B-138474, MAR 10, 1959

B-138474, MAR 10, 1959

PRECIS-UNAVAILABLE

LA VERNE MCGRATH:

YOUR ENDORSEMENT OF JANUARY 2, 1959, WITH ENCLOSURES, TO OUR LETTER OF DECEMBER 1, 1958, REQUESTS A REVIEW OF OUR SETTLEMENT OF NOVEMBER 17, 1958, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE ADJUSTMENTS IN COMPENSATION FOR THE PERIOD JANUARY 13, 1956, TO MARCH 20, 1957, AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE AT CLARK AIR FORCE BASE.

YOUR CLAIM IS FOR THE DIFFERENCE BETWEEN THE AMOUNT OF COMPENSATION THAT YOU WOULD HAVE EARNED IF THE INITIAL SALARY RATE AT THE TIME OF YOUR REEMPLOYMENT AT CLARK AIR FORCE BASE ON JANUARY 13, 1956, HAD BEEN THE SAME RATE YOU HAD RECEIVED IN YOUR FORMER EMPLOYMENT AND THE AMOUNT OF COMPENSATION YOU ACTUALLY RECEIVED DURING THIS PERIOD.

YOU ENCLOSED WITH YOUR REQUEST FOR REVIEW, COPIES OF NOTIFICATION OF PERSONNEL ACTION ISSUED BY HEADQUARTERS, THIRTEENTH AIR FORCE, CCPO, APO 74 DATED JULY 5, 1957, WHICH PURPORT TO RETROACTIVELY CORRECT THE ORIGINAL PERSONNEL ACTION OF JANUARY 12, 1956, EFFECTING YOUR REEMPLOYMENT, BY CHANGING YOUR RATE OF COMPENSATION FROM $3,415 TO $3,925 PER ANNUM FOR THIS PERIOD BECAUSE OF ERRONEOUS PERSONNEL ACTION AT THAT TIME.

THE RECORD SHOWS THAT YOU RESIGNED FROM YOUR FORMER POSITION WITH THE DEPARTMENT OF THE AIR FORCE IN AUGUST 1955. AT THE TIME OF YOUR RESIGNATION YOU RECEIVED COMPENSATION AT THE RATE OF $3,925 PER ANNUM WHICH THEN WAS THE ANNUAL SALARY RATE FOR THE SEVENTH STEP IN GRADE GS 4. YOU WERE REEMPLOYED UNDER AN EXCEPTED APPOINTMENT, "LOCAL HIRE," EFFECTIVE JANUARY 13, 1956, AT GRADE GS-312-4, $3,415 PER ANNUM, WHICH WAS THEN THE MINIMUM STEP OF GRADE GS-4. ON MARCH 30, 1956, YOU WERE GIVEN A WITHIN- GRADE PROMOTION TO THE SECOND STEP OF GRADE GS-312-4 AT $3,500 PER ANNUM. YOU RESIGNED FROM THIS POSITION ON MARCH 29, 1957.

THERE IS NO VESTED RIGHT IN AN EMPLOYEE UPON REEMPLOYMENT TO BE PAID THE HIGHEST SALARY RATE PREVIOUSLY RECEIVED BY HIM, AND IT IS WITHIN ADMINISTRATIVE DISCRETION TO FIX THE INITIAL SALARY RATE AT THE MINIMUM OF THE GRADE OF THE POSITION TO WHICH YOU WERE APPOINTED. THE CORRECTION OF SUCH ADMINISTRATIVE ERRORS CAN BE ACCOMPLISHED ONLY BY ADMINISTRATIVE ACTION AND UPON SHOWING THAT AN ADMINISTRATIVE ERROR WAS IN FACT MADE IN FIXING THE ORIGINAL SALARY RATE UPON REEMPLOYMENT. 31 COMP. GEN. 15.

THE DEPARTMENT OF THE AIR FORCE MANUAL DATED OCTOBER 1, 1954, AFM 40 1, AF P 9.6 PARAGRAPH 5A (1) WHICH WAS IN EFFECT AT THE TIME OF YOUR REEMPLOYMENT STATES IN PERTINENT PART:

"*** THE NORMAL PRACTICE WITH THE AIR FORCE WILL BE AS FOLLOWS:

"(1) REEMPLOYMENT. THE PAY OF AN EMPLOYEE REEMPLOYED *** WILL BE FIXED AT THE MINIMUM STEP OF THE GRADE. HOWEVER, THE RATE OF AN EMPLOYEE WHO HAS BEEN SEPARATED FROM THE AIR FORCE BY REDUCTION IN FORCE OR UNDER CS REG. 9.105 WITHIN ONE YEAR PRECEDING REEMPLOYMENT WILL BE FIXED TO PRESERVE AS NEARLY AS POSSIBLE THE RATE RECEIVED AT THE TIME OF SEPARATION."

IN RESIGNING FROM YOUR FORMER POSITION FOR PERSONAL REASONS YOU WERE NOT WITHIN THE EXCEPTIONS TO THE REGULATIONS TO HAVE ENABLED THE ADMINISTRATIVE OFFICE AT CLARK AIR FORCE BASE TO FIX YOUR SALARY RATE UPON REEMPLOYMENT ABOVE THE MINIMUM OF THE GRADE CONTRARY TO THE THEN CONTROLLING REGULATION. WHILE THESE RESTRICTIONS LATER WERE REMOVED BY AN AMENDMENT TO THE REGULATIONS DATED DECEMBER 16, 1957, THE AMENDMENT COULD NOT LEGALLY RELATE BACK TO THE DATE OF YOUR REEMPLOYMENT.

REGARDLESS OF THE APPARENT INTENT OF THE PERSONNEL OFFICE AT CLARK AIR FORCE BASE TO RETROACTIVELY CORRECT YOUR INITIAL SALARY RATE AS EVIDENCED BY THE FORMS 50 TRANSMITTED WITH YOUR REQUEST FOR REVIEW, IT WAS WITHOUT LEGAL AUTHORITY TO DO SO AND SUCH FORMS ARE WITHOUT FORCE OR EFFECT.

THEREFORE, THE DISALLOWANCE OF YOUR CLAIM IS PROPER AND UPON REVIEW THE SETTLEMENT IS SUSTAINED.