B-130039, FEBRUARY 1, 1957, 36 COMP. GEN. 557

B-130039, FEBRUARY 1, 1957, 36 COMP. GEN. 557

PUBLIC HEALTH SERVICE - COMMISSIONED PERSONNEL - CONSTRUCTIVE SERVICE CREDIT THE CONSTRUCTIVE SERVICE CREDIT WHICH WAS AUTHORIZED BY SECTION 5 (E) OF THE ACT OF FEBRUARY 28, 1948, FOR COMMISSIONED OFFICERS THEN IN THE PUBLIC HEALTH SERVICE IS IN LIEU OF CONSTRUCTIVE SERVICE CREDIT AUTHORIZED UNDER OTHER LAWS, AND, THEREFORE, THE CONSTRUCTIVE SERVICE AUTHORIZED IN SECTION 2 OF THE ACT OF APRIL 30, 1956, MAY NOT BE CREDITED TO AN OFFICER WHO HAS RECEIVED THE CONSTRUCTIVE CREDIT UNDER THE 1948 ACT.

TO GEORGE H. HUNT, UNITED STATES PUBLIC HEALTH SERVICE, FEBRUARY 1, 1957:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 9, 1956, REQUESTING REVIEW OF SETTLEMENT DATED OCTOBER 24, 1956, WHICH DISALLOWED YOUR CLAIM FOR CONSTRUCTIVE SERVICE CREDITS AS AN OFFICER OF THE PUBLIC HEALTH SERVICE TOTALING EIGHT YEARS UNDER SECTION 5 (E) OF THE ACT OF FEBRUARY 28, 1948, AND SECTION 2 OF THE ACT OF APRIL 30, 1956.

IT APPEARS THAT YOU WERE APPOINTED IN THE REGULAR CORPS OF PUBLIC HEALTH IN THE GRADE OF PASSED ASSISTANT SURGEON (NOW SENIOR ASSISTANT SURGEON) ON AUGUST 1, 1936, AND THAT YOU WERE CREDITED WITH THREE YEARS' CONSTRUCTIVE SERVICE FOR PAY PURPOSES UNDER THE PROVISIONS OF SECTION 5 (E) OF THE ACT OF FEBRUARY 28, 1948, PUBLIC LAW 425, 80TH CONGRESS, 62 STAT. 41, 42 U.S.C. 210A, 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.

THE PURPOSE OF SUCH PROVISIONS WAS TO PLACE 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 ACT OF FEBRUARY 28, 1948, 42 U.S.C. 209 (D), HAD BEEN IN EFFECT. SEE, IN THAT CONNECTION, PAGE 5 OF SENATE REPORT NO. 437 ON S. 1454 (WHICH BECAME PUBLIC LAW 425) AND PAGE 6 OF H.R. REPORT NO. 1002 ON H.R. 3924 (WHICH WAS THE COMPANION BILL TO S. 1454), WHICH READ, IN PERTINENT PART, AS FOLLOWS:

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.

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

(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 IFAPPOINTED TO THE SENIOR GRADE, AND EIGHTEEN YEARS IF APPOINTED TO THE DIRECTOR GRADE.

(2) FOR PURPOSES OF 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.

SECTION 2 OF THE ACT OF APRIL 30, 1956, PUBLIC LAW 497, 70 STAT. 121, 37 U.S.C. 233, AMENDS SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, TO AUTHORIZE FOR EACH COMMISSIONED MEDICAL OFFICER OF THE PUBLIC HEALTH SERVICE, FOR PAY PURPOSES, FOUR YEARS OF CONSTRUCTIVE CREDIT PLUS ONE ADDITIONAL YEAR OF CREDIT FOR SUCH A MEDICAL OFFICER WHO HAS COMPLETED ONE YEAR OF MEDICAL INTERNSHIP.

YOU WERE CREDITED WITH A TOTAL OF FIVE YEARS' CONSTRUCTIVE SERVICE FOR PAY PURPOSES FOR THE MONTH OF MAY 1956, BEING PAID AS AN OFFICER WITH OVER 22 YEARS OF SERVICE RATHER THAN AS AN OFFICER WITH OVER 26 YEARS OF SERVICE. CONSTRUCTIVE SERVICE IS CREDITED UNDER THE ACT OF APRIL 30, 1956, FOR THE TIME SPENT IN MEDICAL SCHOOL AND INTERNSHIP IN ORDER TO EQUALIZE THE PAY OF MEDICAL OFFICERS OF THE UNIFORMED SERVICES WITH THAT OF THEIR LINE CONTEMPORARIES WHO ENTERED MILITARY SERVICE AT THE SAME TIME AS THE MEDICAL OFFICERS ENTERED MEDICAL SCHOOL.

YOU STATE, HOWEVER, THAT THE THREE YEARS' CONSTRUCTIVE SERVICE CREDIT AUTHORIZED BY THE ACT OF FEBRUARY 28, 1948, REPRESENTS RECOGNITION OF PROFESSIONAL EXPERIENCE AFTER THE COMPLETION OF MEDICAL EDUCATION IN MEDICAL SCHOOL AND MEDICAL INTERNSHIP. YOU ALSO STATE THAT IT WAS THE INTENT OF CONGRESS IN AMENDING THE CAREER COMPENSATION ACT IN 1956, BY THE ACT OF APRIL 30, 1956, THAT MEDICAL OFFICERS OF THE UNIFORMED SERVICES SHOULD BE GIVEN FIVE YEARS' SERVICE CREDIT FOR TIME SPENT IN MEDICAL SCHOOL AND INTERNSHIP, AND YOU CONCLUDE THAT, SINCE THE THREE YEARS' CONSTRUCTIVE SERVICE AUTHORIZED BY THE ACT OF FEBRUARY 28, 1948, IS CREDITED IN RECOGNITION OF PROFESSIONAL EXPERIENCE AFTER THE COMPLETION OF MEDICAL EDUCATION AND INTERNSHIP, YOU SHOULD BE CREDITED WITH A TOTAL OF EIGHT YEARS' CONSTRUCTIVE SERVICE--- FIVE YEARS FOR YOUR MEDICAL EDUCATION AND INTERNSHIP AND THREE YEARS FOR PROFESSIONAL MEDICAL EXPERIENCE.

IT WILL BE OBSERVED, HOWEVER, THAT THE 1948 ACT PROVIDES THAT ANY PERSON APPOINTED UNDER THAT ACT SHALL, IN LIEU OF THE CONSTRUCTIVE CREDIT AUTHORIZED BY THAT ACT, 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 THAT ACT. THUS THE 1948 ACT EXPRESSLY PRECLUDES COUNTING THE CONSTRUCTIVE SERVICE THERE AUTHORIZED FOR PERSONS APPOINTED UNDER THAT ACT IF OTHER SERVICE PRIOR TO APPOINTMENT, CREDITABLE UNDER OTHER PROVISIONS OF LAW, EXCEEDS SUCH CONSTRUCTIVE SERVICE. AND SINCE THE PROVISIONS OF SECTION 5 (E) OF THAT ACT WERE DESIGNED TO PLACE OFFICERS IN THE REGULAR CORPS ON THE DATE OF ITS ENACTMENT IN A POSITION SIMILAR, AND NOT SUPERIOR, TO THAT IN WHICH THEY WOULD HAVE BEEN PLACED IF THE PROVISIONS OF THE 1948 ACT HAD BEEN IN EFFECT AT THE TIME OF THEIR ORIGINAL APPOINTMENT, IT FOLLOWS THAT IT WAS NOT INTENDED THAT OFFICERS THEN IN SERVICE SHOULD COUNT SUCH CONSTRUCTIVE SERVICE WHICH MIGHT BE AUTHORIZED BY OTHER PROVISIONS OF LAW SUCH AS THE ACT OF APRIL 30, 1956.

IN DECISION OF APRIL 15, 1949, 28 COMP. GEN. 578, WE SAID THAT SECTION 207 (D) OF THE 1948 ACT, PERTAINING TO NEW APPOINTMENTS IN THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE, 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 THERE AUTHORIZED AND DOES NOT AUTHORIZE THE CREDITING OF BOTH PRIOR ACTUAL SERVICE AND CONSTRUCTIVE SERVICE CONCURRENTLY. SINCE THE PURPOSE OF SECTION 5 (E) OF THAT ACT WAS TO PLACE INCUMBENT OFFICERS IN THE REGULAR CORPS ON A SUBSTANTIAL PARITY WITH OFFICERS THEREAFTER APPOINTED, WE HELD THAT AN INCUMBENT OFFICER COULD NOT COUNT BOTH PRIOR ACTUAL SERVICE AND CONSTRUCTIVE SERVICE FOR PAY PURPOSES, NOTWITHSTANDING THAT THE LAW IN EFFECT AT THE TIME OF HIS APPOINTMENT DID NOT AUTHORIZE PUBLIC HEALTH SERVICE OFFICERS TO COUNT ACTUAL PRIOR SERVICE OF THE TYPE INVOLVED (ENLISTED SERVICE IN THE NAVY) FOR PAY PURPOSES.

IT IS OUR VIEW THAT IT WAS THE INTENT OF THE 1948 ACT, AS INDICATED BY THE LEGISLATIVE HISTORY OF THAT ACT AND THE PROVISIONS OF THE ACT, QUOTED ABOVE, THAT THE CONSTRUCTIVE SERVICE CREDIT THERE AUTHORIZED SHOULD NOT BE GIVEN IN ADDITION TO A CONSTRUCTIVE SERVICE CREDIT UNDER ANOTHER PROVISION OF LAW, REGARDLESS OF THE INDICATION THAT ONE OF SUCH CREDITS MAY BE PROVIDED TO COMPENSATE FOR PROFESSIONAL EXPERIENCE AND THE OTHER TO COMPENSATE FOR MEDICAL EDUCATION AND INTERNSHIP. MOREOVER, NOTHING HAS BEEN FOUND IN THE PROVISIONS OR THE LEGISLATIVE HISTORY OF THE 1956 ACT WHICH WOULD SUPPORT A CONCLUSION THAT THE MEANING AND APPLICATION OF THE 1948 ACT IN THAT RESPECT WERE INTENDED TO BE CHANGED BY THE LATER ACT.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND IS SUSTAINED.