Bob Ferguson
Other LanguagesAGO 1952 No. 213 -
Attorney General Smith Troy
VETERANS' PREFERENCE.
An honorably discharged veteran who has received a preference credit in an entrance examination for public employment, may not upon return from a second tour of wartime military service receive a preference credit in a promotional examination.
An honorably discharged veteran in public employment who has not been given a preference credit in either an entrance examination or a promotional examination may, upon return from a second tour of wartime military duty, receive preference credit upon a competitive promotional examination.
A person who entered military service subsequent to December 31, 1946, when hostilities of World War II were declared at an end and prior to the declaration of peace by Germany and Japan is a war veteran entitled to veterans' preference for competitive examinations for public employment.
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January 15, 1952
Mr. Donald H. Webster,Director
Bureau of Governmental Research and Services
University of Washington
206 J. Allen Smith Hall
Seattle 5, Washington Cite as: AGO 51-53 No. 213
Dear Sir:
Receipt is acknowledged of your letter of December 31, 1951, in which you request our opinion relative to the applicability of section 1, chapter 189, Laws of 1945, as last amended by chapter 134, Laws of 1949 (§ 9963-5 Rem. Supp. 1949). This is the statute relative to veterans' preference in competitive examinations in public employment. Your specific questions are as follows:
"1. Under the above‑mentioned statute, is an honorably discharged veteran who has been accorded a preference credit thereunder on an Orig. Op. Page 2 entrance examination for public employment upon his return from World War II and who thereafter is recalled to military service, entitled to another preference credit on a promotional examination upon his discharge from said recalled service?
"2. Under the above‑mentioned statute, is an honorably discharged veteran in public employment who has not been given a preference credit on an entrance examination, or at any other time thereafter, and who is recalled to military service after military service in World War II, entitled to a preference credit on a 'competitive' promotional examination upon his discharge from said recalled service?
"3. Is a person who enters military service subsequent to December 31, 1946, when hostilities of World War II were declared to be at an end by Presidential proclamation, considered to be a war veteran and entitled to a preference credit in public employment under the above‑mentioned statute?"
It is our conclusion that an honorably discharged veteran who has been accorded a preference credit in an entrance examination for public employment upon his return from World War II and thereafter is recalled to military service, is not entitled to another preference credit on a promotional examination upon his discharge from the recalled service.
It is further our opinion that an honorably discharged veteran in public employment who has not been given a preference credit on an entrance examination or at any other time thereafter and who is recalled to military service after military service in World War II, is entitled to a preference credit upon the first competitive promotional examination after his discharge from such recalled service.
It is also our opinion that one who entered military service subsequent to December 31, 1946, when hostilities of World War II were declared to be at an end by presidential proclamation, may nevertheless be a war veteran and entitled to a preference credit in public employment.
ANALYSIS
Section 1, chapter 189, Laws of 1945, as last amended by chapter 34, Laws of 1949 (§ 9963-5 Rem. Supp. 1949) provides:
"In all competitive examinations, unless otherwise provided herein, to determine the qualifications of applicants for public offices, positions or employment, the State of Washington, and all of its political subdivisions and all municipal corporations, shall give a preference status to all veterans, as herein defined, of all wars in which the United States of America has been, now is or may hereafter be engaged, by adding to the mark, grade or rating, based upon a possible rating of one hundred (100) points as perfect, ten per cent (10%) to his final earned test rating: Provided, That he has received a minimum passing grade in such examination. The term 'veteran' as herein used, shall include every person who has served, now is serving, or may hereafter serve in any branch of the Armed Forces of the United States during any such war and, upon termination of the service, has received an honorable discharge, or a physical discharge with an honorable record, or has been relieved of active services under honorable circumstances. The provisions of this act shall not be applicable to promotional examinations to determine the qualifications of officers or employees for promotion from a lower grade position to a higher grade position: Provided, That when such a veteran was employed in public service at the time of his entry into military service and returns to the same employment, he shall be entitled to the preference herein provided for on his first promotional examination."
The condition for obtaining a preference is that one shall be an honorably separated war veteran of the Armed Forces of the United States. Being a veteran is thus a status which one attains by war-time wartimemilitary service. Having attained that status one is made neither more nor less a veteran by subsequent recalls to wartime military service. In providing for preference Orig. Op. Page 4 on promotional examinations the legislature did not prescribe that such preference should be extended in all subsequent promotional examinations, but limited the preference to the first promotional examination in the case of a veteran who was employed in public service at the time of his entry into military service. It seems scarcely conceivable that the legislature would have intended a different result in the case of a man who was released from active duty and subsequently recalled for wartime service and the man who continued in military service during the entire period. The proviso at the end of the section above quoted relates to the person who is employed in public service at the time of his entry into the military service. This obviously contemplates one who was not in need of military preference in an examination to obtain the position initially, but accords to such person some advantage from his military service by reason of a preference upon his first promotional examination after the attainment of veteran status. Credit upon a promotional examination cannot be given to one who has received veteran's credit on his entrance examination simply because his situation is not that of one who was employed as the statute contemplates before he became a veteran.
The statute does not, in terms, grant additional benefits for successive periods of wartime military service. In our opinion, when one has attained the status of a veteran he is entitled to the preference upon as many competitive examinations for initial employment as he shall wish to take, but he is entitled to credit upon a promotional examination only when he was already employed in the same position before entering the service which gave him veteran status. A subsequent period of service in the Armed Forces does not, in our opinion, entitle him to an additional preference upon a promotional examination.
In the second situation about which you inquire, an honorably discharged veteran has not been given a preference credit on an entrance examination nor at any time thereafter and then has been recalled to military service. Under the last proviso of the statute, such a person upon returning to his public employment is entitled to veterans' preference on his first promotional examination, not because of the fact that he has returned from his second tour of wartime duty, but because he is a veteran who has not exhausted his rights by having obtained credit upon a first competitive promotional examination. We do not regard his recall to active military service as having any bearing upon his right to preference. He has this by reason of having veteran status.
Your third question deals with the right to veterans' preference of a person who entered military service subsequent to December 31, 1946, when the president declared that the hostilities of World War II were at an end. To date Orig. Op. Page 5 there has been no formal declaration of the end of the war with Japan. On June 14, 1948, this office gave an opinion to the director of Veterans' Rehabilitation Council, to the effect that a state of war with Germany and Japan still existed and would continue until the termination was formally proclaimed by Congress, or until the respective peace treaties had been ratified. A copy of that opinion is enclosed for your information. In an opinion dated October 19, 1950 Opinion No. 49-51-370, this office advised the prosecuting attorney of Pierce County that a person serving in the Armed Forces in the Korean campaign was entitled to veterans' benefits under the Veterans' Relief Act, chapter 180, Laws of 1947. This opinion was based upon the continued existence of World War II, by reason of the failure of Congress to end it by a declaration. A copy of that opinion is also enclosed for your information. The technical state of war was not terminated by the president's declaration of the end of hostilities. In an opinion to the director of Veterans' Rehabilitation Council, dated September 27, 1951 Opinion No. 51-53-138, a copy of which we enclose, this office advised that a veteran who had not served during any war is not entitled to veterans' preference. The question then is whether service during the technical state of war and after hostilities had been declared ended, qualifies one for veterans' preference.
Following World War I a technical state of war existed for some time after the armistice and in the case of State ex rel. Peter v. Listman, 157 Wash. 229, 288 Pac. 913, our Supreme Court held that a veterans' preference provision in the charter of the city of Seattle extended to "honorably discharged soldiers, sailors and marines of the United States who have served in time of war" was not available to one who entered the military service after the close of hostilities, but during the continuance of the technical war. The court arrived at its decision by using the following language:
"The sole question in the case is what is meant by the words, 'have served in time of war,' in the charter amendment, as applied to the World War. Appellant contends those words mean, in point of time, down until the ratification of the treaty of peace, while respondents say they do not apply to service commenced after the signing of the armistice. In this respect, words in a given setting and for a particular purpose may mean, and must often be considered to mean, a different thing from what they do in some other setting. What did the people of Seattle mean by this language they used in amending their charter?
"The words must be read in a sense which harmonizes with the subject-matter and the general purpose and object of the amendment, consistent of course with the language itself. The words must be understood not as the words of the civil service commission, or the city council, or the mayor, or the city attorney, but as the words of the voters who adopted the amendment. They are to be understood in the common, popular way, and, in the absence of some strong and convincing reason to the contrary, not found here, they are not entitled to be considered in a technical sense inconsistent with their popular meaning.
"* * *
"* * * After the armistice was signed, it was a most common thing to say and to understand that the war had ended. The soldiers, sailors and marines commenced at once to return in large numbers.
"The President in his message on November 11, 1918, giving formal and official information to Congress and, at the same time, by that means, speaking to all the people of the United States, after enumerating the thirty-five articles of the armistice that had been signed, immediately said: 'The war thus comes to an end.' Those words had a popular meaning. Everybody understood them. The war was over, because, as it was further said in that message, 'having accepted the terms of the armistice, it will be impossible for the German command to renew it.'"
The court there held that the law was not intended to cover any period except that when the actual fighting occurred. That decision was based upon the factual situation the court found existed after World War I. We are not convinced that the factual setting at the end of World War II was parallel to that existing at the end of World War I. Certainly the war was not so clearly at an end when hostilities ceased as was the case in World War I. The years following World War II have been years of international peril. Selective Service has been continued by our government. Large occupation forces have remained on duty in Europe and Asia Orig. Op. Page 7 where troops have encountered hostile acts such as the Berlin blockade and the shooting down of airplanes over Yugoslavia Yugoslavia. They have participated in the pacification of Greece and, finally, are engaged in major tactical operations in Korea. We doubt that the courts would say that the war was so clearly at an end that persons who served in the military forces under such circumstances and while the declaration of war was still in effect are excluded from the benefits of the veterans' preference law.
It is our opinion that persons who have entered the military service subsequent to December 31, 1946, should be regarded as veterans of a war and are entitled to veterans' preference in competitive examinations for public employment.
Very truly yours,
SMITH TROY
Attorney General
LYLE L. IVERSEN
Assistant Attorney General