B-142518, APR. 28, 1960

B-142518: Apr 28, 1960

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THE RECORD SHOWS YOU WERE SEPARATED FROM THE SERVICE BY THE DEPARTMENT OF THE ARMY ON OCTOBER 30. A RETROACTIVE ADJUSTMENT WAS SUBSEQUENTLY MADE BY THE DEPARTMENT OF THE ARMY BY A PROMOTION TO THE SECOND STEP OF GS-11. THE ADJUSTMENT WAS MADE BECAUSE OF AN ERROR BY THE ADMINISTRATIVE OFFICE IN FAILING TO GRANT YOU A WITHIN-GRADE STEP PROMOTION WHEN YOU HAD MET THE CONDITIONS OF ELIGIBILITY FOR WITHIN-GRADE ADVANCEMENT. YOU SUBSEQUENTLY WERE RE- EMPLOYED BY THE DEPARTMENT OF THE ARMY IN A GRADE GS-9 POSITION FROM WHICH YOU WERE SEPARATED ON NOVEMBER 25. YOU WERE APPOINTED NOVEMBER 26. 390 PER ANNUM WHICH THEN WAS THE COMPENSATION RATE APPLICABLE TO THE FIRST STEP IN THAT GRADE. YOU SAY THAT SINCE YOU HAD QUALIFIED FOR THE SECOND STEP IN GRADE GS-11 UNDER YOUR PREVIOUS EMPLOYMENT BY THE DEPARTMENT OF THE ARMY YOU SHOULD HAVE BEEN APPOINTED IN THE SECOND STEP OF GRADE GS-11 BY THE DEPARTMENT OF THE AIR FORCE.

B-142518, APR. 28, 1960

TO MR. PETER L. MUSCHAMP:

YOUR LETTER OF MARCH 21, 1960, RELATES TO OUR OFFICE SETTLEMENT OF JUNE 19, 1959, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION ALLEGED TO BE DUE YOU AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE.

THE RECORD SHOWS YOU WERE SEPARATED FROM THE SERVICE BY THE DEPARTMENT OF THE ARMY ON OCTOBER 30, 1949, IN A REDUCTION IN FORCE ACTION FROM YOUR POSITION IN GRADE GS-11 AT THE SALARY RATE FOR THE FIRST STEP IN THAT GRADE. A RETROACTIVE ADJUSTMENT WAS SUBSEQUENTLY MADE BY THE DEPARTMENT OF THE ARMY BY A PROMOTION TO THE SECOND STEP OF GS-11. THE ADJUSTMENT WAS MADE BECAUSE OF AN ERROR BY THE ADMINISTRATIVE OFFICE IN FAILING TO GRANT YOU A WITHIN-GRADE STEP PROMOTION WHEN YOU HAD MET THE CONDITIONS OF ELIGIBILITY FOR WITHIN-GRADE ADVANCEMENT. YOU SUBSEQUENTLY WERE RE- EMPLOYED BY THE DEPARTMENT OF THE ARMY IN A GRADE GS-9 POSITION FROM WHICH YOU WERE SEPARATED ON NOVEMBER 25, 1956. YOU RECEIVED COMPENSATION APPLICABLE TO THE SEVENTH STEP IN THAT GRADE AT THE RATE OF $6,250 PER ANNUM UPON DATE OF SEPARATION. YOU WERE APPOINTED NOVEMBER 26, 1956, WITHOUT BREAK IN SERVICE BY THE DEPARTMENT OF THE AIR FORCE IN GRADE GS-11 AT $6,390 PER ANNUM WHICH THEN WAS THE COMPENSATION RATE APPLICABLE TO THE FIRST STEP IN THAT GRADE. YOU SAY THAT SINCE YOU HAD QUALIFIED FOR THE SECOND STEP IN GRADE GS-11 UNDER YOUR PREVIOUS EMPLOYMENT BY THE DEPARTMENT OF THE ARMY YOU SHOULD HAVE BEEN APPOINTED IN THE SECOND STEP OF GRADE GS-11 BY THE DEPARTMENT OF THE AIR FORCE. YOU NOW CLAIM RETROACTIVE ADJUSTMENT OF YOUR SALARY AT THE SECOND STEP IN THAT GRADE FROM NOVEMBER 26, 1956, BECAUSE YOU BELIEVE YOUR APPOINTMENT TO THE MINIMUM STEP OF THE GRADE RESULTED FROM AN ADMINISTRATIVE ERROR.

THE AIR FORCE MANUAL DATED OCTOBER 1, 1954, IN EFFECT UPON YOUR RE EMPLOYMENT READS IN PART AS FOLLOWS:

"AFM40-1, AFP9.6/A) (2)

"THE PAY OF AN EMPLOYEE WHO IS PROMOTED OR RE-PROMOTED WITHIN THE AIR FORCE OR TRANSFERRED FROM ANOTHER AGENCY WITH A PROMOTION WILL BE ESTABLISHED IN ACCORDANCE WITH THE MANDATORY PROVISIONS OF SECTION 25.104/A) OF THE CIVIL SERVICE REGULATIONS, BASED UPON THE EXISTING RATE OF PAY IN HIS CURRENT POSITION. * * * "

ALTHOUGH IT IS WITHIN THE ADMINISTRATIVE DISCRETION WHETHER A TRANSFERRED EMPLOYEE'S INITIAL SALARY MAY BE FIXED SO AS TO SAVE TO HIM ANY WITHIN- GRADE SALARY ADVANCEMENT PREVIOUSLY ATTAINED IN ANOTHER AGENCY, THE RECORD SHOWS THAT THIS MATTER WAS CONSIDERED UPON YOUR APPOINTMENT BY THE DEPARTMENT OF THE AIR FORCE AND IT WAS THEN DECIDED NOT TO GRANT YOU THE SECOND STEP IN GRADE GS-11.

WE CONSISTENTLY HAVE HELD IN OUR DECISIONS THAT WHEN, UPON A PROPER SHOWING, AN ADMINISTRATIVE ERROR HAS BEEN MADE AT THE TIME OF TRANSFER, RE -EMPLOYMENT, ETC., IN FIXING AN EMPLOYEE'S SALARY AT THE MINIMUM RATE INSTEAD OF A HIGHER RATE PREVIOUSLY EARNED, RETROACTIVE SALARY ADJUSTMENT MAY BE MADE PROVIDED SUCH ACTION IS NOT PRECLUDED BY ADMINISTRATIVE REGULATIONS, PRACTICE, OR POLICY. SEE 34 COMP. GEN. 380; 32 ID. 211; 31 ID. 15; 26 ID. 368. HOWEVER, IN VIEW OF THE ADMINISTRATIVE REGULATIONS AND IN THE ABSENCE OF A SHOWING OF A BONA FIDE ERROR IN FIXING YOUR INITIAL SALARY RATE UPON TRANSFER, A RETROACTIVE ADJUSTMENT NOW FOR THAT PURPOSE WOULD BE INVALID.

THEREFORE, THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL COMPENSATION WAS PROPER AND UPON REVIEW, THE SETTLEMENT IS SUSTAINED.