B-133669, DEC. 11, 1957

B-133669: Dec 11, 1957

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HE WAS DISCHARGED ON JUNE 25. HE WAS MADE PROBATIONAL ON DECEMBER 1. STRIPLIN WAS APPOINTED A CLASSIFIED SUBSTITUTE ON OCTOBER 1. HIS SALARY WAS ADJUSTED TO THAT OF THE LOWER ELIGIBLE. WHEN HE WAS PROMOTED TO LONGEVITY GRADE A. IS CREDITABLE AS CONSTRUCTIVE SERVICE FOR MR. WAS CERTIFIED FOR PROBATIONAL APPOINTMENT TO SUCH POSITION. WAS GIVEN SUCH APPOINTMENT. BE HELD TO HAVE BEEN APPOINTED TO SUCH POSITION AS OF THE EARLIEST DATE ON WHICH AN ELIGIBLE STANDING LOWER ON THE SAME LIST OF ELIGIBLES RECEIVED A PROBATIONAL APPOINTMENT THEREFROM: * * *" IT IS CLEAR FROM THE SPECIFIC WORDING OF THE ABOVE ACT THAT THE RATE OF COMPENSATION AND SENIORITY RIGHTS OF AN ELIGIBLE WHO LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF MILITARY SERVICE IS CONSTRUCTIVELY ESTABLISHED ON THE DATE ON WHICH AN ELIGIBLE STANDING LOWER ON THE SAME LIST OF ELIGIBLES RECEIVES A PROBATIONAL APPOINTMENT.

B-133669, DEC. 11, 1957

TO MR. LEROY P. AFDEM, AUTHORIZED CERTIFYING OFFICER, BUREAU OF FINANCE, POST OFFICE DEPARTMENT:

YOUR UNDATED LETTER, REFERENCED AEU:LPA, RECEIVED IN OUR OFFICE ON SEPTEMBER 3, 1957, REQUESTS OUR DECISION WHETHER THE ENCLOSED VOUCHER IN FAVOR OF WALTER A. STRIPLIN FOR BACK PAY FOR THE PERIOD OCTOBER 1, 1952, TO MARCH 31, 1954, MAY BE CERTIFIED FOR PAYMENT, OR WHETHER IT SHOULD BE RECOMPUTED TO COVER THE PERIOD JULY 1, 1951, TO MARCH 31, 1954.

THE RECORD SHOWS THAT MR. STRIPLIN ENTERED MILITARY SERVICE ON JULY 17, 1942, AND HE WAS DISCHARGED ON JUNE 25, 1945. THE NEXT LOWER ELIGIBLE RECEIVED A TEMPORARY APPOINTMENT ON SEPTEMBER 1, 1942, DURING MR. STRIPLIN'S ABSENCE IN MILITARY SERVICE, AND HE WAS MADE PROBATIONAL ON DECEMBER 1, 1942. THE NEXT LOWER ELIGIBLE RECEIVED AUTOMATIC PROMOTIONS AND LONGEVITY GRADES BASED UPON HIS TEMPORARY APPOINTMENT ON SEPTEMBER 1, 1942. MR. STRIPLIN WAS APPOINTED A CLASSIFIED SUBSTITUTE ON OCTOBER 1, 1948, AND HIS SALARY WAS ADJUSTED TO THAT OF THE LOWER ELIGIBLE, GRADE 11, $1.79 PER HOUR, THE TOP AUTOMATIC GRADE. HE SERVED AT THE TOP GRADE UNTIL APRIL 1, 1954, WHEN HE WAS PROMOTED TO LONGEVITY GRADE A, BASED UPON THREE YEARS SERVICE IN THE TOP AUTOMATIC GRADE AS A REGULAR (MARCH 1, 1951, TO MARCH 31, 1954). THE QUESTION APPEARS TO BE WHETHER THE TEMPORARY SERVICE OF THE NEXT LOWER ELIGIBLE FOR THE PERIOD SEPTEMBER 1, 1942, TO NOVEMBER 30, 1942, IS CREDITABLE AS CONSTRUCTIVE SERVICE FOR MR. STRIPLIN UNDER 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.

THE ACT OF JULY 31, 1946 (PUBLIC LAW 577) READS IN PERTINENT PART AS FOLLOWS:

"THAT (A) ANY PERSON---

"/1) WHOSE NAME APPEARED ON ANY LIST OF ELIGIBLES * * * (B) AT ANY TIME BETWEEN MAY 1, 1940, AND OCTOBER 23, 1943, WITH RESPECT TO A POSITION IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT, * * *

"/2) WHO, PURSUANT TO EXECUTIVE ORDER NUMBERED 9538, DATED APRIL 13, 1945, OR REGULATIONS OF THE CIVIL SERVICE COMMISSION COVERING SIMILAR SITUATIONS IN WHICH AN ELIGIBLE LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF MILITARY SERVICE DURING WORLD WAR II, WAS CERTIFIED FOR PROBATIONAL APPOINTMENT TO SUCH POSITION, AND, SUBSEQUENTLY, WAS GIVEN SUCH APPOINTMENT,

SHALL, FOR THE PURPOSE OF (A) DETERMINING HIS RATE OF COMPENSATION AND (B) HIS SENIORITY RIGHTS IN THE POSTAL FIELD SERVICE, BE HELD TO HAVE BEEN APPOINTED TO SUCH POSITION AS OF THE EARLIEST DATE ON WHICH AN ELIGIBLE STANDING LOWER ON THE SAME LIST OF ELIGIBLES RECEIVED A PROBATIONAL APPOINTMENT THEREFROM: * * *"

IT IS CLEAR FROM THE SPECIFIC WORDING OF THE ABOVE ACT THAT THE RATE OF COMPENSATION AND SENIORITY RIGHTS OF AN ELIGIBLE WHO LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF MILITARY SERVICE IS CONSTRUCTIVELY ESTABLISHED ON THE DATE ON WHICH AN ELIGIBLE STANDING LOWER ON THE SAME LIST OF ELIGIBLES RECEIVES A PROBATIONAL APPOINTMENT. THUS, TEMPORARY SERVICE PERFORMED BY THE NEXT LOWER ELIGIBLE PRIOR TO THE DATE HE RECEIVES A PROBATIONAL APPOINTMENT CANNOT BE USED IN COMPUTING THE CONSTRUCTIVE SERVICE FOR AN ELIGIBLE WHO WAS IN THE MILITARY DURING THE PERIOD COVERED BY THE ACT. YOUR DOUBT IN THE MATTER APPEARS TO BE PARTIALLY BASED UPON THE ACT OF APRIL 29, 1950 (PUBLIC LAW 492) WHICH AMENDED PUBLIC LAW 577 BY ADDING THE FOLLOWING PROVISO FOR EMPLOYEES STILL IN THE POSTAL SERVICE ON THE DATE OF ITS ENACTMENT:

"PROVIDED, THAT THE GRADE, TIME IN GRADE, AND RATE OF COMPENSATION OF ANY PERSON SO APPOINTED TO A POSITION IN THE POSTAL FIELD SERVICE SHALL, AT THE TIME THIS ACT FIRST APPLIES TO SUCH PERSON, BE NOT LESS THAN THE GRADE, TIME IN GRADE, AND RATE OF COMPENSATION OF THE LOWER ELIGIBLE (WHETHER A SUBSTITUTE OR REGULAR EMPLOYEE) RECEIVING THE HIGHEST AUTOMATIC RATE OF COMPENSATION AT SUCH TIME, BUT SUCH ADJUSTMENT IN GRADE, TIME IN GRADE, AND RATE OF COMPENSATION SHALL NOT AFFECT THE STATUS OF SUCH PERSON AS A SUBSTITUTE OR REGULAR EMPLOYEE.'

SENATE REPORT NO. 1483, 81ST CONGRESS, ON H.R. 4285, WHICH BECAME PUBLIC LAW 492 READS AS FOLLOWS:

"THE PURPOSE OF H.R. 4285 IS TO INCREASE THE RATES OF CERTAIN SUBSTITUTE EMPLOYEES IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT WHEN IT IS FOUND THAT BY REASON OF THEIR MILITARY SERVICE THEY ARE ACTUALLY RECEIVING LESS PAY THAN THEY OTHERWISE WOULD HAVE RECEIVED HAD THEY BEEN PRIVILEGED TO ACCEPT APPOINTMENTS IN THE FIELD SERVICE BETWEEN MAY 1, 1940, AND OCTOBER 23, 1943. UNDER THE PROVISIONS OF THE BILL THESE SUBSTITUTE EMPLOYEES, WHO ARE SUBJECT TO THE MCCORMACK ACT (PUBLIC LAW 577) BUT WHO ARE RECEIVING A LOWER RATE OF PAY THAN AN EMPLOYEE WHO WAS LOWER ON THE REGISTER FROM WHICH HE WAS APPOINTED, WILL BE PLACED IN THE SAME SALARY GRADE AS SUCH ELIGIBLE STANDING LOWER ON THE REGISTER.

"ALL EMPLOYEES IN THE POSTAL SERVICE ENTITLED TO THE BENEFITS OF PUBLIC LAW 577 RECEIVE FOUR ADDITIONAL GRADES WHEN THEY ARE APPOINTED TO REGULAR POSITIONS. SUCH EMPLOYEES WHO WERE ENTITLED TO BENEFITS UNDER PUBLIC LAW 577, AND WHO ARE STILL SUBSTITUTES, ARE RECEIVING SALARIES WHICH ARE FOUR GRADES LOWER THAN THOSE OF REGULAR EMPLOYEES OF COMPARABLE OR EQUIVALENT SERVICE.

"THIS INEQUITY AROSE FROM THE ABSENCE OF THE FIELD EMPLOYEE ON MILITARY DUTY WHICH CAUSED HIM TO LOSE THE OPPORTUNITY FOR REGULAR APPOINTMENT. THIS INEQUITY WAS NOT APPARENT AT THE TIME OF ENACTMENT OF PUBLIC LAW 577.'

IT APPEARS FROM THE SPECIFIC WORDING OF THE ACT AS AMENDED AND ITS LEGISLATIVE HISTORY THAT THE CONGRESS INTENDED TO GIVE VETERAN ELIGIBLES THE SAME BENEFITS THEY WOULD HAVE RECEIVED HAD THEY BEEN AVAILABLE FOR APPOINTMENT AT THE TIME THEIR NAMES WERE REACHED ON THE ELIGIBLE LIST FOR PROBATIONAL APPOINTMENT. HOWEVER, THERE IS NOTHING IN THE ACT OR ITS LEGISLATIVE HISTORY TO SHOW THAT THE CONGRESS INTENDED THAT A PERIOD OF TEMPORARY SERVICE OF THE NEXT LOWER ELIGIBLE PRIOR TO THE TIME HE RECEIVES HIS PROBATIONAL APPOINTMENT IS TO BE INCLUDED IN COMPUTING A VETERAN ELIGIBLE'S CONSTRUCTIVE SERVICE. THEREFORE, OUR VIEW IS THAT THE PERIOD OF TEMPORARY SERVICE PERFORMED FROM SEPTEMBER 1, 1942, TO NOVEMBER 30, 1942, BY THE NEXT LOWER ELIGIBLE MAY NOT BE USED IN COMPUTING THE CONSTRUCTIVE SERVICE FOR MR. STRIPLIN UNDER THE ACT OF JULY 31, 1946, AS AMENDED. SEE B-128893, SEPTEMBER 25, 1956.

THE VOUCHER SHOWS THE PERIOD OF ADJUSTMENT FROM OCTOBER 1, 1952, TO MARCH 31, 1954, WHEREAS, WE HAVE BEEN INFORMALLY ADVISED THE ADJUSTMENT PERIOD SHOULD HAVE BEEN SHOWN AS BEGINNING ON OCTOBER 1, 1951, THE DATE THE LOWER ELIGIBLE WOULD HAVE BECOME ENTITLED TO HIS LONGEVITY INCREASE EXCEPT FOR HIS TEMPORARY SERVICE CREDIT. THEREFORE, THE VOUCHER SHOULD BE CORRECTED TO SHOW THE ADJUSTMENT PERIOD FROM OCTOBER 1, 1951, TO MARCH 31, 1954, AND THE BACK PAY RECOMPUTED ACCORDINGLY. THE VOUCHER IS RETURNED HEREWITH AND, AFTER IT HAS BEEN CORRECTED AS INDICATED ABOVE, IT MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.