B-62298, JANUARY 13, 1947, 26 COMP. GEN. 485

B-62298: Jan 13, 1947

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IS INAPPLICABLE IN THE CASE OF APPOINTEES WHO. A PERSON ON A LIST OF ELIGIBLES FOR APPOINTMENT IN THE POSTAL SERVICE WHO FAILED TO REPLY TO AN INQUIRY OF AVAILABILITY AND SUBSEQUENTLY ENLISTED IN THE MARINE CORPS BECAUSE OF IMMINENCE OF INDUCTION INTO THE ARMED FORCES IS NOT. IN THE ABSENCE OF A SHOWING THAT FAILURE INITIALLY TO RECEIVE APPOINTMENT WAS DUE TO HIS MARINE CORPS SERVICE. FOR PURPOSES OF AN APPOINTMENT SOLELY BECAUSE IT WAS KNOWN THAT HIS INDUCTION INTO THE ARMED FORCES WAS IMMINENT IS ENTITLED. AS FOLLOWS: I HAVE RECEIVED YOUR LETTER OF NOVEMBER 7. A VETERAN RECEIVING A PROBATIONAL APPOINTMENT UNDER EXECUTIVE ORDER 9538 WHO ORIGINALLY LOST OPPORTUNITY FOR APPOINTMENT BECAUSE OF HIS INDUCTION INTO THE ARMED FORCES SHOULD NOT BE DENIED THE BENEFITS OF PUBLIC LAW 577 BECAUSE OF THE TECHNICALITY THAT NO ELIGIBLE LOWER ON THE REGISTER WAS APPOINTED.

B-62298, JANUARY 13, 1947, 26 COMP. GEN. 485

APPOINTMENTS - INITIAL SALARY RATES, ETC. - PERSONS ON LIST OF ELIGIBLES PRIOR TO MILITARY SERVICE APPOINTED AFTER SUCH SERVICE THE ACT OF JULY 31, 1946, FIXING, FOR PURPOSES OF DETERMINING COMPENSATION RATE AND SENIORITY, THE CONSTRUCTIVE DATE OF APPOINTMENT OF POSTAL SERVICE APPOINTEES WHO PREVIOUSLY LOST OPPORTUNITY FOR APPOINTMENT FROM A LIST OF ELIGIBLES "BECAUSE OF MILITARY SERVICE" AS THE EARLIEST DATE OF APPOINTMENT OF AN ELIGIBLE STANDING LOWER ON THE LIST, IS INAPPLICABLE IN THE CASE OF APPOINTEES WHO, WHEN REACHED ON A REGISTER PRIOR TO MILITARY SERVICE, HAD FAILED TO BE APPOINTED NOT BECAUSE OF MILITARY SERVICE BUT BECAUSE OF PHYSICAL DISQUALIFICATION, REFUSAL OF APPOINTMENT ON ACCOUNT OF OTHER EMPLOYMENT, OR INABILITY TO ACCEPT ON ACCOUNT OF BEING UNABLE TO SECURE RELEASE FROM OTHER EMPLOYMENT. A PERSON ON A LIST OF ELIGIBLES FOR APPOINTMENT IN THE POSTAL SERVICE WHO FAILED TO REPLY TO AN INQUIRY OF AVAILABILITY AND SUBSEQUENTLY ENLISTED IN THE MARINE CORPS BECAUSE OF IMMINENCE OF INDUCTION INTO THE ARMED FORCES IS NOT, UPON APPOINTMENT AFTER HIS MARINE CORPS SERVICE, ENTITLED TO BE CONSIDERED UNDER THE ACT OF JULY 31, 1946, AS HAVING BEEN APPOINTED AS OF THE EARLIEST DATE OF APPOINTMENT OF AN ELIGIBLE STANDING LOWER ON THE LIST, FOR PURPOSES OF DETERMINING RATE OF COMPENSATION AND SENIORITY, IN THE ABSENCE OF A SHOWING THAT FAILURE INITIALLY TO RECEIVE APPOINTMENT WAS DUE TO HIS MARINE CORPS SERVICE. A PERSON ON A LIST OF ELIGIBLES FOR APPOINTMENT IN THE POSTAL OF APPOINTMENT OF AN ELIGIBLE STANDING LOWER ON THE LIST, FOR PURPOSES OF AN APPOINTMENT SOLELY BECAUSE IT WAS KNOWN THAT HIS INDUCTION INTO THE ARMED FORCES WAS IMMINENT IS ENTITLED, UPON APPOINTMENT AFTER MILITARY SERVICE, TO BE CONSIDERED AS HAVING BEEN APPOINTED AS OF THE EARLIEST DATE OF APPOINTMENT OF AN ELIGIBLE STANDING LOWER ON THE LIST, FOR PURPOSES OF DETERMINING RATE OF COMPENSATION AND SENIORITY, AS PROVIDED BY THE ACT OF JULY 31, 1946, IN THE CASE OF APPOINTEES WHO PREVIOUSLY HAD FAILED TO RECEIVE APPOINTMENT FROM A LIST OF ELIGIBLES "BECAUSE OF MILITARY SERVICE.'

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, JANUARY 13, 1947:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF DECEMBER 4, 1946, REFERENCE 15, AS FOLLOWS:

I HAVE RECEIVED YOUR LETTER OF NOVEMBER 7, 1946, (B-61421), (26 COMP. GEN. 315) ADVISING ME THAT IN ACCORDANCE WITH THE ACT OF JULY 31, 1946, PUBLIC LAW 577, A VETERAN RECEIVING A PROBATIONAL APPOINTMENT UNDER EXECUTIVE ORDER 9538 WHO ORIGINALLY LOST OPPORTUNITY FOR APPOINTMENT BECAUSE OF HIS INDUCTION INTO THE ARMED FORCES SHOULD NOT BE DENIED THE BENEFITS OF PUBLIC LAW 577 BECAUSE OF THE TECHNICALITY THAT NO ELIGIBLE LOWER ON THE REGISTER WAS APPOINTED. THE QUESTION HAS NOW ARISEN WITH RESPECT TO THE EXTENT THAT THE BENEFITS OF PUBLIC LAW 577 MAY BE EXTENDED TO POSTAL EMPLOYEES RECEIVING PROBATIONAL APPOINTMENTS UNDER EXECUTIVE ORDERS 9538 OR 9733 WHOSE FAILURE TO ORIGINALLY RECEIVE SUCH AN APPOINTMENT WAS NOT DUE TO THEIR INDUCTION INTO THE ARMED FORCES. SOME EXAMPLES OF THE TYPES OF PROBLEMS ARISING IN THIS CONNECTION FOLLOW.

(A) JOHN DOE AT BROOKLYN, NEW YORK, WAS ON THE ELIGIBLE REGISTER AND WAS CONSIDERED FOR APPOINTMENT MAY 7, 1940. HE FAILED TO RECEIVE THE APPOINTMENT BECAUSE OF HIS BEING UNDERHEIGHT. ON MARCH 7, 1942, HE ENTERED THE MILITARY SERVICE AND WAS DISCHARGED THEREFROM DECEMBER 11, 1945, AFTER WHICH TIME HIS NAME WAS RESTORED TO THE REGISTER OF ELIGIBLES UNDER EXECUTIVE ORDER 9538. HE WAS SUBSEQUENTLY GIVEN A PROBATIONAL APPOINTMENT MARCH 16, 1946, BECAUSE OF THE WAIVING OF PHYSICAL REQUIREMENTS FOR A VETERAN.

(B) IN ANOTHER INSTANCE AN ELIGIBLE WAS REACHED FOR APPOINTMENT ON OCTOBER 1, 1940, BUT DECLINED AS HE HAD OTHER EMPLOYMENT AT THE TIME. JULY 2, 1941, HE WAS INDUCTED INTO THE ARMED FORCES AND DISCHARGED THEREFROM ON SEPTEMBER 5, 1945. HIS NAME WAS RESTORED TO THE ELIGIBLE REGISTER ON JULY 1, 1946, UNDER EXECUTIVE ORDER 9733, AND HE WAS GIVEN A PROBATIONAL APPOINTMENT ON AUGUST 1, 1946.

(C) AT FLUSHING, NEW YORK, AN ELIGIBLE WAS REACHED FOR APPOINTMENT ON APRIL 1, 1939, BUT FAILED TO RECEIVE THE APPOINTMENT BECAUSE OF DEFECTIVE VISION. HE WAS INDUCTED INTO THE ARMY ON AUGUST 14, 1942, AND GIVEN AN HONORABLE DISCHARGE ON DECEMBER 2, 1945. ON DECEMBER 31, 1945, HE APPLIED FOR RESTORATION TO THE ELIGIBLE REGISTER UNDER EXECUTIVE ORDER 9538 AND PRESENTED A MEDICAL CERTIFICATE STATING THAT HIS VISION WAS CORRECTED. WAS GIVEN A PROBATIONAL APPOINTMENT AS A CLASSIFIED SUBSTITUTE ON FEBRUARY 1, 1946.

(D) AN ELIGIBLE IN ANOTHER OFFICE WAS OFFERED A PROBATIONAL APPOINTMENT ON JANUARY 1, 1943. AT THAT TIME HE WAS EMPLOYED AT A NAVAL AMMUNITION DEPOT AND COULD NOT OBTAIN A RELEASE FROM THE NAVY DEPARTMENT IN ORDER TO ACCEPT THE PROBATIONAL APPOINTMENT. WHILE STILL AN EMPLOYEE OF THE AMMUNITION DEPOT HE WAS INDUCTED INTO THE ARMY ON OCTOBER 8, 1943, AND RECEIVED AN HONORABLE DISCHARGE ON MARCH 9, 1946. ON JULY 1, 1946, HE WAS GIVEN A PROBATIONAL APPOINTMENT UNDER EXECUTIVE ORDER 9733.

(E) AT ANOTHER OFFICE AN ELIGIBLE WAS OFFERED A PROBATIONAL APPOINTMENT ON SEPTEMBER 1, 1941, BUT FAILED TO RESPOND TO THE INQUIRY OF AVAILABILITY. ON OCTOBER 7, 1941, HE ENLISTED IN THE MARINE CORPS AND WAS GIVEN AN HONORABLE DISCHARGE ON MARCH 1, 1946. HE WAS GIVEN A PROBATIONAL APPOINTMENT ON JUNE 1, 1946, UNDER EXECUTIVE ORDER 9538.

(F) IN ANOTHER INSTANCE AN ELIGIBLE WAS REACHED FOR APPOINTMENT ON OCTOBER 1, 1942. HIS DRAFT CLASSIFICATION AT THE TIME WAS 1-A AND IT WAS KNOWN THAT HIS INDUCTION INTO THE ARMED FORCES WAS IMMINENT. IN VIEW OF THIS AND WITH THE CONSENT OF THE CIVIL SERVICE COMMISSION HIS NAME WAS PASSED OVER AND AN OFFER OF AN APPOINTMENT WAS NOT INTENDED TO HIM. WAS INDUCTED INTO THE ARMED FORCES SHORTLY THEREAFTER AND WAS RELEASED WITH AN HONORABLE DISCHARGE ON NOVEMBER 1, 1945. HE WAS REINSTATED TO THE ELIGIBLE REGISTER UNDER EXECUTIVE ORDER 9538 AND WAS GIVEN A PROBATIONAL APPOINTMENT ON DECEMBER 15, 1945.

IT WILL BE APPRECIATED IF YOUR WILL INFORM ME AS TO WHETHER THE EMPLOYEES MENTIONED IN THE EXAMPLES ARE ENTITLED TO THE BENEFITS OF PUBLIC LAW 577.

THE ACT OF JULY 31, 1946, PUBLIC LAW 577 (60 STAT. 749), (SEE PAGE 316, SUPRA, FOR TEXT OF STATUTE.) 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" ( ITALICS SUPPLIED), AND PROVIDES THAT THE BENEFITS THEREOF SHALL ACCRUE TO "ANY PERSON--- (1) WHOSE NAME APPEARED ON ANY LIST OF ELIGIBLES * * * (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 * * * 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.' ( ITALICS SUPPLIED.) IT CLEARLY APPEARS THAT, IN ORDER TO RECEIVE THE BENEFITS OF THE SAID ACT, IT MUST BE ESTABLISHED THAT A PERSON OTHERWISE ELIGIBLE THERETO LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF HIS MILITARY SERVICE, AND IT FOLLOWS THAT A SUBSEQUENT APPOINTMENT PURSUANT TO EXECUTIVE ORDER NO. 9538, DATED APRIL 13, 1945, OR EXECUTIVE ORDER NO. 9733, DATED JUNE 4, 1946, DOES NOT PER SE RENDER AN EMPLOYEE ELIGIBLE TO SUCH BENEFITS.

THEREFORE, WITH REFERENCE TO THE EXAMPLES CITED IN YOUR LETTER UNDER (A), (B), (C) AND (D), EACH OF THE ELIGIBLES THERE INVOLVED FAILED TO RECEIVE PROBATIONAL APPOINTMENT FOR REASONS ENTIRELY SEPARATE AND APART FROM HIS MILITARY SERVICE AND CLEARLY NONE OF THEM IS ENTITLED TO THE BENEFITS OF THE SAID ACT.

WHILE IT IS POSSIBLE THAT THE INDIVIDUAL REFERRED TO IN EXAMPLE (E) FAILED TO REPLY TO THE INQUIRY OF AVAILABILITY AND SUBSEQUENTLY ENLISTED IN THE MARINE CORPS FOR THE REASON THAT HIS INDUCTION INTO THE ARMED FORCES WAS IMMINENT, IT IS NOT ESTABLISHED FROM THE REPORTED FACTS THAT HIS FAILURE TO RECEIVE PROBATIONAL APPOINTMENT WAS BECAUSE OF HIS MARINE CORPS SERVICE; HENCE, ON THE PRESENT RECORD, IT MAY NOT BE CONCLUDED THAT HE IS ENTITLED TO THE BENEFITS PROVIDED BY THE ACT OF JULY 31, 1946, SUPRA.HOWEVER, WITH RESPECT TO THE EMPLOYEE REFERRED TO IN EXAMPLE (F) IT WOULD APPEAR THAT HE IS ENTITLED TO SUCH BENEFITS BECAUSE THE IMMINENCE OF HIS INDUCTION INTO THE ARMED FORCES REASONABLY IS ESTABLISHED TO HAVE BEEN THE SOLE REASON FOR HIS FAILURE TO RECEIVE A PROBATIONAL APPOINTMENT--- IT BEING FOR NOTING THAT WHILE THE TITLE OF THE ACT REFERS TO "SERVICE IN THE ARMED FORCES OF THE UNITED STATES," THE BODY OF THE STATUTE USES THE WORDS,"BECAUSE OF MILITARY SERVICE DURING WORLD WAR II," WHICH LATTER WORDS CONNOTE A BROADER MEANING.