B-63356, FEBRUARY 21, 1947, 26 COMP. GEN. 625

B-63356, FEBRUARY 21, 1947, 26 COMP. GEN. 625

APPOINTMENTS - INITIAL SALARY RATES, ETC. - PERSONS ON LIST OF ELIGIBLES PRIOR TO MILITARY SERVICE APPOINTED AFTER SUCH SERVICE A PERSON WHO HAD LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF MILITARY SERVICE AND WHO, AFTER SUCH SERVICE, WAS GIVEN A WAR SERVICE INDEFINITE APPOINTMENT IN THE POSTAL SERVICE PENDING CERTIFICATION FOR A PROBATIONAL APPOINTMENT IS NOT ENTITLED TO ANY INCREASED RATE OF COMPENSATION PRIOR TO THE DATE OF PROBATIONAL APPOINTMENT, BY VIRTUE OF THE ACT OF JULY 31, 1946, FIXING FOR COMPENSATION RATE PURPOSES, UPON PROBATIONAL APPOINTMENT, 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.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, FEBRUARY 21, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 27, 1947, REFERENCE 15, AS FOLLOWS:

THE ACT OF JULY 31, 1946, PUBLIC LAW 577, PROVIDES THAT EMPLOYEES COVERED BY THAT ACT WHO RECEIVE PROBATIONAL APPOINTMENTS UNDER SPECIFIED CONDITIONS SHALL FOR THE PURPOSE OF DETERMINING THEIR RATE OF PAY AND SENIORITY RIGHTS IN THE POSTAL FIELD SERVICE BE HELD TO HAVE BEEN APPOINTED TO SUCH POSITIONS AS OF THE EARLIEST DATE ON WHICH AN ELIGIBLE STANDING LOWER ON THE SAME LIST OF ELIGIBLES RECEIVED A PROBATIONAL APPOINTMENT THEREFROM. SECTION 3 OF THE ACT PROVIDES THAT IT SHALL TAKE EFFECT ON THE FIRST DAY OF THE CALENDAR MONTH FOLLOWING THE MONTH IN WHICH IT IS ENACTED. AS THE ACT WAS APPROVED JULY 31, 1946, THE EFFECTIVE DATE IS AUGUST 1, 1946.

INSTANCES ARE ARISING WHERE POSTAL EMPLOYEES SUBJECT TO PUBLIC LAW 577 ARE GIVEN PROBATIONAL APPOINTMENTS SUBSEQUENT TO AUGUST 1, 1946, BUT WHO WERE ACTUALLY SERVING AS POSTAL EMPLOYEES UNDER WAR SERVICE OR TEMPORARY APPOINTMENTS PRIOR TO AUGUST 1, 1946. IN SUCH INSTANCES SHOULD THE EMPLOYEE'S EFFECTIVE DATE FOR ANY SALARY CHANGE NECESSITATED THROUGH PUBLIC LAW 577 BE MADE RETROACTIVE TO AUGUST 1, 1946, IF HE WAS IN THE SERVICE ON OR BEFORE THAT DATE, OR SHOULD THE DATE HE RECEIVES A PROBATIONAL APPOINTMENT BE USED AS THE DATE THE SALARY ADJUSTMENT BECOMES EFFECTIVE IF SUBSEQUENT TO AUGUST 1, 1946?

FOR EXAMPLE, JOHN DOE IN THE NEW YORK CITY POST OFFICE WAS EMPLOYED AS A WAR SERVICE INDEFINITE EMPLOYEE ON MARCH 1, 1946, FOLLOWING HIS RELEASE FROM THE ARMED FORCES. MR. DOE'S NAME WAS RESTORED TO THE ELIGIBLE REGISTER AS HE HAD PREVIOUSLY LOST AN OPPORTUNITY FOR A PROBATIONAL APPOINTMENT BECAUSE OF HIS INDUCTION INTO THE ARMED FORCES; HIS STATUS WAS CHANGED FROM WAR SERVICE INDEFINITE TO PROBATIONAL ON NOVEMBER 15, 1946. UNDER PUBLIC LAW 577 HIS SENIORITY FOR PAY PURPOSES WILL DATE FROM MARCH 7, 1942, THE DATE THAT AN ELIGIBLE LOWER THAN HE WAS SELECTED FROM THE REGISTER. IN THIS INSTANCE WILL MR. DOE BE ELIGIBLE FOR THE BENEFITS OF PUBLIC LAW 577 AS OF AUGUST 1, 1946, AND BE ENTITLED TO A RETROACTIVE INCREASE IN PAY TO THAT DATE, OR WILL THE BENEFITS UNDER THIS LAW ACCRUE TO HIM ONLY SUBSEQUENT TO NOVEMBER 15, 1946, THE DATE HE RECEIVED HIS PROBATIONAL APPOINTMENT?

PUBLIC LAW 577, APPROVED JULY 31, 1946, 60 STAT. 749, IS " 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.' SO FAR AS MATERIAL TO THE FACTS HEREIN PRESENTED, THE SAID ACT DEFINES THE EMPLOYEES WHO ARE ELIGIBLE TO RECEIVE SUCH BENEFITS AS "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.) IN SETTING OUT THE BENEFITS CONFERRED THEREBY, THE SAID ACT FURTHER PROVIDES THAT THOSE EMPLOYEES WHO ARE WITHIN THE PURVIEW OF THE ABOVE-QUOTED PROVISIONS "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 * * *.' COMPARE DECISION OF NOVEMBER 7, 1946, B-61421, 26 COMP. GEN. 315. IN OTHER WORDS, WHEN AN ELIGIBLE WHO LOST OPPORTUNITY FOR A PROBATIONAL APPOINTMENT BECAUSE OF HIS ENTRANCE INTO THE MILITARY SERVICE HAS BEEN RESTORED TO THE ELIGIBLE LIST AND GIVEN SUCH APPOINTMENT, PURSUANT TO EXECUTIVE ORDER 9538, DATED APRIL 13, 1945, OR REGULATIONS OF THE CIVIL SERVICE COMMISSION COVERING SIMILAR SITUATIONS, PUBLIC LAW 577, SUPRA, REQUIRES THAT HIS SENIORITY RIGHTS AND INITIAL RATE OF COMPENSATION BE DETERMINED UPON THE BASIS OF THE STATUTE WHICH HE MIGHT HAVE ATTAINED HAD HE NOT ENTERED MILITARY SERVICE. HENCE, THE SAID ACT DOES NOT BECOME OPERATIVE WITH RESPECT TO A PARTICULAR ELIGIBLE UNTIL HE HAS BEEN GIVEN A PROBATIONAL APPOINTMENT; AND IN NO EVENT MAY ANY INCREASED RATE OF COMPENSATION OCCASIONED THEREBY BE MADE EFFECTIVE PRIOR TO THE DATE SUCH PROBATIONAL APPOINTMENT WAS RECEIVED.

THE EMPLOYEE WHOSE CASE IS EXEMPLIFIED IN YOUR LETTER LOST AN OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF HIS ENTRANCE INTO THE ARMED FORCES. AFTER HIS RELEASE, IT APPEARS THAT HIS NAME WAS RESTORED TO THE ELIGIBLE REGISTER PURSUANT TO EXECUTIVE ORDER 9538, SUPRA, BUT PENDING HIS CERTIFICATION FOR A PROBATIONAL APPOINTMENT AND SUBSEQUENT APPOINTMENT TO SUCH POSITION HE WAS EMPLOYED IN A WAR SERVICE INDEFINITE STATUS FROM MARCH 1, 1946. IT FURTHER APPEARS THAT HIS STATUS WAS NOT CHANGED FROM WAR-SERVICE INDEFINITE TO PROBATIONAL UNTIL NOVEMBER 15, 1946. WHILE IT MAY BE THAT ACTION COULD HAVE BEEN TAKEN MORE PROMPTLY TO CERTIFY THIS EMPLOYEE FOR PROBATIONAL APPOINTMENT, THE FACT REMAINS THAT SUCH ACTION WAS NOT TAKEN UNTIL NOVEMBER 15, 1946. THEREFORE, ANY INCREASED SALARY RATE ACCRUING TO HIM BY VIRTUE OF PUBLIC LAW 577, WHICH RELATES ONLY TO PROBATIONAL APPOINTMENTS, CLEARLY MAY NOT BE MADE EFFECTIVE PRIOR TO THAT DATE.