B-61421, NOVEMBER 7, 1946, 26 COMP. GEN. 315

B-61421: Nov 7, 1946

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ANOTHER PERSON NOT ON THE LIST WAS TEMPORARILY APPOINTED. PROVIDES A METHOD WHEREBY EMPLOYEES IN THE GOVERNMENT SERVICE WHO ARE GIVEN A CLASSIFIED STATUS UPON THEIR RETURN FROM THE ARMED FORCES ON THE BASIS OF THEIR HAVING ACQUIRED ELIGIBILITY PRIOR TO ENTERING THE ARMED FORCES. MAY FOR SALARY PURPOSES HAVE THEIR SENIORITY ANTEDATED TO THE DATE THAT SOME APPOINTED LOWER ON THE REGISTER ACQUIRED A CLASSIFIED STATUS. IT WAS THE APPARENT INTENT OF CONGRESS TO PROVIDE A LEGAL MEANS WHEREBY EMPLOYEES IN THE GOVERNMENT SERVICE WHO LOST AN OPPORTUNITY TO SECURE A PROBATIONAL APPOINTMENT BECAUSE OF THEIR ABSENCE IN THE ARMED FORCES. TO OBTAIN ALL OF THE BENEFITS THAT WOULD HAVE ACCRUED TO THEM HAD THEY NOT BEEN ABSENT WITH THE MILITARY FORCES.

B-61421, NOVEMBER 7, 1946, 26 COMP. GEN. 315

APPOINTMENTS - INITIAL SALARY RATES, ETC. - PERSONS WHO PREVIOUSLY LOST OPPORTUNITY FOR APPOINTMENT BY REASON OF MILITARY SERVICE IN THE CASE OF A PERSON ON A LIST OF ELIGIBLES FOR APPOINTMENT IN THE POSTAL SERVICE IN WHOSE STEAD, BECAUSE OF HIS BEING IN MILITARY SERVICE, ANOTHER PERSON NOT ON THE LIST WAS TEMPORARILY APPOINTED, THE DATE OF APPOINTMENT IN CONNECTION WITH SUBSEQUENT EMPLOYMENT, FOR PURPOSES OF DETERMINING RATE OF COMPENSATION AND SENIORITY RIGHTS, MAY BE HELD TO BE THAT OF THE TEMPORARY APPOINTMENT, IN CONSONANCE WITH THE ACT OF JULY 31, 1946, FIXING THE CONSTRUCTIVE DATE OF APPOINTMENT OF APPOINTEES, WHO PREVIOUSLY LOST OPPORTUNITY FOR APPOINTMENT FROM A LIST OF ELIGIBLES BECAUSE OF BEING IN MILITARY SERVICE, AS THE EARLIEST DATE OF APPOINTMENT OF AN ELIGIBLE STANDING LOWER "ON THE SAME LIST.'

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, NOVEMBER 7, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 18, 1946, REFERENCE 15, AS FOLLOWS:

THE ACT OF JULY 31, 1946, PUBLIC LAW 577, PROVIDES A METHOD WHEREBY EMPLOYEES IN THE GOVERNMENT SERVICE WHO ARE GIVEN A CLASSIFIED STATUS UPON THEIR RETURN FROM THE ARMED FORCES ON THE BASIS OF THEIR HAVING ACQUIRED ELIGIBILITY PRIOR TO ENTERING THE ARMED FORCES, MAY FOR SALARY PURPOSES HAVE THEIR SENIORITY ANTEDATED TO THE DATE THAT SOME APPOINTED LOWER ON THE REGISTER ACQUIRED A CLASSIFIED STATUS. AS SET OUT IN REPORT NO. 3433 WHICH ACCOMPANIED H.R. 6903 ( PUBLIC LAW 577), IT WAS THE APPARENT INTENT OF CONGRESS TO PROVIDE A LEGAL MEANS WHEREBY EMPLOYEES IN THE GOVERNMENT SERVICE WHO LOST AN OPPORTUNITY TO SECURE A PROBATIONAL APPOINTMENT BECAUSE OF THEIR ABSENCE IN THE ARMED FORCES, TO OBTAIN ALL OF THE BENEFITS THAT WOULD HAVE ACCRUED TO THEM HAD THEY NOT BEEN ABSENT WITH THE MILITARY FORCES. THE USE OF THE TERM UNDER PARAGRAPH 2 OF SECTION 1 OF PUBLIC LAW 577, "* * * 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, * * *" WOULD INDICATE THAT THE COMMITTEE HAD THIS IN MIND AT THE TIME H.R. 6903 WAS PROPOSED. IN VIEW OF THIS AM I CORRECT IN EXTENDING THE BENEFITS OF PUBLIC LAW 577 TO THOSE EMPLOYEES WHO, FOLLOWING THEIR DISCHARGE FROM THE ARMED FORCES, WERE EMPLOYED IN THE POSTAL SERVICE AND GIVEN A CLASSIFIED STATUS BY THE CIVIL SERVICE COMMISSION BECAUSE OF THEIR HAVING ESTABLISHED AN ELIGIBILITY FOR SUCH CLASSIFICATION PRIOR TO THEIR ENTRANCE IN THESE ARMED FORCES NOTWITHSTANDING THAT NO ELIGIBLE WITH A LOWER RATING WAS SELECTED FROM THE SAME REGISTER WHILE THE EMPLOYEE GIVEN THE CLASSIFIED STATUS WAS WITH THE ARMED FORCES?

FOR EXAMPLE, AT ONE OF OUR POST OFFICES JOHN DOE, AN APPLICANT FOR A POSITION AS RURAL CARRIER, WAS GIVEN AN EXAMINATION BY THE CIVIL SERVICE COMMISSION IN 1942 AND BECAME ELIGIBLE FOR AN APPOINTMENT TO THAT POSITION. ON JANUARY 11, 1943, JOHN DOE WAS REACHED FOR APPOINTMENT TO THE POSITION OF CLASSIFIED RURAL CARRIER. HOWEVER, HE HAD BEEN DRAFTED INTO THE ARMY AND COULD NOT BE APPOINTED. A TEMPORARY CARRIER NOT SELECTED FROM THIS REGISTER WAS APPOINTED TO SERVE THIS ROUTE FOR THE DURATION OF THE WAR. ON OCTOBER 1, 1945, FOLLOWING HIS DISCHARGE FROM THE ARMY, JOHN DOE WAS APPOINTED TO THE POSITION OF RURAL CARRIER AND GIVEN A CLASSIFIED STATUS WITH THE PERMISSION OF THE CIVIL SERVICE COMMISSION. WOULD APPEAR FROM THE INTENT OF PUBLIC LAW 577 THAT, NOTWITHSTANDING THAT NO APPOINTMENT WAS MADE OF ANYONE STANDING LOWER ON THE ELIGIBLE REGISTER, THAT JOHN DOE IS FULLY ENTITLED TO THE BENEFITS OF PUBLIC LAW 577 AND FOR PAY PURPOSES SHOULD HAVE HIS SENIORITY ANTEDATED TO JANUARY 11, 1943.

PUBLIC LAW 577, APPROVED JULY 31, 1946, 60 STAT. 749, IS ENTITLED,"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," AND PROVIDES AS FOLLOWS:

THAT (A) ANY PERSON---

(1) WHOSE NAME APPEARED ON ANY LIST OF ELIGIBLES EITHER (A) AT ANY TIME BETWEEN MAY 1, 1940, AND MARCH 16, 1942, WITH RESPECT TO A POSITION THE RATE OF COMPENSATION OF WHICH IS DETERMINED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, AN ACT ENTITLED "AN ACT TO ADJUST THE COMPENSATION OF CERTAIN EMPLOYEES IN THE CUSTOMS SERVICE," APPROVED MAY 29, 1928, AS AMENDED, OR THE SECOND PARAGRAPH OF SECTION 24 OF THE IMMIGRATION ACT OF 1917, AS AMENDED, OR (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, OR (C) AT ANY TIME BETWEEN MAY 1, 1940, AND THE EFFECTIVE DATE OF THIS ACT, WITH RESPECT TO POSITIONS OF OFFICERS AND MEMBERS OF THE METROPOLITAN POLICE OR OF THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA, AND OFFICERS AND MEMBERS OF THE UNITED STATES PARK POLICE AND THE WHITE HOUSE POLICE; 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, 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: PROVIDED, HOWEVER, THAT NO REGULAR EMPLOYEE IN THE POSTAL FIELD SERVICE SHALL BE REDUCED TO SUBSTITUTE STATUS BY REASON OF THE ENACTMENT OF THIS ACT.

(B) NO PERSON SHALL BE ENTITLED TO THE BENEFITS OF THIS SECTION WHO HAS REENLISTED AFTER JUNE 1, 1945, IN THE REGULAR MILITARY ESTABLISHMENT OR AFTER FEBRUARY 1, 1945, IN THE REGULAR NAVAL ESTABLISHMENT.

SEC. 2. NO PERSON SHALL, BY REASON OF THE ENACTMENT OF THIS ACT, BE ENTITLED TO ANY COMPENSATION FOR ANY PERIOD PRIOR TO THE EFFECTIVE DATE OF THIS ACT.

SEC. 3. THIS ACT SHALL TAKE EFFECT ON THE FIRST DAY OF THE CALENDAR MONTH FOLLOWING THE CALENDAR MONTH IN WHICH IT IS ENACTED.

THE COMMITTEE ON CIVIL SERVICE, HOUSE OF REPRESENTATIVES, IN HOUSE REPORT NO. 2433, 79TH CONGRESS, 2D SESSION, ACCOMPANYING H.R. 6903, WHICH BECAME THE PRESENT ENACTMENT, STATED IN MATERIAL PART:

THE PURPOSE OF H.R. 6903 IS TO PROVIDE BENEFITS FOR CERTAIN EMPLOYEES OF THE UNITED STATES WHO ARE VETERANS OF WORLD WAR II AND WHO LOST OPPORTUNITY FOR PROBATIONAL CIVIL-SERVICE APPOINTMENTS BY REASON OF THEIR SERVICE IN THE ARMED FORCES OF THE UNITED STATES.

THE BILL, IN GENERAL, APPLIES TO GROUPS OF FEDERAL EMPLOYEES WHO ARE COVERED BY LAWS WHICH PROVIDE FOR SALARY RANGES ADMINISTERED UNDER PERIODIC-INCREASE PROGRAMS. THAT IS, NEW EMPLOYEES ENTER AT THE MINIMUM RATE OF THE ESTABLISHED RANGE OF PAY, AND WITH SATISFACTORY SERVICE RECEIVE SALARY INCREMENTS PERIODICALLY, USUALLY ONCE A YEAR, OR, IN THE HIGHER GRADES UNDER THE CLASSIFICATION ACT, ONCE EVERY 18 MONTHS. THESE GROUPS INCLUDE CLERKS, CARRIERS, AND OTHER GROUPS IN THE POSTAL SERVICE; IMMIGRATION INSPECTORS; CUSTOMS CLERKS; EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT OF 1923,AS AMENDED; POLICEMEN AND FIREMEN IN THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA; WHITE HOUSE POLICE; AND UNITED STATES PARK POLICE.

WITHIN THESE GROUPS, THE EMPLOYEES AFFECTED ARE THOSE WHO, BETWEEN DATES WHEN PROBATIONAL APPOINTMENTS WERE BEING MADE (PRIOR TO THE WAR SERVICE REGULATIONS OF THE CIVIL SERVICE COMMISSION), WERE ON CIVIL SERVICE LISTS AND ELIGIBLE FOR PROBATIONAL APPOINTMENT. IN MANY INSTANCES, IN THE COURSE OF MAKING APPOINTMENTS FROM THESE LISTS, THEIR NAMES WERE REACHED, BUT BECAUSE THEY WERE IN THE MILITARY SERVICE AT THAT TIME, THEY WERE NOT AVAILABLE FOR CIVILIAN EMPLOYMENT. CONSEQUENTLY, THEIR NAMES WERE PASSED OVER AND ELIGIBLES WITH LOWER RATINGS WERE SELECTED AND APPOINTED.

UNDER SUCH CIRCUMSTANCES, THE VETERANS, AFTER DISCHARGE FROM THE ARMED FORCES UNDER HONORABLE CONDITIONS, HAS THE RIGHT, UNDER EXECUTIVE ORDER NO. 9538, APRIL 13, 1945 (NOW SUPERSEDED BY EXECUTIVE ORDER NO. 1733, JUNE 4, 1946), TO REQUEST THE CIVIL SERVICE COMMISSION TO RESTORE HIS ELIGIBILITY AND CERTIFY HIM FOR PROBATIONAL APPOINTMENT. WHEN HE MEETS THE CONDITIONS OF THE EXECUTIVE ORDER, AND MAKES SUCH REQUEST WITHIN THE TIME SPECIFIED IN THE ORDER, THE COMMISSION CERTIFIES HIS CURRENT ELIGIBILITY, AND HE MAY THEN BE APPOINTED BY THE HEAD OF THE DEPARTMENT OR AGENCY.

WHEN HE IS SO APPOINTED, HOWEVER, A VETERAN TO WHOM H.R. 6903 APPLIES ENTERS THE SERVICE AT THE MINIMUM RATE OF A RANGE OF PAY ESTABLISHED BY LAW FOR THE POSITION. UNLESS A VETERAN WERE ACTUALLY EMPLOYED IN ACIVILIAN POSITION WHICH HE LEFT TO ENTER THE ARMED FORCES, THERE IS NO WAY UNDER EXISTING LAW WHEREBY HE CAN BE GIVEN CREDIT FOR HIS MILITARY SERVICE TOWARD PERIODIC PAY INCREASES. IT IS ONE OF THE PURPOSES OF H.R. 6903 TO PROVIDE A WAY TO DO THIS.

THE SITUATION IN THIS RESPECT IS BRIEFLY THIS: THE LOWER ELIGIBLE, WHO WAS APPOINTED TO A POSITION WHICH THE VETERAN WOULD HAVE SECURED HAD HE NOT BEEN IN THE MILITARY SERVICE, HAS BEEN RECEIVING PERIODIC PAY INCREASES BY VIRTUE OF HIS CIVILIAN SERVICE. THE VETERANS, UPON HIS RETURN, UPON TAKING ADVANTAGE OF THE OPPORTUNITY TO RECAPTURE THE APPOINTMENT HE PREVIOUSLY LOST, DESIRES TO HAVE THIS SALARY COMPUTED AS IF HE HAD BEEN APPOINTED AT THE SAME TIME THE LOWER ELIGIBLE WAS. H.R. 6903 ACCOMPLISHES THIS RESULT, AND PUTS BOTH ON THE SAME PLANE SO FAR AS PERIODIC PAY INCREASES ARE CONCERNED.

H.R. 6903 HAS ANOTHER MAJOR OBJECTIVE. IN THE POSTAL SERVICE, ORIGINAL APPOINTMENTS ARE MADE TO SUBSTITUTE POSITIONS. WHEN VACANCIES IN REGULAR POSITIONS OCCUR, THE SENIOR SUBSTITUTE, I.E., THE ONE WITH THE EARLIEST APPOINTMENT AS SUBSTITUTE, IS SELECTED FOR THE REGULAR VACANCY. CONSEQUENTLY, SENIORITY, PARTICULARLY THE DATE FROM WHICH SENIORITY IS COMPUTED, IS AN IMPORTANT ELEMENT IN DECIDING WHICH SUBSTITUTE SHALL BE APPOINTED TO THE NEXT REGULAR VACANCY. THE BILL PROVIDES THAT IN THE CASE OF THE POSTAL SERVICE, VETERANS WHO MEET THE CONDITIONS OF THE BILL SHALL HAVE THEIR SENIORITY COMPUTED FROM THE EARLIEST DATE WHEN AN ELIGIBLE STANDING LOWER ON THE SAME LIST OF ELIGIBLES RECEIVED A PROBATIONAL APPOINTMENT THEREFROM. THE EFFECT IS THAT THE RETURNED VETERAN TAKES HIS PLACE ON THE SUBSTITUTE LIST IN THE SAME ORDER THAT WOULD HAVE APPLIED HAD HE BEEN ABLE TO ACCEPT APPOINTMENT WHEN FIRST REACHED FOR APPOINTMENT. FAR AS THE SUBSTITUTE LIST IS CONCERNED, HE DOES NOT LOSE SENIORITY BY VIRTUE OF HIS MILITARY SERVICE, IN VIEW OF THE FACT THAT HE LOST AN EARLIER CHANGE FOR A SUBSTITUTE APPOINTMENT BECAUSE OF SERVICE IN THE ARMED FORCES.

IN ORDER TO SAFEGUARD THE RIGHTS OF REGULAR EMPLOYEES--- VETERANS AND NON -VETERANS ALIKE--- THE BILL PROVIDES THAT NO REGULAR EMPLOYEE SHALL BE REDUCED TO A SUBSTITUTE STATUS BY REASON OF ITS ENACTMENT.

THE STATUTE EXPRESSLY PROVIDES A METHOD FOR DETERMINING THE RATE OF COMPENSATION AND SENIORITY RIGHTS IN THE POSTAL FIELD SERVICE IN THE CASE OF A PROBATIONAL APPOINTMENT OF A VETERAN WHOSE NAME ON AN ELIGIBLE LIST DURING THE PRESCRIBED PERIOD WAS REACHED FOR APPOINTMENT BUT BECAUSE OF HIS THEN BEING IN THE MILITARY SERVICE AN ELIGIBLE STANDING LOWER ON THE SAME LIST OF ELIGIBLES RECEIVED A PROBATIONAL APPOINTMENT. BUT IN THE CASE HERE PRESENTED THERE WAS NO APPOINTMENT OF AN ELIGIBLE STANDING LOWER ON THE SAME LIST OF ELIGIBLES; HENCE, THE CASE IS NOT ONE EXPRESSLY COVERED BY THE LETTER OF THE STATUTE. HOWEVER, HAVING REGARD FOR THE PURPOSE STATED IN THE TITLE OF THE ACT, AND FOR THE STATEMENTS CONTAINED IN THE COMMITTEE REPORT QUOTED ABOVE, IT REASONABLY APPEARS THAT THE PRIMARY PURPOSE OF THE ACT WAS TO PLACE A VETERAN--- WHOSE NAME WAS ON AN ELIGIBLE LIST DURING THE SPECIFIED PERIODS, BUT WHO, ON ACCOUNT OF HIS ENTRANCE INTO MILITARY SERVICE WAS NOT APPOINTED TO A POSITION FROM THAT LIST--- IN A STATUS WITH RESPECT TO COMPENSATION AND SENIORITY COMPARABLE WITH THE STATUS WHICH HE MIGHT HAVE ATTAINED HAD HE NOT ENTERED MILITARY SERVICE.

WHERE A VETERAN OTHERWISE COMES WITHIN THE PROVISIONS OF THE ACT, HIS RIGHT TO THE BENEFITS THEREOF SHOULD NOT BE DEFEATED ON THE TECHNICAL GROUND THAT THE PERSON WHO WAS APPOINTED IN HIS STEAD DID NOT HAPPEN TO BE ON THE SAME ELIGIBLE REGISTER. ACCORDINGLY, FOR THE PURPOSE OF DETERMINING THE RATE OF COMPENSATION AND THE SENIORITY STATUS OF THE VETERAN IN THE EXAMPLE GIVEN, HE MAY BE HELD TO HAVE BEEN APPOINTED TO THE POSITION AS OF THE DATE THE TEMPORARY CARRIER WAS APPOINTED TO SERVE THE ROUTE FOR THE DURATION OF THE WAR.