B-72391, FEBRUARY 11, 1948, 27 COMP. GEN. 449

B-72391: Feb 11, 1948

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WHICH IS BASED UPON A REAPPRAISAL OF THE CURRENT VALUE OF A PARTICULAR INDIVIDUAL'S SERVICES RATHER THAN UPON THE CHANGED RESPONSIBILITIES AND DUTIES ATTACHING TO A POSITION. AS FOLLOWS: I HAVE THE HONOR TO REFER TO THE SECOND DEFICIENCY APPROPRIATION ACT. THAT THIS PROHIBITION SHALL NOT APPLY TO THE INITIAL CREATION OF POSITIONS TO CARRY OUT NEW PROGRAMS OR FUNCTIONS FOR WHICH SPECIFIC APPROPRIATIONS ARE MADE AVAILABLE.'. NURSES IN THIS DEPARTMENT ARE BASED UPON THE QUALIFICATIONS OF THE INDIVIDUALS CONCERNED. PAY RANGES ARE PROVIDED IN SEVERAL GRADES AS OUTLINED IN SECTION 7 OF THE STATUTE. POSITIONS ARE NOT SET UP AS IN THE CLASSIFIED CIVIL SERVICE WITH THE GRADE DETERMINED BY THE DUTIES ASSIGNED TO THE PARTICULAR POSITION.

B-72391, FEBRUARY 11, 1948, 27 COMP. GEN. 449

COMPENSATION - DOCTORS, DENTISTS, AND NURSES OF VETERANS' ADMINISTRATION - SALARY ADJUSTMENT AS CONSTITUTING ALLOCATION OR REALLOCATION ANY CHANGE IN THE SALARY RATES PAID TO DOCTORS, DENTISTS, OR NURSES IN THE DEPARTMENT OF MEDICINE AND SURGERY, VETERANS' ADMINISTRATION, PURSUANT TO THE ACT OF JANUARY 3, 1946, AND REGULATIONS THEREUNDER, WHICH IS BASED UPON A REAPPRAISAL OF THE CURRENT VALUE OF A PARTICULAR INDIVIDUAL'S SERVICES RATHER THAN UPON THE CHANGED RESPONSIBILITIES AND DUTIES ATTACHING TO A POSITION, NEED NOT BE REGARDED AS AN ALLOCATION OR REALLOCATION OF A POSITION TO A HIGHER GRADE OR THE CREATION OF A NEW POSITION WITHIN THE MEANING OF SECTION 400 OF THE SECOND DEFICIENCY APPROPRIATION ACT, 1947, SUCH AS WOULD PRECLUDE THE PAYMENT OF THE INCREASED COSTS RESULTING FROM SUCH SALARY CHANGES.

ACTING COMPTROLLER GENERAL YATES TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, FEBRUARY 11, 1948:

CONSIDERATION HAS BEEN GIVEN A LETTER DATED DECEMBER 29, 1947, SIGNED BY THE ACTING ADMINISTRATOR, AS FOLLOWS:

I HAVE THE HONOR TO REFER TO THE SECOND DEFICIENCY APPROPRIATION ACT, 1947, SECTION 400 OF WHICH PROVIDES THAT:

"NO APPROPRIATION OR FUND MADE AVAILABLE BY THIS OR ANY OTHER APPROPRIATION ACT TO THE EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS INCLUDING CORPORATIONS, FOR PERSONAL SERVICES SHALL BE AVAILABLE TO PAY ANY INCREASED COST RESULTING FROM THE ALLOCATION OR REALLOCATION HEREAFTER OF A POSITION TO A HIGHER GRADE, OR RESULTING FROM THE CREATION OF A NEW POSITION, IF SUCH INCREASED COST WOULD RESULT IN AN INCREASE IN THE TOTAL OBLIGATIONS ON AN ANNUAL BASIS UNDER SUCH APPROPRIATION OR FUND: PROVIDED, THAT THIS PROHIBITION SHALL NOT APPLY TO THE INITIAL CREATION OF POSITIONS TO CARRY OUT NEW PROGRAMS OR FUNCTIONS FOR WHICH SPECIFIC APPROPRIATIONS ARE MADE AVAILABLE.'

THE QUESTION HAS ARISEN AS TO THE EFFECT OF THIS PROVISION ON PERSONNEL IN THE DEPARTMENT OF MEDICINE AND SURGERY OF THE VETERANS' ADMINISTRATION. APPOINTMENTS AND PROMOTIONS OF DOCTORS, DENTISTS, AND NURSES IN THIS DEPARTMENT ARE BASED UPON THE QUALIFICATIONS OF THE INDIVIDUALS CONCERNED. PAY RANGES ARE PROVIDED IN SEVERAL GRADES AS OUTLINED IN SECTION 7 OF THE STATUTE; BUT IN GRADING DOCTORS, DENTISTS, AND NURSES, POSITIONS ARE NOT SET UP AS IN THE CLASSIFIED CIVIL SERVICE WITH THE GRADE DETERMINED BY THE DUTIES ASSIGNED TO THE PARTICULAR POSITION. THE GRADE GIVEN IS DETERMINED BY THE QUALIFICATIONS OF THE PERSON AND THE QUALITY OF PROFESSIONAL SERVICE RENDERED. BASIC EMPHASIS CENTERS UPON QUALIFICATIONS OF THE EMPLOYEE AND NOT UPON A "POSITION.' ALTHOUGH SECTION 7 DOES USE THE WORD "POSITIONS" IN CONNECTION WITH GRADES AND PAY RANGES, IT IS SUBMITTED THAT IT IS NOT USED IN THE SAME SENSE AS THE WORD "POSITIONS" IN THE CLASSIFIED CIVIL SERVICE.

FOR YOUR INFORMATION, THE FOLLOWING IS QUOTED FROM VETERANS' ADMINISTRATION MANUAL M4-3, APPENDIX A ( APPOINTMENTS AND OTHER PERSONNEL MATTERS PERTAINING TO PHYSICIANS, DENTISTS AND NURSES, DEPARTMENT OF MEDICINE AND SURGERY), PAGE 85:

"4. PROMOTIONS.--- A. PROMOTIONS OF DOCTORS OF MEDICINE, DENTISTS, AND NURSES WILL BE MADE AND BASED UPON THE HIGH QUALITY OF PROFESSIONAL SERVICE RENDERED IN ACCORDANCE WITH CURRENT DIRECTIVES, AFTER EXAMINATION IS GIVEN IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE ADMINISTRATOR EXCEPT FOR TIME WITHIN-GRADE PROMOTIONS. PROMOTIONS, OTHER THAN AUTOMATIC WITHIN-GRADE, WILL BE RECOMMENDED BY THE CHIEF MEDICAL DIRECTOR FOLLOWING:

"/1) HIGH STANDARD OF PERFORMANCE OF SERVICE AND SATISFACTORY COMPLETION OF PROFESSIONAL EXAMINATIONS DEMONSTRATING ABILITY TO PERFORM THE DUTIES AND RESPONSIBILITIES OF A HIGHER GRADE POSITION, AS DETERMINED BY PROMOTION BOARDS ESTABLISHED BY THE CHIEF MEDICAL DIRECTOR, IN ACCORDANCE WITH CURRENT DIRECTIVES.

"/2) CONFORMITY WITH PHYSICAL STANDARDS ESTABLISHED BY THE CHIEF MEDICAL DIRECTOR AS DETERMINED BY PHYSICAL EXAMINATION.'

YOUR DECISION IS REQUESTED AS TO WHETHER SECTION 400, PUBLIC LAW 76, 80TH CONGRESS, IS APPLICABLE TO PROMOTIONS IN THE DEPARTMENT OF MEDICINE AND SURGERY OR WHETHER, IN VIEW OF THE GENERAL INTENT OF CONGRESS IN THE ENACTMENT OF PUBLIC LAW 293, 79TH CONGRESS, TO PROVIDE A COMPLETE MEDICAL AND HOSPITAL SERVICE FOR THE VETERANS ADMINISTRATION WITHOUT REGARD TO THE PRINCIPLES EMBODIED IN THE CLASSIFICATION ACT, AS AMENDED, THE PROMOTION REGULATIONS PROMULGATED UNDER PUBLIC LAW 293, 79TH CONGRESS, MAY BE APPLIED WITHOUT REFERENCE TO SAID SECTION 400. YOUR IMMEDIATE ADVICES WILL BE APPRECIATED.

IN ADDITION TO THE REGULATIONS QUOTED IN THE LETTER, SUPRA, THERE ARE FOR NOTING THE PROVISIONS OF SECTIONS 4 (A), 6 (A), 6 (C), 6 (D), 7 (A), 10 (A), 10 (D), AND 15, OF THE ACT OF JANUARY 3, 1946, 59 STAT. 675, 676, 677, 678, 679, ESTABLISHING THE DEPARTMENT OF MEDICINE AND SURGERY IN THE VETERANS' ADMINISTRATION, AS FOLLOWS:

SEC. 4. THERE SHALL BE APPOINTED BY THE ADMINISTRATOR ADDITIONAL PERSONNEL AS HE MAY FIND NECESSARY FOR THE MEDICAL CARE OF VETERANS, AS FOLLOWS:

(A) DOCTORS, DENTISTS, AND NURSES;

SEC. 6. (A) APPOINTMENTS OF DOCTORS, DENTISTS, AND NURSES SHALL BE MADE ONLY AFTER QUALIFICATIONS HAVE BEEN SATISFACTORILY ESTABLISHED IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE ADMINISTRATOR, WITHOUT REGARD TO CIVIL-SERVICE REQUIREMENTS.

(C) PROMOTIONS OF DOCTORS, DENTISTS, AND NURSES SHALL BE MADE ONLY AFTER EXAMINATION GIVEN IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE ADMINISTRATOR. AUTOMATIC PROMOTIONS WITHIN GRADE MAY BE MADE IN INCREMENTS OF THE MINIMUM PAY OF THE GRADE IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE ADMINISTRATOR.

(D) DOCTORS, DENTISTS, AND NURSES IN THE PRESENT MEDICAL SERVICE SHALL BE CONTINUED IN THEIR PRESENT POSITIONS UNTIL THE ADMINISTRATOR SHALL HAVE DETERMINED THEIR QUALIFICATIONS AS PROVIDED IN SUBSECTION (A) OF THIS SECTION.

SEC. 7. (A) THE GRADES AND PER ANNUM FULL-PAY RANGES FOR POSITIONS PROVIDED IN SUBSECTION (A) OF SECTION 4 OF THIS ACT SHALL BE AS FOLLOWS:

MEDICAL SERVICE CHIEF GRADE, $8,750 MINIMUM TO $9,800 MAXIMUM. SENIOR GRADE, $7,175 MINIMUM TO $8,225 MAXIMUM. INTERMEDIATE GRADE, $6,230 MINIMUM TO $7,070 MAXIMUM. FULL GRADE, $5,180 MINIMUM TO $6,020 MAXIMUM. ASSOCIATE GRADE, $4,300 MINIMUM TO $5,180 MAXIMUM. JUNIOR GRADE, $3,640 MINIMUM TO $4,300 MAXIMUM.

DENTAL SERVICE SENIOR GRADE, $7,175 MINIMUM TO $8,225 MAXIMUM. INTERMEDIATE GRADE, $6,230 MINIMUM TO $7,070 MAXIMUM. FULL GRADE, $5,180 MINIMUM TO $6,020 MAXIMUM. ASSOCIATE GRADE, $4,300 MINIMUM TO $5,180 MAXIMUM. JUNIOR GRADE, $3,640 MINIMUM TO $4,300 MAXIMUM.

NURSING SERVICE ASSISTANT DIRECTOR, $5,180 MINIMUM TO $6,020 MAXIMUM. SENIOR GRADE, $4,300 MINIMUM TO $5,180 MAXIMUM. FULL GRADE, $3,640 MINIMUM TO $4,300 MAXIMUM. ASSOCIATE GRADE, $2,980 MINIMUM TO $3,640 MAXIMUM. JUNIOR GRADE, $2,320 MINIMUM TO $2,980 MAXIMUM.

SEC. 10. (A) THE CHIEF MEDICAL DIRECTOR, UNDER SUCH REGULATIONS AS THE ADMINISTRATOR SHALL PRESCRIBE, SHALL FROM TIME TO TIME APPOINT BOARDS TO BE KNOWN AS DISCIPLINARY BOARDS, EACH SUCH BOARD TO CONSIST OF NOT LESS THAN THREE NOR MORE THAN FIVE EMPLOYEES, SENIOR IN GRADE, OF THE DEPARTMENT OF MEDICINE AND SURGERY, TO DETERMINE, UPON NOTICE AND FAIR HEARING, CHARGES OF INAPTITUDE, INEFFICIENCY, OR MISCONDUCT OF ANY PERSON EMPLOYED IN A POSITION PROVIDED IN SUBSECTION (A) OF SECTION 4 OF THIS ACT.

(D) A DISCIPLINARY BOARD, WHEN IN ITS JUDGMENT CHARGES ARE SUSTAINED, SHALL RECOMMEND TO THE ADMINISTRATOR SUITABLE DISCIPLINARY ACTION, WITHIN LIMITATIONS PRESCRIBED BY THE ADMINISTRATOR, WHICH SHALL INCLUDE REPRIMAND, SUSPENSION WITHOUT PAY, REDUCTION IN GRADE, AND DISCHARGE FROM THE DEPARTMENT OF MEDICINE AND SURGERY OF SUCH PERSON. THE ADMINISTRATOR SHALL EITHER APPROVE THE RECOMMENDATION OF THE BOARD, APPROVE SUCH RECOMMENDATION WITH MODIFICATION OR EXCEPTION, APPROVE SUCH RECOMMENDATION AND SUSPEND FURTHER ACTION AT THE TIME, OR DISAPPROVE SUCH RECOMMENDATION. HE SHALL CAUSE TO BE EXECUTED SUCH ACTION AS HE APPROVES. THE DECISION OF THE ADMINISTRATOR SHALL BE FINAL.

SEC. 15. THE CHIEF MEDICAL DIRECTOR WITH THE APPROVAL OF THE ADMINISTRATOR, UNLESS SPECIFICALLY OTHERWISE PROVIDED, SHALL PROMULGATE ALL REGULATIONS NECESSARY TO THE ADMINISTRATION OF THE DEPARTMENT OF MEDICINE AND SURGERY AND CONSISTENT WITH EXISTING LAW, INCLUDING REGULATIONS RELATING TO TRAVEL, TRANSPORTATION OF HOUSEHOLD GOODS AND EFFECTS, AND DEDUCTIONS FROM PAY FOR QUARTERS AND SUBSISTENCE; AND TO THE CUSTODY, USE, AND PRESERVATION OF THE RECORDS, PAPERS, AND PROPERTY OF THE DEPARTMENT OF MEDICINE AND SURGERY.

WHEN THESE STATUTORY PROVISIONS ARE CONSIDERED AS A WHOLE, AND AS INDICATED IN THE LETTER AND REGULATIONS QUOTED THEREIN, SUPRA, IT APPEARS THAT IRRESPECTIVE OF ANY REFERENCE TO "POSITIONS" THAT WORD IS NOT USED IN THE SAME SENSE THAT IT IS USED IN THE CLASSIFIED CIVIL SERVICE GENERALLY. THERE ACTUALLY IS NO CLASSIFICATION OF POSITIONS UNDER THE ACT, SUPRA, BASED UPON THE DUTIES AND RESPONSIBILITIES ATTACHED THERETO. RATHER, IT APPEARS THAT THE WORD,"POSITIONS," IS USED IN THE SENSE OF SALARY GRADES FOR THE MEDICAL, DENTAL, OR NURSING SERVICES WHICH GRADES ACTUALLY ARE PERSONAL TO THE DOCTORS, DENTISTS AND NURSES APPOINTED FOR SERVICE IN THE DEPARTMENT OF MEDICINE AND SURGERY. THAT IS TO SAY, THE COMPENSATION GRADE ATTAINED BY ANY DOCTOR, DENTIST, OR NURSE IS ATTAINED BECAUSE OF PERSONAL QUALIFICATIONS AND IS NOT DEPENDENT UPON THE ACTUAL PERFORMANCE OF DUTY IN ANY PARTICULAR "POSITION" AS THAT TERM IS UNDERSTOOD, GENERALLY. ANY CHANGE IN COMPENSATION IS BASED UPON A REAPPRAISAL OF THE CURRENT VALUE OF THE PARTICULAR INDIVIDUAL'S SERVICES RATHER THAN UPON THE CHANGED RESPONSIBILITIES AND DUTIES REQUIRED IN A PARTICULAR JOB OF WORK. UNDER SUCH CIRCUMSTANCES IT IS CONCLUDED THAT ANY CHANGE IN THE SALARY RATE PAID TO ANY PARTICULAR DOCTOR, DENTIST, OR NURSE IN THE DEPARTMENT OF MEDICINE AND SURGERY IN THE VETERANS' ADMINISTRATION WOULD NOT BE BASED UPON ALL ALLOCATION OR REALLOCATION OF A POSITION TO A HIGHER GRADE OR THE CREATION OF A NEW POSITION WITHIN THE MEANING OF SECTION 400 OF THE SECOND DEFICIENCY APPROPRIATION ACT, PUBLIC LAW 76, APPROVED MAY 26, 1947, 61 STAT. 118.