B-132786, SEP. 13, 1957

B-132786: Sep 13, 1957

Additional Materials:

Contact:

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

 

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

YOU SAY THAT BECAUSE OF YOUR ABSENCE FROM THE UNITED STATES YOU HAVE BEEN UNABLE TO TAKE THE MATTER UP EARLIER. YOU FURTHER POINT OUT THAT SINCE YOU WERE PAID AT THE RATE OF $7. THAT WAS YOUR LAST RATE OF PAY AND YOU FEEL YOU SHOULD HAVE RECEIVED PAYMENT WHILE ON ANNUAL LEAVE BEGINNING FEBRUARY 23. HAS BEEN USED IN THE CASE OF PURSERS (TRANSPORTATION AGENTS) WHO WERE REDUCED IN SALARY BUT RETAINED THEIR HIGHER RATE OF PAY AS LONG AS THEY REMAINED IN THAT POSITION. YOU WERE NOTIFIED YOU WOULD BE CHANGED FROM THE POSITION OF FIRST ASSISTANT ENGINEER. SUCH CHANGE WAS MADE. THE RECORD ALSO SHOWS THAT YOU WERE PLACED ON ANNUAL LEAVE ON THAT DATE. APPLYING THE PRINCIPLE IN OUR DECISIONS PAYMENT WAS MADE TO YOU AT THE RATE OF $6.

B-132786, SEP. 13, 1957

TO MR. ARTHUR H. SULZER, JR.:

YOUR LETTER OF JULY 16, 1957, TAKES ISSUE WITH THAT PART OF OUR OFFICE SETTLEMENT OF MARCH 30, 1956, WHICH DISALLOWED YOUR CLAIM FOR AN ADJUSTMENT OF PAYMENT FOR ANNUAL LEAVE TAKEN DURING THE PERIOD EFFECTIVE FEBRUARY 21, 1951. YOU SAY THAT BECAUSE OF YOUR ABSENCE FROM THE UNITED STATES YOU HAVE BEEN UNABLE TO TAKE THE MATTER UP EARLIER.

YOU POINT OUT THAT OUR DECISIONS (24 COMP. GEN. 511, 728, AND 768) HOLD THAT PAYMENT FOR LEAVE IN A LUMP SUM MUST BE MADE AT THE RATE OF COMPENSATION PROPERLY RECEIVED BY AN EMPLOYEE AT DATE OF SEPARATION, DEATH, OR TRANSFER TO A POSITION UNDER ANOTHER LEAVE SYSTEM. YOU SAY THAT WHILE SUCH HOLDING DOES NOT APPLY DIRECTLY TO YOUR CASE THE PRINCIPLE DOES APPLY. YOU FURTHER POINT OUT THAT SINCE YOU WERE PAID AT THE RATE OF $7,699 PER ANNUM THROUGH FEBRUARY 22, 1951, THAT WAS YOUR LAST RATE OF PAY AND YOU FEEL YOU SHOULD HAVE RECEIVED PAYMENT WHILE ON ANNUAL LEAVE BEGINNING FEBRUARY 23, 1951, AT THAT RATE RATHER THAN AT THE RATE OF $6,365 PER ANNUM. IN ADDITION YOU DIRECT ATTENTION TO CIVILIAN MARINE PERSONNEL INSTRUCTION 250.4-3C AND POINT OUT THAT THE REGULATION, TO YOUR KNOWLEDGE, HAS BEEN USED IN THE CASE OF PURSERS (TRANSPORTATION AGENTS) WHO WERE REDUCED IN SALARY BUT RETAINED THEIR HIGHER RATE OF PAY AS LONG AS THEY REMAINED IN THAT POSITION. YOU BELIEVE THAT REGULATION WOULD APPLY IN YOUR CASE.

THE RECORD SHOWS THAT BY LETTER DATED JANUARY 23, 1951, YOU WERE NOTIFIED YOU WOULD BE CHANGED FROM THE POSITION OF FIRST ASSISTANT ENGINEER, $7,699 PER ANNUM, TO SECOND ASSISTANT ENGINEER (DAY WORK), $6,365 PER ANNUM EFFECTIVE FEBRUARY 23, 1951. SUCH CHANGE WAS MADE. THE RECORD ALSO SHOWS THAT YOU WERE PLACED ON ANNUAL LEAVE ON THAT DATE. THEREFORE, APPLYING THE PRINCIPLE IN OUR DECISIONS PAYMENT WAS MADE TO YOU AT THE RATE OF $6,365 PER ANNUM FOR THE PERIOD OF ANNUAL LEAVE BEGINNING FEBRUARY 23, 1951, BECAUSE YOU WERE OFFICIALLY HOLDING A POSITION CARRYING THAT AUTHORIZED RATE ON THE DAY YOUR ANNUAL LEAVE COMMENCED. HAD YOU BEEN ON DUTY DURING THE PERIOD COMMENCING FEBRUARY 23 YOUR RATE OF PAY UNDER THE FOREGOING CIRCUMSTANCES WOULD HAVE BEEN $6,365. PARAGRAPH B OF CIVILIAN MARINE PERSONNEL INSTRUCTION 250.4-3 PROVIDES THAT "THE MARINE EMPLOYEE OFFICIALLY ASSIGNED TO AN AUTHORIZED POSITION CARRYING AN AUTHORIZED PAY RATE IS ENTITLED TO THE PAY OF THAT POSITION AND NONE OTHER.'

CIVILIAN MARINE PERSONNEL INSTRUCTION 250.4-3C, WHICH YOU FEEL APPLIES TO YOUR CASE, READS AS FOLLOWS:

"WAGE FREEZES.--- WHEN A REVISED LOWER PAY RATE IS AUTHORIZED FOR A PARTICULAR MARINE POSITION WITHOUT CHANGE IN THE DUTIES OR RESPONSIBILITIES OF THE POSITION, THE INCUMBENT MAY, AT THE DISCRETION OF THE SECRETARY OF THE NAVY NORMALLY UPON RECOMMENDATIONS OF COMSTS, BE RETAINED "FROZEN") AT THE OLD ("HIGHER") PAY RATE IN ALL RESPECTS FOR THE DURATION OF HIS INCUMBENCY IN THAT POSITION. A TEMPORARY PROMOTION FROM THE POSITION IN WHICH A MARINE EMPLOYEE IS FROZEN VOIDS THE FREEZE. IF, AT A LATER DATE, A RATE OF PAY FOR THE POSITION IS AUTHORIZED HIGHER THAN THE RATE AT WHICH THE INCUMBENT IS FROZEN, HE SHALL BE ASSIGNED THE NEW RATE.'

THE LANGUAGE THEREOF RESTRICTS APPLICATION TO THOSE CASES INVOLVING AUTHORIZED LOWER RATE OF PAY FOR THE PARTICULAR MARINE POSITION WITHOUT CHANGE IN DUTIES OR RESPONSIBILITIES. FURTHER, THE LANGUAGE OF THE CITED PARAGRAPH MAKES ITS APPLICATION DISCRETIONARY WITH THE SECRETARY OF THE NAVY. THE RECORD IN YOUR CASE INDICATES THAT YOU WERE CHANGED FROM ONE POSITION TO ANOTHER AND PRESUMABLY YOUR DUTIES AND RESPONSIBILITIES CHANGED. IN ANY EVENT, THE RECORD DOES NOT SHOW THAT THE SECRETARY OF THE NAVY EXERCISED HIS DISCRETION OF FREEZING YOUR SALARY AS PROVIDED BY THE ABOVE-CITED REGULATIONS.

FOR REASONS SET OUT ABOVE NO BASIS EXISTS UPON WHICH OUR OFFICE WOULD BE AUTHORIZED TO MAKE PAYMENT TO YOU FOR THE PERIOD OF ANNUAL LEAVE BEGINNING FEBRUARY 23, 1951, AT A RATE IN EXCESS OF $6,365 PER ANNUM, THE AUTHORIZED RATE OF THE POSITION YOU WERE OFFICIALLY IN FOR THE PERIOD OF SUCH ANNUAL LEAVE.