B-16546, MAY 20, 1941, 20 COMP. GEN. 789

B-16546: May 20, 1941

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POSTAL EMPLOYEES IN MILITARY SERVICE - AUTOMATIC PROMOTIONS ADVANCEMENT IN AUTOMATIC GRADE AND SALARY RATE BASED ON LENGTH OF SERVICE IS A FORM OF BENEFIT BASED ON "SENIORITY" CONSERVED BY SECTION 8 (C) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AND THE CORRESPONDING PROVISION IN PUBLIC RESOLUTION NO. 96. MAY BE ADVANCED TO THE GRADE AND SALARY TO WHICH THEY WOULD HAVE BEEN ADVANCED HAD THEIR MILITARY SERVICE BEEN POSTAL SERVICE. SINCE THE BENEFITS OF THESE STATUTES ARE AVAILABLE ONLY UPON RESTORATION TO CIVILIAN POSITIONS. NO ADMINISTRATIVE ACTION MAKING ADJUSTMENTS IN GRADE AND SALARY RATE OF THE EMPLOYEES SHOULD BE TAKEN WHILE THEY ARE ABSENT ON MILITARY DUTY. 24 COMP. WITH 8 HOURS A DAY FOR THE TIME THEY WERE IN THE MILITARY SERVICE IN FIXING THEIR SALARY RATE UPON ADVANCEMENT TO REGULARS.

B-16546, MAY 20, 1941, 20 COMP. GEN. 789

POSTAL EMPLOYEES IN MILITARY SERVICE - AUTOMATIC PROMOTIONS ADVANCEMENT IN AUTOMATIC GRADE AND SALARY RATE BASED ON LENGTH OF SERVICE IS A FORM OF BENEFIT BASED ON "SENIORITY" CONSERVED BY SECTION 8 (C) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AND THE CORRESPONDING PROVISION IN PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, AS AMENDED, PROVIDING FOR RESTORATION TO CIVILIAN POSITIONS UPON COMPLETION OF THE MILITARY SERVICE CONTEMPLATED BY THESE STATUTES. REGULAR POSTAL EMPLOYEES ORDERED OR INDUCTED INTO MILITARY SERVICE, UPON RESTORATION TO THEIR CIVILIAN POSITIONS UNDER THE TERMS AND CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 OR PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, AS AMENDED, MAY BE ADVANCED TO THE GRADE AND SALARY TO WHICH THEY WOULD HAVE BEEN ADVANCED HAD THEIR MILITARY SERVICE BEEN POSTAL SERVICE, BUT, SINCE THE BENEFITS OF THESE STATUTES ARE AVAILABLE ONLY UPON RESTORATION TO CIVILIAN POSITIONS, NO ADMINISTRATIVE ACTION MAKING ADJUSTMENTS IN GRADE AND SALARY RATE OF THE EMPLOYEES SHOULD BE TAKEN WHILE THEY ARE ABSENT ON MILITARY DUTY. 24 COMP. DEC. 169, AMPLIFIED. SINCE SUBSTITUTE POSTAL EMPLOYEES DO NOT ALWAYS WORK FULL TIME, IT WOULD BE IMPROPER TO CREDIT THEM, UPON RESTORATION TO THEIR CIVILIAN POSITIONS UNDER THE TERMS AND CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 OR PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 25, 1940, AS AMENDED, WITH 8 HOURS A DAY FOR THE TIME THEY WERE IN THE MILITARY SERVICE IN FIXING THEIR SALARY RATE UPON ADVANCEMENT TO REGULARS, BUT THE POSTMASTER GENERAL MAY ADOPT A RULE FOR CREDITING TIME IN THE MILITARY SERVICE BASED ON THE AVERAGE NUMBER OF HOURS' SERVICE DURING A PERIOD PRECEDING THE MILITARY SERVICE.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, MAY 20, 1941:

I HAVE YOUR LETTER OF APRIL 20, 1941, AS FOLLOWS:

SECTION 8, PARAGRAPH (C), OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, PUBLIC NO. 783, 76TH CONGRESS, PROVIDES:

"/C) ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES, SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON WAS INDUCTED INTO SUCH FORCES, AND SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION.'

IN CASES WHERE POST OFFICE CLERKS, SUBSTITUTE POST OFFICE CLERKS, CITY LETTER CARRIERS AND SUBSTITUTE CITY LETTER CARRIERS ARE INDUCTED INTO THE MILITARY AND NAVAL FORCES OF THE UNITED STATES THEIR NAMES ARE RETAINED ON THE DEPARTMENT'S ROLLS AND THEY ARE MERELY GRANTED LEAVE OF ABSENCE WITHOUT PAY PENDING THEIR RETURN TO THEIR CIVILIAN POSITIONS.

A DECISION IS REQUESTED AS TO WHETHER THESE EMPLOYEES ARE ENTITLED TO THEIR AUTOMATIC PROMOTIONS IN A GRADE AS PROVIDED IN TITLE 39 U.S.C. 104, AND CREDIT FOR SUBSTITUTE SERVICE IN DETERMINING THEIR SALARY ASSIGNMENT UPON PROMOTION TO REGULAR POSITIONS AS PROVIDED IN TITLE 39 U.S.C. 108. IN OTHER WORDS, WOULD A REGULAR EMPLOYEE WHO IS REACHED FOR AUTOMATIC PROMOTION WHILE ON MILITARY LEAVE BE ENTITLED TO SUCH ADVANCEMENT IN GRADE AND SALARY, ALSO WHETHER SUBSTITUTES WOULD BE CREDITED FOR EIGHT HOURS A DAY FOR THE TIME THEY ARE IN THE MILITARY SERVICE IN DETERMINING THE TOTAL NUMBER OF HOURS TO THEIR CREDIT IN FIXING THEIR SALARY UPON ADVANCEMENT TO REGULAR.

SECTIONS 104 AND 108, TITLE 39, U.S. CODE, CITED IN YOUR LETTER, PROVIDE AS FOLLOWS:

104. TIME CREDITS FOR CERTAIN SUBSTITUTE SERVICES UPON APPOINTMENT TO REGULAR SERVICE.

SUBSTITUTE CLERKS IN FIRST AND SECOND-CLASS POST OFFICES AND SUBSTITUTE LETTER CARRIERS IN THE CITY DELIVERY SERVICE WHEN APPOINTED REGULAR CLERKS OR CARRIERS SHALL HAVE CREDIT FOR ACTUAL TIME SERVED, INCLUDING TIME SERVED AS SPECIAL-DELIVERY MESSENGERS, ON A BASIS OF ONE YEAR FOR EACH THREE HUNDRED AND SIX DAYS OF EIGHT HOURS SERVED AS SUBSTITUTE OR MESSENGER, AND SHALL BE APPOINTED TO THE GRADE TO WHICH SUCH CLERK OR CARRIER WOULD HAVE PROGRESSED HAD HIS ORIGINAL APPOINTMENT AS SUBSTITUTE BEEN TO GRADE 1. ANY FRACTIONAL PART OF A YEAR'S SUBSTITUTE SERVICE WILL BE INCLUDED WITH HIS SERVICE AS A REGULAR CLERK OR CARRIER IN THE CITY DELIVERY SERVICE IN DETERMINING ELIGIBILITY FOR PROMOTION TO THE NEXT HIGHER GRADE FOLLOWING APPOINTMENT TO A REGULAR POSITION.

SUBSTITUTE CLERKS, SUBSTITUTE GARAGEMEN-DRIVERS, SUBSTITUTE DRIVER MECHANICS, AND SUBSTITUTE GENERAL MECHANICS, WHEN APPOINTED REGULAR CLERKS, GARAGEMEN-DRIVERS, DRIVER-MECHANICS, OR GENERAL MECHANICS IN THE MOTOR-VEHICLE SERVICE, AND SUBSTITUTES IN THE PNEUMATIC-TUBE SERVICE WHEN APPOINTED AS REGULAR EMPLOYEES IN THE PNEUMATIC-TUBE SERVICE, SHALL BE GIVEN CREDIT FOR THE ACTUAL TIME SERVED AS A SUBSTITUTE ON THE BASIS OF ONE YEAR FOR EACH THREE HUNDRED AND SIX DAYS OF EIGHT HOURS, AND SHALL BE APPOINTED TO THE GRADE TO WHICH SUCH CLERK, GARAGEMAN-DRIVER, DRIVER- MECHANIC, GENERAL MECHANIC, OR EMPLOYEE IN THE PNEUMATIC-TUBE SERVICE, WOULD HAVE PROGRESSED HAD HIS ORIGINAL APPOINTMENT AS A SUBSTITUTE BEEN MADE TO GRADE ONE. SUBSTITUTE SERVICE SHALL BE COMPUTED FROM THE DATE OF ORIGINAL APPOINTMENT AS A REGULAR CLASSIFIED SUBSTITUTE, AND THE SALARIES OF THE EMPLOYEES SHALL BE FIXED ACCORDINGLY UPON THE DATE OF THEIR ADVANCEMENT TO A REGULAR POSITION UNDER SECTION 116 OF THIS TITLE. ANY FRACTIONAL PART OF A YEAR'S SUBSTITUTE SERVICE, RENDERED AFTER THE ENACTMENT OF THIS SENTENCE,SHALL BE INCLUDED WITH HIS SERVICE AS A REGULAR CLERK, GARAGEMAN-DRIVER, DRIVER-MECHANIC, OR GENERAL MECHANIC IN THE MOTOR -VEHICLE SERVICE, OR EMPLOYEE IN THE PNEUMATIC-TUBE SERVICE, IN DETERMINING ELIGIBILITY FOR PROMOTION TO THE NEXT HIGHER GRADE FOLLOWING APPOINTMENT TO A REGULAR POSITION. MAR. 4, 1913, C. 143, 37 STAT. 796; FEB. 28, 1925, C. 368, SECTIONS 4, 11, 43 STAT. 1059, 1065; DEC. 8, 1928, C. 11, 45 STAT. 1016; FEB. 28, 1929, C. 372, 45 STAT. 1405; JUNE 27, 1934, C. 848, SECTION 2, 48 STAT. 1266; AUG. 16, 1937, C. 652, 50 STAT. 650; MAY 12, 1939, C. 128, 53 STAT. 740.

108. PROMOTION OF CLERKS IN FIRST AND SECOND-CLASS OFFICES AND LETTER CARRIERS IN CITY DELIVERY SERVICE. CLERKS IN FIRST AND SECOND CLASS POST OFFICES AND LETTER CARRIERS IN THE CITY DELIVERY SERVICE SHALL BE PROMOTED SUCCESSIVELY AFTER THEY REACH THE FIFTH GRADE. ALL PROMOTIONS SHALL BE MADE AT THE BEGINNING OF THE QUARTER FOLLOWING ONE YEAR'S SATISFACTORY SERVICE IN THE GRADE. ( FEB. 21, 1879, C. 95, SECTION 4, 20 STAT. 317; AUG. 2, 1882, C. 373, SECTION 2, 22 STAT. 185; FEB. 28, 1925, C. 368, SECTION 4, 43 STAT. 1059.)

SEE, ALSO, SECTION 109, TITLE 39, U.S. CODE, PROVIDING AS FOLLOWS:

109. SAME. NO PROMOTION SHALL BE MADE EXCEPT UPON EVIDENCE SATISFACTORY TO THE POST OFFICE DEPARTMENT OF THE EFFICIENCY AND FAITHFULNESS OF THE EMPLOYEE DURING THE PRECEDING YEAR. THE POST OFFICE DEPARTMENT MAY REDUCE A CLERK OR CARRIER FROM A HIGHER TO A LOWER GRADE WHENEVER HIS EFFICIENCY FALLS BELOW A FAIR STANDARD OR WHENEVER NECESSARY FOR PURPOSES OF DISCIPLINE. CLERKS AND CARRIERS OF THE HIGHEST GRADE IN THEIR RESPECTIVE OFFICES SHALL BE ELIGIBLE FOR PROMOTION TO THE HIGHER POSITIONS IN SAID POST OFFICES. ( MAR. 2, 1907, C. 2513, 34 STAT. 1206.)

THE ACT OF JULY 28, 1916, 39 STAT. 413, PROVIDES IN PART AS FOLLOWS:

* * * ANY POSTAL EMPLOYEE WHO HAS ENTERED THE MILITARY SERVICE OF THE UNITED STATES OR WHO SHALL HEREAFTER ENTER IT SHALL, UPON BEING HONORABLY DISCHARGED THEREFROM, BE PERMITTED TO RESUME THE POSITION IN THE POSTAL DEPARTMENT WHICH HE LEFT TO ENTER SUCH MILITARY SERVICE.

THIS PROVISION APPEARS TO BE PERMANENT LEGISLATION AND COMPRISES THE FIRST SENTENCE OF SECTION 818, TITLE 39, U.S.C.

IN DECISION OF SEPTEMBER 19, 1917, 24 COMP. DEC. 169, THE FORMER COMPTROLLER OF THE TREASURY, IN CONSTRUING THE ACT OF JULY 28, 1916, SUPRA, HELD AS FOLLOWS:

THE PROVISION IN THE ACT OF JULY 28, 1916, QUOTED IN YOUR LETTER, CONTEMPLATES, I THINK, A CONTINUING ON THE ROLLS RATHER THAN A DISCHARGE AND REINSTATEMENT. THAT THIS IS THE CONSTRUCTION PLACED UPON THE LAW BY THE DEPARTMENT IS EVIDENCED BY THE EXPRESSED INTENTION TO GRANT THE EMPLOYEES INDEFINITE LEAVE OF ABSENCE. I THINK IT WAS THE INTENT AND PURPOSE OF THIS PROVISION THAT SERVICE WITH THE MILITARY FORCES SHOULD NOT BREAK THE CONTINUITY OF A POSTAL EMPLOYEE'S SERVICE AS SUCH, AND THAT UPON THE RESUMPTION OF HIS POSTAL DUTIES HE SHOULD BE IN THE SAME STATUS AS THOUGH HIS MILITARY SERVICE HAD BEEN POSTAL SERVICE.

YOU ARE ADVISED, THEREFORE, THAT SO LONG AS THESE EMPLOYEES ARE CONTINUED ON THE ROLLS UNDER AUTHORITY OF LAW, THEY MUST BE TREATED AS IN THE SERVICE WITHIN THE MEANING OF THE LAW RELATING TO AUTOMATIC PROMOTIONS REGARDLESS OF THE FACT THAT THEY ARE ON LEAVE OF ABSENCE WITHOUT PAY.

THE RULE STATED IN THE DECISION, SUPRA, WOULD APPEAR TO BE EQUALLY APPLICABLE IN RESPECT OF APPLYING THE TERMS OF SECTION 8, PARAGRAPH (C) OF THE SELECTIVE TRAINING AND SERVICE ACT, 54 STAT. 890, QUOTED IN YOUR SUBMISSION, AS WELL AS THE TERMS OF THE CORRESPONDING PROVISION IN PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, AS AMENDED BY THE SELECTIVE TRAINING AND SERVICE ACT, 54 STAT. 891, APPLICABLE TO EMPLOYEES WHO ARE ORDERED INTO ACTIVE MILITARY SERVICE AS A MEMBER OF THE RESERVE COMPONENTS OF THE ARMY. SUCH STATUTORY PROVISION CLEARLY INTENDED TO CONSERVE ANY RIGHT OR BENEFIT TO EMPLOYEES BASED ON SENIORITY UNDER EXISTING LAWS AND/OR ADMINISTRATIVE REGULATIONS WHICH WOULD HAVE ACCRUED TO THEM HAD THEY REMAINED IN THEIR CIVILIAN POSITIONS DURING THE PERIOD THEY ARE IN THE MILITARY SERVICE.

ADVANCEMENT IN AUTOMATIC GRADE AND SALARY RATE BASED ON LENGTH OF SERVICE IS A FORM OF BENEFIT BASED ON SENIORITY. IF THE EMPLOYEES WERE NOT ADVANCED UPON THEIR RETURN TO THEIR CIVILIAN POSITIONS BASED UPON LENGTH OF SERVICE WHILE IN THE MILITARY SERVICE, THEY WOULD LOSE SENIORITY, THAT IS, THEIR RELATIVE STANDING WITH THOSE EMPLOYEES WHO REMAINED IN THEIR CIVILIAN POSITIONS. ALSO, THE QUOTED PROVISION FROM THE SELECTIVE TRAINING AND SERVICE ACT AND THE CORRESPONDING PROVISION IN PUBLIC RESOLUTION OF AUGUST 27, 1940, MAY BE CONSIDERED IN THE LIGHT OF THE PROVISIONS OF SECTION 107 AND THE LAST PART OF SECTION 818, TITLE 39, U.S. CODE, SPECIFICALLY AUTHORIZING THE COUNTING OF MILITARY SERVICE IN THE WORLD WAR IN DETERMINING THE ADVANCEMENT OF REGULAR AND SUBSTITUTE POSTAL EMPLOYEES.

ACCORDINGLY, REFERRING TO THE CONCLUDING PARAGRAPH OF YOUR LETTER, NO ADMINISTRATIVE ACTION MAKING ADJUSTMENTS IN GRADE AND SALARY RATE OF POSTAL EMPLOYEES SHOULD BE TAKEN DURING THE ABSENCE OF THE EMPLOYEES ON MILITARY DUTY, THE BENEFITS OF THE SELECTIVE TRAINING AND SERVICE ACT AND PUBLIC RESOLUTION OF AUGUST 27, 1940, BEING AVAILABLE ONLY UPON RESTORATION TO CIVILIAN POSITIONS. HOWEVER, UPON RESTORATION TO THEIR CIVILIAN POSITIONS UNDER THE TERMS AND CONDITIONS OF SAID STATUTES, REGULAR POSTAL EMPLOYEES MAY BE ADVANCED TO THE GRADE AND SALARY RATE TO WHICH THEY WOULD HAVE BEEN ADVANCED HAD THEIR MILITARY SERVICE BEEN IN THE POSTAL SERVICE IN ACCORDANCE WITH EXISTING LAWS AND REGULATIONS.

IT IS UNDERSTOOD THAT SUBSTITUTE POSTAL EMPLOYEES DO NOT ALWAYS WORK FULL TIME. THAT IS, EIGHT HOURS PER DAY THROUGHOUT THE YEAR. HENCE, IN ORDER TO CONSERVE THEIR SENIORITY RIGHTS WHILE IN THE MILITARY SERVICE AS REQUIRED BY THE SELECTIVE TRAINING AND SERVICE ACT AND PUBLIC RESOLUTION NO. 96, DATED AUGUST 27, 1940, ON THE BASIS THAT THEIR SERVICE HAD BEEN IN THEIR CIVILIAN POSITIONS, IT WOULD NOT BE PROPER IN ALL CASES TO CREDIT THEM WITH EIGHT HOURS A DAY FOR THE TIME THEY ARE IN THE MILITARY SERVICE IN FIXING THEIR SALARY RATE UPON ADVANCEMENT TO REGULARS. SUCH ACTION WOULD GRANT THEM ADDITIONAL BENEFITS OF SENIORITY OVER SUBSTITUTE EMPLOYEES WHO REMAIN IN THEIR CIVILIAN POSITIONS AND WHO MAY NOT BE REQUIRED TO WORK CONTINUOUSLY--- BENEFITS NOT CONTEMPLATED BY THE SELECTIVE TRAINING AND SERVICE ACT AND PUBLIC RESOLUTION NO. 96. IN THE ABSENCE OF ANY OTHER RULE PRESCRIBED BY LAW--- SUCH AS SECTION 107, TITLE 39, U.S. CODE, APPLICABLE TO SERVICE DURING THE WORLD WAR--- THE POSTMASTER GENERAL, IN ORDER TO CONSERVE THE SENIORITY RIGHTS OF SUBSTITUTE POSTAL EMPLOYEES WHILE THEY ARE IN A MILITARY SERVICE, WOULD APPEAR TO BE AUTHORIZED TO ADOPT A RULE CREDITING SUCH SUBSTITUTES, UPON RESTORATION TO THEIR CIVILIAN POSITIONS, WITH THE SAME AVERAGE NUMBER OF HOURS' SERVICE DURING MILITARY SERVICE AS THE SAME SUBSTITUTES SERVED DURING THE SAME PERIOD OF TIME NEXT PROCEEDING THEIR ENTRY INTO THE MILITARY SERVICE OR FOR A LONGER PERIOD OF PRIOR SERVICE IN FIXING THE SALARY RATE UPON ADVANCEMENT TO REGULARS.