B-143600, SEP. 27, 1960

B-143600: Sep 27, 1960

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YOU EXPRESS THE VIEW THAT IT IS NOT IN FULL PAYMENT OF THE AMOUNT DUE. SALARY RETENTION IN CERTAIN CASES IS COVERED BY THE ACT OF AUGUST 23. WHICHEVER IS LATER. UNLESS OR UNTIL HE IS ENTITLED TO RECEIVE BASIC COMPENSATION AT A HIGHER RATE BY REASON OF THE OPERATION OF THIS CHAPTER. TO RECEIVE THE RATE OF BASIC COMPENSATION TO WHICH HE WAS ENTITLED IMMEDIATELY PRIOR TO SUCH REDUCTION IN GRADE SO LONG AS HE CONTINUES IN THE SAME DEPARTMENT WITHOUT ANY BREAK IN SERVICE OF ONE WORKDAY OR MORE AND IS NOT DEMOTED OR REASSIGNED FOR PERSONAL CAUSE. YOU WERE ENTITLED. WAS $8. 810 AND THE GRADE GS-11 EQUIVALENT WHICH YOU WERE BEING PAID AS A RESULT OF THE PAY ACT OF 1958 WAS $8. THE DIFFERENCE PER PAY PERIOD ON AN ANNUAL RATE WAS CONSIDERED AS $22.40 AND SINCE 19 PAY PERIODS ELAPSED BETWEEN AUGUST 23.

B-143600, SEP. 27, 1960

TO MR. ROBERT K. JOHNSON, ASSISTANT DIRECTOR OF LIBRARIES, DREXEL INSTITUTE OF TECHNOLOGY:

YOUR LETTER OF JUNE 17, 1960, TO THE U.S. AIR FORCE, HAS BEEN REFERRED TO US BY ITS LETTER OF JULY 13, 1960, FOR CONSIDERATION AND REPLY.

IN YOUR LETTER OF JUNE 17, 1960, YOU ACKNOWLEDGE RECEIPT OF A UNITED STATES CHECK FOR $345.72, BUT YOU EXPRESS THE VIEW THAT IT IS NOT IN FULL PAYMENT OF THE AMOUNT DUE.

SALARY RETENTION IN CERTAIN CASES IS COVERED BY THE ACT OF AUGUST 23, 1958, 5 U.S.C. 1107. IT READS IN PART AS FOLLOWS:

"/A) PERSONS REDUCED IN GRADE AFTER JUNE 17, 1956.

"SUBJECT TO THE LIMITATION CONTAINED IN SUBSECTION (C) OF THIS SECTION, EACH OFFICER OR EMPLOYEE SUBJECT TO THIS CHAPTER---

"/5) * * * SHALL BE ENTITLED, AS OF THE EFFECTIVE DATE OF SUCH REDUCTION IN GRADE OR AS OF THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS AFTER AUGUST 23, 1958, WHICHEVER IS LATER, UNLESS OR UNTIL HE IS ENTITLED TO RECEIVE BASIC COMPENSATION AT A HIGHER RATE BY REASON OF THE OPERATION OF THIS CHAPTER, OR UNTIL THE EXPIRATION OF A PERIOD OF TWO YEARS IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF SUCH REDUCTION IN GRADE OR IMMEDIATELY FOLLOWING THE FIRST DAY OF SUCH FIRST PAY PERIOD, AS APPLICABLE, TO RECEIVE THE RATE OF BASIC COMPENSATION TO WHICH HE WAS ENTITLED IMMEDIATELY PRIOR TO SUCH REDUCTION IN GRADE SO LONG AS HE CONTINUES IN THE SAME DEPARTMENT WITHOUT ANY BREAK IN SERVICE OF ONE WORKDAY OR MORE AND IS NOT DEMOTED OR REASSIGNED FOR PERSONAL CAUSE, AT HIS OWN REQUEST, OR IN A REDUCTION IN FORCE DUE TO LACK OF FUNDS OR CURTAILMENT OF K.'

SINCE YOUR REDUCTION IN GRADE TOOK PLACE AFTER JUNE 17, 1956, BUT PRIOR TO AUGUST 23, 1958, YOU WERE ENTITLED, IF OTHERWISE PROPER, TO GRADE GS-12 SALARY RESTORATION EFFECTIVE AUGUST 23, 1958, IN ACCORD WITH THE PROVISIONS OF THE ACT. THE GRADE GS-12 SALARY AT THAT TIME HAVING BEEN INCREASED BY THE PAY ACT OF 1958, WAS $8,810 AND THE GRADE GS-11 EQUIVALENT WHICH YOU WERE BEING PAID AS A RESULT OF THE PAY ACT OF 1958 WAS $8,230. THE DIFFERENCE PER PAY PERIOD ON AN ANNUAL RATE WAS CONSIDERED AS $22.40 AND SINCE 19 PAY PERIODS ELAPSED BETWEEN AUGUST 23, 1958, AND MAY 15, 1959, THE DATE OF YOUR RESIGNATION, YOU WERE ALLOWED THE DIFFERENCE IN GROSS COMPENSATION OF $425.60. ALSO, YOU WERE ALLOWED ADDITIONAL LUMP SUM PAYMENT FOR ACCUMULATED ANNUAL LEAVE OF $38.64, MAKING A GROSS AMOUNT DUE YOU OF $464.24. FROM THAT AMOUNT $27.66 WAS DEDUCTED FOR RETIREMENT, $83.56 FOR FEDERAL TAX, AND $7.30 FOR STATE TAX, LEAVING A BALANCE DUE OF $345.72, THE AMOUNT REPRESENTED BY THE CHECK.

THE SALARY SAVING STATUTE WAS NOT RETROACTIVE TO THE DATE OF YOUR REDUCTION IN GRADE. WE BELIEVE, THEREFORE, THAT THE FOREGOING COMMENTS ADEQUATELY EXPLAIN THE PAYMENT MADE.

OUR DECISION OF SEPTEMBER 19, 1960, B-138625, TO THE CHAIRMAN, U.S. CIVIL SERVICE COMMISSION, HELD THAT EMPLOYEES WHO FIRST BECAME ENTITLED TO RECEIVE SAVED PAY BY REASON OF THE ACT OF AUGUST 23, 1958, BUT WHO WERE DEMOTED PRIOR TO THE EFFECTIVE DATE OF THE PAY INCREASE ACT OF 1958 WERE NOT ENTITLED TO HAVE THE 1958 PAY ACT INCREASE REFLECTED IN THE RATES OF COMPENSATION SAVED BY THE ACT OF AUGUST 23, 1958. THEREFORE, SINCE THE $8,000 RATE RECEIVED BY YOU AT THE TIME OF YOUR DOWNGRADING IN 1957 WAS LESS THAN THE SUM OTHERWISE DUE YOU IN GRADE GS-11, FROM THE EFFECTIVE DATE OF THE 1958 PAY INCREASE ACT, NO AMOUNT PROPERLY WAS DUE YOU ON THE CLAIM HERE IN QUESTION. HOWEVER, NO ACTION WILL BE TAKEN BY OUR OFFICE TO COLLECT OVERPAYMENTS MADE IN YOUR CASE, AND CASES SIMILAR TO YOURS, PENDING THE OUTCOME OF OUR REQUEST TO THE CIVIL SERVICE COMMISSION TO CONSIDER LEGISLATIVE RELIEF FOR THIS CLASS OF EMPLOYEES.