B-139812, JUL. 1, 1959

B-139812, JUL. 1, 1959

TO MR. RAMON C. JOSEF:

ON MAY 20, 1959, YOU REQUESTED RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT DATED APRIL 6, 1959, WHICH DISALLOWED YOUR CLAIM FOR A RETROACTIVE ADJUSTMENT IN SALARY BASED ON CERTAIN PERSONNEL ACTIONS AS DESCRIBED BELOW.

THE RECORD SHOWS THAT YOU WERE GIVEN A TEMPORARY APPOINTMENT ON DECEMBER 6, 1950, AS PROPERTY AND SUPPLY CLERK, S-7, STEP 5 (EQUIVALENT TO LGS-3, STEP 5) WITH HEADQUARTERS, 13TH AIR FORCE. SALARY ADJUSTMENT TO STEP 5 WAS BASED ON YOUR PREVIOUS SEPARATION BY REDUCTION IN FORCE FROM THE MANILA ENGINEER DISTRICT ON NOVEMBER 30, 1950, AS S-9, STEP 4 (EQUIVALENT TO LGS-4, STEP 4). YOUR TEMPORARY APPOINTMENT WAS TERMINATED ON FEBRUARY 24, 1951, TO ENABLE YOU TO ACCEPT AN EXCEPTED APPOINTMENT EFFECTIVE FEBRUARY 25, 1951, AS PROPERTY AND SUPPLY CLERK LGS-2, STEP 5, ?505 PER HOUR, THE SALARY ADJUSTMENT TO STEP 5 AGAIN BEING BASED ON YOUR EARLIER SEPARATION BY REDUCTION IN FORCE FROM THE MANILA ENGINEER DISTRICT BECAUSE YOU WERE REEMPLOYED WITHIN ONE YEAR. ON OCTOBER 5, 1952, YOU WERE PROMOTED TO LGS-3, STEP 1, ?525 PER HOUR.

YOUR CLAIM IS BASED ON THE BELIEF THAT, WHEN YOU WERE PROMOTED ON OCTOBER 5, 1952, TO LGS-3, STEP 1, YOUR SALARY SHOULD HAVE BEEN ADJUSTED TO STEP 5 IN THAT GRADE BECAUSE YOU PREVIOUSLY HAD HELD A POSITION AT THAT LEVEL. OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM POINTED OUT THAT THE AIR FORCE REGULATIONS IN EFFECT ON OCTOBER 5, 1952, PROVIDED FOR RESTORATION OF THE PREVIOUS STEP RATE ONLY IF THE EARLIER CHANGE TO LOWER GRADE HAD BEEN IN LIEU OF SEPARATION BY REDUCTION IN FORCE. IT WAS POINTED OUT, ALSO, THAT THE FEDERAL PERSONNEL MANUAL, PART 25, Z-1-319, SECTION 25-103 (B) (1), AND PUBLIC LAW 594, APPROVED JUNE 18, 1956, WHICH, YOU CITED IN SUPPORT OF YOUR CLAIM, BOTH APPLY ONLY TO POSITIONS UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED AND, THAT FOR PAY ADJUSTMENT PURPOSES, POSITIONS SUCH AS YOURS OCCUPIED BY NON-CITIZENS ARE CONSIDERED WAGE BOARD POSITIONS NOT UNDER THE CLASSIFICATION ACT.

IN YOUR REQUEST FOR RECONSIDERATION, YOU CONTEND THAT PARAGRAPHS 11B AND 12B, SECTION 7, AF P9.7, AFM 40-1 DATED JULY 18, 1951, SHOULD GOVERN YOUR SALARY ADJUSTMENT UPON PROMOTION IN 1952. YOU POINT OUT THAT THOSE PARAGRAPHS DO NOT MAKE ENTITLEMENT TO THE HIGHER RATE CONTINGENT UPON THE PREVIOUS CHANGE IN A LOWER GRADE HAVING BEEN IN LIEU OF SEPARATION BY REDUCTION IN FORCE AS WAS INDICATED IN OUR SETTLEMENT. HOWEVER, THOSE PARAGRAPHS HAVE NO APPLICATION TO YOUR CASE BECAUSE THEY RELATE ONLY TO REASSIGNMENTS--- PARAGRAPH 11 TO REASSIGNMENT IN THE SAME WAGE AREA AND PARAGRAPH 12 TO REASSIGNMENT IN A DIFFERENT WAGE AREA. PARAGRAPH 13 GOVERNS IN YOUR CASE AND IT REQUIRES GENERALLY THE RATE OF PAY OF AN EMPLOYEE WHO IS PROMOTED TO BE SET AT THE LOWEST STEP RATE OF THE NEW GRADE WHICH EXCEEDS THE CURRENT RATE. SUBPARAGRAPH 13C PERMITS ADJUSTMENT TO A HIGHER STEP RATE ONLY IF THE PREVIOUS CHANGE TO A LOWER GRADE WAS ACCEPTED BY THE EMPLOYEE IN LIEU OF SEPARATION FOR REDUCTION IN FORCE OR OF SEPARATION BY DISPLACEMENT, NEITHER OF WHICH IS INVOLVED IN YOUR CASE. THE RECORD SHOWS THAT YOUR CHANGE TO THE LOWER GRADE IN FEBRUARY 1951 WAS TO PERMIT YOU TO ACCEPT APPOINTMENT TO A REGULAR EXCEPTED POSITION IN LIEU OF THE IMMEDIATELY PROSPECTIVE SEPARATION BY TERMINATION BY YOUR TEMPORARY APPOINTMENT. THEREFORE, YOU WERE NOT ENTITLED TO THE BENEFITS OF SUBPARAGRAPH 13C. YOUR STATEMENT THAT YOU WERE TOLD AT THE TIME THAT IF YOU DID NOT ACCEPT THE LOWER POSITION YOU WOULD BE SEPARATED BY REDUCTION IN FORCE IS NOT IN CONFORMITY WITH THE OFFICIAL RECORD WHICH MUST BE ACCORDED THE GREATER WEIGHT IN THE ABSENCE OF PROOF SHOWING THE RECORD TO BE IN ERROR.

WE MUST APPLY THE SAME REASONING TO YOUR OTHER CONTENTIONS WHICH WE HAVE CAREFULLY CONSIDERED BUT FOUND TO BE WITHOUT MERIT. THEREFORE, THE SETTLEMENT DISALLOWING YOUR CLAIM MUST BE AND IS HEREBY SUSTAINED.