
    Veterans’ Civil Service Preference
    June 8, 1956.
   Stephen B. Narin,

Deputy Attorney General,

The State Civil Service Commission has requested the opinion of this department regarding the following matter. The commission has received and is continuing to receive claims, pursuant to the provisions of the Veterans’ Preference Act, for the addition of 10-point preferential, benefits to test scores earned in appointment examination from persons who have served in the armed forces subsequent to the signing of the Korean Armistice on July 27, 1953, subsequent to which date the United States has not been engaged in any war or armed conflict. You desire advice as to whether such claims are valid. If you are advised that such claims are not valid, you wish to know whether the commission may now cancel any such credits which have been added to the test scores of persons ineligible therefor.

Section 1 of the Act of May 22, 1945, P. L. 837; 51 PS §492.1, as amended, commonly known as the Veterans’ Preference Act, provides:

“Section 1. The word ‘soldier’ as used in this act, shall be construed to mean a person who served in the armed forces of the United States, or in any women’s organization officially connected therewith, during any war or armed conflict in which the United States engaged, and who has an honorable discharge from such service.”

The italicized words “or armed conflict” were added by the Act of December 7, 1955, P. L. 801. It is manifest that the legislature by inserting these words in section 1 intended to bring veterans of the Korean Conflict within the provisions of the act. It was necessary to enact this amendment in order to overcome the possible effect on this act of Beley v. Pennsylvania Mutual Life Insurance Co., 373 Pa. 231 (1953), cert. den. 346 U. S. 820 (1953), a life insurance case which held that the Korean Conflict was not a war within the meaning of that word as used in a life insurance policy.

Sections 2 and 3 of the act provide that whenever any soldier shall successfully pass a civil service appointment examination, 10 points shall be added to the mark or grade credited for the examination for the discipline and experience represented by his military training and for the loyalty and public spirit demonstrated by his service for the preservation of his country. The total mark or grade thus obtained represents his final mark or grade and determines his standing on any eligible or promotional list.

The Supreme Court of Pennsylvania has held that the granting of preference in the case of original appointments is constitutional so long as the soldier first meets the minimum qualifications under uniform eligibility rules before receiving the preference: Commonwealth ex rel. Graham v. Schmid, 333 Pa. 568 (1938); Carney v. Lowe, 336 Pa. 289 (1939).

The definition of “soldier” in section 1 clearly limits the benefits of the Veterans’ Preference Act to persons who have served in the armed forces of the United States or in any women’s organization officially connected therewith during a war or armed conflict. Service in time of war or armed conflict is a condition precedent to eligibility for benefits under the act. A veteran who has not served in time of war or armed conflict is not eligible for any benefits under the act regardless of his length of service in time of peace.

It is, therefore, the opinion of this department and you are accordingly advised that

1. Persons who have served in the armed forces of the United States or in any women’s organization officially connected therewith are not eligible to receive any benefits under the provisions of the Veterans’ Preference Act unless at least a part of such service occurred during a war or armed conflict; therefore, a person who served in the armed forces subsequent to the signing of the Korean Armistice on July 27, 1953, is not eligible to receive the 10-point preferential benefit unless he has also served in the armed forces at some time during a war or armed conflict.

2. The commission not only may but must cancel any 10-point preferential benefit added to the examination score of any veteran who has not served in the armed forces at some time during a war or armed conflict.  