B-159926, SEP. 27, 1966

B-159926: Sep 27, 1966

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FLEMING: THIS IS IN REPLY TO YOUR LETTERS OF MARCH 29. AT WHICH YOU WERE REINSTATED. YOUR OFFICIAL PERSONNEL FOLDER INDICATES THAT YOU WERE GIVEN A TEMPORARY INDEFINITE APPOINTMENT PENDING THE ESTABLISHMENT OF A REGISTER AS A SUBSTITUTE CLERK-CARRIER EFFECTIVE JANUARY 18. THERE WAS AN ENTRY IN YOUR FOLDER THAT YOU HAD RESIGNED EFFECTIVE MARCH 4. WAS HELD TO BE THE EFFECTIVE DATE. YOU WERE REINSTATED ON JUNE 19. IN THE REGIONAL OFFICE IN SAN FRANCISCO WITH A NOTATION ON THE FORM 50 THAT THE ENTRANCE STEP WAS SUBJECT TO DETERMINATION OF REEMPLOYMENT RIGHTS. YOUR POSITION WAS CHANGED TO REAL ESTATE ASSISTANT AND YOU WERE ADVANCED TO LEVEL 9. IT IS YOUR CONTENTION THAT YOUR COMPENSATION UPON REINSTATEMENT SHOULD HAVE BEEN EQUAL TO THAT OF TWO EMPLOYEES.

B-159926, SEP. 27, 1966

TO MR. EDMUND T. FLEMING:

THIS IS IN REPLY TO YOUR LETTERS OF MARCH 29, 1966, AND JULY 15, 1966, TO THE REGIONAL DIRECTOR, POST OFFICE DEPARTMENT, SAN FRANCISCO, CALIFORNIA, WHICH IN EFFECT CONSTITUTE AN APPEAL FROM OUR OFFICE SETTLEMENT OF MARCH 4, 1966, WHICH DISALLOWED YOUR CLAIM FOR A HIGHER SALARY RATE UPON REINSTATEMENT IN THE POSTAL SERVICE.

IN YOUR INITIAL LETTER OF JULY 28, 1965, TO THE REGIONAL DIRECTOR AT SAN FRANCISCO YOU MADE CLAIM FOR ADVANCEMENT TO PFS LEVEL 7, STEP 6, FROM JUNE 19, 1965, THE DATE OF YOUR REINSTATEMENT IN THE POST OFFICE DEPARTMENT FOLLOWING TWENTY-TWO YEARS ACTIVE DUTY IN THE AIR FORCE, RATHER THAN LEVEL 7, STEP 1, AT WHICH YOU WERE REINSTATED.

YOUR OFFICIAL PERSONNEL FOLDER INDICATES THAT YOU WERE GIVEN A TEMPORARY INDEFINITE APPOINTMENT PENDING THE ESTABLISHMENT OF A REGISTER AS A SUBSTITUTE CLERK-CARRIER EFFECTIVE JANUARY 18, 1943. THERE WAS AN ENTRY IN YOUR FOLDER THAT YOU HAD RESIGNED EFFECTIVE MARCH 4, 1943, IN ORDER TO BE INDUCTED IN THE ARMY. A FORM 1531, DATED MAY 16, 1944, REFLECTED YOUR PROBATIONAL APPOINTMENT AS SUBSTITUTE CLERK AS OF JUNE 1, 1944. A LATER FORM 1531, DATED SEPTEMBER 26, 1944, ATTEMPTED TO FURTHER PREDATE YOUR PROBATIONAL APPOINTMENT TO MARCH 1, 1943, BUT IN ACCORDANCE WITH A CIVIL SERVICE COMMISSION LETTER OF MAY 13, 1946, THE DATE OF JUNE 1, 1944, WAS HELD TO BE THE EFFECTIVE DATE.

ON MARCH 31, 1965, YOU RETIRED FROM THE AIR FORCE AFTER TWENTY-TWO YEARS SERVICE WITH THE RANK OF LIEUTENANT COLONEL. FOLLOWING DISCUSSIONS WITH POST OFFICE OFFICIALS BOTH IN THE REGIONAL OFFICE AT SAN FRANCISCO, CALIFORNIA, AND THE POST OFFICE IN ALEXANDRIA, LOUISIANA, YOU WERE REINSTATED ON JUNE 19, 1965, AS A CAREER EMPLOYEE IN THE POSITION OF REAL ESTATE TRANSACTION SPECIALIST AT PFS LEVEL 7, STEP 1, $6,140 PER ANNUM, IN THE REGIONAL OFFICE IN SAN FRANCISCO WITH A NOTATION ON THE FORM 50 THAT THE ENTRANCE STEP WAS SUBJECT TO DETERMINATION OF REEMPLOYMENT RIGHTS. APRIL 9, 1966, YOUR POSITION WAS CHANGED TO REAL ESTATE ASSISTANT AND YOU WERE ADVANCED TO LEVEL 9, STEP 1, AT $7,449 PER ANNUM.

IT IS YOUR CONTENTION THAT YOUR COMPENSATION UPON REINSTATEMENT SHOULD HAVE BEEN EQUAL TO THAT OF TWO EMPLOYEES, CRUMP AND COLE OF THE ALEXANDRIA, LOUISIANA, POST OFFICE, WHO WERE GIVEN PROBATIONAL APPOINTMENTS AS CLERKS IN JULY 1943 AT THE SAME TIME YOU WERE. THESE MEN WERE SERVING AT PFS LEVEL 4, STEP 11, $6,650 PER ANNUM, AT THE TIME OF YOUR REINSTATEMENT IN JUNE 1965 WITH A PROSPECTIVE INCREASE TO $7,062 FOLLOWING A STEP INCREASE AND A PAY ADJUSTMENT IN OCTOBER 1965. YOU CONSIDER THAT BY EMPLOYING PROMOTION CRITERIA YOU SHOULD HAVE BEEN REINSTATED IN JUNE 1965 AT PFS LEVEL 7, STEP 6, $7,165 PER ANNUM, UNDER THE FEDERAL EMPLOYEES SALARY ACT OF 1964 (78 STAT. 400), THEN IN EFFECT.

YOU SAY THAT SINCE YOU WERE ON INDEFINITE EXTENDED ACTIVE DUTY THROUGHOUT YOUR TWENTY-TWO YEARS WITH THE AIR FORCE THAT YOU ARE ENTITLED TO RESTORATION TO A POSITION OF LIKE SENIORITY UNDER THE PROVISIONS OF SECTION 8 OF THE SELECTIVE SERVICE AND TRAINING ACT OF 1940 (54 STAT. 890), AND THAT UNDER THE PROVISIONS OF PUB.L. 577 OF THE 79TH CONGRESS (60 STAT. 749) YOU WERE ENTITLED TO DETERMINE YOUR RATE OF COMPENSATION AND TO COUNT YOUR SENIORITY RIGHTS IN THE POSTAL SERVICE FROM THE DATE THAT A LOWER ELIGIBLE RECEIVED A PROBATIONAL APPOINTMENT.

SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 890, AS AMENDED, REQUIRES THAT ANY CIVILIAN EMPLOYEE OF THE UNITED STATES WHO LEFT A POSITION, OTHER THAN A TEMPORARY POSITION, TO ENTER THE MILITARY SERVICE, BE RESTORED TO SUCH POSITION OR ONE OF LIKE SENIORITY, STATUS, AND PAY, PROVIDED THAT THE INDIVIDUAL OBTAINS A CERTIFICATE OF MILITARY SERVICE, IS ABLE TO PERFORM THE DUTIES OF HIS POSITION, AND APPLIES FOR RESTORATION WITHIN 90 DAYS.

PUBLIC LAW 577, APPROVED JULY 31, 1946, 60 STAT. 749, IS "AN ACT TO PROVIDE BENEFITS FOR CERTAIN EMPLOYEES OF THE UNITED STATES WHO ARE VETERANS OF WORLD WAR II AND LOST OPPORTUNITY FOR PROBATIONAL CIVIL SERVICE APPOINTMENTS BY REASON OF THEIR SERVICE IN THE ARMED FORCES OF THE UNITED STATES.' SO FAR AS MATERIAL TO THE FACTS HEREIN PRESENTED, THE SAID ACT DEFINES THE EMPLOYEES WHO ARE ELIGIBLE TO RECEIVE SUCH BENEFITS AS "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 * * * AND (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.' IN SETTING OUT THE BENEFITS CONFERRED THEREBY, THE SAID ACT FURTHER PROVIDES THAT THOSE EMPLOYEES WHO ARE WITHIN THE PURVIEW OF THE ABOVE QUOTED PROVISIONS "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 * * *.'

WE HAVE HELD THAT THE QUESTION OF WHETHER A VETERAN HAS BEEN RESTORED TO A POSITION WITHIN THE MEANING OF SECTION 8 OF THE SELECTIVE SERVICE AND TRAINING ACT OF 1940 IS NOT FOR DETERMINATION BY THIS OFFICE BUT RATHER IS FOR DETERMINATION BY THE ADMINISTRATIVE OFFICES JOINTLY WITH THE UNITED STATES CIVIL SERVICE COMMISSION. 25 COMP. GEN. 852. IN YOUR CASE THE POST OFFICE DEPARTMENT HAS DETERMINED THAT YOU WERE NOT ENTITLED TO REEMPLOYMENT RIGHTS UPON YOUR REAPPOINTMENT TO A DIFFERENT POSITION IN THE POSTAL SERVICE IN JUNE 1965. IN VIEW THEREOF WE ARE UNABLE TO TAKE ANY ACTION UNDER THAT ACT IN REGARD TO YOUR SALARY RATE UPON REAPPOINTMENT.

AS TO PUBLIC LAW 577, 79TH CONGRESS, WE POINT OUT THAT SUCH ACT PROVIDED FOR REDETERMINATION OF PAY ENTITLEMENT AND RESTORATION OF SENIORITY RIGHTS OF AN ELIGIBLE WHOSE NAME APPEARED ON ANY LIST OF ELIGIBLES WITH RESPECT TO A POSITION IN THE POSTAL SERVICE BETWEEN MAY 1, 1940, AND OCTOBER 23, 1943, WHO LOST A PROBATIONARY APPOINTMENT BECAUSE OF MILITARY SERVICE AND WHO WAS GIVEN A PROBATIONAL APPOINTMENT PURSUANT TO EXECUTIVE ORDER NO. 9548, APRIL 13, 1945, OR CIVIL SERVICE COMMISSION REGULATIONS. HOWEVER, IN ORDER TO BECOME ENTITLED TO SUCH BENEFITS THE EMPLOYEE OR THE APPOINTING AGENCY WOULD HAVE TO FURNISH THE CIVIL SERVICE COMMISSION WITH THE NECESSARY INFORMATION REGARDING MILITARY SERVICE, REQUEST FROM THE COMMISSION RESTORATION TO THE LIST OF ELIGIBLES, AND CERTIFICATION OF THE FACT THAT THE EMPLOYEE'S NAME WAS ON A LIST DURING THE REQUIRED PERIOD. FOLLOWING THIS THERE HAS TO BE A PROBATIONARY APPOINTMENT UNDER EXECUTIVE ORDER NO. 9538, AFTER WHICH THERE WOULD BE A REDETERMINATION OF COMPENSATION AND SENIORITY RIGHTS UNDER PUBLIC LAW 577. THE POST OFFICE DEPARTMENT REPORTS THAT YOUR PROBATIONARY APPOINTMENT IN 1943 OR 1944 WAS NOT EFFECTED UNDER EXECUTIVE ORDER NO. 9538 OR CIVIL SERVICE COMMISSION REGULATIONS, FOLLOWED BY A REDETERMINATION OF YOUR SENIORITY RIGHTS AND A RECOMPUTATION OF YOUR COMPENSATION IN COMPARISON WITH THAT OF AN ELIGIBLE STANDING LOWER ON THE SAME LIST AS PRESCRIBED BY PUBLIC LAW 577. MOREOVER, IT DOES NOT APPEAR THAT YOUR REAPPOINTMENT IN JUNE 1965 WAS MADE IN ACCORDANCE WITH THAT PROCEDURE. ACCORDINGLY, PUBLIC LAW 577 IS NOT FOR APPLICATION.

WITH RESPECT TO THE BENEFITS CONFERRED BY 5 U.S.C. 30R, TO WHICH YOU REFER, WE DIRECT YOUR ATTENTION TO THE FACT THAT SUCH STATUTE GRANTS A BARE RIGHT OF RESTORATION "TO THE POSITION HELD BY HIM WHEN ORDERED TO DUTY.' WE HAVE ALSO HELD THAT THE RESPONSIBILITY OF REINSTATING ELIGIBLE EMPLOYEES UNDER THAT STATUTE IS THAT OF THE HEAD OF THE PARTICULAR DEPARTMENT INVOLVED. B-148404, AUGUST 18, 1966, COPY ENCLOSED.

THE REGULATIONS OF THE POST OFFICE DEPARTMENT (SECTION 754.122B, POSTAL MANUAL) PERTAINING TO CREDIT TOWARDS STEP INCREASES FOR MILITARY SERVICE APPEARS TO RESTRICT SUCH CREDIT TO DUTY UNDER THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT OF 1948, 62 STAT. 604, AS AMENDED, WHICH, OF COURSE, IS NOT APPLICABLE IN YOUR CASE.

IT IS FOR NOTING THAT YOU WERE APPOINTED TO AN ENTIRELY DIFFERENT POSITION IN 1965 AT A HIGHER GRADE LEVEL FROM THAT WHICH YOU LEFT IN 1943; ALSO, THAT YOU WERE ADVANCED FROM THE LEVEL TO WHICH YOU HAD BEEN REAPPOINTED, LEVEL 7, STEP 1, AT $6,361 PER ANNUM, TO LEVEL 9, STEP 1, AT $7,449 PER ANNUM ON APRIL 9, 1966, BY THE REGIONAL DIRECTOR IN SAN FRANCISCO FOLLOWING A CHANGE IN POSITION. AT THIS TIME YOUR CONTEMPORARIES SERVING AS CLERKS IN THE POST OFFICE IN ALEXANDRIA, LOUISIANA, AT LEVEL 4, STEP 12, WERE RECEIVING $7,062 PER ANNUM.

FOR THE REASONS SET FORTH ABOVE OUR SETTLEMENT DENYING YOUR CLAIM MUST BE SUSTAINED.