B-62611, JANUARY 22, 1947, 26 COMP. GEN. 518

B-62611: Jan 22, 1947

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IS TO BE TAKEN AS THE DATE OF APPOINTMENT OF A LOWER ELIGIBLE FOLLOWING THE LATER. THE DATE OF APPOINTMENT OF A POSTAL SERVICE APPOINTEE WHO HAD TRANSFERRED HIS ELIGIBILITY FROM THE REGISTER FOR ONE STATE TO THAT FOR ANOTHER SHOULD BE DETERMINED BY THE USE OF THE STATE REGISTER ON WHICH HE ORIGINALLY WAS CARRIED AS IT EXISTED AT THE TIME HE LOST OPPORTUNITY FOR APPOINTMENT BECAUSE OF MILITARY SERVICE. A COPY OF WHICH IS ENCLOSED. BE CONSIDERED TO HAVE BEEN APPOINTED PRIOR TO THEIR ACTUAL ENTRANCE ON DUTY. THE COMMISSION APPRECIATES THAT ITS FUNCTION UNDER PUBLIC LAW 577 IS TO FURNISH INFORMATION TO THE DEPARTMENT OR AGENCY CONCERNED. THAT IT IS PRIMARILY THE RESPONSIBILITY OF SUCH AGENCY TO DETERMINE THE RATE OF COMPENSATION LEGALLY PAYABLE UNDER THE LAW.

B-62611, JANUARY 22, 1947, 26 COMP. GEN. 518

APPOINTMENTS - INITIAL SALARY RATES, ETC. - PERSONS ON LIST OF ELIGIBLES PRIOR TO MILITARY SERVICE APPOINTED AFTER SUCH SERVICE UNDER THE ACT OF JULY 31, 1946, FIXING, FOR COMPENSATION RATE AND SENIORITY PURPOSES, THE CONSTRUCTIVE DATE OF APPOINTMENT OF APPOINTEES WHO PREVIOUSLY LOST OPPORTUNITY FOR APPOINTMENT FROM A LIST OF ELIGIBLES BECAUSE OF MILITARY SERVICE AS THE EARLIEST DATE OF APPOINTMENT OF A LOWER ELIGIBLE, THE DATE OF APPOINTMENT OF A VETERAN WHO, PRIOR TO MILITARY SERVICE, HAD DECLINED APPOINTMENT FOR PERSONAL REASONS AND LATER LOST OPPORTUNITY FOR APPOINTMENT BECAUSE OF MILITARY SERVICE, OR IMMINENCE THEREOF FOLLOWED BY ACTUAL SERVICE, IS TO BE TAKEN AS THE DATE OF APPOINTMENT OF A LOWER ELIGIBLE FOLLOWING THE LATER, AND NOT THE EARLIER, OCCASION OF FAILURE TO RECEIVE APPOINTMENT. UNDER THE ACT OF JULY 31, 1946, FIXING, FOR COMPENSATION RATE AND SENIORITY PURPOSES, THE CONSTRUCTIVE DATE OF APPOINTMENT OF 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, THE DATE OF APPOINTMENT OF A POSTAL SERVICE APPOINTEE WHO HAD TRANSFERRED HIS ELIGIBILITY FROM THE REGISTER FOR ONE STATE TO THAT FOR ANOTHER SHOULD BE DETERMINED BY THE USE OF THE STATE REGISTER ON WHICH HE ORIGINALLY WAS CARRIED AS IT EXISTED AT THE TIME HE LOST OPPORTUNITY FOR APPOINTMENT BECAUSE OF MILITARY SERVICE.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 22, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 19, 1946, AS FOLLOWS:

THE COMMISSION INVITES YOUR ATTENTION TO THE ACT OF JULY 31, 1946 ( PUBLIC LAW 577--- 79TH CONGRESS), A COPY OF WHICH IS ENCLOSED.

IN GENERAL THIS STATUTE PROVIDES THAT APPOINTEES TO THE GOVERNMENT SERVICE WHO MEET CERTAIN REQUIREMENTS MAY, FOR THE PURPOSE OF DETERMINING THE PROPER RATE OF COMPENSATION PAYABLE, BE CONSIDERED TO HAVE BEEN APPOINTED PRIOR TO THEIR ACTUAL ENTRANCE ON DUTY. THE COMMISSION APPRECIATES THAT ITS FUNCTION UNDER PUBLIC LAW 577 IS TO FURNISH INFORMATION TO THE DEPARTMENT OR AGENCY CONCERNED, AND THAT IT IS PRIMARILY THE RESPONSIBILITY OF SUCH AGENCY TO DETERMINE THE RATE OF COMPENSATION LEGALLY PAYABLE UNDER THE LAW. SINCE THE FACTS CERTIFIED BY THE COMMISSION WILL ULTIMATELY GOVERN THE AGENCY'S DETERMINATION IN FIXING THE RATE OF COMPENSATION TO BE PAID, HOWEVER, THE COMMISSION WILL APPRECIATE YOUR DECISION ON SEVERAL GENERAL QUESTIONS OF LEGAL INTERPRETATION PRESENTED BY THE RATHER INVOLVED LANGUAGE OF THE STATUTE. IT HAS COME TO THE ATTENTION OF THE COMMISSION, MOREOVER, THAT THE INTERPRETATION PLACED ON THE LAW BY SOME GOVERNMENT AGENCIES DOES NOT CONFORM WITH THAT OF THE COMMISSION, AND A DECISION BY YOUR OFFICE WOULD SERVE TO INSURE UNIFORMITY IN THE ADMINISTRATION OF THE LAW THROUGHOUT THE GOVERNMENT SERVICE.

THE PRINCIPAL PURPOSE OF EXECUTIVE ORDER NO. 9538 OF APRIL 13, 1945, WHICH IS MENTIONED IN THE LAW, WAS TO PERMIT THE COMMISSION TO CERTIFY FOR PROBATIONAL APPOINTMENT VETERANS WHO HAD RETURNED FROM THE ARMED FORCES AT A TIME WHEN APPOINTMENTS IN THE GOVERNMENT SERVICE GENERALLY WERE BEING MADE ON AN INDEFINITE BASIS FOR THE DURATION OF THE WAR ONLY. PERSONS ELIGIBLE FOR APPOINTMENT UNDER EXECUTIVE ORDER NO. 9538 HAD ALL QUALIFIED IN REGULAR CIVIL-SERVICE EXAMINATIONS BUT HAD BEEN PASSED OVER FOR APPOINTMENT AND HAD SERVED IN THE ARMED FORCES. THE ORDER WAS ISSUED SO THAT WHEN SUCH VETERANS RETURNED FROM THE MILITARY SERVICE THEY COULD BE GIVEN APPOINTMENTS ON A PERMANENT BASIS AND THUS BE ON A COMPARABLE FOOTING WITH OTHER PERMANENT CIVIL SERVICE EMPLOYEES FOR CIVIL-SERVICE PURPOSES GENERALLY.

UPON RECEIVING APPOINTMENTS UNDER EXECUTIVE ORDER NO. 9538 MANY OF THESE VETERANS FOUND THAT OTHER EMPLOYEES WHOSE NAMES HAD ORIGINALLY STOOD LOWER ON THE CIVIL SERVICE REGISTER FROM WHICH THEY WERE APPOINTED BUT WHO HAD NOT ENTERED THE MILITARY SERVICE, HAD RECEIVED APPOINTMENTS DURING THEIR ABSENCE AND HAD IN THE MEANTIME RENDERED SUFFICIENT SERVICE TO EARN WITHIN -GRADE SALARY ADVANCEMENTS. PUBLIC LAW 577 WAS ACCORDINGLY ENACTED TO EQUALIZE THIS DISPARITY BY GIVING TO VETERANS APPOINTED UNDER EXECUTIVE ORDER NO. 9538 CREDIT FOR PROMOTION AND SENIORITY PURPOSES FROM THE EARLIEST DATE THAT ANY ELIGIBLE STANDING LOWER ON THE CIVIL SERVICE REGISTER WAS APPOINTED.

IN ESTABLISHING ELIGIBILITY FOR APPOINTMENT UNDER EXECUTIVE ORDER NO. 9538, FOUR REQUIREMENTS MUST BE MET:

(1) THE VETERAN'S NAME MUST HAVE APPEARED ON A LIST OF ELIGIBLES BETWEEN CERTAIN DATES:

(2) HE MUST HAVE ENTERED THE ARMED FORCES BETWEEN SUCH DATES:

(3) HE MUST HAVE ORIGINALLY STOOD HIGHER ON THE CIVIL SERVICE LIST THAN SOME OTHER ELIGIBLE WHO RECEIVED AN EARLIER APPOINTMENT THEREFROM; AND

(4) HE MUST REQUEST RESTORATION TO THE LIST WITHIN A CERTAIN TIME LIMIT.

UPON MEETING THESE FOUR BASIC REQUIREMENTS THE VETERAN IS ELIGIBLE FOR PROBATIONAL APPOINTMENT, AND SO FAR AS THE EXECUTIVE ORDER GOES IT IS IMMATERIAL WHETHER HE WAS ACTUALLY IN THE MILITARY SERVICE AT THE TIME SOME OTHER ELIGIBLE WHETHER HE WAS ACTUALLY IN THE MILITARY SERVICE AT THE TIME SOME OTHER ELIGIBLE WITH A LOWER STANDING WAS APPOINTED. THUS, IF HE ORIGINALLY DECLINED APPOINTMENT FOR PERSONAL REASONS AS FAR BACK AS 1938, AND SUBSEQUENTLY ENTERED THE MILITARY SERVICE, HE WOULD NOW BE CONSIDERED ELIGIBLE FOR APPOINTMENT UNDER EXECUTIVE ORDER NO. 9538 SO LONG AS THE FOUR BASIC REQUIREMENTS SPECIFIED IN THE ORDER ARE MET. MANY ELIGIBLES DECLINED APPOINTMENT BECAUSE THEY ANTICIPATED BEING IN THE MILITARY SERVICE, WHILE OTHERS WERE FORCED TO DECLINE APPOINTMENT BECAUSE THEY WERE UNABLE TO SECURE RELEASE FROM OTHER EMPLOYMENT UNDER GOVERNMENT REGULATIONS. IN MANY OF THESE CASES, IT WOULD HAVE BEEN IMPOSSIBLE TO DETERMINE THE PRECISE REASON AN ELIGIBLE'S NAME WAS PASSED OVER FOR APPOINTMENT AND IN MOST CASES THERE ARE NO EXISTING RECORDS WHICH WOULD ESTABLISH THE PRECISE REASON.

PUBLIC LAW 577 WAS ORIGINALLY INTRODUCED AS H.R. 6903 AND CONTAINED A SPECIFIC REQUIREMENT THAT THE VETERAN MUST HAVE BEEN "A MEMBER OF THE ARMED FORCES OF THE UNITED STATES ON THE DATE HIS NAME WAS ORIGINALLY REACHED ON SUCH LIST OF ELIGIBLES.' THIS REQUIREMENT WAS STRICKEN FROM THE BILL AT THE SUGGESTION OF THE COMMISSION "IN ORDER THAT THE BILL MAY COVER ALL PERSONS RECEIVING APPOINTMENTS UNDER EXECUTIVE ORDER NO. 9538 * * *.' IN THIS CONNECTION YOUR ATTENTION IS INVITED TO REPORT NO. 2433 SUBMITTED BY THE COMMITTEE ON THE CIVIL SERVICE OF THE HOUSE OF REPRESENTATIVES, 79TH CONGRESS, SECOND SESSION.

"WHILE THE COMMISSION HAS HELD THAT AN ELIGIBLE NEED NOT ACTUALLY HAVE BEEN IN THE MILITARY SERVICE AT THE TIME HIS NAME WAS PASSED OVER IN ORDER TO BE APPOINTED UNDER EXECUTIVE ORDER NO. 9538, IT DOUBTS THAT ANY OF THE BENEFITS CONFERRED BY PUBLIC LAW 577 CAN ANTEDATE MAY 1, 1940, THE BEGINNING OF THE EMERGENCY PERIOD, TO MARCH 16, 1942, THE EFFECTIVE DATE OF THE WAR SERVICE REGULATIONS, AFTER WHICH PERMANENT APPOINTMENTS WERE NO LONGER BEING MADE IN THE GOVERNMENT SERVICE. IN OTHER WORDS, ANY VETERAN APPOINTED UNDER EXECUTIVE ORDER NO. 9538 IS ENTITLED FOR PAY AND SENIORITY PURPOSES TO BE CONSIDERED AS HAVING BEEN APPOINTED ON THE EARLIEST DATE AFTER MAY 1940 THAT SOME ELIGIBLE STANDING LOWER ON THE REGISTER RECEIVED APPOINTMENT.

THE FOLLOWING CASE HISTORY IS TYPICAL OF THE PROBLEMS INVOLVED IN THE ADMINISTRATION OF THE STATUTE AND EXECUTIVE ORDER:

JUNE 1, 1938--- QUALIFIED IN EXAMINATION AND ENTERED ON REGISTER.

JULY 1, 1938--- DECLINED APPOINTMENT FOR PERSONAL REASONS. LOWER ELIGIBLE APPOINTED.

JUNE 15, 1940--- DECLINED APPOINTMENT FOR PERSONAL REASONS. LOWER ELIGIBLE APPOINTED.

DECEMBER 15, 1941--- PASSED OVER FOR APPOINTMENT PRESUMABLY BECAUSE CLASSIFIED IN 1-A DRAFT STATUS. LOWER ELIGIBLE APPOINTED.

FEBRUARY 15, 1942--- ENTERED MILITARY SERVICE AND UNABLE TO ACCEPT PROFFERED APPOINTMENT. LOWER ELIGIBLE APPOINTED.

JUNE 15, 1946--- APPOINTED UNDER EXECUTIVE ORDER NO. 9538.

UNDER THE COMMISSION'S INTERPRETATION OF PUBLIC LAW 577, THE VETERAN IN THE CASE HISTORY GIVEN ABOVE WOULD BE ENTITLED TO HAVE HIS PROMOTION AND SENIORITY BENEFITS DATED BACK TO JUNE 15, 1940, THE EARLIEST DATE AFTER MAY 1, 1940 THAT SOME ELIGIBLE STANDING LOWER ON THE REGISTER WAS APPOINTED.

THE COMMISSION WILL APPRECIATE YOUR ADVICE AS TO WHETHER THE INTERPRETATION OF THE LAW IS CORRECT.

A NUMBER OF QUESTIONS ARISE ALSO UNDER PUBLIC LAW 577 IN CONNECTION WITH THE PRACTICE OF TRANSFERRING ELIGIBILITY FOR APPOINTMENT FROM ONE REGISTER TO ANOTHER. CERTAIN REGISTERS, AS THOSE FOR RAILWAY POSTAL CLERK, FOR EXAMPLE, ARE SET UP ON A STATE-WIDE BASIS AND IT HAS BEEN A LONG STANDING PRACTICE OF THE COMMISSION TO PERMIT AN ELIGIBLE TO TRANSFER HIS ELIGIBILITY FROM THE REGISTER OF ONE STATE TO THAT OF ANOTHER UPON ESTABLISHING RESIDENCE IN THE LATTER STATE. A VETERAN WHOSE NAME ORIGINALLY APPEARED ON THE REGISTER FOR THE STATE OF MAINE AND WHO IS ELIGIBLE FOR APPOINTMENT UNDER EXECUTIVE ORDER NO. 9538 MAY THUS HAVE SUCH ELIGIBILITY TRANSFERRED TO THE REGISTER FOR THE STATE OF CALIFORNIA IF SOME ELIGIBLE WITH A LOWER RATING HAS BEEN APPOINTED IN CALIFORNIA. BECAUSE OF THE DIFFERENCE OF THE NUMBER OF APPOINTMENTS MADE IN EACH STATE, THE DATE ON WHICH AN ELIGIBLE WITH A LOWER RATING IN MAINE RECEIVED AN APPOINTMENT MAY BE ENTIRELY DIFFERENT FROM THE DATE WHICH AN ELIGIBLE WITH A LOWER RATING RECEIVED AN APPOINTMENT IN CALIFORNIA. DEPENDING ON WHICH DATE IS EARLIER, THIS DIFFERENCE MAY AFFECT THE APPOINTEE EITHER FAVORABLY OR ADVERSELY. THE QUESTION IS THUS PRESENTED WHETHER THE BENEFITS OF PUBLIC LAW 577 SHOULD RUN FROM THE DATE WHICH APPOINTMENTS WERE MADE FROM THE MAINE REGISTER ON WHICH HIS NAME ORIGINALLY APPEARED, FOR FROM THE DATE ON WHICH APPOINTMENTS WERE MADE FROM THE CALIFORNIA REGISTER TO WHICH HIS ELIGIBILITY HAD BEEN TRANSFERRED AND FROM WHICH HE WAS ACTUALLY APPOINTED. THE COMMISSION WILL APPRECIATE HAVING YOUR ADVICE ON THIS QUESTION.

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 HOUSE REPORT 6903, WHICH BECAME PUBLIC LAW 577, SUPRA, STATED IN 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 VETERAN, 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. 9733, 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 A CIVILIAN 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 VETERAN, 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.

IT SEEMS REASONABLE TO PRESUME THAT THE LIST OF ELIGIBLES REFERRED TO IN THAT PORTION OF SECTION 1 (A) OF PUBLIC LAW 577, SUPRA, WHICH IMMEDIATELY PRECEDES THE PROVISO IS THE LIST OF ELIGIBLES AS IT EXISTED AT THE TIME THE ELIGIBLE LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF MILITARY SERVICE AND NOT THE LIST AS IT MAY HAVE EXISTED WHEN ORIGINALLY COMPILED. IN THAT CONNECTION IT WAS STATED IN DECISION OF NOVEMBER 7, 1946, B-61421, 26 COMP. GEN. 315:

* * * 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.

IN LINE WITH THAT VIEW, THE VETERAN WHOSE CASE HISTORY IS SET OUT IN THE NINTH PARAGRAPH OF YOUR LETTER, SUPRA, WOULD NOT BE ENTITLED TO HAVE HIS PROMOTION AND SENIORITY BENEFITS DATED BACK TO JUNE 15, 1940. TO HOLD OTHERWISE WOULD RESULT IN HIS BEING PLACED IN A STATUS WITH RESPECT TO COMPENSATION AND SENIORITY CONSIDERABLY BETTER THAN THAT WHICH HE MIGHT HAVE OBTAINED HAD HE NOT ENTERED MILITARY SERVICE--- A RESULT NOT IN ACCORDANCE WITH THE PURPOSE OF THE CONGRESS IN ENACTING PUBLIC LAW 577, WHICH PURPOSE, AS STATED IN THE DECISION OF NOVEMBER 7, 1946, SUPRA, WAS TO PLACE A VETERAN IN A STATUS WITH RESPECT TO COMPENSATION AND SENIORITY COMPARABLE WITH THAT WHICH HE MIGHT HAVE OBTAINED HAD HE NOT ENTERED MILITARY SERVICE. HOWEVER, IT REASONABLY CAN BE CONCLUDED THAT IT WAS THE PURPOSE OF CONGRESS TO PLACE A VETERAN IN SUCH A STATUS WHERE HE LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT EITHER ON ACCOUNT OF ENTRANCE INTO MILITARY SERVICE OR ON ACCOUNT OF THE IMMINENCE OF ENTRY INTO SUCH SERVICE FOLLOWED BY ACTUAL ENTRY INTO THE MILITARY SERVICE. SEE DECISION OF JANUARY 13, 1947, B-62298, 26 COMP. GEN. 485, TO THE POSTMASTER GENERAL. UNDER THAT VIEW, AND IF IT DEFINITELY WERE TO BE ESTABLISHED THAT ON DECEMBER 15, 1941, THE VETERAN LOST OPPORTUNITY FOR APPOINTMENT ON ACCOUNT OF HIS HAVING BEEN CLASSIFIED IN CLASS 1-A BY THE SELECTIVE SERVICE SYSTEM AND FOR NO OTHER REASON, AND IF ON THAT DATE AN ELIGIBLE STANDING LOWER ON THE SAME LIST OF ELIGIBLES RECEIVED A PROBATIONAL APPOINTMENT THEREFROM, THEN, FOR THE PURPOSES OF PUBLIC LAW 577, THE VETERAN SHOULD BE HELD TO HAVE BEEN APPOINTED AS OF THAT DATE; OR, IF NO SUCH ELIGIBLE RECEIVED A PROBATIONAL APPOINTMENT ON THAT DATE, THEN THE VETERAN SHOULD BE HELD TO HAVE BEEN APPOINTED AS OF SUCH LATER DATE AS AN ELIGIBLE STANDING LOWER ON THE SAME LIST OF ELIGIBLES RECEIVED SUCH A PROBATIONAL APPOINTMENT. IF IT SHOULD NOT BE ESTABLISHED DEFINITELY THAT ON DECEMBER 15, 1941, THE VETERAN LOST OPPORTUNITY FOR APPOINTMENT SOLELY BECAUSE OF HIS 1-A SELECTIVE SERVICE CLASSIFICATION, THEN, FOR THE PURPOSES OF PUBLIC LAW 577, HE SHOULD BE HELD TO HAVE BEEN APPOINTED AS OF FEBRUARY 15, 1942, IF ON THAT DATE AN ELIGIBLE STANDING LOWER ON THE SAME LIST OF ELIGIBLES RECEIVED A PROBATIONAL APPOINTMENT THEREFROM; OR IF NO SUCH ELIGIBLE RECEIVED A PROBATIONAL APPOINTMENT THEREFROM ON THAT DATE, THEN THE VETERAN SHOULD BE HELD TO HAVE BEEN APPOINTED AS OF SUCH LATER DATE THAT SUCH AN ELIGIBLE ACTUALLY RECEIVED A PROBATIONAL APPOINTMENT.

ACCORDINGLY, YOU ARE ADVISED THAT THE COMMISSION'S INTERPRETATION OF PUBLIC LAW 577, AS APPLIED TO THE FACTS STATED IN THE NINTH PARAGRAPH OF YOUR LETTER, SUPRA, MAY NOT BE CONCURRED IN BY THIS OFFICE.

WITH RESPECT TO THE SITUATION PRESENTED IN THE LAST PARAGRAPH OF YOUR LETTER, THE REGISTER PROPERLY FOR USE IN DETERMINING THE RATE OF COMPENSATION AND SENIORITY STATUS WOULD BE THE MAINE REGISTER AS IT EXISTED AT THE TIME THE ELIGIBLE LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF MILITARY SERVICE.