B-65127, APRIL 30, 1947, 26 COMP. GEN. 839

B-65127, APRIL 30, 1947, 26 COMP. GEN. 839

COMPENSATION - PROMOTIONS - POSTAL SERVICE - RETROACTIVE PROMOTION FROM SUBSTITUTE TO REGULAR ON BASIS OF SENIORITY THERE IS NO AUTHORITY FOR THE RETROACTIVE PROMOTION, AFTER MILITARY DUTY, OF POSTAL SERVICE EMPLOYEES FROM SUBSTITUTE TO REGULAR POSITIONS ON THE BASIS THAT, BECAUSE OF SENIORITY, THEY WOULD PREVIOUSLY HAVE BEEN SO PROMOTED HAD THEY NOT ENTERED UPON MILITARY SERVICE.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, APRIL 30, 1947:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF APRIL 1, 1947, REFERENCE 15, AS FOLLOWS:

THERE IS PRESENTED FOR YOUR CONSIDERATION CASES INVOLVING THE PAY STATUS OF CERTAIN POSTAL EMPLOYEES.

ANDREW C. EXTROM WAS APPOINTED A SUBSTITUTE CITY LETTER CARRIER IN THE BLUE ISLAND, ILLINOIS, POST OFFICE, JANUARY 1, 1941. HE ENTERED THE MILITARY SERVICE JULY 21, 1942. UPON HIS RETURN FROM MILITARY DUTY THE POSTMASTER REASSIGNED AND PROMOTED HIM TO REGULAR CITY LETTER CARRIER AND PAID HIM AS SUCH FROM JANUARY 1, 1946.

HARRY C. PEARSON WAS APPOINTED A SUBSTITUTE CLERK IN THE BLUE ISLAND, POST OFFICE, SEPTEMBER 1, 1939. HE ENTERED THE MILITARY SERVICE ON AUGUST 11, 1944. UPON HIS RETURN FROM MILITARY SERVICE THE POSTMASTER ASSIGNED AND PROMOTED HIM TO THE POSITION OF REGULAR CLERK AND PAID HIM AS SUCH FROM MARCH 1, 1946.

DURING THE ABSENCE OF THESE TWO MEN ON MILITARY LEAVE VACANCIES OCCURRED IN THE REGULAR FORCE. THE POSTMASTER SUBMITTED FORMAL RECOMMENDATIONS FOR FILLING THESE VACANCIES BUT AS THEY WERE NOT SUBMITTED IN THE PROPER FORM AND FAILED TO CONTAIN NECESSARY INFORMATION THEY WERE NOT APPROVED. AFTER CONSIDERABLE DELAY AND CORRESPONDENCE THE DEPARTMENT ACTUALLY AUTHORIZED THE PROMOTION OF EXTROM FROM SUBSTITUTE CARRIER TO REGULAR CARRIER EFFECTIVE NOVEMBER 1, 1946, AND THE PROMOTION OF PEARSON FROM SUBSTITUTE CLERK TO REGULAR CLERK EFFECTIVE DECEMBER 1, 1946. IT NOW BECOMES NECESSARY THAT MESSERS. EXTROM AND PEARSON MAKE REFUNDS OF OVERPAYMENT OF SALARY IN THE AMOUNTS OF $254.09 AND $183.05, RESPECTIVELY. BOTH EMPLOYEES DECLINE TO MAKE REFUND. THEY HOLD THAT UNDER THE GI BILL OF RIGHTS UPON REASSIGNMENT TO DUTY IN THE POST OFFICE FOLLOWING MILITARY DUTY THEY ARE ENTITLED TO THE GRADE AND SALARY THEY WOLD HAVE ATTAINED HAD THEY NOT ENTERED THE MILITARY SERVICE. AS VACANCIES DID OCCUR DUING THEIR ABSENCE IT IS CERTAIN THEY WOULD HAVE BEEN PROMOTED TO REGULAR POSITIONS HAD THEY NOT BEEN ON MILITARY LEAVE.

SUBSTITUTE CLERK FRED L. PAFF AND SUBSTITUTE CARRIER RAYMOND H. STONE WERE APPOINTED IN THE HENDERSON, KENTUCKY, POST OFFICE IN 1942. MR. STONE WAS INDUCTED INTO THE MILITARY SERVICE ON MARCH 26, 1944, AND MR. PAFF ON OCTOBER 10, 1944. ON JANUARY 1, 1945, WHILE BOTH OF THOSE MEN WERE ABSENT ON MILITARY DUTY WAR SERVICE SUBSTITUTE CLERK LALA G. MILLER WAS PROMOTED ERRONEOUSLY TO THE POSITION OF REGULAR CLERK. MR. STONE SHOULD HAVE RECEIVED THE PROMOTION EVEN THOUGH HE WAS ABSENT ON MILITARY LEAVE; MR. PAFF SHOULD THEN HAVE BEEN PROMOTED TO MR. PAFF'S MILITARY VACANCY. THAT WAY, BOTH OF THE CLASSIFIED EMPLOYEES WOULD HAVE RECEIVED THE BENEFITS OF PUBLIC LAW 134. EMPHASIS IS PLACED ON THE FACT THAT MISS MILLER WAS A JUNIOR EMPLOYEE AND SHOULD NOT HAVE BEEN PROMOTED AHEAD OF PAFF AND STONE. AS A RESULT OF THIS ERROR STONE WAS RETURNED TO DUTY AT A SALARY OF $1.09 PER HOUR AND PAFF AT A SALARY OF $1.19 AN HOUR. AS AN ERROR WAS BY THE DEPARTMENT, IT IS DESIRED TO PROMOTE BOTH OF THESE MEN AS OF JANUARY 1, 1945, THEREBY GIVING THEM THE BENEFITS OF PUBLIC LAW 134, AS THEY ARE ENTITLED TO THE RIGHTS THEY WOULD HAVE RECEIVED HAD THEY NOT BEEN IN THE ARMED FORCES.

IN ORDER TO CORRECT THESE ADMINISTRATIVE ERRORS AND TO DO JUSTICE TO THESE EMPLOYEES YOUR DECISION IS REQUESTED AS TO WHETHER AT THIS TIME THE DEPARTMENT WOULD BE PERMITTED TO ISSUE ORDERS RETROACTIVELY FOR THEIR ADVANCEMENT FROM SUBSTITUTE TO REGULAR.

THE APPOINTMENT OF A SUBSTITUTE EMPLOYEE TO A REGULAR POSITION IS AN ADMINISTRATIVE PROMOTION. THERE EXISTS NO AUTHORITY OF LAW TO GRANT SUCH ADMINISTRATIVE PROMOTION WHILE ON A SO-CALLED MILITARY FURLOUGH DURING WHICH THE EMPLOYEE IS NOT IN HIS CIVILIAN POSITION. PUBLIC LAW 134, 59 STAT. 435, AUTHORIZES AUTOMATIC PROMOTIONS TO EMPLOYEES OF THE POSTAL SERVICE FROM GRADE TO GRADE UNDER PARTICULAR CLASSIFICATIONS, SUCH AS REGULAR CLERKS, SUBSTITUTES, ETC., AFTER "SATISFACTORY SERVICE" IN A PARTICULAR POSITION, BUT THERE IS NOTHING THEREIN, OR ELSEWHERE SO FAR AS I AM ADVISED, WHICH REQUIRES THAT AN ADMINISTRATIVE PROMOTION FROM A SUBSTITUTE POSITION TO A REGULAR POSITION SHALL BE MADE BASED UPON SENIORITY OR BECAUSE OF MILITARY SERVICE.

UNDER THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, 54 STAT. 890, AS AMENDED, A RETURNING VETERAN WHO LEFT A POSITION, OTHER THAN TEMPORARY, TO ENTER THE ARMED FORCES IS ENTITLED TO "BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS AND PAY.' ( ITALICS SUPPLIED.) THE RIGHT OF RESTORATION UNDER THAT STATUTE IS LIMITED TO THE SAME POSITION OR ONE OF "LIKE SENIORITY, STATUS, AND PAY," AND DOES NOT INCLUDE A POSITION TO WHICH THE EMPLOYEE MIGHT HAVE BEEN PROMOTED HAD HE NOT ENTERED THE MILITARY SERVICE, AS INDICATED IN YOUR LETTER.

ACCORDINGLY, SO FAR AS REEMPLOYMENT RIGHTS ARE CONCERNED, I KNOW OF NO AUTHORITY UNDER WHICH THE REFERRED-TO EMPLOYEES MAY BE PROMOTED RETROACTIVELY FROM SUBSTITUTE POSITIONS TO REGULAR POSITIONS AS OF THE DATE OF THEIR RETURN FROM MILITARY SERVICE, OR AS OF THE DATE THEY MIGHT HAVE BEEN PROMOTED HAD THEY NOT ENTERED MILITARY SERVICE. IN THE CASE OF MR. PEARSON AND MR. EXTROM, COLLECTION OF THE OVERPAYMENTS MENTIONED IN YOUR LETTER SHOULD BE MADE.