B-60236, NOVEMBER 5, 1946, 26 COMP. GEN. 294

B-60236: Nov 5, 1946

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WAS BROKEN WHEN HE FAILED TO REQUEST RESTORATION AFTER MILITARY SERVICE WITHIN THE PERIOD SPECIFIED IN SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940. IT IS WITHIN ADMINISTRATIVE DISCRETION TO CREDIT SUCH SERVICE. PROVIDED REINSTATEMENT BE IN A GRADE NOT ABOVE THAT TO WHICH HE WOULD HAVE PROGRESSED HAD HIS SERVICE BEEN CONTINUOUS. STATES IN PART AS FOLLOWS: "EMPLOYEES WHO ARE REINSTATED TO POSITIONS IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT MAY BE GIVEN CREDIT FOR THE PERIODS OF TERMS OF CONTINUOUS SUBSTITUTE AND REGULAR SERVICE IMMEDIATELY PRECEDING THEIR SEPARATION. THEY SHALL NOT BE PLACED IN A GRADE HIGHER THAN THE GRADE TO WHICH THEY WOULD HAVE PROGRESSED IN CONTINUOUS SERVICE.'.

B-60236, NOVEMBER 5, 1946, 26 COMP. GEN. 294

COMPENSATION - POSTAL SERVICE - SERVICE CREDITS AFTER MILITARY DUTY - EXPIRATION OF MANDATORY RESTORATION RIGHTS A FORMER POSTAL SERVICE EMPLOYEE WHOSE CONTINUITY OF "SERVICE" REQUIRED FOR PURPOSES OF THE SERVICE-CREDIT PROVISIONS OF SECTION 25 OF THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1945, WAS BROKEN WHEN HE FAILED TO REQUEST RESTORATION AFTER MILITARY SERVICE WITHIN THE PERIOD SPECIFIED IN SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, FOR MANDATORY RESTORATION, HAS NO VESTED RIGHT UNDER SAID SECTION 25, UPON REINSTATEMENT, TO COUNT MILITARY SERVICE; HOWEVER, IT IS WITHIN ADMINISTRATIVE DISCRETION TO CREDIT SUCH SERVICE, PROVIDED REINSTATEMENT BE IN A GRADE NOT ABOVE THAT TO WHICH HE WOULD HAVE PROGRESSED HAD HIS SERVICE BEEN CONTINUOUS.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, NOVEMBER 5, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 22, 1946, REFERENCE 47, AS FOLLOWS:

SECTION 2 OF PUBLIC LAW 317, 79TH CONGRESS, STATES IN PART AS FOLLOWS:

"EMPLOYEES WHO ARE REINSTATED TO POSITIONS IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT MAY BE GIVEN CREDIT FOR THE PERIODS OF TERMS OF CONTINUOUS SUBSTITUTE AND REGULAR SERVICE IMMEDIATELY PRECEDING THEIR SEPARATION, BUT THEY SHALL NOT BE PLACED IN A GRADE HIGHER THAN THE GRADE TO WHICH THEY WOULD HAVE PROGRESSED IN CONTINUOUS SERVICE.'

SECTION 25 OF PUBLIC LAW 134, 79TH CONGRESS, STATES IN PART AS FOLLOWS:

"PROVIDED, HOWEVER, THAT IN THE CASE OF EMPLOYEES WHO HAVE BEEN SEPARATED OR SHALL HEREAFTER BE SEPARATED FROM THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT FOR MILITARY DUTY, THE PERIODS OR TERMS OF SUCH SERVICE IMMEDIATELY PRECEDING ENTRY INTO THE MILITARY SERVICE AS WELL AS THE TIME ENGAGED IN MILITARY SERVICE SHALL BE CONSTRUED AS ALLOWABLE SERVICE AND PRO RATA CREDIT SHALL BE GIVEN FOR THE TIME ENGAGED IN MILITARY SERVICE FOR EACH YEAR OF SUCH SERVICE.'

THERE IS FOR CONSIDERATION AN APPLICATION FOR REINSTATEMENT FROM A FORMER ELEVATOR OPERATOR IN THE CUSTODIAL SERVICE WITH A CLASSIFIED CIVIL SERVICE STATUS, WHO WAS APPOINTED ON MARCH 20, 1939, AND WHO WAS GRANTED MILITARY FURLOUGH ON DECEMBER 1, 1942. BECAUSE OF HIS FAILURE TO EXERCISE REEMPLOYMENT RIGHTS WITHIN THE NINETY DAY TIME LIMIT AS PROVIDED IN THE SELECTIVE TRAINING AND SERVICE ACT, THIS EMPLOYEE WAS DROPPED FROM THE ROLLS EFFECTIVE AT THE CLOSE OF BUSINESS FEBRUARY 26, 1946. AT THAT TIME HE WOULD HAVE BEEN ENTITLED TO $2200 PER ANNUM, THE 5TH GRADE IN THE POSITION OF ELEVATOR OPERATOR, BY VIRTUE OF AUTOMATIC INCREASES AND CONVERSIONS UNDER PUBLIC LAWS 134 AND 386.

IT WILL BE GREATLY APPRECIATED IF YOU WILL ADVISE WHETHER, UPON REINSTATEMENT, THIS EMPLOYEE MUST BE PLACED IN GRADE 5 FOR THE POSITION OF ELEVATOR OPERATOR OR WHETHER IT IS WITHIN THE ADMINISTRATIVE DISCRETION OF THIS DEPARTMENT TO REINSTATE HIM IN ANY GRADE OF THE POSITION PROVIDED IT DOES NOT EXCEED THE GRADE TO WHICH HE WOULD HAVE PROGRESSED HAD HE REEXAMINED IN THE SERVICE CONTINUOUSLY.

WITH RESPECT TO PUBLIC LAW 134, APPROVED JULY 6, 1945, 59 STAT. 435, AND PUBLIC LAW 317, APPROVED MARCH 6, 1946, 60 STAT. 35--- THE TWO STATUTES REFERRED TO IN YOUR LETTER--- IT MAY BE STATED THAT THE PROVISIONS OF THE LATER STATUTE, WHILE NOT SPECIFICALLY STATED TO BE AMENDATORY OF THE EARLIER LAW, CLEARLY MODIFY CERTAIN PROVISIONS THEREOF AND EXPRESSLY ARE MADE EFFECTIVE RETROACTIVELY TO JULY 1, 1945- - THE EFFECTIVE DATE OF PUBLIC LAW 134. HENCE, THE PROVISIONS OF THE TWO STATUTES MUST BE READ AND CONSIDERED TOGETHER.

REGARDING THE ALLOWABLE SERVICE WHICH IS AUTHORIZED TO BE CREDITED UNDER THE VARIOUS PROVISIONS OF PUBLIC LAW 134, SECTION 25 OF THAT ACT, 59 STAT. 461--- QUOTED IN PART IN YOUR LETTER--- PROVIDES:

ALLOWABLE SERVICE UNDER THE PROVISIONS OF THIS ACT SHALL BE ONLY SUCH CONTINUOUS ACTIVE SERVICE AS HAS BEEN RENDERED AND SHALL NOT INCLUDE PREVIOUS PERIODS OR TERMS OF EMPLOYMENT: PROVIDED, HOWEVER, THAT IN THE CASE OF EMPLOYEES WHO HAVE BEEN SEPARATED OR SHALL HEREAFTER BE SEPARATED FROM THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT FOR MILITARY DUTY, THE PERIODS OR TERMS OF SUCH SERVICE IMMEDIATELY PRECEDING ENTRY INTO THE MILITARY SERVICE AS WELL AS THE TIME ENGAGED IN MILITARY SERVICE SHALL BE CONSTRUED AS ALLOWABLE SERVICE AND PRO RATA CREDIT SHALL BE GIVEN FOR THE TIME ENGAGED IN MILITARY SERVICE FOR EACH YEAR OF SUCH SERVICE.

THE SECTION QUOTED ABOVE, WHILE EXPRESSLY PROVIDING THAT CIVILIAN SERVICE IMMEDIATELY PRECEDING ENTRY INTO THE MILITARY SERVICE AS WELL AS THE TIME ENGAGED IN MILITARY SERVICE "SHALL BE CONSTRUED AS ALLOWABLE SERVICE AND PRO RATA CREDIT SHALL BE GIVEN FOR THE TIME ENGAGED IN MILITARY SERVICE," IS SILENT WITH RESPECT TO THE CIRCUMSTANCES UNDER WHICH SUCH CREDIT SHALL BE GIVEN. OBVIOUSLY, ANY QUESTION AS TO THE PROPER SERVICE CREDIT TO BE GIVEN UNDER SECTION 25, SUPRA, TO AN EMPLOYEE SEPARATED FROM THE POSTAL SERVICE FOR MILITARY DUTY ARISES ONLY IN THE EVENT OF HIS RETURN TO DUTY IN THE POSTAL SERVICE. UNDER SUCH CIRCUMSTANCES, THE RETURN TO DUTY MAY BE EFFECTED, BY MANDATORY RESTORATION UNDER THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 885, AS AMENDED, UPON APPLICATION BY THE EMPLOYEE WITHIN THE TIME LIMIT PRESCRIBED THEREIN, OR, UPON THE FAILURE OF THE EMPLOYEE TO AVAIL HIMSELF OF THE BENEFITS OF THAT STATUTE, THE RETURN TO DUTY MAY BE ACCOMPLISHED ADMINISTRATIVELY AT ANY TIME THEREAFTER BY REINSTATEMENT OF THE EMPLOYEE IN THE POSTAL SERVICE IN THE USUAL MANNER.

CONSIDERING THAT SECTION 25, SUPRA, AUTHORIZES THE CREDITING OF "CONTINUOUS ACTIVE SERVICE AS HAS BEEN RENDERED," ONLY, AND SPECIFICALLY EXCLUDES "PREVIOUS PERIODS OR TERMS OF EMPLOYMENT," WITH THE SOLE EXCEPTION THAT CREDIT SHALL BE GIVEN FOR PREVIOUS SERVICE "IMMEDIATELY PRECEDING" ENTRY INTO MILITARY SERVICE AS WELL AS FOR SUCH MILITARY SERVICE, IT REASONABLY APPEARS THAT SO FAR AS CONCERNS EMPLOYEES ENTERING MILITARY SERVICE, THE SAID SECTION CONTEMPLATES ONLY THOSE SITUATIONS WHERE THE TRANSITION FROM ACTUAL CIVILIAN EMPLOYMENT TO MILITARY SERVICE AND BACK TO CIVILIAN EMPLOYMENT IS ACCOMPLISHED WITHOUT ANY BREAK IN THE CONTINUITY OF "SERVICE"--- ACTUAL AND CONSTRUCTIVE.

UNDER THE PROVISIONS OF SECTION 8 OF THE SAID SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 890, AS AMENDED, THE RESTORATION OF A FORMER FEDERAL EMPLOYEE TO THE POSITION WHICH HE LEFT TO ENTER THE ARMED FORCES IS MANDATORY IF APPLICATION THEREFOR IS MADE BY THE FORMER EMPLOYEE WITHIN 90 DAYS (120 DAYS IN CERTAIN CASES OF HOSPITALIZATION) AFTER THE DATE OF TERMINATION OF HIS SERVICE IN THE ARMED FORCES. A DEFINITE GRACE PERIOD THUS HAVING BEEN FIXED BY STATUTE WITHIN WHICH A FORMER EMPLOYEE MAY APPLY FOR RESTORATION TO CIVILIAN DUTY, THE EXERCISE OF SUCH RIGHT AT ANY TIME WITHIN THE PERIOD SPECIFIED CLEARLY OPERATES TO PRESERVE THE CONTINUITY OF THE EMPLOYEE'S SERVICE WITHIN THE INTENT OF SECTION 25--- THE SAME AS IF APPLICATION FOR RESTORATION HAD BEEN MADE IMMEDIATELY UPON THE TERMINATION OF HIS MILITARY DUTY. ON THE OTHER HAND, WHERE A FORMER EMPLOYEE FAILS TO AVAIL HIMSELF OF THE RESTORATION PRIVILEGES GRANTED BY THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, WITHIN THE PRESCRIBED PERIOD, THERE IS A DEFINITE BREAK IN THE CONTINUITY OF HIS SERVICE AND SUCH EMPLOYEE WOULD APPEAR TO BE WITHOUT THE PURVIEW OF SECTION 25. CONSEQUENTLY, HE WOULD HAVE NO VESTED RIGHT TO CREDIT EITHER FOR ACTUAL SERVICE IMMEDIATELY PRECEDING ENTRY INTO THE MILITARY SERVICE OR FOR THE PERIOD OF MILITARY SERVICE. ANY OTHER VIEW OF THE OPERATION OF THE SAID SECTION 25 WOULD RESULT IN THE GRANTING TO SUCH INDIVIDUALS OF A VESTED RIGHT TO CREDIT FOR ACTUAL SERVICE IMMEDIATELY PRECEDING ENTRY INTO THE MILITARY SERVICE AS WELL AS SUCH MILITARY SERVICE AT ANY FUTURE DATE UPON WHICH THEIR REINSTATEMENTS TO THE POSTAL SERVICE MAY BE EFFECTED-- NO MATTER HOW LONG DEFERRED AFTER TERMINATION OF MILITARY DUTY. HOWEVER, IN THAT CONNECTION, IT WILL BE NOTED THAT THAT PORTION OF SECTION 2 OF PUBLIC LAW 317, 60 STAT. 36, QUOTED IN YOUR LETTER, EXPRESSLY PROVIDES THAT, IN CASES OF REINSTATEMENT, IT IS WITHIN ADMINISTRATIVE DISCRETION TO ALLOW OR DENY CREDIT FOR PREVIOUS SERVICE IMMEDIATELY PRECEDING SEPARATION--- A CLEAR EXPRESSION OF THE INTENT OF THE CONGRESS TO CONFER NO VESTED RIGHT IN THE SERVICE CREDIT BENEFITS PROVIDED BY SECTION 25 IN IN CASES OF REINSTATEMENTS.

ACCORDINGLY, WITH RESPECT TO THE PARTICULAR CASE MENTIONED IN YOUR LETTER, YOU ARE ADVISED THAT IT IS A MATTER ENTIRELY WITHIN THE DISCRETION OF THE POST OFFICE DEPARTMENT WHETHER CREDIT IS TO BE ALLOWED FOR ANY OR ALL OF THE MILITARY SERVICE OF THE EMPLOYEE INVOLVED IN DETERMINING THE SALARY RATE AT WHICH HE MAY BE REINSTATED; AND, THEREFORE, THAT HE PROPERLY MAY BE REINSTATED AT ANY GRADE FOR THE POSITION OF ELEVATOR OPERATOR NOT ABOVE THE GRADE TO WHICH HE WOULD HAVE PROGRESSED HAD HIS SERVICE BEEN CONTINUOUS.