B-140413, SEPTEMBER 21, 1959, 39 COMP. GEN. 211

B-140413, SEPTEMBER 21, 1959, 39 COMP. GEN. 211

CIVILIAN PERSONNEL - COMPENSATION - PERIODIC STEP-INCREASES - COMPLETION OF WAITING PERIOD WITHOUT INCREASE - SUBSEQUENT CREDIT AN EMPLOYEE WHO, PRIOR TO A DEMOTION, COMPLETED A FULL PERIODIC STEP INCREASE WAITING PERIOD, BUT DID NOT RECEIVE THE STEP-INCREASE BECAUSE AT THE TIME HE HELD A TEMPORARY LIMITED APPOINTMENT, IS ENTITLED, UPON SUBSEQUENT REPROMOTION TO HIS FORMER GRADE AND WITHIN ADMINISTRATIVE DISCRETION, TO A ONE-STEP INCREASE, THERE BEING NO REQUIREMENT IN SECTION 701 (A) OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1123, OR THE REGULATIONS THAT THE WAITING PERIOD BE SERVED IMMEDIATELY PRIOR TO THE DATE ON WHICH THE STEP-INCREASE IS GRANTED; THEREFORE, AN ADMINISTRATIVE ERROR IN FAILING TO INCLUDE THE STEP-INCREASE IN COMPUTATION OF THE HIGHEST PREVIOUS SALARY RATE DUE THE EMPLOYEE MAY BE CORRECTED RETROACTIVELY TO THE DATE OF THE REPROMOTION.

TO W. B. UHLENHOP, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 21, 1959:

YOUR LETTER OF AUGUST 4, 1959 (FILE MB:GFC:AVM), WITH ENCLOSURES, REQUESTS OUR DECISION AS TO WHETHER, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED, MR. ERNEST P. HEIBY, PRESENTLY AN EMPLOYEE OF YOUR COMMISSION ASSIGNED TO THE POSITION OF APPEALS EXAMINER, GRADE GS-12, IS ENTITLED TO RETROACTIVE COMPENSATION (PERIODIC STEP-INCREASE) FOR THE PERIOD FROM OCTOBER 24, 1954, TO JULY 25, 1959, AS REFLECTED IN THE PAYROLL VOUCHER ACCOMPANYING YOUR LETTER.

PARAGRAPH 2 OF YOUR LETTER STATES THE FACTS AS FOLLOWS:

THE EMPLOYEE IN QUESTION WAS IN GRADE CAF-12 FROM JANUARY 3, 1947 UNTIL SEPTEMBER 15, 1949 WHEN HE WAS PLACED ON FURLOUGH BECAUSE OF REDUCTION IN FORCE. HE WAS GIVEN A GS-12 TEMPORARY LIMITED APPOINTMENT ON SEPTEMBER 15, 1949 NOT TO EXCEED JUNE 30, 1950. HE WOULD HAVE COMPLETED THE REQUIRED WAITING PERIOD AND WOULD HAVE BEEN ELIGIBLE FOR ANOTHER PERIODIC STEP INCREASE ON JANUARY 8, 1950 (PERIODIC INCREASE RECEIVED JULY 11, 1948), BUT HE COULD NOT BE GIVEN THE INCREASE SINCE HIS APPOINTMENT WAS TEMPORARY LIMITED. ON APRIL 2, 1950 THE EMPLOYEE WAS GIVEN A PERMANENT APPOINTMENT IN A GS-9 POSITION. ON OCTOBER 24, 1954 HE WAS PROMOTED TO GS -12, AND HIS SALARY RATE WAS ESTABLISHED AT THE HIGHEST RATE PREVIOUSLY RECEIVED. * * * (FACTS IN BRACKETS SUPPLIED.)

THE SOLE QUESTION PRESENTED IS WHETHER THE PERIOD OF SERVICE FROM JULY 11, 1948, THROUGH JANUARY 8, 1950, PRIOR TO HIS DEMOTION BUT WHILE ASSIGNED TO GRADE CAF-12, AND GS-12 (TEMPORARY), IS CREDITABLE IN DETERMINING THE EFFECTIVE DATES FOR PERIODIC WITHIN-GRADE PAY INCREASES SUBSEQUENT TO HIS REPROMOTION TO GRADE GS-12, EFFECTIVE OCTOBER 24, 1954.

YOU EXPRESS THE OPINION THAT MR. HEIBY HAS MET THE STATUTORY REQUIREMENTS IN THAT HE COMPLETED THE REQUIRED WAITING PERIOD FOR A PERIODIC STEP- INCREASE WHILE OCCUPYING THE TEMPORARY (GS-12) POSITION. MOREOVER, YOU POINT OUT THAT IF IT WERE POSSIBLE BUT NOT MANDATORY TO PLACE THE CLAIMANT IN THE HIGHER STEP UPON HIS REPROMOTION TO GRADE GS 12,"THE COMMISSION'S INTERNAL POLICY WOULD HAVE REQUIRED THAT THAT BE DONE, SINCE IT PROVIDES FOR GIVING CREDIT FOR THE EMPLOYEE MET ALL THE OTHER CONDITIONS OF ELIGIBILITY FOR PERIODIC STEP-INCREASES, AND OUR DECISION IS BASED UPON THE ASSUMPTION. FURTHER, WE NOTE THAT THE PROPOSED ACTION IS SHOWN ON THE NOTIFICATION OF PERSONNEL ACTION AS A " PROMOTION--- CORRECTION.'

SECTION 701 (A) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 968, 5 U.S.C. 1123, PROVIDES IN PERTINENT PART AS FOLLOWS:

SEC. 701. (A) EACH OFFICER OR EMPLOYEE COMPENSATED ON A PER ANNUM BASIS, AND OCCUPYING A PERMANENT POSITION WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT, WHO HAS NOT ATTAINED THE MAXIMUM SCHEDULED RATE OF COMPENSATION FOR THE GRADE IN WHICH HIS POSITION IS PLACED, SHALL BE ADVANCED IN COMPENSATION SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN THE GRADE AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE COMPLETION OF (1) EACH FIFTY-TWO CALENDAR WEEKS OF SERVICE IF HIS POSITION IS IN A GRADE IN WHICH THE STEP-INCREASES ARE LESS THAN $200, OR (2) EACH SEVENTY- EIGHT CALENDAR WEEKS OF SERVICE IF HIS POSITION IS IN A GRADE IN WHICH THE STEP-INCREASE ARE $200 OR MORE, SUBJECT TO THE FOLLOWING CONDITIONS:

(A) THAT NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD * * *

SECTION 25.11 OF THE FEDERAL PERSONNEL MANUAL, CHAPTER Z1-314.01, IN EFFECT SINCE IMMEDIATELY FOLLOWING ENACTMENT OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, 5 U.S.C. 1071 NOTE, READS IN PERTINENT PART AS FOLLOWS:

(D) WAITING PERIOD IS THE MINIMUM TIME REQUIREMENT OF CREDITABLE SERVICE WITHOUT AN EQUIVALENT INCREASE IN COMPENSATION IN ORDER TO BE ELIGIBLE FOR CONSIDERATION FOR A PERIODIC STEP INCREASE. * * * CREDITABLE SERVICE, IN THE COMPUTATION OF WAITING PERIODS, INCLUDES:

(1) CONTINUOUS PAID CIVILIAN EMPLOYMENT IN ANY BRANCH (EXECUTIVE, LEGISLATIVE, OR JUDICIAL) OF THE FEDERAL GOVERNMENT, OR IN THE MUNICIPAL GOVERNMENT APPOINTMENT OR COMPENSATED AT A PER DIEM OR HOURLY RATE. * *

(E) EQUIVALENT INCREASE IN COMPENSATION IS THE TOTAL OF ANY INCREASE OR INCREASES IN BASIC COMPENSATION WHICH IS EQUAL TO OR GREATER THAN THE SMALLEST STEP-INCREASE IN ANY GRADE IN WHICH THE EMPLOYEE HAS SERVED DURING A PERIOD UNDER CONSIDERATION * * *.

AS INDICATED ABOVE, THE EMPLOYEE HAD COMPLETED THE FULL WAITING PERIOD IN GS-12 PRIOR TO HIS DEMOTION. WE FIND NO REQUIREMENT IN THE ABOVE ACT OR THE CIVIL SERVICE REGULATIONS THAT THE REQUIRED WAITING PERIOD MUST BE SERVED IMMEDIATELY PRIOR TO THE DATE ON WHICH IT COULD OTHERWISE PROPERLY BE GRANTED. COMPARE 33 COMP. GEN. 271. MOREOVER, THE STATUTE AND REGULATIONS, WHILE PROHIBITING THE LATER COUNTING OF CREDITABLE SERVICE IN THE EVENT AN EQUIVALENT INCREASE IN COMPENSATION IS RECEIVED DURING THE REQUIRED WAITING PERIOD, CONTAIN NO SIMILAR RESTRICTION WHEN THE EQUIVALENT INCREASE OCCURS AFTER COMPLETION OF SUCH PERIOD.

IN THE CIRCUMSTANCES WE HOLD THAT IMMEDIATELY UPON REPROMOTION TO GRADE GS-12 THE CLAIMANT WAS ENTITLED, WITHIN ADMINISTRATIVE DISCRETION, TO RECEIVE THE ONE-STEP PERIODIC PAY INCREASE. THEREFORE, AND IN CONSONANCE WITH YOUR POLICY IN APPLYING THE "HIGHEST PREVIOUS RATE" RULE, IT IS PROPER TO CORRECT THE ADMINISTRATIVE ERROR RETROACTIVELY EFFECTIVE FROM THE DATE OF THE REPROMOTION. CF. 24 COMP. GEN. 341; 26 ID. 368, 373.

THE VOUCHER, RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE PROPER.