B-126350, MAR. 1, 1956

B-126350: Mar 1, 1956

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO THE SECRETARY OF COMMERCE: REFERENCE IS MADE TO THE LETTER OF DECEMBER 12. IT IS STATED THAT ON SEPTEMBER 12. WAS SERVING AT THE MAXIMUM SCHEDULED RATE OF HIS GRADE. WHEN HE WAS REDUCED TO GS-7 ON A REDUCTION-IN-FORCE PROGRAM. HE WAS RESTORED ON AUGUST 30. WHICH CLAIM WAS DISALLOWED APRIL 30. THE QUESTIONS NOW PRESENTED ARE AS FOLLOWS: "/1) DOES A NEW LONGEVITY PERIOD PROPERLY BEGIN ON AUGUST 30. THE DATE THE EMPLOYEE WAS RESTORED TO HIS FORMER GRADE AS A RESULT OF HIS APPEAL? "/2) IF QUESTION (1) IS IN THE NEGATIVE. IN VIEW OF THE CIRCUMSTANCES IS THE EMPLOYEE ENTITLED TO HAVE THE SERVICE PRECEDING AUGUST 30. SAYS THAT IT WAS THE INTENTION OF THE COMMISSION THAT MR. - INSTRUCTIONS HAVE BEEN ISSUED TO THE CLAIMS DIVISION OF THIS OFFICE FOR THE ALLOWANCE OF MR.

B-126350, MAR. 1, 1956

TO THE SECRETARY OF COMMERCE:

REFERENCE IS MADE TO THE LETTER OF DECEMBER 12, 1955, FROM THE ASSISTANT SECRETARY OF COMMERCE FOR ADMINISTRATION, REQUESTING OUR DECISION CONCERNING LONGEVITY STEP-INCREASES FOR TWO EMPLOYEES OF YOUR DEPARTMENT OCCUPYING CLASSIFICATION ACT POSITIONS.

IN THE CASE OF EMPLOYEE A, IDENTIFIED BY HIS CLAIM NUMBER, AS OSCAR B. VOGEL, IT IS STATED THAT ON SEPTEMBER 12, 1954, HE HAD 10 OR MORE YEARS' SERVICE IN GS-12 AND EQUIVALENT OR HIGHER GRADES, AND WAS SERVING AT THE MAXIMUM SCHEDULED RATE OF HIS GRADE. HE SERVED AT THE TOP SALARY OF THAT GRADE FROM AUGUST 5, 1951, TO JULY 13, 1954, WHEN HE WAS REDUCED TO GS-7 ON A REDUCTION-IN-FORCE PROGRAM. ON AUGUST 26, 1953, AS A RESULT OF HIS APPEAL TO THE UNITED STATES CIVIL SERVICE COMMISSION, THE COMMISSION ORDERED HIM "RETAINED" IN A GS-12 POSITION. YOUR DEPARTMENT INTERPRETED THE ORDER AS NOT REQUIRING A RETROACTIVE RESTORATION. ACCORDINGLY, HE WAS RESTORED ON AUGUST 30, 1953, TO THE MAXIMUM SCHEDULED RATE OF GRADE GS- 12. MR. VOGEL THEN FILED A CLAIM IN THIS OFFICE FOR BACK COMPENSATION, WHICH CLAIM WAS DISALLOWED APRIL 30, 1954. THE QUESTIONS NOW PRESENTED ARE AS FOLLOWS:

"/1) DOES A NEW LONGEVITY PERIOD PROPERLY BEGIN ON AUGUST 30, 1953, THE DATE THE EMPLOYEE WAS RESTORED TO HIS FORMER GRADE AS A RESULT OF HIS APPEAL?

"/2) IF QUESTION (1) IS IN THE NEGATIVE, IN VIEW OF THE CIRCUMSTANCES IS THE EMPLOYEE ENTITLED TO HAVE THE SERVICE PRECEDING AUGUST 30, 1953, INCLUDING THE SERVICE AT THE LOWER GRADE, COUNTED TOWARD THE THREE-YEAR LONGEVITY PERIOD?

IN RESPONSE TO A RECENT REQUEST FROM US THE CIVIL SERVICE COMMISSION BY REPORT DATED FEBRUARY 7, 1956, SAYS THAT IT WAS THE INTENTION OF THE COMMISSION THAT MR. VOGEL BE RESTORED TO GS-12 RETROACTIVELY TO THE DATE OF HIS DEMOTION TO GS-7. IN VIEW THEREOF AND OF THE CHANGE OF THE RULING REGARDING DEMOTION CASES--- 34 COMP. GEN. 561--- INSTRUCTIONS HAVE BEEN ISSUED TO THE CLAIMS DIVISION OF THIS OFFICE FOR THE ALLOWANCE OF MR. VOGEL'S CLAIM, IF OTHERWISE PROPER, FOR THE PERIOD OF THE DEMOTION. YOUR RECORDS SHOULD BE CORRECTED ACCORDINGLY, THUS ENTITLING MR. VOGEL TO CREDIT FOR LONGEVITY PAY PURPOSES FOR NOT EXCEEDING THREE YEARS IMMEDIATELY PRECEDING SEPTEMBER 12, 1954, THE EFFECTIVE DATE OF SECTION 103 OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1105. THE FIRST QUESTION IS THUS ANSWERED IN THE NEGATIVE AND THE SECOND QUESTION IN THE AFFIRMATIVE.

EMPLOYEE B, ON SEPTEMBER 12, 1954, THE EFFECTIVE DATE OF SECTION 103, HAD SERVED AN AGGREGATE OF MORE THAN 10 YEARS IN GS-11 AND EQUIVALENT OR HIGHER GRADES. HE HAD SERVED AT THE MAXIMUM SCHEDULED RATES OF HIS CLASSIFICATION ACT GRADES FOR THREE YEARS IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE ACT OF SEPTEMBER 12, EXCEPT FOR THE PERIOD JULY 30, 1951, TO JUNE 27, 1953, DURING WHICH HE SERVED WITH THE DEPARTMENT OF STATE IN A POSITION DESIGNATED AS FSR-4 UNDER AUTHORITY OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 999, WITH REEMPLOYMENT RIGHTS IN THE MARITIME ADMINISTRATION. HE WAS REEMPLOYED IN GS-11, JUNE 28, 1953, WITH NO BREAK IN SERVICE.

SECTIONS 522 AND 528 OF THE FOREIGN SERVICE ACT OF AUGUST 13, 1946, 60 STAT. 1009 AND 1010 PROVIDE, IN PART, AS FOLLOWS:

"SEC. 522. WHENEVER THE SERVICES OF A PERSON WHO IS A CITIZEN OF THE UNITED STATES AND WHO HAS BEEN SUCH FOR AT LEAST FIVE YEARS ARE REQUIRED BY THE SERVICE, THE SECRETARY MAY---

"/2) ASSIGN AS A RESERVE OFFICE FOR NONCONSECUTIVE PERIODS OF NOT MORE THAN FOUR YEARS EACH A PERSON REGULARLY EMPLOYED IN ANY GOVERNMENT AGENCY, SUBJECT, IN THE CASE OF AN EMPLOYEE OF A GOVERNMENT AGENCY OTHER THAN THE DEPARTMENT OF STATE, TO THE CONSENT OF THE HEAD OF THE AGENCY CONCERNED.

"SEC. 528. UPON THE TERMINATION OF THE ASSIGNMENT OF A RESERVE OFFICER ASSIGNED FROM ANY GOVERNMENT AGENCY, SUCH PERSON SHALL BE ENTITLED TO REINSTATEMENT IN THE GOVERNMENT AGENCY BY WHICH HE IS REGULARLY EMPLOYED IN THE SAME POSITION HE OCCUPIED AT THE TIME OF ASSIGNMENT, OR IN A CORRESPONDING OR HIGHER POSITION. UPON REINSTATEMENT HE SHALL RECEIVE THE WITHIN-GRADE SALARY ADVANCEMENTS HE WOULD HAVE BEEN ENTITLED TO RECEIVE HAD HE REMAINED IN A POSITION IN WHICH HE IS REGULARLY EMPLOYED UNDER SUBSECTION (D), SECTION 7, OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, OR ANY CORRESPONDING PROVISION OF LAW APPLICABLE TO THE POSITION IN WHICH HE IS SERVING. A CERTIFICATE OF THE SECRETARY THAT SUCH PERSON HAS MET THE STANDARDS REQUIRED FOR THE EFFICIENT CONDUCT OF THE WORK OF THE FOREIGN SERVICE SHALL SATISFY ANY REQUIREMENTS AS TO THE HOLDING OF MINIMUM RATINGS AS A PREREQUISITE TO THE RECEIPT OF SUCH SALARY ADVANCEMENTS.'

IT IS NOT SHOWN WHAT SALARY RECEIVED BY EMPLOYEE B WHILE IN THE FOREIGN SERVICE BUT THE SALARIES OF FSR-4 AT THAT TIME EXTENDED FROM $6,000 TO $7,900 WHILE THE MAXIMUM SALARY OF GS-11 DURING THAT PERIOD WAS $6,940 PER ANNUM. WE ASSUME THAT THE EMPLOYEE RECEIVED A SALARY EQUAL TO OR IN EXCESS OF THE MAXIMUM SALARY OF GS-11 DURING THE PERIOD OF HIS EMPLOYMENT UNDER THE FOREIGN SERVICE ACT.

IN VIEW OF THE MANDATORY PROVISIONS AND THE EVIDENT INTENT OF SECTION 528 OF THE FOREIGN SERVICE ACT TO SAVE THE EMPLOYEES THEIR RIGHTS TO WITHIN- GRADE AND SIMILAR SALARY ADVANCEMENTS EMPLOYEE B IS ENTITLED TO CREDIT FOR HIS SERVICE IN THE RESERVE AS SERVICE AT THE TOP SALARY OF GS-11. ACCORDINGLY, IF OTHERWISE PROPER, HE WAS ENTITLED TO HIS LONGEVITY INCREASE AS OF SEPTEMBER 12, 1954, THE EFFECTIVE DATE OF THE ACT OF SEPTEMBER 1, 1954, BASED UPON THE THREE YEARS OF CONTINUOUS SERVICE IMMEDIATELY PRECEDING THAT DATE.