B-132114, SEP. 24, 1957

B-132114, SEP. 24, 1957

TO POSTMASTER GENERAL:

ON JUNE 19, 1957, THE ASSISTANT POSTMASTER GENERAL REPORTED TO US THE FACTS PERTAINING TO THE CLAIM OF MR. WARREN L. GUNTER, AN EMPLOYEE OF THE FORT SMITH, ARKANSAS, POST OFFICE, FOR ADDITIONAL BENEFITS UNDER PUBLIC LAW 577. THAT REPORT WAS MADE IN RESPONSE TO OUR REQUEST TO YOU OF JUNE 14, 1957.

MR. GUNTER COMPETED IN A SUBSTITUTE CLERK-CARRIER EXAMINATION HELD FOR THE FORT SMITH, ARKANSAS, POST OFFICE, IN 1941 AND ATTAINED AN ELIGIBLE RATING OF 77.2. HIS NAME WAS SUBSEQUENTLY PLACED ON THE SUBSTITUTE CARRIER REGISTER. HE ENTERED MILITARY SERVICE ON JANUARY 9, 1942, AND WAS HONORABLY DISCHARGED ON NOVEMBER 23, 1944. MR. GUNTER'S NAME WAS RESTORED, AT HIS REQUEST, TO THE ELIGIBLE REGISTER FOLLOWING HIS DISCHARGE FROM THE ARMED FORCES, SUCH RESTORATION BEING EFFECTIVE DECEMBER 21, 1944. AS A DISABLED VETERAN HIS NAME WAS PLACED ON BOTH THE CLERK AND CARRIER REGISTERS. MR. GUNTER WAS SENT AN INQUIRY REGARDING HIS AVAILABILITY FOR THE POSITION OF SUBSTITUTE CLERK ON SEPTEMBER 16, 1947, AND RETURNED THE INQUIRY TO THE POSTMASTER ON SEPTEMBER 20, 1947, WITH THE REQUEST THAT HIS NAME BE REMOVED FROM THE ELIGIBLE LIST UNTIL HE REPORTED THAT HE WAS AVAILABLE FOR EMPLOYMENT. SUBSEQUENTLY, MR. GUNTER REQUESTED THAT HIS NAME BE RESTORED TO THE REGISTER. HE ENTERED ON DUTY UNDER AN INDEFINITE APPOINTMENT AS A SUBSTITUTE CLERK ON DECEMBER 1, 1951, AND WAS ACCORDED PROBATIONAL STATUS ON AUGUST 17, 1952, UNDER THE PROVISIONS OF EXECUTIVE ORDER 10376. THE POST OFFICE DEPARTMENT LATER AMENDED THAT APPOINTMENT TO SHOW IT WOULD HAVE BEEN MADE UNDER EXECUTIVE ORDER 9538 WITH BENEFITS OF PUBLIC LAW 577.

THE DEPARTMENT HAD PREVIOUSLY DECIDED THAT IN DETERMINING THE ELIGIBILITY OF AN EMPLOYEE FOR BENEFITS UNDER PUBLIC LAW 577 NO CREDIT SHOULD BE ALLOWED FOR SENIORITY AND SALARY PURPOSES FOR THE PERIOD OF TIME ELAPSED BETWEEN THE DATE THE EMPLOYEE DECLINED APPOINTMENT FOLLOWING RELEASE FROM MILITARY SERVICE AND THE DATE HE SUBSEQUENTLY ACCEPTED PROBATIONAL APPOINTMENT. WE HAD CONFIRMED THIS PROCEDURE IN OUR DECISION OF JANUARY 27, 1948, B-70507, 27 COMP. GEN. 399. THAT DECISION, HOWEVER, WAS NOT TAKEN INTO CONSIDERATION WHEN FIRST ESTABLISHING MR. GUNTER'S SENIORITY DATE AND RATE OF PAY BASED ON THAT OF A LOWER ELIGIBLE WHO RECEIVED APPOINTMENT ON AUGUST 2, 1943, WHILE MR. GUNTER WAS IN THE ARMED FORCES. THEREFORE, IT WAS NECESSARY THAT AN ADJUSTMENT BE MADE AND HE WAS NOT ALLOWED CREDIT FOR THE PERIOD FROM SEPTEMBER 20, 1947, DATE OF DECLINATION, TO THE DATE HIS INDEFINITE APPOINTMENT WAS CONVERTED TO A PROBATIONAL APPOINTMENT WHICH WAS AUGUST 17, 1952.

THE ACT OF JULY 31, 1946, 60 STAT. 749, PUBLIC LAW 577, IS ENTITLED, "AN ACT TO PROVIDE BENEFITS FOR CERTAIN EMPLOYEES OF THE UNITED STATES WHO ARE VETERANS OF WORLD WAR II AND LOST OPPORTUNITY FOR PROBATIONAL CIVIL- SERVICE APPOINTMENTS BY REASON OF THEIR SERVICE IN THE ARMED FORCES OF THE UNITED STATES" AND PROVIDES THAT ITS BENEFITS SHALL ACCRUE TO "ANY PERSON- -- (1) WHOSE NAME APPEARED ON ANY LIST OF ELIGIBLES * * * (B) AT ANY TIME BETWEEN MAY 1, 1940, AND OCTOBER 23, 1943, WITH RESPECT TO A POSITION IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT * * * AND (2) WHO, PURSUANT TO EXECUTIVE ORDER NUMBER 9538, DATED APRIL 13, 1945, OR REGULATIONS OF THE CIVIL SERVICE COMMISSION COVERING SIMILAR SITUATIONS IN WHICH AN ELIGIBLE LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF MILITARY SERVICE DURING WORLD WAR II, WAS CERTIFIED FOR PROBATIONAL APPOINTMENT TO SUCH POSITION, AND SUBSEQUENTLY, WAS GIVEN SUCH APPOINTMENT.' UNDER ITS PROVISIONS A QUALIFIED EMPLOYEE "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.'

WHILE WE HELD IN 26 COMP. GEN. 625 THAT PUBLIC LAW 577 DOES NOT BECOME OPERATIVE WITH RESPECT TO AN INDIVIDUAL EMPLOYED IN A WAR SERVICE INDEFINITE STATUS WHO WAS SUBSEQUENTLY CONVERTED TO PROBATIONAL STATUS UNTIL THE EFFECTIVE DATE OF SUCH CONVERSION, THE CIVIL SERVICE COMMISSION HAS SUBSEQUENTLY RULED FOR PURPOSES OF PUBLIC LAW 121, 83D CONGRESS, WHICH IS SIMILAR TO PUBLIC LAW 577, THAT CONVERSIONS FROM INDEFINITE STATUS TO PROBATIONAL STATUS WHICH WERE ACCOMPLISHED PURSUANT TO EXECUTIVE ORDER NO. 10376 OF JULY 18, 1952, RELATE BACK TO THE DATE AN INDIVIDUAL WAS ACCORDED SUCH INDEFINITE STATUS. WE FOLLOWED THAT COMMISSION RULING IN B-116740, OCTOBER 9, 1953. IN VIEW OF THE CIRCUMSTANCES IN THIS PARTICULAR CASE WE BELIEVE THE SAME PRINCIPLE SHOULD BE APPLIED TO THE APPOINTMENT OF MR. GUNTER. CONSEQUENTLY, WHILE HE CANNOT BE ALLOWED CREDIT FOR SENIORITY AND SALARY PURPOSES FOR THE PERIOD OF TIME ELAPSED BETWEEN THE DATE HE DECLINED APPOINTMENT FOLLOWING RELEASE FROM MILITARY SERVICE AND THE DATE HE SUBSEQUENTLY ACCEPTED PROBATIONAL APPOINTMENT, THAT APPOINTMENT DATE SHOULD BE VIEWED AS DECEMBER 1, 1951, RATHER THAN AUGUST 17, 1952.