B-41728, MAY 17, 1944, 23 COMP. GEN. 877

B-41728, MAY 17, 1944, 23 COMP. GEN. 877

POSTAL EMPLOYEES - AUTOMATIC PROMOTION AND LEAVE RIGHTS AFTER EMPLOYMENT IN PRIVATE INDUSTRY UNDER WAR SERVICE REGULATIONS POSTAL EMPLOYEES APPOINTED UNDER THE WAR SERVICE REGULATIONS WHO TRANSFER TO PRIVATE INDUSTRY ENGAGED IN THE WAR EFFORT AND WHO SUBSEQUENTLY ARE REINSTATED OR REASSIGNED IN THE POSTAL SERVICE UNDER SAID REGULATIONS ARE NOT ENTITLED TO TIME CREDIT FOR THE PERIOD EMPLOYED IN PRIVATE INDUSTRY FOR AUTOMATIC PROMOTION PURPOSES IN THE POSTAL SERVICE PURSUANT TO 39 U.S.C. 122. SUBSTITUTE POSTAL EMPLOYEES APPOINTED UNDER THE WAR SERVICE REGULATIONS WHO TRANSFER TO PRIVATE INDUSTRY ENGAGED IN THE WAR EFFORT AND WHO SUBSEQUENTLY ARE REINSTATED IN THE POSTAL SERVICE UNDER SAID REGULATIONS ARE NOT ENTITLED TO TIME CREDIT AS SUBSTITUTES FOR THE PERIOD OF EMPLOYMENT IN PRIVATE INDUSTRY. POSTAL EMPLOYEES--- REGULAR OR SUBSTITUTE--- WHO ARE REINSTATED OR REASSIGNED IN THE POSTAL SERVICE PURSUANT TO THE WAR SERVICE REGULATIONS AFTER SERVICE IN PRIVATE INDUSTRY ENGAGED IN THE WAR EFFORT ARE NOT ENTITLED TO TIME CREDIT FOR THE PERIODS OF SERVICE IN PRIVATE INDUSTRY FOR SICK AND ANNUAL LEAVE ACCRUAL PURPOSES.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, MAY 17, 1944:

I HAVE YOUR LETTER OF APRIL 28, 1944, AS FOLLOWS:

RULINGS ARE REQUESTED WITH RESPECT TO THE GRANTING OF TIME CREDIT TO EMPLOYEES OF THE POSTAL SERVICE APPOINTED UNDER WAR SERVICE REGULATIONS WHO TRANSFER TO PRIVATE INDUSTRY ENGAGED IN THE WAR EFFORT AND WHO SUBSEQUENTLY WERE RETRANSFERRED OR REASSIGNED IN THE POSTAL SERVICE UNDER THE PROVISIONS OF SECTION 5, PARAGRAPH 2 OF THE WAR SERVICE REGULATIONS.

THE REGULATION REFERRED TO READS IN PART AS FOLLOWS:

"* * * (2) HE SHALL BE REINSTATED WITHIN THIRTY DAYS OF HIS APPLICATION IN THE SAME DEPARTMENT OR AGENCY AND TO THE MAXIMUM EXTENT PRACTICABLE, IN THE SAME LOCALITY, IN HIS FORMER POSITION, OR IN A POSITION OF LIKE SENIORITY, STATUS, AND PAY, IN SUCH MANNER, TO THE EXTENT CONSISTENT WITH LAW, THAT HE DOES NOT LOSE ANY OF THE RIGHTS OR BENEFITS TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN TRANSFERRED OR RELEASED, PROVIDED THAT SUCH A POSITION THEN EXISTS.'

QUESTION NO. 1: ARE EMPLOYEES WHO ARE REINSTATED OR REASSIGNED UNDER THIS REGULATION ENTITLED TO TIME CREDIT FOR THE PERIOD EMPLOYED IN PRIVATE INDUSTRY IN DETERMINING THE DATE OF THEIR AUTOMATIC PROMOTION (39 U.S.C. 122/?

QUESTION NO. 2: ARE SUBSTITUTE EMPLOYEES REINSTATED UNDER THIS REGULATION ENTITLED TO TIME CREDIT AS SUBSTITUTES WHILE EMPLOYED IN PRIVATE INDUSTRY?

QUESTION NO. 3: ARE REGULAR AND SUBSTITUTE EMPLOYEES WHO ARE REINSTATED OR REASSIGNED UNDER THIS REGULATION ENTITLED TO TIME CREDIT FOR PERIODS OF SERVICE IN PRIVATE INDUSTRY IN DETERMINING THE AMOUNT OF SICK AND ANNUAL LEAVE ACCRUING TO THEIR CREDIT?

SECTION 122, TITLE 39, U.S. CODE, PROVIDES AS FOLLOWS:

PROMOTION REGARDLESS OF INCREASE OF PAY.

ALL EMPLOYEES PROVIDED FOR IN THIS CHAPTER IN AUTOMATIC GRADE WHO HAVE NOT REACHED THE MAXIMUM GRADES TO WHICH THEY ARE ENTITLED TO PROGRESS AUTOMATICALLY, SHALL BE PROMOTED AT THE BEGINNING OF THE QUARTER FOLLOWING THE COMPLETION OF ONE YEAR'S SATISFACTORY SERVICE SINCE THEIR LAST PROMOTION, REGARDLESS OF ANY INCREASES IN SALARIES GRANTED THEM BY THE PROVISIONS OF THIS CHAPTER. ( FEB. 28, 1925, CH. 368, SEC. 11, 43 STAT. (1064) 1065).

THE "ONE YEAR'S SATISFACTORY SERVICE" MENTIONED IN THE STATUTE TO ENTITLE A POSTAL EMPLOYEE TO AN AUTOMATIC PROMOTION MANIFESTLY MEANS SERVICE IN THE POSTAL SERVICE. THERE IS NOW LAW, OR REGULATION HAVING THE FORCE AND EFFECT OF LAW, WHICH SPECIFICALLY AUTHORIZES THE COUNTING OF SERVICE IN PRIVATE INDUSTRY TO WHICH EMPLOYEES ARE ASSIGNED PURSUANT TO WAR MANPOWER DIRECTIVES AND WAR SERVICE REGULATIONS OF THE CIVIL SERVICE COMMISSION ISSUED THEREUNDER FOR THE PURPOSE OF INCREASING THE COMPENSATION OR THE AMOUNT OF LEAVE TO THE CREDIT OF FEDERAL EMPLOYEES UPON RESTORATION TO THEIR FEDERAL POSITIONS. WHILE THIS OFFICE HAS RECOGNIZED THAT REEMPLOYMENT BENEFITS ARE GRANTED BY WAR MANPOWER DIRECTIVE NO. X AND THE WAR SERVICE REGULATIONS ISSUED THEREUNDER, TO EMPLOYEES ENTERING PRIVATE ENTERPRISE CONNECTED WITH THE CONDUCT OF THE WAR UPON SUBSTANTIALLY THE SAME BASIS AS GRANTED BY LAW TO CIVILIAN EMPLOYEES ENTERING THE ACTIVE MILITARY OR NAVAL SERVICE, TO THE EXTENT OF RESTORING THE SAME BENEFITS HELD BY THE EMPLOYEES WHEN THEY LEFT THEIR FEDERAL POSITIONS TO ENTER PRIVATE INDUSTRY. (SEE DECISION OF MAY 4, 1944, B-41511, 23 COMP. GEN. 841, QUESTION AND ANSWER 7), IN THE ABSENCE OF A STATUTE, OR REGULATION HAVING THE FORCE AND EFFECT OF LAW, SPECIFICALLY SO PROVIDING, IT MAY NOT BE CONCLUDED THAT SERVICE IN PRIVATE INDUSTRY MAY BE COUNTED FOR INCREASING SUCH BENEFITS UPON RESTORATION OF AN EMPLOYEE TO A FEDERAL POSITION. THE COUNTING OF ACTIVE MILITARY OR NAVAL SERVICE FOR AUTOMATIC PROMOTIONS IS AUTHORIZED BY SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, APPROVED SEPTEMBER 16, 1940, 54 STAT. 890. COMPARE, 39 U.S.C. 818, APPLICABLE TO POSTAL EMPLOYEES DURING THE FIRST WORLD WAR. ALSO, COMPARE SECTION 5 OF EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, AUTHORIZING CREDIT OF ACTIVE MILITARY OR NAVAL SERVICE FOR AUTOMATIC PROMOTION OF EMPLOYEES OCCUPYING PERMANENT POSITIONS WITHIN THE PURVIEW OF THE CLASSIFICATION ACT, AS AMENDED. HOWEVER, I KNOW OF NO CORRESPONDING LAW OR REGULATION APPLICABLE TO SERVICE IN PRIVATE INDUSTRY. SEE 22 COMP. GEN. 969, 974, (QUESTION AND ANSWER NO. 4). FURTHERMORE, NO EXISTING LAW OR REGULATION AUTHORIZES THE COUNTING OF ACTIVE MILITARY OR NAVAL SERVICE FOR INCREASING LEAVE BENEFITS UPON RESTORATION TO CIVILIAN POSITIONS. HENCE, IT WOULD NOT BE "CONSISTENT WITH LAW" (QUOTING FROM THE WAR SERVICE REGULATIONS) TO COUNT SERVICE IN PRIVATE INDUSTRY FOR AUTOMATIC PROMOTION PURPOSES, OR FOR THE PURPOSE OF INCREASING LEAVE CREDITS OF POSTAL EMPLOYEES UPON RESTORATION TO THEIR FEDERAL POSITIONS.

IN THE LIGHT OF THE ABOVE, ALL THREE QUESTIONS POSED IN YOUR LETTER ARE ANSWERED IN THE NEGATIVE.