B-63971, MARCH 4, 1947, 26 COMP. GEN. 651

B-63971, MARCH 4, 1947, 26 COMP. GEN. 651

APPOINTMENTS - INITIAL SALARY RATES, ETC. - PERSONS ON LIST OF ELIGIBLES PRIOR TO MILITARY SERVICE APPOINTED AFTER SUCH SERVICE PROVIDED THE CIVIL SERVICE COMMISSION DETERMINES THAT A PERSON'S FAILURE PRIOR TO MILITARY SERVICE TO ACCEPT A PROBATIONAL APPOINTMENT FROM A LIST OF ELIGIBLES DID NOT REMOVE HIS NAME FROM THE LIST AND THAT IT REMAINED THEREON UNTIL AFTER HE HAD ENTERED THE MILITARY SERVICE AND A LOWER ELIGIBLE WAS APPOINTED, SUCH PERSON, UPON PROBATIONAL APPOINTMENT AFTER MILITARY SERVICE, IS ENTITLED UNDER THE ACT OF JULY 31, 1946, AS HAVING LOST OPPORTUNITY FOR APPOINTMENT BECAUSE OF MILITARY SERVICE, TO BE CONSIDERED FOR COMPENSATION RATE PURPOSES AS HAVING BEEN APPOINTED AS OF THE DATE A LOWER ELIGIBLE WAS APPOINTED SUBSEQUENT TO HIS ENTRY INTO MILITARY SERVICE. COMPARE 26 COMP. GEN. 485.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 4, 1947:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF FEBRUARY 20, 1947, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF JANUARY 13, 1947 (B-62298) TO THE POSTMASTER GENERAL RELATIVE TO THE INTERPRETATION OF THE ACT OF JULY 31, 1946 ( PUBLIC LAW 577-79TH CONGRESS). REFERENCE IS MADE ALSO TO YOUR DECISION OF JANUARY 22, 1947 (B-62611) ADDRESSED TO THIS OFFICE DISCUSSING SEVERAL QUESTIONS INVOLVING THE INTERPRETATION OF THE SAME STATUTE.

WHILE THESE TWO DECISIONS ESTABLISH DEFINITELY THAT ANY BENEFITS CONFERRED BY PUBLIC LAW 577 MUST BE BASED ON A LOSS OF OPPORTUNITY FOR PROBATIONAL APPOINTMENT TO THE GOVERNMENT SERVICE WHICH WAS DIRECTLY OCCASIONED BY MILITARY SERVICE OR IMMINENCE OF MILITARY SERVICE, THERE REMAINS FOR DECISION A QUESTION IN THE CASE OF VETERANS WHO WERE APPOINTED UNDER EXECUTIVE ORDER NO. 9538 WHO PRIOR TO THEIR ULTIMATE APPOINTMENT LOST OPPORTUNITY FOR APPOINTMENT ON A NUMBER OF DIFFERENT OCCASIONS, SOME OF WHICH WERE NOT ATTRIBUTABLE TO MILITARY SERVICE AND SOME OF WHICH WERE.

CASE (D) OF THE EXAMPLES DISCUSSED IN YOUR DECISION OF JANUARY 13, 1947 TO THE POSTMASTER GENERAL WILL ILLUSTRATE THE QUESTION CONCRETELY. THAT CASE IS SUBSTANTIALLY AS FOLLOWS:

"/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.'

WHILE YOUR DECISION HOLDS THAT THE ELIGIBLE IN QUESTION DID NOT LOSE OPPORTUNITY FOR PROBATIONAL APPOINTMENT FOR REASONS SEPARATE AND APART FROM HIS MILITARY SERVICE, AND IS THEREFORE NOT ENTITLED TO THE BENEFITS OF PUBLIC LAW 577, THE COMMISSION TAKES THIS DECISION TO HAVE REFERENCE SOLELY TO THE QUESTION WHETHER THE BENEFITS OF THIS LAW MAY BE DATED BACK TO JANUARY 1, 1943, THE DATE OF THE ORIGINAL LOSS OF OPPORTUNITY FOR APPOINTMENT WHICH HAD NO CONNECTION WITH MILITARY SERVICE. IT IS THE COMMISSION'S UNDERSTANDING, HOWEVER, AND THIS UNDERSTANDING IS SUPPORTED BY YOUR DECISION OF JANUARY 22, 1947, THAT SUCH ELIGIBLE NEVERTHELESS IS ENTITLED TO THE BENEFITS OF PUBLIC LAW 577 AS OF THE FIRST DATE AFTER HE ENTERED THE MILITARY SERVICE ON WHICH AN ELIGIBLE STANDING LOWER ON THE REGISTER RECEIVED PROBATIONAL APPOINTMENT.

AN EXPLANATION OF THE COMMISSION'S PROCEDURES AND REGULATIONS WITH RESPECT TO THE CERTIFICATION OF ELIGIBLES MAY PERHAPS CLARIFY THE STATUS OF ELIGIBLES WHO DECLINED OR ARE UNABLE TO ACCEPT A PROFFER OF PROBATIONAL APPOINTMENT. IN GENERAL, IN RESPONSE TO THE REQUEST OF AN APPOINTING OFFICER FOR ELIGIBLES FOR A CERTAIN POSITION THE COMMISSION CERTIFIES THE NAMES OF THE ELIGIBLES STANDING HIGHEST ON THE APPROPRIATE CIVIL SERVICE REGISTER IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED IN THE CIVIL SERVICE RULES. A TENDER OF PROBATIONAL APPOINTMENT IS THEN MADE BY THE APPOINTING OFFICER TO THE ELIGIBLES CERTIFIED AND THE APPOINTING OFFICER IS REQUIRED TO REPORT TO THE COMMISSION THE ACTION ULTIMATELY TAKEN WITH RESPECT TO SUCH ELIGIBLES; FOR PLE,"APPOINTED," "DECLINED," "FAILED TO REPLY," "NOT SELECTED," ETC. IN NORMAL TIMES, IT IS THE COMMISSION'S PROCEDURE TO ADDRESS A LETTER OF INQUIRY TO ELIGIBLES WHO ARE REPORTED AS HAVING DECLINED OR FAILED TO REPLY, TO ASCERTAIN WHETHER THEY DESIRE FURTHER CERTIFICATION FOR PROBATIONAL APPOINTMENT IN THE FUTURE. IF THE REPLY IS IN THE AFFIRMATIVE, THE ELIGIBLE'S NAME IS RETAINED ON THE REGISTER FOR FURTHER CERTIFICATION. BECAUSE OF THE PRESSURE OF WORK DURING THE WAR PERIOD, HOWEVER, THE PRACTICE OF SENDING SUCH LETTERS OF INQUIRY WAS DISCONTINUED IN MANY CASES, BUT ELIGIBLES WHO DECLINED OR FAILED TO REPLY TO THE FIRST OFFER OF APPOINTMENT WERE PASSED OVER IN FURTHER CERTIFICATION UNTIL THEY TOOK THE INITIATIVE TO ADVISE THE COMMISSION OF THEIR DESIRE TO BE CONSIDERED. IN VIEW OF THESE CIRCUMSTANCES THE COMMISSION, THEREFORE, BELIEVES THAT ELIGIBLES WHO DECLINED OR WERE UNABLE TO ACCEPT OFFERS OF PROBATIONAL APPOINTMENT CONTINUED TO REMAIN ON THE REGISTER OF ELIGIBLES WITHIN THE MEANING OF PUBLIC LAW 577. EACH TIME AN ELIGIBLE STANDING LOWER ON THE REGISTER WAS APPOINTED, THEREFORE, THE HIGHER ELIGIBLE MUST BE CONSIDERED TO HAVE LOST AN OPPORTUNITY FOR PROBATIONAL APPOINTMENT INASMUCH AS THE HIGHER ELIGIBLE COULD HAVE BEEN CERTIFIED UPON REQUEST. UPON ENTERING THE MILITARY SERVICE, OF COURSE, A REQUEST BY SUCH AN ELIGIBLE FOR THE RESUMPTION OF CERTIFICATION OF HIS NAME WOULD BE MERELY AN EMPTY GESTURE AND THE COMMISSION BELIEVES, ACCORDINGLY, THAT SUCH ELIGIBLE MUST BE REGARDED AS HAVING LOST OPPORTUNITY FOR APPOINTMENT ON ACCOUNT OF MILITARY SERVICE WHENEVER SUBSEQUENT TO THAT DATE ANOTHER ELIGIBLE STANDING LOWER ON THE REGISTER WAS APPOINTED. ANY OTHER VIEW WOULD CONFER AN ADVANTAGE UPON ELIGIBLES WHO STAND LOWEST ON THE REGISTER AS AGAINST THOSE WHO QUALIFIED WITH THE HIGHEST RATINGS IN THE EXAMINATION. THAT IS, THE HIGHER ELIGIBLES HAVING BEEN OFFERED APPOINTMENT UNTIL AFTER ENTRY IN THE MILITARY SERVICE WOULD BE ENTITLED TO ITS BENEFITS.

THE COMMISSION IS, THEREFORE, OF THE OPINION THAT IN THE ADMINISTRATION OF PUBLIC LAW 577 WHENEVER A PERSON OTHERWISE ELIGIBLE FOR PROBATIONAL APPOINTMENT FROM A COMPETITIVE REGISTER ENTERED THE MILITARY SERVICE, ANY APPOINTMENT OF A LOWER ELIGIBLE SUBSEQUENT TO THAT DATE IPSO FACTO ENTITLED THE HIGHER ELIGIBLE TO THE BENEFITS OF PUBLIC LAW 577 AS OF THAT DATE UPON HIS ULTIMATELY BEING APPOINTED UNDER EXECUTIVE ORDER NO. 9538.

WE WILL APPRECIATE AN EARLY DECISION BY YOUR OFFICE ON THIS QUESTION INASMUCH AS IT HAS COME TO THE ATTENTION OF THE COMMISSION THAT THERE ARE A LARGE NUMBER OF EMPLOYEES IN THE GOVERNMENT SERVICE WHOSE SALARIES WILL REQUIRE ADJUSTMENT IN THE LIGHT OF YOUR DECISION.

IT IS CORRECT, AS STATED BY YOU, THAT THE DECISION OF JANUARY 13, 1947, B -62298, 26 COMP. GEN. 485, SO FAR AS EXAMPLE (D) IS CONCERNED, MERELY PASSED UPON THE QUESTION OF THE EFFECT OF THE EMPLOYEE'S FAILURE TO RECEIVE A PROBATIONAL APPOINTMENT JANUARY 1, 1943--- NOTHING APPEARING, OR BEING SUGGESTED, THEREIN THAT, AFTER AN ELIGIBLE HAD BEEN OFFERED A POSITION AND DECLINED, HIS NAME WAS NOT REMOVED FROM THE ELIGIBLE LIST.

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

THE DETERMINATION OF WHEN OR HOW LONG THE INDIVIDUAL'S NAME MAY REMAIN ON AN ELIGIBLE LIST IS A MATTER PECULIARLY WITHIN THE JURISDICTION OF THE UNITED STATES CIVIL SERVICE COMMISSION AND, ACCORDINGLY, IF IT BE DETERMINED BY YOUR COMMISSION THAT THE FAILURE TO ACCEPT A TENDERED PROBATIONAL APPOINTMENT DID NOT REMOVE THE INDIVIDUAL'S NAME FROM THE ELIGIBLE LIST AND THIS NAME REMAINED THEREON UNTIL AFTER THE DATE HE ENTERED THE MILITARY SERVICE AND AFTER AN ELIGIBLE LOWER ON THE LIST HAD BEEN GIVEN A PROBATIONAL APPOINTMENT, THIS OFFICE, BASED UPON SUCH DETERMINATION BY THE CIVIL SERVICE COMMISSION, WOULD CONCUR IN YOUR EXPRESSED OPINION, QUOTING FROM YOUR SUBMISSION:

THAT IN THE ADMINISTRATION OF PUBLIC LAW 577 WHENEVER A PERSON OTHERWISE ELIGIBLE FOR PROBATIONAL APPOINTMENT FROM A COMPETITIVE REGISTER ENTERED THE MILITARY SERVICE, ANY APPOINTMENT OF A LOWER ELIGIBLE SUBSEQUENT TO THAT DATE IPSO FACTO ENTITLED THE HIGHER ELIGIBLE TO THE BENEFITS OF PUBLIC LAW 577 AS OF THAT DATE UPON HIS ULTIMATELY BEING APPOINTED UNDER EXECUTIVE ORDER NO. 9538.

SUBJECT, OF COURSE, TO THE QUALIFICATION THAT THE BENEFITS OF THE STATUTE ARE EXTENDED, ALSO, TO THOSE WHOSE FAILURE TO RECEIVE A PROBATIONAL APPOINTMENT WAS DUE TO THE IMMINENCE OF THEIR INDUCTION INTO THE ARMED FORCES. SEE DECISIONS OF JANUARY 13, 1947, B-62298, SUPRA, AND JANUARY 22, 1947, B-62611, 26 COMP. GEN. 518.