B-129891, JAN. 4, 1957

B-129891, JAN. 4, 1957

TO LIEUTENANT COLONEL P. W. HERBST:

BY SECOND INDORSEMENT DATED NOVEMBER 21, 1956, FINEM 201 ZIMMERMAN, RICHARD B. (30 OCT 56) (CIVILIAN), THE ASSISTANT CHIEF OF FINANCE FORWARDED TO US THE FILE WITH YOUR LETTER DATED OCTOBER 30, 1956, AIBKB 016, AND THE ACCOMPANYING CIVILIAN PAYROLL VOUCHER NO. 98 (KY. ANG) IN THE AMOUNT OF $11.25. THAT AMOUNT REPRESENTS A WITHIN GRADE INCREASE OF PAY EFFECTIVE AUGUST 1, 1956, TO RICHARD B. ZIMMERMAN, ADMINISTRATIVE SPECIALIST, HQ. BASE DET., KENTUCKY AIR NATIONAL GUARD, UNDER SPECIAL ORDERS NO. 232, DATED AUGUST 19, 1956, OF THE KENTUCKY MILITARY DEPARTMENT CITING AIR NATIONAL GUARD REGULATIONS 40-01 AS AUTHORITY THEREFOR.

THE RECORD SHOWS THIS EMPLOYEE SERVED AS CLERK, PURCHASING AND CONTRACTING, IN GRADE NOC-7 (STEP 1) UNDER THE OFFICE OF THE U.S. PROPERTY AND DISBURSING OFFICER FOR KENTUCKY FROM JUNE 2, 1951, TO MAY 31, 1952, THE EFFECTIVE DATE OF SPECIAL ORDERS NO. 96 DATED MAY 23, 1952, WHICH RELIEVED HIM WITHOUT PREJUDICE SO AS TO PERMIT REEMPLOYMENT OF HIS PREDECESSOR RETURNING FROM ACTIVE DUTY.

THEREAFTER UNDER SPECIAL ORDERS NO. 126 DATED JULY 10, 1952, EFFECTIVE THAT DATE, HE WAS REEMPLOYED IN GRADE NGC-7 STEP 1 AS ADMINISTRATIVE SPECIALIST, 123RD FIGHTER INTERCEPTER WING, KY ANG. IT APPEARS THIS EMPLOYEE THEREAFTER EARNED AND WAS GIVEN THE NGC-7 STEP INCREASES 2, 3 AND 4 SUCCESSIVELY EFFECTIVE ON THE ANNIVERSARY DATES, AUGUST 1, OF THE YEARS 1953, 1954 AND 1955, RESPECTIVELY, IN ACCORDANCE WITH ANGR 40-01, AS AMENDED.

ON DECEMBER 28, 1955, THE KENTUCKY AIR NATIONAL GUARD INITIATED ACTION PURPORTING TO CORRECT AN "ADMINISTRATIVE ERROR" AND TO GIVE EFFECT TO THE ONE YEAR'S NGC-7 SERVICE CREDIT THIS EMPLOYEE ACCRUED FROM JUNE 2, 1951, TO MAY 31, 1952, WHICH WAS APPROVED BY THE NATIONAL GUARD BUREAU JANUARY 18, 1956, SO AS TO GRANT THIS EMPLOYEE A PAY INCREASE TO STEP 5 OF NGC-7 EFFECTIVE FEBRUARY 1, 1956. HOWEVER, SIX MONTHS LATER THE ADJUTANT GENERAL OF THE MILITARY DEPARTMENT OF KENTUCKY IN SPECIAL ORDERS NO. 232 DATED AUGUST 19, 1956, EFFECTIVE AUGUST 1, FIXED THE SALARY OF THIS EMPLOYEE AT THE STEP 6 RATE OF NGC 7. THEREFORE OUR DECISION IS REQUESTED UPON THREE RELATED POINTS, AS FOLLOWS:

"A. WHETHER THE INCREASE TO STEP 5 ON 1 FEB 56 IS VALID.

"B. WHETHER THE SUPPLEMENTAL PAYROLL COVERING THE INCREASE EFFECTIVE 1 AUGUST 1956 IS VALID AND PROPER FOR PAYMENT.

"C. WHETHER OR NOT ANY CHANGE IN THE FIXED PERIOD OF TIME SPECIFIED IN ANG REGULATION TO BE SERVED IN GRADE IN GRADE (SIC) BEFORE A STEP INCREASE IS AUTHORIZED CAN BE ALTERED BY ANY AGENCY IN THE ABSENCE OF A CHANGE TO THE REGULATION.'

SECTION 90 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 32 U.S.C. 42, AUTHORIZES THE HIRE OF AIR NATIONAL GUARD CIVILIANS AS CARETAKERS AND CLERKS AND PROVIDES FOR THEIR SALARIES TO BE FIXED BY REGULATIONS OF THE SECRETARY OF THE AIR FORCE.

AT THE TIME OF SPECIAL ORDERS NO. 126--- WHEREBY THIS EMPLOYEE WAS REEMPLOYED IN GRADE NGC-7--- PARAGRAPH 9 OF THE REGULATIONS, ANGR 40-01 (7 JULY 1952), PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"9. REEMPLOYMENT RIGHTS:

"E. THE RATE OF PAY OF ANY PERMANENT EMPLOYEE WHO IS REEMPLOYED AT THE SAME GRADE FROM WHICH SEPARATED FOR ANY REASON OTHER THAN ACTIVE FEDERAL SERVICE WITHIN A PERIOD OF ONE YEAR WILL BE AT THE SAME STEP RATE HELD AT TIME OF SEPARATION. * * *"

PARAGRAPH 21 OF THE REGULATIONS PROMULGATED DECEMBER 20, 1954, PROVIDES THAT A FORMER EMPLOYEE SEPARATED IN GOOD STANDING FOR ANY REASON OTHER THAN ACTIVE MILITARY SERVICE MAY BE REINSTATED AT THE HIGHEST GRADE AND STEP RATE HELD FOR A MINIMUM OF 12 MONTHS. PARAGRAPH 19F THEREOF PROVIDES ,STEP INCREASES ARE EFFECTIVE AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING COMPLETION OF ALL CONDITIONS OF ELIGIBILITY.' THE MINIMUM TIME REQUIRED IN EACH STEP OF GRADE NGC-7 IS 12 MONTHS, BUT PARAGRAPH 16 OF THE REGULATIONS PROVIDES THAT THE ADJUTANTS GENERAL OF THE RESPECTIVE STATES, TERRITORIES, ETC., MAY INCREASE THE TIME REQUIREMENT AND ADD SUCH OTHER REQUIREMENTS AS TO INSURE THAT THE BEST QUALIFIED PERSONNEL RECEIVED PRIORITY FOR ADVANCEMENT.

WHILE THE FOREGOING REGULATIONS CONCERNING PAY AND GRANTING STEP INCREASES TO AIR NATIONAL GUARD CIVILIAN PERSONNEL MAY BE SUBJECT TO MODIFICATIONS FROM TIME TO TIME CONSISTENT WITH LAW, THEY MAY NOT BE AMENDED SO AS TO OPERATE RETROACTIVELY EXCEPT TO CORRECT OBVIOUS ERRORS. IN THAT RESPECT, THE SPECIAL ORDERS NO. 126 OF JULY 10, 1952-- AS TO MR. ZIMMERMAN--- WERE IN ACCORD WITH THE QUOTED PROVISIONS OF PARAGRAPH 9E OF THE REGULATIONS IN EFFECT AT THE TIME. FURTHER, IN LIGHT OF THE LAW AND THE REGULATIONS IN EFFECT ON JANUARY 18, 1956, THE ADDITIONAL STEP INCREASE AUTHORIZED BY THE NATIONAL GUARD BUREAU EFFECTIVE FEBRUARY 1, 1956, DOES NOT APPEAR OBJECTIONABLE. HOWEVER, OUR VIEW IS THAT SUCH ACTION HAD THE EFFECT OF CHANGING THE ANNIVERSARY DATE OF THIS EMPLOYEE'S ELIGIBILITY PERIOD FROM AUGUST 1 TO FEBRUARY 1; HENCE, HE COULD NOT BE ADVANCED TO STEP 6 OF NGC-7 UNTIL AFTER TWELVE MONTHS SERVICE IN STEP 5. SEE GENERALLY 25 COMP. GEN. 436, AND 4 ID. 363, CONCERNING THE PROHIBITION AGAINST WAIVER OF STATUTORY REGULATIONS IN PARTICULAR CASES.

ACCORDINGLY, QUESTION "A" IS ANSWERED IN THE AFFIRMATIVE, AND QUESTION "B" IN THE NEGATIVE.

AS TO QUESTION "C," IN THE LIGHT OF THE SPECIFIC ITEMS DELEGATED TO THE ADJUTANTS GENERAL OF THE SEVERAL STATES, TERRITORIES, ETC., BY PARAGRAPH 3B OF AIR NATIONAL GUARD REGULATION 40-01 (7 JULY 1952) AS AMENDED DECEMBER 20, 1954, AND THE REQUIREMENTS OF PARAGRAPH 16, ABOVE, OUR VIEW IS THAT THE PERIOD OF TIME SPECIFIED IN SUCH REGULATIONS, TO BE SERVED IN GRADE BEFORE A STEP INCREASE IS GRANTED, CANNOT BE SHORTENED IN THE ABSENCE OF APPROPRIATE CHANGES TO THE PERTINENT PROVISIONS OF THE REGULATION.

THE PAPERS FORWARDED WITH YOUR LETTER OF OCTOBER 30, 1956, WILL BE RETAINED IN OUR FILES.