B-205334(1),L/M, FEB 9, 1982

B-205334(1),L/M: Feb 9, 1982

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IS NOT APPLICABLE TO MEMBERS OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE (PHS). SINCE THEY ARE APPOINTED WITHOUT REGARD TO CIVIL SERVICE LAWS. WHILE COMMISSIONED OFFICERS IN THE PHS RESERVE CORPS ARE APPOINTED FOR INDEFINITE PERIODS. WHICH ARE WITHIN THE JURISDICTION OF THE SECRETARY OF HEALTH AND HUMAN SERVICES. ARE SUBJECT TO TERMINATION WITHOUT CAUSE AT ANY TIME. UNITED STATES SENATE: THIS IS IN RESPONSE TO YOUR INQUIRY REGARDING THE MATTER ADDRESSED IN A LETTER TO YOU DATED OCTOBER 5. WHO IS APPARENTLY A COMMISSIONED OFFICER IN THE RESERVE CORPS OF THE UNITED STATES PUBLIC HEALTH SERVICE. SCHOFIELD INDICATES THAT THE PUBLIC HEALTH SERVICE COMMISSIONED CORPS IS UNDERGOING A REDUCTION IN STRENGTH.

B-205334(1),L/M, FEB 9, 1982

DIGEST: THE VETERANS PREFERENCE ACT, WHICH GRANTS FEDERAL CIVIL SERVICE EMPLOYMENT PREFERENCES TO VETERANS OF THE ARMED FORCES, IS NOT APPLICABLE TO MEMBERS OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE (PHS), SINCE THEY ARE APPOINTED WITHOUT REGARD TO CIVIL SERVICE LAWS. WHILE COMMISSIONED OFFICERS IN THE PHS RESERVE CORPS ARE APPOINTED FOR INDEFINITE PERIODS, DURING THE PROBATIONARY PERIOD OF SERVICE THEIR COMMISSIONS, WHICH ARE WITHIN THE JURISDICTION OF THE SECRETARY OF HEALTH AND HUMAN SERVICES, ARE SUBJECT TO TERMINATION WITHOUT CAUSE AT ANY TIME.

JENNINGS RANDOLPH, UNITED STATES SENATE:

THIS IS IN RESPONSE TO YOUR INQUIRY REGARDING THE MATTER ADDRESSED IN A LETTER TO YOU DATED OCTOBER 5, 1981, FROM MR. GRANT A. SCHOFIELD, WHO IS APPARENTLY A COMMISSIONED OFFICER IN THE RESERVE CORPS OF THE UNITED STATES PUBLIC HEALTH SERVICE. MR. SCHOFIELD INDICATES THAT THE PUBLIC HEALTH SERVICE COMMISSIONED CORPS IS UNDERGOING A REDUCTION IN STRENGTH, AND HE IS CONCERNED THAT HE AND OTHERS IN THE SAME SITUATION MAY LOSE THEIR POSITIONS.

MR. SCHOFIELD INDICATES THAT HE AND OTHERS WHO HAVE LESS THAN 3 YEARS OF SERVICE AS MEMBERS OF THE COMMISSIONED CORPS ARE CONSIDERED BY THE PUBLIC HEALTH SERVICE AS BEING IN A PROBATIONARY STATUS. WHILE IN THIS STATUS THEY MAY BE TERMINATED WITHOUT CAUSE AT ANY TIME.

MR. SCHOFIELD INDICATES THAT HE AND SOME 24 OTHER MEMBERS OF THE COMMISSIONED CORPS ARE FORMER MEMBERS OF THE ARMED FORCES (ARMY, NAVY, AIR FORCE, MARINE CORPS, AND COAST GUARD). AS SUCH HE FEELS THAT THEY SHOULD BE PROTECTED FROM THE REDUCTION IN STRENGTH BY THE VETERANS PREFERENCE ACT (NOW CODIFIED IN TITLE 5, UNITED STATES CODE) RATHER THAN BEING TREATED LIKE OTHER PROBATIONARY OFFICERS WHO HAVE NOT SERVED IN THE ARMED FORCES. HE STATES, HOWEVER, THAT THE PUBLIC HEALTH SERVICE CONSIDERS HIM AND OTHER MEMBERS OF THE COMMISSIONED CORPS AS "MILITARY OFFICERS" AND, AS SUCH, NOT PROTECTED BY THE VETERANS PREFERENCE ACT.

THE VETERANS PREFERENCE ACT TO WHICH MR. SCHOFIELD REFERS GRANTS CERTAIN PREFERENCE TO VETERANS OF THE ARMED FORCES IN FEDERAL CIVIL SERVICE EMPLOYMENT. SEE 5 U.S.C. SECS. 2108, 3309-3320, 3351, 3363, 3501-3504. SPECIFICALLY, PREFERENCE FOR RETENTION IS GIVEN ARMED FORCES VETERANS WHEN IT IS NECESSARY TO RELEASE EMPLOYEES DUE TO A REDUCTION IN FORCE. U.S.C. SECS. 3501-3504.

HOWEVER, AS MR. SCHOFIELD WAS APPARENTLY ADVISED, THOSE PROVISIONS DO NOT APPLY TO MEMBERS OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE. WHILE THE PUBLIC HEALTH SERVICE IS NOT AN ARMED SERVICE, ITS COMMISSIONED CORPS IS ONE OF THE "UNIFORMED SERVICES" AS ARE THE ARMED FORCES, AND IT IS SIMILAR IN NATURE TO THE COMMISSIONED OFFICERS CORPS OF THE ARMED FORCES. SEE 51 COMP.GEN. 780 (1972). MEMBERS OF THE PUBLIC HEALTH SERVICE COMMISSIONED CORPS ARE APPOINTED "WITHOUT REGARD TO THE CIVIL-SERVICE" LAWS. 42 U.S.C. SEC. 204. RESERVE COMMISSIONED CORPS OFFICERS, SUCH AS MR. SCHOFIELD APPEARS TO BE, ARE APPOINTED FOR AN INDEFINITE PERIOD BUT THEIR COMMISSIONS "MAY BE TERMINATED AT ANY TIME" BY THE SECRETARY OF HEALTH AND HUMAN SERVICES. SEE 42 U.S.C. SEC. 209(A)(2); SECTION 1(F) OF EXECUTIVE ORDER NO. 11140, JANUARY 30, 1964 (42 U.S.C. SEC. 202 NOTE); AND 20 U.S.C. SEC. 3508 (SUPP. III, 1979).

THE 3-YEAR PROBATIONARY PERIOD FOR PUBLIC HEALTH SERVICE OFFICERS IS NOT SPECIFIED BY LAW, BUT IS APPARENTLY SET IN THE COMMISSIONED CORPS REGULATIONS UNDER THE SECRETARY'S GENERAL AUTHORITY TO ADMINISTER THE SERVICE AND TO TERMINATE APPOINTMENTS. 42 U.S.C. SECS. 202 AND 209. DO NOT KNOW WHETHER, AS MR. SCHOFIELD INDICATES, THAT PROBATIONARY PERIOD HAS BEEN EXTENDED FROM 1 TO 3 YEARS AND, IF SO, HOW THAT WOULD AFFECT HIS AND THE OTHER OFFICERS' SITUATIONS. HOWEVER, SINCE THE TERMINATION OF RESERVE CORPS APPOINTMENTS IS A MATTER WITHIN THE JURISDICTION OF THE SECRETARY OF HEALTH AND HUMAN SERVICES, NOT OUR OFFICE, MR. SCHOFIELD MAY WISH TO SEEK A RULING FROM THE SECRETARY ON THE MATTER.

WE HOPE THIS INFORMATION WILL BE HELPFUL IN RESPONDING TO MR. SCHOFIELD.