPOINTMENTS IN THE POSTAL SERVICE AT RATES OF COMPENSATION BASED ON THE GRADE AND COMPENSATION OF LOWER RANKING ELIGIBLES WHO. HAD RENDERED TEMPORARY POSTAL SERVICE WHICH IS CREDITABLE FOR PROMOTION PURPOSES. ARE REQUIRED TO REFUND THE OVERPAYMENTS RESULTING IN THE RECEIPT OF GREATER COMPENSATION THAN THAT PAYABLE AT THE TIME THEIR NAMES WERE REACHED FOR PROBATIONAL APPOINTMENTS. MAY HAVE THEIR APPOINTMENTS AUTOMATICALLY CONVERTED TO APPOINTMENTS IN ACCORDANCE WITH THE ACT WITHOUT THE NECESSITY FOR TIMELY FILING OF A REAPPLICATION FOR RESTORATION AND REAPPOINTMENT TO THE PROBATIONARY POSITION AS REQUIRED BY 5 U.S.C. 645D (A) (3). WERE GIVEN PROBATIONAL APPOINTMENTS PRIOR TO JULY 16.

B-125973, B-128893, FEBRUARY 21, 1957, 36 COMP. GEN. 602

POSTAL SERVICE - KOREAN VETERANS - PROBATIONAL APPOINTMENTS - BENEFIT ACT OF JULY 16, 1953 KOREAN VETERANS WHO, AFTER DISCHARGE, WERE GIVEN PROBATIONAL APPOINTMENTS IN THE POSTAL SERVICE AT RATES OF COMPENSATION BASED ON THE GRADE AND COMPENSATION OF LOWER RANKING ELIGIBLES WHO, PRIOR TO PROBATIONAL APPOINTMENTS, HAD RENDERED TEMPORARY POSTAL SERVICE WHICH IS CREDITABLE FOR PROMOTION PURPOSES, ARE REQUIRED TO REFUND THE OVERPAYMENTS RESULTING IN THE RECEIPT OF GREATER COMPENSATION THAN THAT PAYABLE AT THE TIME THEIR NAMES WERE REACHED FOR PROBATIONAL APPOINTMENTS. THE EXPRESSED EXTENSION OF CIVIL SERVICE ELIGIBILITY BENEFITS TO KOREAN VETERANS WHO HAD BEEN DISCHARGED MORE THAN 90 DAYS PRIOR TO THE ACT OF JULY 16, 1953, 5 U.S.C. 645C, PERMITS APPLICATION OF THE ACT TO THOSE KOREAN VETERANS WHO HAD ALREADY RECEIVED PROBATIONAL APPOINTMENTS TO CIVILIAN POSITIONS PRIOR TO THE ACT. KOREAN VETERANS WHO HAD BEEN GIVEN PROBATIONAL APPOINTMENTS PRIOR TO JULY 16, 1953, THE DATE OF THE CIVIL SERVICE ELIGIBILITY BENEFIT ACT, FOR PERSONS WHO HAD LOST OPPORTUNITY FOR FEDERAL POSITIONS BY REASON OF KOREAN MILITARY SERVICE, 5 U.S.C. 645C, MAY HAVE THEIR APPOINTMENTS AUTOMATICALLY CONVERTED TO APPOINTMENTS IN ACCORDANCE WITH THE ACT WITHOUT THE NECESSITY FOR TIMELY FILING OF A REAPPLICATION FOR RESTORATION AND REAPPOINTMENT TO THE PROBATIONARY POSITION AS REQUIRED BY 5 U.S.C. 645D (A) (3). B-116740, OCT. 9, 1953, UNPUBLISHED DECISION, MODIFIED. KOREAN VETERANS WHO LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENTS BY REASON OF MILITARY SERVICE AND WHO, FOLLOWING DISCHARGE, WERE GIVEN PROBATIONAL APPOINTMENTS PRIOR TO JULY 16, 1953, THE DATE OF THE CIVIL SERVICE ELIGIBILITY ACT, ARE ENTITLED TO THE BENEFITS OF THE ACT FROM THE DATE OF THEIR PROBATIONAL APPOINTMENTS. POSTAL EMPLOYEES WHO RECEIVED PROBATIONAL APPOINTMENTS PRIOR TO JULY 16, 1953, THE DATE OF THE ACT EXTENDING CIVIL SERVICE BENEFITS TO PERSONS WHO HAD LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENTS BY REASON OF KOREAN MILITARY SERVICE AND WHO WERE CONSIDERED TO HAVE RECEIVED OVERPAYMENTS ON ACCOUNT OF SALARY ADJUSTMENTS RETROACTIVELY EFFECTIVE TO DATES PRIOR TO THE ACT MAY BE GIVEN REFUNDS IF THE OVERPAYMENTS HAVE BEEN PREVIOUSLY COLLECTED, AND, IN THOSE CASES WHERE RECOVERY HAS NOT BEEN MADE, NO FURTHER COLLECTION ACTION IS REQUIRED.

TO THE POSTMASTER GENERAL, FEBRUARY 21, 1957:

ON JANUARY 4, 1957, YOUR FILE REFERENCE 401, THE DEPUTY POSTMASTER GENERAL REQUESTED OUR DECISION CONCERNING THE NECESSITY FOR EFFECTING COLLECTIONS OF SALARY OVERPAYMENTS FROM CERTAIN EMPLOYEES IN THE POSTAL SERVICE PURSUANT TO THE ACT OF JULY 15, 1953, 67 STAT. 173, 5 U.S.C. 645C, PUBLIC LAW 121, AS CONSTRUED IN DECISIONS OF OUR OFFICE.

PUBLIC LAW 121 PROVIDES IN PART AS FOLLOWS:

THAT (A) ANY PERSON (1) WHO SERVES IN THE ARMED FORCES OF THE UNITED STATES AT ANY TIME AFTER JUNE 30, 1950, AND PRIOR TO THE EXPIRATION OF THE AUTHORITY TO INDUCT PERSONS INTO THE ARMED FORCES UNDER THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, AS AMENDED, (2) WHOSE NAME APPEARS ON ANY CIVIL-SERVICE REGISTER AFTER JUNE 30, 1950, WITH RESPECT TO A POSITION IN THE GOVERNMENT OF THE UNITED STATES OR IN THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, AND (3) DURING WHOSE SERVICE IN THE ARMED FORCES SUBSEQUENT TO JUNE 30, 1950, ANOTHER ELIGIBLE STANDING LOWER ON SUCH LIST OF ELIGIBLES RECEIVED A PROBATIONAL APPOINTMENT THEREFROM, SHALL BE ENTITLED TO BE PLACED ON THE ORIGINAL OR APPROPRIATE SUCCESSOR REGISTER FOR CERTIFICATION FOR PROBATIONAL APPOINTMENT.

(B) THE CIVIL SERVICE COMMISSION IS AUTHORIZED AND DIRECTED TO PLACE SUCH PERSONS ON SUCH ORIGINAL REGISTERS OR APPROPRIATE SUCCESSOR REGISTERS WITH THE SAME PRIORITY ACCORDED PERSONS ENTITLED TO THE BENEFITS OF THE ACT ENTITLED " AN ACT TO PROVIDE BENEFITS FOR CERTAIN EMPLOYEES OF THE UNITED STATES WHO ARE VETERANS OF WORLD WAR II AND LOST OPPORTUNITY FOR CIVIL- SERVICE APPOINTMENTS BY REASON OF THEIR SERVICE IN THE ARMED FORCES OF THE UNITED STATES," APPROVED JULY 31, 1946 ( PUBLIC LAW 577, SEVENTY-NINTH CONGRESS), AS AMENDED.

(C) UPON THE PROBATIONAL APPOINTMENT OF ANY SUCH PERSON AS A RESULT OF SUCH RESTORED ELIGIBILITY, HE SHALL, FOR THE PURPOSE OF DETERMINING (1) HIS RATE OF BASIC COMPENSATION, (2) HIS SENIORITY RIGHTS, (3) IN THE CASE OF A POSITION IN THE POSTAL FIELD SERVICE, HIS GRADE AND TIME IN-GRADE * * * BE HELD TO HAVE BEEN APPOINTED TO SUCH POSITION AS OF THE EARLIEST DATE THE CIVIL SERVICE COMMISSION FINDS, IN ACCORDANCE WITH SECTION 1 (A) OF THIS ACT, A LOWER RANKING ELIGIBLE WAS PROBATIONALLY APPOINTED.

SEC. 2. (A) NO PERSON SHALL BE ENTITLED TO THE BENEFITS OF THIS ACT UNLESS---

(3) HE MAKES APPLICATION TO BE PLACED ON SUCH ORIGINAL REGISTER OR APPROPRIATE SUCCESSOR REGISTER WITHIN NINETY DAYS AFTER (A) THE DATE OF HIS SEPARATION OF RELIEF FROM ACTIVE DUTY FROM THE ARMED FORCES, (B) THE DATE OF THE TERMINATION OF HOSPITALIZATION CONTINUING FOR A PERIOD OF NOT MORE THAN ONE YEAR AFTER HIS SEPARATION OR RELIEF FROM ACTIVE DUTY FROM THE ARMED FORCES, OR (C) THE DATE OF ENACTMENT OF THIS ACT, WHICHEVER IS LATER.

SEC. 3. NO PERSON SHALL BE ENTITLED TO ANY BASIC COMPENSATION BY REASON OF THE ENACTMENT OF THIS ACT FOR ANY PERIOD PRIOR TO THE DATE OF HIS PROBATIONAL APPOINTMENT IN ACCORDANCE WITH THIS ACT.

THE POSTMASTERS AT NEW YORK AND CHICAGO ADJUSTED THE GRADES AND COMPENSATION OF CERTAIN VETERANS BASED ON THE GRADE AND COMPENSATION OF LOWER RANKING ELIGIBLES WHO PRIOR TO PROBATIONAL APPOINTMENT HAD RENDERED TEMPORARY POSTAL SERVICE CREDITABLE FOR PROMOTION PURPOSES. THIS RESULTED IN THE ELIGIBLE VETERANS BEING PLACED IN A HIGHER GRADE AND BEING PAID GREATER COMPENSATION UPON THEIR PROBATIONAL APPOINTMENTS AFTER MILITARY SERVICE THAN THAT TO WHICH THEY WOULD HAVE BEEN ENTITLED HAD THEY RECEIVED PROBATIONAL APPOINTMENTS IN THE POSTAL SERVICE WHEN THEIR NAMES WERE REACHED FOR PROBATIONAL APPOINTMENT ON A CIVIL SERVICE REGISTER. THE REGIONAL CONTROLLERS, BUREAU OF FINANCE, TOOK EXCEPTION TO THE PAYMENTS IN THEIR AUDITS AND THE QUESTION WAS SUBMITTED TO OUR OFFICE. IN OUR DECISION OF DECEMBER 27, 1955, B-125973, WE HELD THAT OVERPAYMENTS HAD BEEN MADE AND THAT COLLECTION OF THE INDEBTEDNESS FROM THE EMPLOYEE WAS REQUIRED.

OUR DECISION OF SEPTEMBER 25, 1956, B-128893, CONCERNED ADMINISTRATIVE PAYMENTS MADE PURSUANT TO WHAT WE CONSIDERED A REASONABLE ADMINISTRATIVE INTERPRETATION OF THE LAW ( PUBLIC LAW 577, AS AMENDED BY PUBLIC LAW 492, APRIL 29, 1950, 64 STAT. 93, 5 U.S.C. 645A). WE DO NOT FEEL, HOWEVER, THAT THE STATUTE HERE INVOLVED, PUBLIC LAW 121, AND CONSIDERED IN B- 125973, DECEMBER 27, 1955, IS REASONABLY SUSCEPTIBLE OF THE ADMINISTRATIVE CONSTRUCTION GIVEN TO IT. ACCORDINGLY, WE WOULD NOT BE WARRANTED IN MODIFYING OUR CONCLUSION OF DECEMBER 27, INCLUDING THE COLLECTION ASPECT.

OUR ATTENTION IS ALSO DIRECTED TO A SECOND CLASS OF CASES IN WHICH CERTAIN EMPLOYEES WERE PAID BY THE REGIONAL CONTROLLERS AT SAN FRANCISCO, CALIFORNIA; PORTLAND, OREGON; MEMPHIS, TENNESSEE; AND RICHMOND, VIRGINIA. THESE EMPLOYEES ARE VETERANS WHO LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENTS BY REASON OF THEIR MILITARY SERVICE RENDERED AFTER JUNE 30, 1950, BUT WHO, PRIOR TO THE ENACTMENT OF PUBLIC LAW 121, WERE SEPARATED FROM THE MILITARY SERVICE AND GIVEN PROBATIONAL APPOINTMENTS TO CIVILIAN POSITIONS. THEIR SALARIES WERE ADJUSTED PURPORTEDLY UNDER PUBLIC LAW 121 RETROACTIVELY TO DATES PRIOR TO JULY 16, 1953, THE EFFECTIVE DATE OF SUCH ACT. IN THE AUDITS OF THE REGIONAL CONTROLLERS, BUREAU OF FINANCE, THE PAYMENTS AT INCREASED RATES PRIOR TO JULY 16, 1953, WERE DISALLOWED AND THE EMPLOYEES WERE REQUESTED TO REFUND THE OVERPAYMENTS.

IN VIEW OF THE FACT THAT SECTION 3 OF PUBLIC LAW 121, 5 U.S.C. 645E, PROVIDES THAT " NO PERSON SHALL BE ENTITLED TO ANY BASIC COMPENSATION BY REASON OF THE ENACTMENT OF THIS ACT FOR ANY PERIOD PRIOR TO THE DATE OF HIS PROBATIONAL APPOINTMENT IN ACCORDANCE WITH THIS ACT" CERTAIN QUESTIONS PRESENT THEMSELVES REGARDING VETERANS WHO LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BY REASON OF MILITARY SERVICE RENDERED AFTER JUNE 30, 1950, BUT WHO PRIOR TO THE ENACTMENT OF PUBLIC LAW 121 WERE SEPARATED FROM THE MILITARY SERVICE AND GIVEN PROBATIONAL APPOINTMENTS TO CIVILIAN POSITIONS. THE QUESTIONS AND ANSWERS THERETO ARE AS FOLLOWS:

1. DOES PUBLIC LAW 121 APPLY TO SUCH VETERANS?

AS INTRODUCED, SECTION 2 (A) (3) OF S) 1684, THE BILL WHICH BECAME PUBLIC LAW 121, REQUIRED THE VETERAN TO MAKE APPLICATION FOR RESTORATION TO THE REGISTER WITHIN 90 DAYS OF (A) SEPARATION FROM THE ARMED FORCES OR (B) TERMINATION OF HOSPITALIZATION CONTINUING AFTER SEPARATION. THIS SECTION WAS AMENDED TO REQUIRE THE VETERAN TO MAKE APPLICATION FOR RESTORATION TO THE REGISTER WITHIN 90 DAYS OF (A) SEPARATION FROM ACTIVE DUTY, (B) TERMINATION OF HOSPITALIZATION, OR (C) THE DATE OF ENACTMENT OF THIS ACT, WHICHEVER IS LATER. THE PURPOSE OF THE CHANGE IS EXPLAINED ON PAGE 2 OF SENATE REPORT NO. 405 ON S. 1684, 83D CONGRESS, AS "TO PERMIT THE BENEFITS HEREUNDER TO BE EXTENDED TO VETERANS WHO MAY HAVE BEEN DISCHARGED MORE THAN 90 DAYS BEFORE THE ENACTMENT OF THIS ACT.'

CONGRESS WAS AWARE, AS DISCLOSED ON PAGE 1 OF HOUSE REPORT NO. 628, 83D CONGRESS, ON H.R. 5706, A COMPANION BILL TO S. 1684, THAT SOME OTHERWISE ELIGIBLE VETERANS OF THE KOREAN WAR HAD ALREADY OBTAINED PROBATIONAL APPOINTMENTS. THEREFORE THE EXPRESSED INTENT TO EXTEND THE BENEFITS OF THE ACT TO VETERANS DISCHARGED MORE THAN 90 DAYS BEFORE ITS ENACTMENT WOULD INDICATE THAT THE BENEFITS WERE INTENDED TO BE EXTENDED TO SUCH VETERANS WHO ALREADY HAD OBTAINED PROBATIONAL APPOINTMENTS. ACCORDINGLY THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

2. MUST SUCH A VETERAN HAVE SUBMITTED APPLICATION TO BE PLACED ON A REGISTER WITHIN 90 DAYS FROM THE DATE OF ENACTMENT OF PUBLIC LAW 121 AND HAVE RECEIVED AN APPOINTMENT FROM SUCH REGISTER IN ORDER TO BE ELIGIBLE FOR THE BENEFITS OF THE ACT, OR COULD ENACTMENT OF THE LAW BE VIEWED AS AUTOMATICALLY CONFERRING ITS BENEFITS UPON SUCH A VETERAN?

THE BENEFITS OF PUBLIC LAW 121 ARE CONDITIONED UPON TIMELY FILING OF AN APPLICATION (SECTION 2 (A) (3), 5 U.S.C. 645D (A) (3) (, AS WELL AS "PROBATIONAL APPOINTMENT * * * AS A RESULT OF SUCH RESTORED ELIGIBILITY, (SECTION 1 (C), 5 U.S.C. 645C (C) ). FOR THIS REASON WE, IN OUR DECISION OF OCTOBER 9, 1953, B-116740, DID NOT CONSIDER THAT A VETERAN WHO LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BY REASON OF MILITARY SERVICE RENDERED AFTER JUNE 30, 1950, BUT WHO PRIOR TO ENACTMENT OF PUBLIC LAW 121, WAS GIVEN A PROBATIONAL APPOINTMENT, WAS AUTOMATICALLY ENTITLED TO THE BENEFITS OF THE ACT. HOWEVER, PRIOR TO ENACTMENT OF PUBLIC LAW 121 SECTION 2.107E OF THE CIVIL SERVICE COMMISSION REGULATIONS PROVIDED FOR RESTORATION OF ELIGIBILITY OF A VETERAN WHO LOST OPPORTUNITY FOR APPOINTMENT BECAUSE OF MILITARY SERVICE AFTER JUNE 30, 1950. IN VIEW OF THE EXPRESSED CONGRESSIONAL INTENT TO PROVIDE THE BENEFITS OF PUBLIC LAW 121 TO VETERANS DISCHARGED FROM THE MILITARY SERVICE MORE THAN 90 DAYS BEFORE THE ENACTMENT OF PUBLIC LAW 121, IT WOULD APPEAR ABSURD TO REQUIRE SUCH VETERANS WHO ALREADY HAD RECEIVED PROBATIONAL APPOINTMENTS IN ACCORDANCE WITH SECTION 2.107E OF THE REGULATIONS TO MAKE REAPPLICATION FOR RESTORATION TO A REGISTER AND PURSUANT THERETO TO BE REAPPOINTED TO THE PROBATIONAL POSITION WHICH THEY HAD ALREADY HELD. CONSEQUENTLY, WE NOW CONCLUDE THAT UPON THE ENACTMENT OF PUBLIC LAW 121, THE BENEFITS THEREOF WERE CONFERRED UPON SUCH VETERANS BY THEIR PRIOR APPOINTMENTS BEING AUTOMATICALLY CONVERTED TO APPOINTMENTS IN ACCORDANCE WITH THE ACT. OUR DECISION OF OCTOBER 9, 1953, B-116740, IS MODIFIED ACCORDINGLY.

3. UPON WHAT DATE IS SUCH A VETERAN ENTITLED TO THE BENEFITS OF PUBLIC LAW 121, NAMELY, IS IT THE DATE OF THE PROBATIONAL APPOINTMENT, THE DATE OF ENACTMENT OF PUBLIC LAW 121, OR THE DATE THE CIVIL SERVICE COMMISSION DETERMINES HIS ELIGIBILITY UNDER THE ACT?

OUR VIEW IS THAT THE CONGRESS INTENDED TO GIVE SUCH PREFERENCE ELIGIBLES, UPON THEIR PROBATIONAL APPOINTMENTS AFTER RELEASE FROM THE MILITARY SERVICE, THE SAME GRADE, PAY, AND STATUS WHICH THEY WOULD HAVE ACQUIRED HAD THEY RECEIVED PROBATIONAL APPOINTMENTS ON THE DATES A LOWER RANKING ELIGIBLE WAS PROBATIONALLY APPOINTED. SEE GENERALLY HOUSE DOCUMENT NO. 628, ABOVE. ACCORDINGLY, WE CONCLUDE THAT SUCH PREFERENCE ELIGIBLES ARE ENTITLED TO THE BENEFITS OF PUBLIC LAW 121 FROM THE DATE OF THEIR PROBATIONAL APPOINTMENTS.

IT FOLLOWS THAT NO FURTHER RECOVERY SHOULD BE MADE IN THE SECOND CLASS OF CASES, DISCUSSED ABOVE, AND REFUNDS OF THE PREVIOUSLY COLLECTED OVERPAYMENTS MAY BE MADE.