B-143679, SEP. 30, 1960

B-143679: Sep 30, 1960

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SINCE HE WAS RECEIVING THE THIRD STEP RATE. IN THE GRADE GS-14 POSITION HIS SALARY WAS SET AT THE MAXIMUM SCHEDULED RATE IN THE LOWER GRADE. THE TRANSFER WAS EFFECTED JULY 5. HE WAS PROMOTED TO A GRADE GS-14 POSITION. HIS SALARY RATE IN THE GS-13 POSITION WAS ADMINISTRATIVELY ADJUSTED RETROACTIVE TO AUGUST 24. WAS CORRECTED TO GS-14. PAYMENT OF THE SUMS FOUND DUE UNDER THE FOREGOING RETROACTIVE ADMINISTRATIVE ADJUSTMENT ACTIONS WAS MADE OCTOBER 21. - AND WAS EFFECTED AS BEING IN ACCORDANCE WITH AIR FORCE CIVILIAN PERSONNEL LETTER 8-59. - "/3)WHOSE REDUCTION IN GRADE * * * IS NOT OR WAS NOT AT HIS OWN REQUEST * * * SHALL BE ENTITLED. * * * 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 * * * AT HIS OWN REQUEST THE LEGISLATIVE HISTORY ON THE FOREGOING PROVISIONS SHOWS THAT IT WAS INTENDED "TO PROVIDE AN ADEQUATE MEASURE OF PROTECTION AGAINST THE SALARY LOSSES FOR THE EMPLOYEES HAVING SUBSTANTIALLY EQUAL EQUITIES WHEN THEIR POSITIONS ARE REDUCED IN GRADE THROUGH NO FAULT OF THEIR OWN.'.

B-143679, SEP. 30, 1960

TO THE SECRETARY OF THE AIR FORCE:

OUR DEFENSE ACCOUNTING AND AUDITING DIVISION HAS RAISED A QUESTION CONCERNING SALARY RETENTION OF ROBERT E. WHITE, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

THE RECORD SHOWS THAT MR. WHITE, WHILE EMPLOYED AT WRIGHT-PATTERSON AIR FORCE BASE, OHIO, IN A GRADE GS-14 POSITION, ACCEPTED A POSITION IN HAWAII, WHEELER AIR FORCE BASE, AT GRADE GS-13. SINCE HE WAS RECEIVING THE THIRD STEP RATE, $11,835 PER ANNUM, IN THE GRADE GS-14 POSITION HIS SALARY WAS SET AT THE MAXIMUM SCHEDULED RATE IN THE LOWER GRADE, NAMELY, $11,090 PER ANNUM. THE TRANSFER WAS EFFECTED JULY 5, 1958. EFFECTIVE ON JUNE 28, 1959, HE WAS PROMOTED TO A GRADE GS-14 POSITION, WHEELER AIR FORCE BASE, AT THE RATE OF $11,835 PER ANNUM. ON OCTOBER 1, 1959, HIS SALARY RATE IN THE GS-13 POSITION WAS ADMINISTRATIVELY ADJUSTED RETROACTIVE TO AUGUST 24, 1958, SAVING THE GS 14 SALARY RATE OF $11,835 PER ANNUM. UPON THE ADMINISTRATIVE RETROACTIVE PAY ADJUSTMENT TO SAVE THE EMPLOYEE'S SALARY, HIS PROMOTION OF JUNE 28, 1959, WAS CORRECTED TO GS-14, $12,075 PER ANNUM, THUS GRANTING HIM A PERIODIC STEP INCREASE. PAYMENT OF THE SUMS FOUND DUE UNDER THE FOREGOING RETROACTIVE ADMINISTRATIVE ADJUSTMENT ACTIONS WAS MADE OCTOBER 21, 1959. THE ADMINISTRATIVE ACTION RETROACTIVELY GRANTING SALARY RETENTION CITED SECTION 25.404 OF THE CIVIL SERVICE REGULATIONS (P-1-64, FPM/--- ISSUED PURSUANT TO PUBLIC LAW 85-737 OF AUGUST 23, 1958, 72 STAT. 830, 5 U.S.C. 1107--- AND WAS EFFECTED AS BEING IN ACCORDANCE WITH AIR FORCE CIVILIAN PERSONNEL LETTER 8-59, DATED JULY 10, 1959.

5 U.S.C. 1107 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/A) * * * EACH OFFICER OR EMPLOYEE SUBJECT TO THIS ACT---

"/3)WHOSE REDUCTION IN GRADE * * * IS NOT OR WAS NOT AT HIS OWN REQUEST * * * SHALL BE ENTITLED, * * * 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 * * * AT HIS OWN REQUEST

THE LEGISLATIVE HISTORY ON THE FOREGOING PROVISIONS SHOWS THAT IT WAS INTENDED "TO PROVIDE AN ADEQUATE MEASURE OF PROTECTION AGAINST THE SALARY LOSSES FOR THE EMPLOYEES HAVING SUBSTANTIALLY EQUAL EQUITIES WHEN THEIR POSITIONS ARE REDUCED IN GRADE THROUGH NO FAULT OF THEIR OWN.'

ITEM 8, 3.B., OF LETTER 8-59 PROVIDES:

"IN AUTHORIZING THE PAYMENT OF TRANSPORTATION EXPENSES IN CONNECTION WITH A PERMANENT CHANGE OF STATION A DETERMINATION MUST BE MADE THAT THE CHANGE IS IN THE INTEREST OF THE GOVERNMENT. THE PAYMENT OF TRANSPORTATION EXPENSES IS PROHIBITED WHEN THE PERMANENT CHANGE OF STATION IS MADE PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE OR AT HIS REQUEST. THEREFORE, ANY DEMOTION WHICH INVOLVES A PERMANENT CHANGE OF STATION WHICH IS DETERMINED TO BE IN THE INTEREST OF THE GOVERNMENT FOR TRANSPORTATION PURPOSES CANNOT BE CONSIDERED AS A DEMOTION AT THE EMPLOYEE'S REQUEST. UNDER THIS PROVISION THE DEMOTION OF AN EMPLOYEE UPON HIS RETURN FROM OVERSEAS BY A PERMANENT CHANGE OF STATION CANNOT BE CONSIDERED AS DEMOTION AT THE EMPLOYEE'S REQUEST EVEN THOUGH HE SUBMITTED AN APPLICATION TO EXERCISE HIS ADMINISTRATIVE REEMPLOYMENT RIGHTS UNDER THE PROVISIONS OF SECTION 5, CHAPTER AF 01. LIKEWISE, IF TRANSPORTATION EXPENSES ARE AUTHORIZED IN CONNECTION WITH A DEMOTION INVOLVING A PERMANENT CHANGE OF STATION WITHIN THE UNITED STATES, SUCH A DEMOTION CANNOT BE CONSIDERED AS AT THE EMPLOYEE'S REQUEST EVEN THOUGH THE EMPLOYEE SUBMITTED AN APPLICATION FOR THE LOWER GRADE POSITION AS THE RESULT OF A RECRUITING CIRCULAR.'

FROM THE LANGUAGE OF ITEM 8, 3.B., QUOTED ABOVE, EVIDENTLY IT WAS REASONED ADMINISTRATIVELY THAT SINCE THE TRANSFER HERE INVOLVED WAS FOR THE CONVENIENCE OF THE GOVERNMENT AND TRANSPORTATION EXPENSES AUTHORIZED, THE CHANGE FROM THE GRADE GS-14 POSITION TO THE GRADE GS-13 POSITION SIMILARLY WAS NOT CONSIDERED TO BE AT THE REQUEST OF THE EMPLOYEE. HENCE, IT WAS ADMINISTRATIVELY DETERMINED THAT THE EMPLOYEE'S SALARY SHOULD BE SAVED AT THE $11,835 PER ANNUM RATE UNDER THE PROVISIONS OF THE SALARY RETENTION ACT OF 1958 (PUBLIC LAW 85-737, DATED AUGUST 23, 1958), 72 STAT. 830, 5 U.S.C. 1107.

THE PAYMENT OF TRANSPORTATION EXPENSES OF EMPLOYEES TRANSFERRED "IN THE INTEREST OF THE GOVERNMENT" IS AUTHORIZED BY 5 U.S.C. 73B-1. THE ADMINISTRATIVE DETERMINATION THAT SUCH A TRANSFER IS "IN THE INTEREST OF THE GOVERNMENT" THEREUNDER IN NOWISE SHOULD BE CONSIDERED AS A DETERMINATION THAT THE ACCEPTANCE OF A LOWER GRADE POSITION IS NOT AT THE REQUEST OF THE EMPLOYEE SO FAR AS AFFORDING THE EMPLOYEE THE BENEFITS OF THE SALARY RETENTION ACT OF 1958. THEREFORE, ITEM 8.3.B. OF AIR FORCE CIVILIAN PERSONNEL LETTER 8-59, DATED JULY 10, 1959, SHOULD BE DELETED, SINCE IT NOW IS PREDICATED SOLELY UPON THE PAYMENT OF TRANSPORTATION EXPENSES HAVING BEEN AUTHORIZED.

THE EMPLOYEE HERE INVOLVED HELD A GRADE GS-14 POSITION. HE AGREED IN WRITING TO ACCEPT THE LOWER GRADE POSITION. HIS GRADE GS-14 POSITION WAS NOT REDUCED. THERE IS NOTHING IN THE RECORD SHOWING THAT THE EMPLOYEE WAS ADMINISTRATIVELY REQUIRED TO ACCEPT THE LOWER GRADE POSITION. THUS, IT SEEMS THAT THE REQUEST IN THIS CASE WAS INITIATED BY THE EMPLOYEE FOR HIS PERSONAL ADVANTAGE OR DESIRE AND WAS THE DIRECT CAUSE FOR REMOVING HIM FROM THE GS-14 POSITION. THEREFORE, UPON THE PRESENT RECORD, WE ARE OF THE OPINION THAT THE SALARY RETENTION BENEFITS OF 5 U.S.C. 1107 DO NOT APPLY IN THIS CASE.

FURTHER, THE PROMOTION FROM GRADE GS-13, $11,090 PER ANNUM TO GRADE GS- 14, $11,835 PER ANNUM, EFFECTIVE JUNE 28, 1959, MUST BE CONSIDERED AN "EQUIVALENT INCREASE IN COMPENSATION" REQUIRING THE STARTING OF A NEW WAITING PERIOD FOR PERIODIC STEP-INCREASE PURPOSES. 27 COMP. GEN. 59, B- 141420, JANUARY 8, 1960.

WE SHALL WITHHOLD FINAL AUDIT ACTION IN THIS CASE, FOR A REASONABLE PERIOD, PENDING RECEIPT OF SUCH FURTHER INFORMATION OR VIEWS AS YOUR DEPARTMENT MAY HAVE CONCERNING THE MATTER.