B-77471, NOVEMBER 3, 1948, 28 COMP. GEN. 283

B-77471, NOVEMBER 3, 1948, 28 COMP. GEN. 283

COMPENSATION - POSTAL SERVICE - INITIAL SALARY RATES - PERSONS ON LIST OF ELIGIBLES PRIOR TO MILITARY SERVICE APPOINTED AFTER SUCH SERVICE UNDER THE ACT OF JULY 31, 1946, EFFECTIVE AUGUST 1, 1946, FIXING, FOR COMPENSATION RATE AND SENIORITY PURPOSES, THE CONSTRUCTIVE DATE OF APPOINTMENT OF POSTAL SERVICE 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, THERE IS NO BASIS FOR ADJUSTING THE COMPENSATION OF A SUBSTITUTE CLERK TO THE RATE OF ANY HIGHER GRADE IN THE SAME POSITION TO COMPARE WITH THE EQUIVALENT RATE RECEIVED ON AUGUST 1, 1946, BY THE LOWER ELIGIBLE WHO HAD BEEN PROMOTED TO THE POSITION OF REGULAR CLERK.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, NOVEMBER 3, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 14, 1948, REFERENCE 15, RELATIVE TO A SUBSTITUTE CLERK IN THE POSTAL SERVICE WHO WAS IN THE ARMY AT THE TIME HE WAS REACHED FOR APPOINTMENT AS A CLASSIFIED SUBSTITUTE CLERK ON FEBRUARY 19, 1943. AS HE WAS IN THE ARMY AT THE TIME, HE COULD NOT ACCEPT THE APPOINTMENT AND AN ELIGIBLE STANDING LOWER ON THE REGISTER WAS SELECTED. UPON HIS RELEASE FROM THE ARMED FORCES HE WAS APPOINTED AS A CLASSIFIED SUBSTITUTE CLERK ON OCTOBER 16, 1945, AT 84 CENTS PER HOUR, WHICH RATE WAS INCREASED TO $1.04 PER HOUR ON JANUARY 1, 1946, BY THE ADDITIONAL COMPENSATION PROVISIONS OF SECTION 1 OF THE ACT OF MAY 21, 1946, PUBLIC LAW 386, 60 STAT. 203. FOLLOWING THE APPROVAL OF THE ACT OF JULY 31, 1946, PUBLIC LAW 577, 60 STAT. 749, THE INITIAL SALARY RATE OF THE SUBSTITUTE CLERK WAS INCREASED TWO GRADES FROM THE FIRST TO THE THIRD GRADE WITH COMPENSATION PAYABLE AT $1.14 PER HOUR ON THE BASIS OF CONSTRUCTIVE SERVICE WHILE IN THE ARMED FORCES DATING BACK TO FEBRUARY 19, 1943, THE DATE HE WAS REACHED FOR APPOINTMENT AS A CLASSIFIED SUBSTITUTE CLERK AND THE DATE AN ELIGIBLE STANDING LOWER ON THE REGISTER WAS APPOINTED. THE LOWER ELIGIBLE, WHO WAS APPOINTED ON FEBRUARY 19, 1943, WAS PROMOTED TO REGULAR CLERK ON DECEMBER 16, 1944, AT $1,900 PER ANNUM. ON JULY 1, 1946, AND DURING THE APPLICABLE PERIOD THEREAFTER, HE WAS RECEIVING COMPENSATION AT THE RATE OF $2,900 PER ANNUM--- THE EQUIVALENT SUBSTITUTE RATE OF $1.44 PER HOUR--- BY REASON OF AUTOMATIC INCREASES ON JULY 1, 1945, AND JULY 1, 1946, AND THE ADDITIONAL COMPENSATION INCREASES AUTHORIZED BY SECTION 12 (A) OF THE ACT OF JULY 6, 1945, PUBLIC LAW 134, 59 STAT. 443, AND BY PUBLIC LAW 386, ABOVE. YOU REQUEST TO BE ADVISED WHETHER THE COMPENSATION OF THE SUBSTITUTE CLERK SHOULD BE ADJUSTED, EFFECTIVE AUGUST 1, 1946, THE EFFECTIVE DATE OF PUBLIC LAW 577, FROM $1.14 PER HOUR PRESCRIBED FOR GRADE 3 TO $1.44 PER HOUR PRESCRIBED FOR GRADE 9, ON THE BASIS THAT THE LOWER ELIGIBLE, BY REASON OF HIS PROMOTION TO A REGULAR POSITION, WAS RECEIVING AN ANNUAL RATE CORRESPONDING TO THE RATE OF GRADE 9 OF THE SUBSTITUTE POSITION.

IN SETTING OUT THE BENEFITS CONFERRED BY THE ACT OF JULY 31, 1946, PUBLIC LAW 577, UPON CERTAIN PROBATIONAL APPOINTEES OF THE POSTAL SERVICE, THE SAID ACT PROVIDES THAT AN EMPLOYEE WHO IS WITHIN THE PURVIEW THEREOF "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.' IT HAS BEEN RECOGNIZED THAT THE BASIC PURPOSE OF THE PUBLIC LAW 577 IS TO GRANT TO 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. 27 COMP. GEN. 399. THAT IS TO SAY, THE VETERAN WHO ACTUALLY WAS GIVEN A PROBATIONAL APPOINTMENT IN THE POSTAL SERVICE AND WHO OTHERWISE MET THE REQUIREMENTS OF THE ACT IS ENTITLED TO BE ADVANCED TO THE GRADE OF THE POSITION IN WHICH APPOINTED AND TO BE PLACED ON THE SUBSTITUTE SENIORITY LIST IN THE SAME ORDER THAT WOULD HAVE APPLIED HAD HE BEEN ABLE TO ACCEPT APPOINTMENT WHEN FIRST REACHED FOR APPOINTMENT WHILE HE WAS IN THE MILITARY SERVICE.

IN THE INSTANT CASE, THE EMPLOYEE WAS ADVANCED EFFECTIVE AUGUST 1, 1946, TO THE GRADE AND SALARY RATE TO WHICH HE WOULD HAVE BEEN ADVANCED AS A SUBSTITUTE CLERK HAD HE BEEN APPOINTED ON FEBRUARY 19, 1943. WHILE IT MAY BE THAT HAD THE EMPLOYEE OTHERWISE BEEN ELIGIBLE AND HAD HE NOT BEEN IN THE MILITARY SERVICE ON DECEMBER 16, 1944, WHEN THE LOWER ELIGIBLE WAS PROMOTED TO REGULAR CLERK, THE EMPLOYEE WOULD HAVE BEEN PROMOTED TO REGULAR CLERK ON THE BASIS OF HIS CONSTRUCTIVE POSITION ON THE SENIORITY LIST, THE PROMOTION OF A SUBSTITUTE EMPLOYEE TO A REGULAR POSITION IS AN ADMINISTRATIVE PROMOTION. AS PREVIOUSLY POINTED OUT BY THIS OFFICE, THERE IS NO LAW, SO FAR AS CAN BE ASCERTAINED, WHICH REQUIRES THAT AN ADMINISTRATIVE PROMOTION FROM A SUBSTITUTE POSITION TO A REGULAR POSITION SHALL BE MADE BASED UPON SENIORITY. 26 COMP. GEN. 839. MOREOVER, I KNOW OF NO AUTHORITY OF LAW TO ADVANCE THE EMPLOYEE TO A HIGHER GRADE SOLELY ON THE BASIS OF MAINTAINING A RATE OF COMPENSATION IN ONE POSITION COMPARABLE WITH THAT OF THE LOWER ELIGIBLE WHO SINCE HIS APPOINTMENT AS THE LOWER ELIGIBLE HAS BEEN PROMOTED TO ANOTHER POSITION.

ACCORDINGLY, SINCE THE COMPENSATION OF THE EMPLOYEE HERE INVOLVED WAS ESTABLISHED IN GRADE 3 AT $1.14 PER HOUR, EFFECTIVE AUGUST 1, 1946, ON THE BASIS THAT HE HAD RENDERED CONSTRUCTIVE SERVICE FROM FEBRUARY 19, 1943, THE DATE THE LOWER ELIGIBLE RECEIVED A PROBATIONAL APPOINTMENT, THERE IS NO BASIS FOR ADJUSTING THE EMPLOYEE'S COMPENSATION TO THE RATE OF ANY HIGHER GRADE IN THE SAME POSITION TO COMPARE WITH THE EQUIVALENT PER HOUR RATE THEN BEING RECEIVED BY THE LOWER ELIGIBLE WHO HAD BEEN PROMOTED TO A REGULAR POSITION PRIOR TO THE VETERAN'S RETURN FROM THE MILITARY SERVICE.