B-75945, MAY 21, 1948, 27 COMP. GEN. 720

B-75945, MAY 21, 1948, 27 COMP. GEN. 720

COMPENSATION - POSTAL SERVICE - PROMOTIONS - SERVICE CREDITS PRINCIPAL REVIEW CLERKS AT DIVISION HEADQUARTERS OF POST OFFICE INSPECTORS WHO TRANSFER TO OTHER POSITIONS IN THE POSTAL SERVICE, WHETHER IN THE SAME OR SIMILAR BRANCH OR WHETHER THE DUTIES BE SIMILAR OR DISSIMILAR, MAY NOT, UPON RESTORATION TO THEIR FORMER POSITIONS, COUNT SERVICE IN SUCH OTHER POSITIONS TOWARD THE MINIMUM SERVICE REQUIREMENTS PRESCRIBED BY SECTION 15 (E) OF THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1945, FOR PROMOTION TO THE TWO ADDITIONAL GRADES PROVIDED THEREIN FOR REVIEW CLERKS WHO PERFORM FAITHFUL AND MERITORIOUS SERVICE. 21 COMP. GEN. 326, DISTINGUISHED. THE TERM "CONTINUOUS ACTIVE SERVICE" AS USED IN THE ALLOWABLE SERVICE PROVISIONS OF SECTION 25 OF THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1945, IS TO BE REGARDED AS ONLY REQUIRING CONTINUOUS EMPLOYMENT IN THE POSTAL SERVICE, SO THAT PRINCIPAL REVIEW CLERKS AT DIVISION HEADQUARTERS OF POST OFFICE INSPECTORS WHO TRANSFER TO OTHER POSITIONS IN THE SERVICE AND SUBSEQUENTLY RETRANSFER TO THEIR ORIGINAL POSITIONS WITHOUT A BREAK IN SERVICE MAY COUNT THEIR ORIGINAL PERIOD OF EMPLOYMENT TOWARD PROMOTION TO THE TWO ADDITIONAL GRADES PROVIDED IN SECTION 15 (E) OF SAID STATUTE FOR REVIEW CLERKS WHOSE SERVICE IS "FAITHFUL AND MERITORIOUS.'

ACTING COMPTROLLER GENERAL FISHER TO THE POSTMASTER GENERAL, MAY 21, 1948:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF APRIL 26, 1948 (REFERENCE 3), AS FOLLOWS:

A PRINCIPAL REVIEW CLERK AT DIVISION HEADQUARTERS OF POST OFFICE INSPECTORS, GRADE 4, $3,400 PER ANNUM, WAS APPOINTED TO THE POSITION OF POST OFFICE INSPECTOR ON TRIAL IN GRADE 1, $3,600 PER ANNUM, EFFECTIVE JUNE 30, 1947. HE SERVED IN THE CAPACITY OF TRIAL INSPECTOR UNTIL MARCH 1, 1948, WHEN DUE TO UNSUCCESSFUL COMPLETION OF THE DESIGNATED TRIAL PERIOD, HE WAS RESTORED TO HIS FORMER POSITION AS PRINCIPAL REVIEW CLERK, GRADE 4, $3,400. HAD THIS EMPLOYEE NOT RECEIVED HIS APPOINTMENT AS TRIAL INSPECTOR, HE WOULD HAVE COMPLETED 3 YEARS IN GRADE 4 AND BECOME ELIGIBLE FOR PROMOTION TO GRADE 5, $3,500, ON JULY 1, 1948.

APPOINTMENTS TO THE POSITION OF POST OFFICE INSPECTOR ARE FOR A TRIAL PERIOD OF SIX MONTHS WITH POSSIBLE EXTENSION OF NOT TO EXCEED SIX MONTHS ADDITIONAL AND MAY BE TERMINATED WITHIN THE TRIAL PERIOD AT THE DISCRETION OF THE CHIEF INSPECTOR. APPOINTEES ARE GUARANTEED, IN CASE OF FAILURE TO QUALIFY, RESTORATION TO THE POSITION OCCUPIED AT TIME OF APPOINTMENT, OR A COMPARABLE POSITION IN THE POSTAL ESTABLISHMENT, WITHOUT LOSS OF SENIORITY, STATUS OR PAY. IN EFFECT, AN INSPECTOR RECEIVING A TRAIL APPOINTMENT REMAINS ON DETAIL FROM HIS PREVIOUS POSITION DURING HIS TRIAL PERIOD (21 C.G. 326).

IN VIEW OF THE FOREGOING, IT IS ASSUMED THAT THE EMPLOYEE IN QUESTION WILL BE ELIGIBLE FOR PROMOTION TO GRADE 5, $3,500, ON JULY 5, 1948. THIS ASSUMPTION CORRECT? TO HOLD OTHERWISE WILL, OF COURSE, RESULT IN PENALIZING THIS EMPLOYEE BY REASON OF HIS ACCEPTANCE OF THE TRIAL APPOINTMENT AS INSPECTOR, WHICH ACTION WAS NOT CONTEMPLATED BY THE DEPARTMENT AT THE TIME OF HIS APPOINTMENT.

IN THE EVENT, HOWEVER, THAT THE SERVICE AS INSPECTOR CANNOT BE INCLUDED IN COMPUTING THE THREE YEAR PERIOD REQUIRED FOR PROMOTION TO GRADE 5, IT IS ASSUMED THAT THE TWO YEARS OF SERVICE IN GRADE 4 PRIOR TO APPOINTMENT AS INSPECTOR MAY BE COUNTED. IS THIS CORRECT?

A FURTHER QUESTION ARISES. COULD THE RESTORATION OF THE EMPLOYEE TO THE POSITION OF PRINCIPAL REVIEW CLERK ON MARCH 1, 1948, HAVE BEEN MADE A GRADE 5, $3,500 OR GRADE 6, $3,600, INASMUCH AS HE WAS RECEIVING A SALARY OF $3,600 AS POST OFFICE INSPECTOR? IF SO, IS IT NOW PERMISSIBLE TO PLACE HIM IN THE HIGHER GRADE RETROACTIVELY TO MARCH 1, 1948, IN VIEW OF THE ADMINISTRATION ERROR IN NOT DOING SO AT THE TIME OF RESTORATION.

SECTION 15 (E) OF THE ACT OF JULY 6, 1945, PUBLIC LAW NO. 134, 59 STAT. 435, 450, DIVIDES PRINCIPAL REVIEW CLERKS AT DIVISION HEADQUARTERS OF POST -OFFICE INSPECTORS INTO FOUR REGULAR GRADES AND PROVIDES FOR AUTOMATIC PROMOTION FROM ONE REGULAR GRADE TO THE NEXT HIGHER GRADE "SUCCESSIVELY AT THE BEGINNING OF THE QUARTER FOLLOWING ONE YEAR'S SATISFACTORY SERVICE IN EACH GRADE" UNTIL THE HIGHEST REGULAR GRADE IS REACHED. THAT SAME SUBSECTION PROVIDES THAT FOR SUCH REVIEW CLERKS THERE SHALL BE TWO ADDITIONAL GRADES, NAMELY, GRADES 5 AND 6, AND "THAT SUCH CLERKS WHO PERFORM FAITHFUL AND MERITORIOUS SERVICE SHALL BE PROMOTED TO GRADE 5 AFTER THREE YEARS OF SUCH SERVICE IN GRADE 4, AND SHALL BE PROMOTED TO GRADE 6 AFTER FIVE YEARS OF SUCH SERVICE IN GRADE 5.' (ITALICS SUPPLIED.)

WHILE IT IS REALIZED THAT THE RESULT MAY OPERATE TO PENALIZE THE EMPLOYEE BY REASON OF HIS ACCEPTANCE OF THE TRIAL APPOINTMENTS AS INSPECTOR, THIS OFFICE HAS NO ALTERNATIVE BUT TO CONCLUDE THAT THE SPECIFIC WORDING OF THE STATUTE, ABOVE, IS SUCH AS TO PRECLUDE THE COUNTING OF THE PERIOD OF SERVICE AS POST-OFFICE INSPECTOR IN COMPUTING THE THREE-YEAR PERIOD REQUIRED THEREUNDER BEFORE A GRADE 4 PRINCIPAL REVIEW CLERK MAY BE PROMOTED TO GRADE 5 PRINCIPAL REVIEW CLERK. THAT IS TO SAY, THE ENTIRE PERIOD OF CREDITABLE SERVICE MUST BE IN GRADE 4 AS PRINCIPAL REVIEW CLERK, AND SERVICE IN ANOTHER POSITION OF THE POSTAL SERVICE WHETHER IN THE SAME OR A DIFFERENT BRANCH THEREOF OR WHETHER THE DUTIES BE SIMILAR OR DISSIMILAR, MAY NOT BE COUNTED FOR PROMOTION PURPOSES. SEE 7 COMP. GEN. 295; 26 ID. 51; B-57938, JULY 13, 1946. THE DECISION (21 COMP. GEN. 326) CITED IN THE SECOND PARAGRAPH OF YOUR LETTER RELATES TO THE WITHIN-GRADE PROMOTION ACT OF AUGUST 1, 1941, AND HAS NO APPLICATION TO THE AUTOMATIC PROMOTION PROVISIONS OF THE POSTAL EMPLOYEES PAY ACT OF 1945. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

SECTION 25 OF THE ACT OF JULY 6, 1945, SUPRA, 59 STAT. 461, PROVIDES:

ALLOWABLE SERVICE UNDER THE PROVISIONS OF THIS ACT SHALL BE ONLY SUCH CONTINUOUS ACTIVE SERVICE AS HAS BEEN RENDERED AND SHALL NOT INCLUDE PREVIOUS PERIODS OR TERMS OF EMPLOYMENT: PROVIDED, HOWEVER, THAT IN THE CASE OF EMPLOYEES WHO HAVE BEEN SEPARATED OR SHALL HEREAFTER BE SEPARATED FROM THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT FOR MILITARY DUTY, THE PERIODS OR TERMS OF SUCH SERVICE IMMEDIATELY PRECEDING ENTRY INTO THE MILITARY SERVICE AS WELL AS THE TIME ENGAGED IN MILITARY SERVICE SHALL BE CONSTRUED AS ALLOWABLE SERVICE AND PRO RATA CREDIT SHALL BE GIVEN FOR THE TIME ENGAGED IN MILITARY SERVICE FOR EACH YEAR OF SUCH SERVICE.

IT IS THE VIEW OF THIS OFFICE THAT IN THE ABSENCE OF ANY EXPRESS LEGISLATIVE INTENT TO THE CONTRARY, THE TERM "CONTINUOUS ACTIVE SERVICE" AS USED IN THE ABOVE-QUOTED SECTION OF THE STATUTE REASONABLY AND PROPERLY MAY BE CONSTRUED AS ONLY REQUIRING CONTINUOUS EMPLOYMENT IN THE POSTAL SERVICE. IT IS NOT BELIEVED THAT THE CONGRESS INTENDED BY SUCH PROVISION TO DESTROY OR TAKE AWAY AN EMPLOYEE'S PREVIOUSLY EARNED CREDITABLE PERIOD OF POSTAL SERVICE WHERE HE TRANSFERS TO ANOTHER POSITION IN SUCH SERVICE AND THEN RETRANSFERS TO THE ORIGINAL POSITION WITHOUT A BREAK IN SERVICE. WHILE, AS HEREINBEFORE STATED, THE PERIOD OF EMPLOYMENT SPENT IN THE SECOND POSITION IS NOT TO BE CONSIDERED OR ALLOWED AS CREDITABLE SERVICE, THERE IS NO SOUND LEGAL BASIS FOR HOLDING THAT THE ORIGINAL PERIOD OF POSTAL EMPLOYMENT AS A PRINCIPAL REVIEW CLERK IS NOT TO BE COUNTED TOWARDS PROMOTION FROM GRADE 4 TO GRADE 5 PRINCIPAL REVIEW CLERK, PROVIDED, OF COURSE, SUCH SERVICE BE ,FAITHFUL AND MERITORIOUS.' YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO YOUR THIRD QUESTION, IT SUFFICES TO STATE THAT IT IS IMMATERIAL THAT THE EMPLOYEE WAS RECEIVING $3,600 AS A POST-OFFICE INSPECTOR AS OF MARCH 1, 1948, SO FAR AS IT PERTAINS TO HIS RIGHT TO APPOINTMENT BY TRANSFER TO ONE OF THE TWO ADDITIONAL GRADES AT THE END OF HIS PERIOD OF SERVICE AS A POST-OFFICE INSPECTOR. AS OF MARCH 1, 1948, THE EMPLOYEE HAD NOT PERFORMED THE REQUIRED THREE YEARS OF SERVICE IN GRADE 4 NOR HAD HE PERFORMED ANY SERVICE IN GRADE 5. TO HOLD THAT UPON THE BASIS OF APPROXIMATELY EIGHT MONTHS' SERVICE AS A POST-OFFICE INSPECTOR AT THE RATE OF $3,600 AN EMPLOYEE, WHO IMMEDIATELY PRIOR THERETO HELD THE POSITION OF PRINCIPAL REVIEW CLERK, GRADE 4, COULD ACQUIRE THE RIGHT TO APPOINTMENT TO GRADE 5 AS PRINCIPAL REVIEW CLERK, WHICH POSITION HE COULD NOT HAVE HELD IN ACCORDANCE WITH THE ADVANCEMENT PLAN PRESCRIBED BY THE STATUTE WITHOUT PERFORMING THREE YEARS OF "FAITHFUL AND MERITORIOUS SERVICE IN GRADE 4," OBVIOUSLY WOULD BE UNREASONABLE AND UNFAIR TO THE OTHER GRADE 4 PRINCIPAL REVIEW CLERKS AND WOULD TEND TO DEFEAT THE PURPOSE AND INTENT OF THE STATUTE. FURTHERMORE, THAT SAME REASONING HOLDS TRUE WITH RESPECT TO HIS APPOINTMENT TO GRADE 6, $3,600. HENCE, IT IS CONCLUDED THAT THE EMPLOYEE HAD NO VALID LEGAL RIGHT TO RESTORATION TO EITHER OF THE TWO ADDITIONAL GRADES PROVIDED FOR BY THE STATUTE FOR PRINCIPAL REVIEW CLERKS. SEE 21 COMP. GEN. 436; 27 ID. 68. THIS QUESTION IS ANSWERED IN THE NEGATIVE.

IN VIEW OF THE ANSWER TO THE PRECEDING QUESTION, NO ANSWER TO YOUR FINAL QUESTION IS REQUIRED.