B-70507, JANUARY 27, 1948, 27 COMP. GEN. 399

B-70507, JANUARY 27, 1948, 27 COMP. GEN. 399

APPOINTMENTS - INITIAL SALARY RATES, ETC. - PERSONS ON LIST OF ELIGIBLES PRIOR TO MILITARY SERVICE APPOINTED AFTER SUCH SERVICE NOTWITHSTANDING THAT A PERSON WHO WAS ON A LIST OF ELIGIBLES FOR PROBATIONAL APPOINTMENT, BUT WHO LOST OPPORTUNITY FOR APPOINTMENT BECAUSE OF MILITARY SERVICE, MAY HAVE DECLINED, OR FAILED TO QUALIFY FOR, APPOINTMENT WHEN FIRST OFFERED AFTER MILITARY SERVICE. SUCH PERSON IS ENTITLED UNDER THE ACT OF JULY 31, 1946, UPON SUBSEQUENT APPOINTMENT, TO HAVE HIS SENIORITY AND INITIAL SALARY RATE ESTABLISHED ON THE BASIS THAT HE HAD RENDERED CONSTRUCTIVE SERVICE FROM THE DATE A LOWER ELIGIBLE RECEIVED PROBATIONAL APPOINTMENT TO THE DATE APPOINTMENT FIRST WAS OFFERED UPON RETURN FROM MILITARY SERVICE.

ACTING COMPTROLLER GENERAL YATES TO THE POSTMASTER GENERAL, JANUARY 27, 1948:

THERE HAS BEEN CONSIDERED LETTER DATED OCTOBER 21, 1947, REFERENCE 43, FROM YOUR PREDECESSOR, RELATIVE TO CERTAIN NAMED POSTAL EMPLOYEES WHO WERE GRANTED THE SALARY BENEFITS PROVIDED BY THE ACT OF JULY 31, 1946, PUBLIC LAW 577, AT THE TIME THEY WERE GIVEN PROBATIONAL APPOINTMENT AFTER THEIR RETURN FROM MILITARY SERVICE. BECAUSE OF DOUBT AS TO THE ELIGIBILITY OF THE SAID EMPLOYEES TO RECEIVE SUCH BENEFITS, THE POSTAL ACCOUNTS DIVISION OF THIS OFFICE HAS SUSPENDED THE AMOUNTS THEREOF IN THE ACCOUNTS OF THE POSTMASTER CONCERNED, PENDING DETERMINATION OF THE RIGHTS OF THE EMPLOYEES IN THAT RESPECT, AND YOUR PREDECESSOR'S LETTER REQUESTS DECISION "* * * AS TO WHETHER THEY ARE ENTITLED TO THE BENEFITS OF PUBLIC LAW 577, WHETHER THEIR RIGHTS ARE FROM THE TIME THAT THEY ORIGINALLY ENTERED MILITARY SERVICE OR FROM THE DATE OF LAST RESTORATION TO AN ELIGIBLE CERTIFICATE AFTER HAVING DECLINED OR HAVING FAILED TO QUALIFY FOR APPOINTMENT WHEN ORIGINALLY REACHED ON A CERTIFICATE OF ELIGIBLES. * * *"

THE PERTINENT FACTS CONCERNING EACH OF THE EMPLOYEES INVOLVED ARE SET FORTH IN CASE HISTORIES FORWARDED WITH THE SAID LETTER OF OCTOBER 21, IN PART AS FOLLOWS:

ANTHONY G. LAMANNA

MR. LAMANNA'S ORIGINAL RATING WAS 74, 88

DATE ELIGIBLE STANDING LOWER RECEIVED APPOINTMENT--- OCTOBER 25, 1943. BURDETT DICKERSON)

MR. LAMANNA WAS IN THE MILITARY SERVICE FROM 7-14-42 TO 11-11-45

HE WAS RESTORED TO THE REGISTER UNDER EXECUTIVE ORDER 9733. HIS NAME APPEARED ON CERT. M-8, DATED 4-11-46, AND WOULD HAVE BEEN APPOINTED ON 4- 25-46 TO THE POSITION OF PROB. SUB. GARAGEMAN DRIVER ( DRIVER MECHANIC). HE DECLINED APPOINTMENT AT THAT TIME. HE WAS RE RESTORED TO THE REGISTER AND HIS NAME APPEARED ON CERT. M-125, SUP. 1, DATED 2-3-47, FROM WHICH HE ACCEPTED APPOINTMENT AS PROB. SUB. GARAGEMAN DRIVER ( DRIVE. MECHANIC) ON FEBRUARY 13, 1947. * * *

SIDNEY EISENHANDLER

MR. EISENHANDLER'S ORIGINAL RATING WAS 74.92

DATE ELIGIBLE STANDING LOWER RECEIVED APPOINTMENT--- OCTOBER 25, 1943. BURDETT DICKERSON)

MR. EISENHANDLER WAS IN THE MILITARY SERVICE FROM 9-18-42 TO 10-20 45.

HE WAS RESTORED TO THE REGISTER UNDER EXECUTIVE ORDER 9733. HIS NAME APPEARED ON CERT. M-8, DATED 4-11-46, AND WOULD HAVE BEEN APPOINTED ON 4- 25-46 TO THE POSITION OF PROB. SUB. GARAGEMAN DRIVER ( DRIVER MECHANIC). HE DECLINED THE APPOINTMENT AT THAT TIME. HE WAS RE-RESTORED TO THE REGISTER AND HIS NAME APPEARED ON CERT. M-123, DATED 11-15-46, WITH A RATING 79.92P, FROM WHICH HE ACCEPTED PROBATIONAL APPOINTMENT AS A SUB. GARAGEMAN DRIVER ( DRIVER MECHANIC) ON DECEMBER 16, 1946. * * *

SOLOMON L. GOLDSTEIN

MR. GOLDSTEIN'S ORIGINAL RATING WAS 72.12

DATE ELIGIBLE STANDING LOWER RECEIVED APPOINTMENT--- OCT. 25, 1943. OSCAR W. NORDSTROM)

MR. GOLDSTEIN WAS IN THE MILITARY SERVICE FROM 1-30-42 TO 1-5-46

HE WAS RESTORED TO THE REGISTER UNDER EXECUTIVE ORDER 9538. HIS NAME APPEARED ON CERT. M-8, DATED 4-11-46, AND WAS APPOINTED ON 4-25 46. FAILED TO PERFORM ANY SERVICE AND THE APPOINTMENT WAS CANCELLED. HE WAS RE-RESTORED TO THE REGISTER AND HIS NAME APPEARED ON CERT. M-125, DATED 1- 9-47, WITH A RATING OF 77.12P, FROM WHICH HE ACCEPTED APPOINTMENT AS A PROB. SUB. GARAGEMAN DRIVER ( DRIVER MECHANIC) ON JANUARY 16, 1947. * *

NICHOLAS A. DELFINE

MR. DELFINE'S ORIGINAL RATING WAS 70.62

DATE ELIGIBLE STANDING LOWER RECEIVED APPOINTMENT--- OCTOBER 25, 1943. JOSEPH PANELLA)

MR. DELFINE WAS IN THE MILITARY SERVICE FROM 9-16-42 TO 12-18-45.

HE WAS RESTORED TO THE REGISTER UNDER EXECUTIVE ORDER 9733. HIS NAME APPEARED ON CERT. M-38, DATED 7-8-46, AND WOULD HAVE BEEN APPOINTED ON 8-1 -46 TO THE POSITION OF PROB. SUB. GARAGEMAN DRIVER ( DRIVER MECHANIC). HE FAILED TO PASS THE ROAD TEST AT THAT TIME. HE WAS RE RESTORED TO THE REGISTER AND HIS NAME APPEARED ON CERT. M-123, DATED 11-15-46, RATING 75.62P, FROM WHICH HE ACCEPTED PROBATIONAL APPOINTMENT AS A SUB. GARAGEMAN DRIVER ( DRIVE. MECH) ON DECEMBER 16, 1946. * * *

LOUIS BARBACCIA

MR. BARBACCIA'S ORIGINAL RATING WAS 73.50

DATE ELIGIBLE STANDING LOWER RECEIVED APPOINTMENT--- MAY 1, 1941. RUDOLPH STOKES)

MR. BARBACCIA WAS IN THE MILITARY SERVICE FROM 4-29-41 TO 10-16-41 AND FROM 2-23-42 TO 10-20-45 ( RECALLED)

HE WAS RESTORED TO THE REGISTER UNDER EXECUTIVE ORDER 9733. HIS NAME APPEARED ON CERT. M-8, SUP. 1, AND WOULD HAVE BEEN APPOINTED ON 4 25-46. HE DECLINED APPOINTMENT AT THAT TIME. HIS NAME WAS RE RESTORED TO THE REGISTER AND HIS NAME APPEARED ON CERT. M-38, DATED 7 8-46, HE FAILED TO PASS THE " ROAD TEST" AND WAS NOT SELECTED. HE WAS RE-RESTORED TO THE REGISTER AND HIS NAME APPEARED ON CERT. M-123, DATED 11-15-46, WITH A RATING OF 78.50P, FROM WHICH HE ACCEPTED PROBATIONAL APPOINTMENT AS A SUB. GARAGEMAN DRIVER ( DRIVER MECHANIC) ON DECEMBER 16, 1946. * * *

JOHN SCORZA

MR. SCORZA'S ORIGINAL RATING WAS 80.34

DATE ELIGIBLE STANDING LOWER RECEIVED APPOINTMENT--- SEPT. 16, 1943. ANTHONY RESTIANO)

MR. SCORZA WAS IN THE MILITARY SERVICE FROM 9-7-42 TO 11-7-45.

HE WAS RESTORED TO THE REGISTER UNDER EXECUTIVE ORDER 9733. HIS NAME APPEARED ON CERT. M-8, DATED 4-11-46, AND WOULD HAVE BEEN APPOINTED ON 4- 25-46 TO THE POSITION OF PROB. SUB. GARAGEMAN DRIVER ( DRIVE. MECH.). HE DECLINED THE APPOINTMENT AT THAT TIME. HE WAS RE-RESTORED TO THE REGISTER AND HIS NAME APPEARED ON CERT. M-123, DATED 11-15-46, FROM WHICH HE ACCEPTED PROBATIONAL APPOINTMENT AS A SUB. GARAGEMAN DRIVER ( DRIVER MECHANIC) ON DECEMBER 16, 1946. * * *

FOR THE PURPOSE OF FIXING THE INITIAL RATE OF COMPENSATION, EACH OF THE SAID EMPLOYEES WAS REGARDED AS HAVING BEEN APPOINTED ON THE DATE THE FIRST ELIGIBLE STANDING LOWER ON THE REGISTER RECEIVED APPOINTMENT ( PUBLIC LAW 577). HOWEVER, CREDIT WAS NOT ALLOWED FOR ANY PERIOD SUBSEQUENT TO THE DATE ON WHICH THE EMPLOYEE WOULD HAVE BEEN APPOINTED HAD HE ACCEPTED, OR OTHERWISE QUALIFIED FOR, THE APPOINTMENT FIRST OFFERED HIM AFTER HIS RETURN FROM MILITARY SERVICE. FOR EXAMPLE, IN THE CASE OF ANTHONY G. LAMANNA, IF HE HAD NOT REFUSED THE APPOINTMENT FIRST OFFERED HE WOULD HAVE RECEIVED APPOINTMENT ON APRIL 25, 1946. HOWEVER, SINCE HE DID NOT ACCEPT APPOINTMENT UNTIL FEBRUARY 13, 1947, CREDIT FOR THE PERIOD APRIL 25, 1946 TO FEBRUARY 12, 1947, WAS NOT ALLOWED IN FIXING HIS RATE OF COMPENSATION.

THE ACT OF JULY 31, 1946, PUBLIC LAW 577 (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" ( 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.)

THUS, IN DETERMINING THE RIGHT OF AN EMPLOYEE TO RECEIVE THE BENEFITS OF THE SAID ACT, IT MUST BE KEPT IN MIND THAT THE BASIC PURPOSE OF THE LAW IS TO GRANT A VETERAN WHO LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF HIS MILITARY SERVICE, SALARY AND SENIORITY BENEFITS COMPARABLE WITH THOSE WHICH HE MIGHT HAVE OBTAINED HAD HE NOT ENTERED THE ARMED FORCES. IN ORDER THAT A VETERAN MAY BE REGARDED AS HAVING LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT TO A POSITION IN THE POSTAL SERVICE BECAUSE OF HIS MILITARY SERVICE, HIS NAME MUST HAVE APPEARED ON A LIST OF ELIGIBLES AT ANY TIME BETWEEN MAY 1, 1940, AND OCTOBER 23, 1943; HE MUST HAVE ENTERED THE ARMED FORCES BETWEEN SUCH DATES; AND SOME ELIGIBLE STANDING LOWER THAN HE ON THE CIVIL SERVICE LIST MUST HAVE RECEIVED PROBATIONAL APPOINTMENT THEREFROM ( EXECUTIVE ORDER 9538 OF APRIL 13, 1945, AS AMENDED).

DURING THE PERIOD FROM OCTOBER 23, 1943, TO APRIL 14, 1945--- THE EFFECTIVE DATE OF EXECUTIVE ORDER NO. 9538, WHICH AGAIN AUTHORIZED PROBATIONAL APPOINTMENTS--- APPOINTMENTS IN THE POSTAL SERVICE WERE LIMITED TO WAR SERVICE APPOINTMENTS, AS DISTINGUISHED FROM PROBATIONAL APPOINTMENTS. HENCE, AN ELIGIBLE WHO, BUT FOR HIS MILITARY SERVICE, WOULD HAVE RECEIVED AN APPOINTMENT DURING THE PERIOD CANNOT BE SAID TO HAVE LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT. HOWEVER, BY CIVIL SERVICE COMMISSION CIRCULAR LETTER NO. 4073, SUPPLEMENT NO. 2, DATED OCTOBER 23, 1943, IT IS PROVIDED:

WHERE A CERTIFICATE OF ELIGIBLES WAS ISSUED FOR PROBATIONAL APPOINTMENT ON OR BEFORE THE EFFECTIVE DATE OF THESE REGULATIONS ( OCTOBER 23, 1943), ANY APPOINTEE SELECTED THEREFROM WILL BE ACCORDED A CLASSIFIED CIVIL SERVICE STATUS IF THE SELECTION IS IN REGULAR ORDER AND PROPERLY REPORTED- -- AND THE APPOINTEE ENTERS ON DUTY ON OR BEFORE NOVEMBER 23, 1943. ALL APPOINTMENTS MADE FROM CERTIFICATES OF ELIGIBLES ISSUED SUBSEQUENT TO OCTOBER 23, 1943, OR FROM REGISTERS OF ELIGIBLES ESTABLISHED AFTER THAT DATE, WILL BE APPROVED UNDER WAR SERVICE REGULATIONS.

CONSEQUENTLY, IN THE REFERRED-TO CASES OF ANTHONY G. LAMANNA, SIDNEY EISENHANDLER, SOLOMON L. GOLDSTEIN, AND NICHOLAS A. DELFINE, WHERE THE NEXT LOWER ELIGIBLE ON THE LIST WAS APPOINTED ON OCTOBER 25, 1943--- ONLY TWO DAYS SUBSEQUENT TO THE LAST DATE UPON WHICH PROBATIONAL APPOINTMENTS GENERALLY WERE GIVEN--- IT WOULD APPEAR THAT SUCH LOWER ELIGIBLES PROBABLY MET THE REQUIREMENTS OF THE QUOTED CIRCULAR LETTER AND RECEIVED PROBATIONAL APPOINTMENTS IN THE SAME MANNER AS THE LOWER ELIGIBLES IN THE CASES OF LOUIS BARBACCIA, AND JOHN SCORZA, WHO WERE APPOINTED PRIOR TO OCTOBER 23, 1943. IF SO, EACH OF THE VETERANS PROPERLY IS TO BE CONSIDERED AS HAVING LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF MILITARY SERVICE DURING WORLD WAR II, AS CONTEMPLATED BY PUBLIC LAW 577.

IN EACH OF THE CASES HERE CONSIDERED, THE OPPORTUNITY WHICH THE VETERAN LOST WHEN THE LOWER ELIGIBLE ON THE SAME LIST WAS GIVEN A PROBATIONAL APPOINTMENT WHILE THE VETERAN WAS IN THE MILITARY SERVICE WAS OFFERED TO HIM AFTER THE TERMINATION OF SUCH SERVICE. IN ONE INSTANCE, THE VETERAN FAILED TO QUALIFY FOR APPOINTMENT AND IN THE OTHER INSTANCES THE VETERANS DECLINED APPOINTMENT, EITHER EXPRESSLY OR BY FAILING TO PERFORM SERVICE THEREUNDER. HOWEVER, ALL SUBSEQUENTLY WERE GIVEN PROBATIONAL APPOINTMENTS, EITHER EXPRESSLY OR BY FAILING TO PERFORM SERVICE THEREUNDER. HOWEVER, ALL SUBSEQUENTLY WERE GIVEN PROBATIONAL APPOINTMENTS IN THE POSTAL SERVICE UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 9733, WHICH SUPERSEDED EXECUTIVE ORDER NO. 9538 MENTIONED IN PUBLIC LAW 577; AND, AS STATED ABOVE, CREDIT WAS ALLOWED ADMINISTRATIVELY, UNDER THE PROVISIONS OF THAT STATUTE, FOR CONSTRUCTIVE SERVICE IN EACH CASE FOR THE PERIOD FROM THE DATE OF APPOINTMENT OF THE LOWER ELIGIBLE ON THE LIST TO THE DATE UPON WHICH THE "OPPORTUNITY" FOR APPOINTMENT FIRST BECAME AVAILABLE TO THE VETERAN -- REGARDLESS OF THE ACTUAL DATE OF APPOINTMENT.

THERE IS FOR CONSIDERATION THE EFFECT UPON THE VETERANS' RIGHTS UNDER THE STATUTE OF THEIR REFUSAL OF, OR DISQUALIFICATION FOR, PROBATIONAL APPOINTMENT WHEN FIRST OFFERED TO THEM AFTER TERMINATION OF THEIR MILITARY SERVICE. THE VIEW MIGHT BE TAKEN THAT WHERE A VETERAN, OTHERWISE WITHIN THE PURVIEW OF PUBLIC LAW 577, REFUSES OR FAILS TO QUALIFY FOR THE FIRST APPOINTMENT OFFERED HIM AFTER MILITARY SERVICE--- EVEN THOUGH HE SUBSEQUENTLY ACCEPTS PROBATIONAL APPOINTMENT UNDER THE CONDITIONS SPECIFIED IN THE STATUTE--- HE IS TO BE REGARDED AS HAVING WAIVED OR FORFEITED, AS THE CASE MAY BE, HIS RIGHTS UNDER THE STATUTE. HOWEVER, NEITHER THE CONTROLLING EXECUTIVE ORDER NOR PUBLIC LAW 577 CONTAINS ANY LANGUAGE SPECIFICALLY LIMITING THE BENEFITS AUTHORIZED THEREUNDER TO THOSE VETERANS WHO ACCEPT THE FIRST APPOINTMENT OFFERED TO THEM AFTER MILITARY SERVICE. AND NEITHER DOES IT APPEAR THAT SUCH A RESTRICTION IS CONTEMPLATED BY THE APPLICABLE CIVIL SERVICE COMMISSION INSTRUCTIONS AND PROCEDURE IN SUCH MATTERS. IN FACT, THERE CAN BE VISUALIZED SITUATIONS IN WHICH SUCH A RESTRICTIVE VIEW OF THE STATUTE WOULD PRODUCE HARSH AND PROBABLY UNINTENDED RESULTS. ACCORDINGLY, IN THE ABSENCE OF A CLEAR SHOWING OF AN INTENT ON THE PART OF THE CONGRESS TO THE CONTRARY, THIS OFFICE IS NOT REQUIRED TO OBJECT TO THE VIEW OF THE OPERATION OF THE STATUTE ADMINISTRATIVELY TAKEN BY THE POST OFFICE DEPARTMENT IN FIXING THE INITIAL RATES OF COMPENSATION IN THE CASES HERE INVOLVED.

IN THE LIGHT OF THE FOREGOING, YOU ARE ADVISED THAT THE REFERRED-TO EXCEPTIONS TAKEN IN THE ACCOUNTS OF THE POSTMASTER AT NEW YORK, NEW YORK, WILL BE REMOVED, IF THE PAYMENTS OTHERWISE ARE CORRECT.