B-129773, DEC. 10, 1956

B-129773: Dec 10, 1956

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WAYLAND: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 23. DURING WHICH TIME YOU WERE SURPLUSSED FROM YOUR REGULAR ASSIGNMENT AS REGULAR CLERK IN THE NASHVILLE AND ATLANTA R.P.O. THE DISALLOWANCE WAS FOR THE REASON THAT WHILE SURPLUSSED YOU WERE CALLED UPON AND RENDERED SERVICE FOR LESS THAN FULL TIME AND WERE PAID FOR ALL SERVICES RENDERED. IN YOUR REQUEST FOR REVIEW YOU ASSERT THAT YOU ARE ENTITLED TO VETERANS PREFERENCE AND THAT CIRCULAR LETTER NO. 5340 OF APRIL 17. STATES THAT VETERANS WILL BE ASSURED FULL TIME BEFORE NON VETERANS AND THAT NON- VETERANS WERE PERMITTED TO WORK WHEN YOU WERE AVAILABLE. PROVIDES: "A SURPLUS EMPLOYEE ENTITLED TO MILITARY PREFERENCE IS TO BE GIVEN THE OPPORTUNITY TO WORK FULL TIME AND ONE WITHOUT MILITARY PREFERENCE IS TO BE EMPLOYED FULL TIME IF POSSIBLE.

B-129773, DEC. 10, 1956

TO MR. AUBREY W. WAYLAND:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 23, 1956, REQUESTING REVIEW OF THE SETTLEMENT OF JULY 24, 1956, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL SALARY ALLEGED TO BE DUE FOR THE PERIOD JANUARY 1 TO APRIL 30, 1954, DURING WHICH TIME YOU WERE SURPLUSSED FROM YOUR REGULAR ASSIGNMENT AS REGULAR CLERK IN THE NASHVILLE AND ATLANTA R.P.O., POSTAL TRANSPORTATION SERVICE. THE DISALLOWANCE WAS FOR THE REASON THAT WHILE SURPLUSSED YOU WERE CALLED UPON AND RENDERED SERVICE FOR LESS THAN FULL TIME AND WERE PAID FOR ALL SERVICES RENDERED.

IN YOUR REQUEST FOR REVIEW YOU ASSERT THAT YOU ARE ENTITLED TO VETERANS PREFERENCE AND THAT CIRCULAR LETTER NO. 5340 OF APRIL 17, 1951, STATES THAT VETERANS WILL BE ASSURED FULL TIME BEFORE NON VETERANS AND THAT NON- VETERANS WERE PERMITTED TO WORK WHEN YOU WERE AVAILABLE.

PARAGRAPH 7-B OF THE REFERRED TO CIRCULAR LETTER NO. 5340 OF APRIL 17, 1951, PROVIDES:

"A SURPLUS EMPLOYEE ENTITLED TO MILITARY PREFERENCE IS TO BE GIVEN THE OPPORTUNITY TO WORK FULL TIME AND ONE WITHOUT MILITARY PREFERENCE IS TO BE EMPLOYED FULL TIME IF POSSIBLE, AND MUST BE EMPLOYED IN PREFERENCE TO JUNIOR SUBSTITUTES UP TO THE FULL TIME LIMIT.'

THE ACT OF JUNE 22, 1948, 62 STAT. 575, 39 U.S.C. 632, PROVIDES:

"RAILWAY POSTAL CLERKS OF ANY GRADE TRANSFERRED OR REASSIGNED AFTER JUNE 30, 1945, FROM ONE ASSIGNMENT OR CLASSIFICATION TO ANOTHER BECAUSE OF CLASSIFICATION OR CHANGES IN THE SERVICE SHALL NOT BE REDUCED IN GRADE OR SALARY BY REASON OF SUCH CLASSIFICATION OR CHANGE, AND WHILE SERVING IN MISCELLANEOUS ASSIGNMENTS THEY WILL BE CARRIED ON THE ROSTER OF THEIR OWN ORGANIZATION AND RETAIN THE PROMOTION STATUS AUTHORIZED BY LAW FOR THE POSITIONS FROM WHICH WITHDRAWN AND BE PAID AFTER THIS ENACTMENT BY THE HOUR FOR ACTUAL SERVICES PERFORMED WHEN ON OTHER THAN ROAD DUTY, AND SHALL BE PAID FOR ROAD SERVICES PERFORMED ACCORDING TO THE TIME VALUE OF THE TRIP OF SUCH ROAD SERVICE INCLUDING A PROPER ALLOWANCE FOR ALL SERVICES REQUIRED ON LAY-OFF PERIODS, AS ARE PROVIDED FOR REGULAR EMPLOYEES ASSIGNED TO ROAD DUTY, UNTIL AGAIN RESTORED TO REGULAR POSITIONS, THE HOURLY RATE FOR SUCH PAY TO BE DETERMINED BY DIVIDING THE ANNUAL SALARY BY 2024, THE NUMBER OF WORKING HOURS IN A YEAR.'

UNDER THE VETERANS PREFERENCE ACT, 5 U.S.C. 851-869, VETERANS ARE ENTITLED TO PREFERENCE IN REAPPOINTMENTS, REINSTATEMENTS, REEMPLOYMENT, AND RETENTION IN CIVIL POSITIONS, BUT NONE OF THESE PROCEDURES WERE INVOLVED IN THIS CASE. CIRCULAR LETTER NO. 5340 PURPORTS TO AUTHORIZE FULL TIME FOR SURPLUSSED VETERANS PREFERENCE EMPLOYEES AHEAD OF NON- VETERANS BUT IT WOULD NOT OVERCOME THE APPLICABLE STATUTE--- 39 U.S.C. 632 --- WHICH AUTHORIZES PAYMENT TO SURPLUS EMPLOYEES ONLY FOR THE TIME ACTUALLY WORKED. AS YOU WERE PAID IN FULL FOR THE HOURS WORKED THE DISALLOWANCE OF YOUR CLAIM WAS PROPER. UPON REVIEW THE SETTLEMENT IS SUSTAINED.