B-79943, APRIL 15, 1949, 28 COMP. GEN. 578

B-79943, APRIL 15, 1949, 28 COMP. GEN. 578

PAY - LONGEVITY CREDITS - PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS - CONSTRUCTIVE AND ACTUAL MILITARY, NAVAL, ETC., SERVICE OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE WHO, AT THE TIME OF THEIR ORIGINAL APPOINTMENT IN SUCH CORPS, HAD PRIOR MILITARY, NAVAL, ETC., SERVICE WHICH WAS NOT THEN AUTHORIZED TO BE COUNTED FOR LONGEVITY PAY PURPOSES, BUT WHICH SUBSEQUENTLY WAS AUTHORIZED TO BE COUNTED FOR SUCH PURPOSES BY SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, ARE/NOT ENTITLED UNDER SECTION 5 (E) OF THE ACT OF FEBRUARY 28, 1948, GRANTING CONSTRUCTIVE SERVICE CREDITS TO CERTAIN OFFICERS ON ACTIVE DUTY ON THE DATE OF ENACTMENT OF SUCH ACT, TO BE GIVEN THE CONSTRUCTIVE SERVICE CREDIT IN ADDITION TO CREDIT FOR ACTUAL MILITARY, NAVAL, ETC., SERVICE AS AUTHORIZED BY SAID SECTION 3A OF THE 1942 ACT AS AMENDED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE ADMINISTRATOR, FEDERAL SECURITY AGENCY, APRIL 15, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 3, 1948, WHEREIN YOU REQUEST DECISION AS TO THE APPLICATION OF SECTION 5 (E) OF THE ACT OF FEBRUARY 28, 1948, PUBLIC LAW 425, 62 STAT. 41, TO CERTAIN OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE WHOSE MILITARY OR NAVAL SERVICE PRIOR TO APPOINTMENT IN SUCH CORPS DID NOT BECOME LEGALLY CREDITABLE FOR LONGEVITY PAY PURPOSES UNTIL SOME TIME AFTER SUCH APPOINTMENT.

THE SAID SECTION 5 (E) PROVIDES AS FOLLOWS:

BEGINNING AS OF THE DATE OF ENACTMENT OF THIS ACT, ANY OFFICER OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE ON ACTIVE DUTY ON SUCH DATE SHALL, IN LIEU OF THE SERVICE WITH WHICH HE WAS CREDITED FOR THE PURPOSES OF PAY AND PAY PERIOD AT THE TIME OF HIS APPOINTMENT TO SUCH CORPS, RECEIVE CREDIT, IF IT IS GREATER FOR THREE YEARS IF HIS APPOINTMENT WAS TO THE SENIOR ASSISTANT GRADE, TWELVE YEARS IF IT WAS TO THE FULL GRADE, TWENTY YEARS IF IT WAS TO THE SENIOR GRADE, AND TWENTY-SIX YEARS IF IT WAS TO THE DIRECTOR GRADE.

AS ILLUSTRATIVE OF THE SITUATION IN MIND, YOU CITE THE CASE OF MR. J. J. BLOOMFIELD, WHO, IN 1936, WAS APPOINTED TO THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE IN THE SENIOR ASSISTANT GRADE BUT WHO WAS NOT CREDITED WITH HIS PRIOR ENLISTED SERVICE OF MORE THAN THREE YEARS IN THE NAVY UNTIL SUCH SERVICE BECAME CREDITABLE, EFFECTIVE JUNE 1, 1942, UNDER THE PROVISIONS OF SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AS ADDED BY SECTION 3 OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, AND AMENDED BY SECTION 1 OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 729.

YOU PRESENT FOR DECISION THE QUESTION WHETHER MR. BLOOMFIELD, BEING OTHERWISE QUALIFIED, IS NOW ENTITLED, IN ADDITION TO CREDIT FOR HIS NAVY SERVICE, WHICH EXCEEDS THREE YEARS, TO CREDIT FOR THREE YEARS' CONSTRUCTIVE SERVICE UNDER THE PROVISIONS OF SECTION 5 (E) OF THE ACT OF FEBRUARY 28, 1948, SUPRA.

YOU STATE THAT THE PROVISIONS WHICH BECAME THOSE OF THE SAID SECTION 5 (E) WERE PRESENTED TO THE CONGRESS FOR THE PURPOSE OF PLACING INCUMBENT OFFICERS OF THE REGULAR CORPS IN THE SAME POSITION THEY WOULD HAVE HAD IF, ON THE DATE OF THEIR APPOINTMENT, SECTION 207 (D) OF THE PUBLIC HEALTH SERVICE ACT, AS ADDED BY SECTION 5 (D) OF THE SAID ACT OF FEBRUARY 28, 1948, 62 STAT. 40, HAD BEEN IN EFFECT. THAT SUCH WAS SUBSTANTIALLY THE INTENT OF SECTION 5 (E) IS BORNE OUT BY REPORT NO. 437, SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE, TO ACCOMPANY S. 1454, 80TH CONGRESS, WHICH BECAME THE ACT OF FEBRUARY 28, 1948, WHEREIN, AFTER DISCUSSING THE PROVISIONS NOW CONTAINED IN SECTION 5 (D), SUPRA, FOR GRANTING CONSTRUCTIVE SERVICE TO CERTAIN OFFICERS THEREAFTER APPOINTED IN THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE, IT WAS STATED (QUOTING FROM PAGE 5 OF THE REPORT):

THE BILL ALSO CONTAINS PROVISIONS DESIGNED TO PLACE OFFICERS IN THE REGULAR CORPS ON THE DATE OF ENACTMENT OF THIS ACT IN A POSITION SIMILAR TO THAT IN WHICH THEY WOULD HAVE BEEN ON THAT DATE IF THE NEW PROVISIONS OF LAW HAD BEEN IN EFFECT AT THE TIME OF THEIR ORIGINAL APPOINTMENT. SEE, ALSO, PAGE 6 OF REPORT NO. 1002, COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, HOUSE OF REPRESENTATIVES, TO ACCOMPANY H.R. 3924, 80TH CONGRESS, WHICH WAS THE COMPANION BILL TO S. 1454.

SECTION 207 (D) OF THE PUBLIC HEALTH SERVICE ACT (AS ADDED BY SECTION 5 (D) OF THE ACT OF FEBRUARY 28, 1948, REFERRED TO ABOVE) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(1) FOR PURPOSES OF PAY AND PAY PERIOD AND FOR PURPOSES OF PROMOTION, ANY PERSON APPOINTED UNDER SUBSECTION (A) TO THE GRADE OF SENIOR ASSISTANT IN THE REGULAR CORPS, AND ANY PERSON APPOINTED UNDER SUBSECTION (B), SHALL, EXCEPT AS PROVIDED IN PARAGRAPHS (2) AND (3) OF THIS SUBSECTION BE CONSIDERED AS HAVING HAD ON THE DATE OF APPOINTMENT THE FOLLOWING LENGTH OF SERVICE: THREE YEARS IF APPOINTED TO THE SENIOR ASSISTANT GRADE, TEN YEARS IF APPOINTED TO THE FULL GRADE, SEVENTEEN YEARS IF APPOINTED TO THE SENIOR GRADE, AND EIGHTEEN YEARS IF APPOINTED TO THE DIRECTOR GRADE.

(2) FOR PURPOSES OF PAY AND PAY PERIOD, ANY PERSON APPOINTED UNDER SUBSECTION (A) TO THE GRADE OF SENIOR ASSISTANT IN THE REGULAR CORPS, AND ANY PERSON APPOINTED UNDER SUBSECTION (B), SHALL, IN LIEU OF THE CREDIT PROVIDED IN PARAGRAPH (1), BE CREDITED WITH THE SERVICE FOR WHICH HE IS ENTITLED TO CREDIT UNDER ANY OTHER PROVISION OF LAW IF SUCH SERVICE EXCEEDS THAT TO WHICH HE WOULD BE ENTITLED UNDER SUCH PARAGRAPH.

AS YOU POINT OUT THE SAID SECTION 207 (D), PERTAINING TO NEW APPOINTMENTS IN THE REGULAR CORPS, PERMITS ONLY THE SUBSTITUTION OF PRIOR ACTUAL SERVICE, AUTHORIZED BY LAW TO BE COUNTED GENERALLY FOR PAY AND PAY PERIOD PURPOSES, FOR THE CONSTRUCTIVE SERVICE AUTHORIZED BY SUCH SECTION AND DOES NOT AUTHORIZE THE CREDITING OF BOTH ACTUAL SERVICE AND CONSTRUCTIVE SERVICE CONCURRENTLY. AND, AS YOU INDICATE, THAT IS SO WHETHER THE PRIOR ACTUAL SERVICE WAS LEGALLY CREDITABLE AT THE TIME THE INDIVIDUAL WAS APPOINTED IN THE REGULAR CORPS OR WHETHER IT MAY BECOME LEGALLY CREDITABLE SUBSEQUENT TO SUCH APPOINTMENT. YOU SUGGEST THAT SUBSTANTIALLY THE SAME EFFECT WAS INTENDED TO BE GIVEN TO SECTION 5 (E) OF THE ACT OF FEBRUARY 28, 1948, PERTAINING TO OFFICERS IN THE REGULAR CORPS ON THE DATE OF SUCH ACT, AND I AGREE WITH THAT VIEW. AS INDICATED IN THE COMMITTEE REPORTS, AND AS NOTED IN YOUR LETTER, THE OBVIOUS PURPOSE OF SECTION 5 (E) WAS TO PLACE OFFICERS ALREADY IN THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE WHEN THE ACT WAS PASSED ON A SUBSTANTIAL PAR WITH OFFICERS THEREAFTER COMING INTO THE SERVICE INSOFAR AS CREDITS FOR LONGEVITY AND PERIOD PAY PURPOSES ARE CONCERNED. TO HOLD THAT SUCH SECTION WOULD PERMIT OFFICERS IN MR. BLOOMFIELD'S CIRCUMSTANCES TO BE GIVEN THE CONSTRUCTIVE SERVICE CREDIT IN ADDITION TO CREDIT FOR ACTUAL MILITARY, NAVAL, ETC., SERVICE WHICH THEY MAY HAVE HAD PRIOR TO THEIR APPOINTMENT IN THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE WOULD NOT ONLY PLACE SUCH OFFICERS IN A BETTER POSITION, FOR PAY PURPOSES, THAN OFFICERS APPOINTED AFTER THE DATE OF ENACTMENT OF THE ACT OF FEBRUARY 28, 1948, BUT WOULD ALSO PLACE THEM IN A BETTER POSITION THAN OTHER OFFICERS IN THEIR OWN CLASS (OFFICERS APPOINTED PRIOR TO THE ENACTMENT OF THE ACT) WHO HAD PRIOR MILITARY, NAVAL, ETC., SERVICE CREDITABLE FOR PAY PURPOSES ON THE DATE OF THEIR ORIGINAL APPOINTMENT IN THE REGULAR CORPS. THAT SUCH WAS NOT THE INTENT OF SECTION 5 (E), SUPRA, IS, I THINK, AMPLY CLEAR. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.