B-123169, JUN. 17, 1955

B-123169, JUN. 17, 1955

TO THE HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:

IN LETTER OF MARCH 4, 1955, YOU REQUEST A DECISION ON TWO QUESTIONS INVOLVING THE APPOINTMENT OF DOCTOR LUKE W. MOORE AS AN EMPLOYEE OF THE DEPARTMENT OF MEDICINE AND SURGERY. THE QUESTIONS ARE (1) THE DATE TO BE USED TO BEGIN CREDITING TIME FOR THE COMPLETION OF SERVICE REQUIREMENT FOR PERIODIC STEP INCREASES, AND (2) THE DATE HE MAY BE CONSIDERED AS HAVING BECOME AN EMPLOYEE OF SUCH DEPARTMENT FOR ALL ADMINISTRATIVE AND PAY PURPOSES.

YOU STATE THAT DOCTOR MOORE WAS EMPLOYED IN THE VETERANS ADMINISTRATION IN 1930 ON A CIVIL SERVICE APPOINTMENT. ON JULY 29, 1942, HE WAS FURLOUGHED FOR MILITARY SERVICE AND ON JULY 1, 1948, HE WAS SEPARATED FOR MILITARY SERVICE IN ACCORDANCE WITH A CHANGE IN ADMINISTRATIVE PROCEDURE. THE PERSONNEL ACTION EFFECTING HIS SEPARATION INDICATED THAT HE WAS BEING SEPARATED WITH PERMANENT STATUS FROM THE POSITION OF ASSOCIATE DENTIST, P AND S-3, WITH REEMPLOYMENT RIGHTS FOLLOWING MILITARY DUTY. ON FEBRUARY 12, 1952, DR. MOORE WAS RELEASED FROM MILITARY DUTY AND APPLIED FOR REEMPLOYMENT. HE WAS REEMPLOYED ON SEPTEMBER 8, 1952, AS PRESCRIBED IN PARAGRAPH 12.08D, VETERANS ADMINISTRATION MANUAL M5-2, PART III,"MANUAL FOR PERSONNEL ADMINISTRATION.' ALSO, IN EFFECTING DOCTOR MOORE'S REEMPLOYMENT, CONSIDERATION FOR PROMOTION WAS GIVEN IN ACCORDANCE WITH PARAGRAPH 12.08C OF THE REGULATIONS WITH THE RESULT THAT HE WAS REEMPLOYED IN THE DEPARTMENT OF MEDICINE AND SURGERY AT INTERMEDIATE GRADE, DM AND S AT $8,360 PER ANNUM, WHICH WAS THE EQUIVALENT OF A THREE GRADE ADVANCEMENT. IN ORDER TO DETERMINE THE DATES THE EMPLOYEE WOULD HAVE BEEN ELIGIBLE FOR PROMOTION, HAD HE NOT BEEN ON MILITARY DUTY, IT WAS NECESSARY TO RECONSTRUCT A PROBABLE DATE ON WHICH HE WOULD HAVE RECEIVED HIS APPOINTMENT IN THE DEPARTMENT OF MEDICINE AND SURGERY. THIS DATE WAS ESTABLISHED AS MARCH 1, 1946. THE MAIN QUESTION AT ISSUE APPEARS TO BE WHETHER THE EMPLOYEE SHOULD BE CONSIDERED AN EMPLOYEE OF THE DEPARTMENT OF MEDICINE AND SURGERY FOR ADMINISTRATIVE AND PAY PURPOSES FROM MARCH 1, 1946, OR FROM SEPTEMBER 8, 1952, THE DATE HE WAS REEMPLOYED FOLLOWING HIS MILITARY SERVICE.

SECTION 1 OF THE ACT OF JANUARY 3, 1946, 59 STAT. 675, ABOLISHED THE MEDICAL SERVICE IN THE VETERANS ADMINISTRATION AND ESTABLISHED IN ITS STEAD IN THE VETERANS ADMINISTRATION A DEPARTMENT OF MEDICINE AND SURGERY UNDER A CHIEF MEDICAL DIRECTOR. SECTION 6 OF THE ACT PROVIDES IN PERTINENT PART AS FOLLOWS:

"/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.

"/B) SUCH APPOINTMENTS AS DESCRIBED IN SUBSECTION (A) OF THIS SECTION SHALL BE FOR A PROBATIONARY PERIOD OF THREE YEARS AND THE RECORD OF EACH PERSON SERVING UNDER SUCH APPOINTMENT IN THE MEDICAL, DENTAL, AND NURSING SERVICES SHALL BE REVIEWED FROM TIME TO TIME BY A BOARD, APPOINTED IN ACCORDANCE WITH REGULATIONS OF THE ADMINISTRATOR, AND IF SAID BOARD SHALL FIND HIM NOT FULLY QUALIFIED AND SATISFACTORY HE SHALL BE SEPARATED FROM THE SERVICE.

"/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.'

IT IS CLEAR FROM THE LANGUAGE OF THE QUOTED SECTION THAT IT WAS THE INTENTION OF CONGRESS THAT THE APPOINTMENTS OF DOCTORS, DENTISTS, AND NURSES IN THE DEPARTMENT OF MEDICINE AND SURGERY WERE TO BE MADE ONLY AFTER THEIR QUALIFICATIONS WERE SATISFACTORILY ESTABLISHED IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE ADMINISTRATOR AND THAT THE DOCTORS, DENTISTS, AND NURSES IN THE MEDICAL SERVICE WERE TO BE CONTINUED IN THEIR POSITIONS UNTIL THE ADMINISTRATOR DETERMINED THEIR QUALIFICATIONS FOR APPOINTMENT IN THE NEW DEPARTMENT. ALSO, THE APPOINTMENTS WERE TO BE FOR A PROBATIONARY PERIOD OF THREE YEARS.

IT INFORMALLY HAS BEEN ASCERTAINED FROM YOUR ADMINISTRATION THAT DR. MOORE'S APPOINTMENT IN THE DEPARTMENT OF MEDICINE AND SURGERY (CONVERSION FROM MEDICAL SERVICE) ACTUALLY DID NOT OCCUR UNTIL HE WAS REEMPLOYED AFTER MILITARY SERVICE ON SEPTEMBER 8, 1952. IT HAS BEEN HELD BY OUR OFFICE THAT APPOINTMENTS MAY NOT BE MADE RETROACTIVE. 20 COMP. GEN. 267; 26 ID. 475. ACCORDINGLY, DR. MOORE IS TO BE CONSIDERED AN EMPLOYEE OF THE DEPARTMENT OF MEDICINE AND SURGERY FOR ADMINISTRATIVE AND PAY PURPOSES ONLY FROM SEPTEMBER 8, 1952, INCLUDING THE CREDITING OF TIME FOR THE COMPLETION OF SERVICE REQUIREMENT FOR PERIODIC STEP INCREASES.