B-145498, APRIL 26, 1961, 40 COMP. GEN. 600

B-145498: Apr 26, 1961

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CIVILIAN PERSONNEL - COMPENSATION - PERIODIC STEP-INCREASES - SERVICE CREDITS - EMPLOYMENT AS FOREIGN SERVICE RESERVE OFFICER AN EMPLOYEE WHO WOULD HAVE RECEIVED A WITHIN-GRADE SALARY ADVANCEMENT IN HIS REGULAR POSITION HAD HE NOT BEEN APPOINTED TO AN OVERSEAS POSITION WITH THE INTERNATIONAL COOPERATION ADMINISTRATION PURSUANT TO SECTION 527 (C) (1) OF THE MUTUAL SECURITY ACT OF 1954. WHICH SPECIFIES THE SAME BENEFITS AS ARE PROVIDED FOR FOREIGN SERVICE RESERVE OFFICERS IN SECTION 528 OF THE FOREIGN SERVICE ACT OF 1946. IS. THE ACTING ADMINISTRATOR REQUESTED OUR DECISION WHETHER A CERTAIN EMPLOYEE OF YOUR AGENCY WAS ENTITLED TO STEP ONE OR STEP TWO OF GRADE GS-15 UPON HIS RETURN TO YOUR AGENCY FROM AN APPOINTED INTERNATIONAL COOPERATION ADMINISTRATION POSITION OVERSEAS PURSUANT TO THE TERMS OF THE MUTUAL SECURITY ACT OF 1954.

B-145498, APRIL 26, 1961, 40 COMP. GEN. 600

CIVILIAN PERSONNEL - COMPENSATION - PERIODIC STEP-INCREASES - SERVICE CREDITS - EMPLOYMENT AS FOREIGN SERVICE RESERVE OFFICER AN EMPLOYEE WHO WOULD HAVE RECEIVED A WITHIN-GRADE SALARY ADVANCEMENT IN HIS REGULAR POSITION HAD HE NOT BEEN APPOINTED TO AN OVERSEAS POSITION WITH THE INTERNATIONAL COOPERATION ADMINISTRATION PURSUANT TO SECTION 527 (C) (1) OF THE MUTUAL SECURITY ACT OF 1954, 22 U.S.C. 1787 (C) (1), WHICH SPECIFIES THE SAME BENEFITS AS ARE PROVIDED FOR FOREIGN SERVICE RESERVE OFFICERS IN SECTION 528 OF THE FOREIGN SERVICE ACT OF 1946, 22 U.S.C. 928, IS, UPON RETURN TO HIS REGULAR POSITION AND PROMOTION, ENTITLED TO CREDIT FOR SERVICE IN THE ICA POSITION FOR WITHIN-GRADE SALARY PURPOSES, IT BEING THE INTENT OF CONGRESS IN ENACTING SECTION 528 OF THE 1946 ACT TO SAVE AN EMPLOYEE'S RIGHTS TO WITHIN-GRADE SALARY ADVANCEMENTS FOLLOWING EMPLOYMENT UNDER THE MUTUAL SECURITY ACT OF 1954.

TO THE ADMINISTRATOR, FEDERAL AVIATION AGENCY, APRIL 26, 1961:

ON MARCH 31, 1961, THE ACTING ADMINISTRATOR REQUESTED OUR DECISION WHETHER A CERTAIN EMPLOYEE OF YOUR AGENCY WAS ENTITLED TO STEP ONE OR STEP TWO OF GRADE GS-15 UPON HIS RETURN TO YOUR AGENCY FROM AN APPOINTED INTERNATIONAL COOPERATION ADMINISTRATION POSITION OVERSEAS PURSUANT TO THE TERMS OF THE MUTUAL SECURITY ACT OF 1954. THE EMPLOYEE WAS APPOINTED FROM A GS-14 POSITION IN WASHINGTON, D.C., TO AN ICA-4 POSITION IN AFGHANISTAN ON MARCH 24, 1959. ON SEPTEMBER 6, 1959, HE WAS RETURNED TO A GS-15 POSITION IN WASHINGTON, D.C. HIS SALARY WAS SET AT $12,770 PER ANNUM, THE THEN EXISTING RATE FOR STEP ONE OF GS 15.

SECTION 527 (C) (1) OF THE MUTUAL SECURITY ACT OF 1954, 68 STAT. 857, AS AMENDED, 22 U.S.C. 1787 (C) (1), SPECIFIES THAT PERSONS WITHIN ITS PROVISIONS ARE ENTITLED TO THE SAME BENEFITS AS ARE PROVIDED BY 22 U.S.C. 928 FOR PERSONS APPOINTED TO THE FOREIGN SERVICE RESERVE. A RETURNING EMPLOYEE IS ENTITLED UNDER SECTION 528 OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 1010, AS AMENDED, 22 U.S.C. 928; TO:

* * * REINSTATEMENT IN THE GOVERNMENT AGENCY BY WHICH HE IS REGULARLY EMPLOYED IN THE SAME POSITION HE OCCUPIED AT THE TIME OF ASSIGNMENT, OR IN A CORRESPONDING OR HIGHER POSITION. UPON REINSTATEMENT HE SHALL RECEIVE THE WITHIN-GRADE SALARY ADVANCEMENTS HE WOULD HAVE BEEN ENTITLED TO RECEIVE HAD HE REMAINED IN THE POSITION IN WHICH HE IS REGULARLY EMPLOYED

IF THE EMPLOYEE HAD REMAINED IN THE GS-14 POSITION DURING THE TIME HE ACTUALLY SERVED IN THE ICA-4 POSITION HE WOULD HAVE BEEN IN THE TOP STEP OF GS-14, THEN $12,555, AT THE TIME OF HIS RETURN. UNDER SECTION 802 (B) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 63 STAT. 969, 5 U.S.C. 1132 (B)," ANY OFFICER OR EMPLOYEE WHO IS PROMOTED OR TRANSFERRED TO A POSITION IN A HIGHER GRADE SHALL RECEIVE BASIC COMPENSATION AT THE LOWEST RATE OF SUCH HIGHER GRADE WHICH EXCEEDS HIS EXISTING RATE OF BASIC COMPENSATION BY NOT LESS THAN ONE STEP-INCREASE OF THE GRADE FROM WHICH HE IS PROMOTED OR TRANSFERRED * * *" WHICH, UPON PROMOTION FROM THE TOP STEP OF GS-14 TO GRADE GS-15, WOULD HAVE BEEN THE SECOND STEP OF GS-15, THEN $13,070.

THE ACTING ADMINISTRATOR SAYS THAT:

IT APPEARS TO HAVE BEEN THE INTENT OF CONGRESS, IN ENACTING THIS LEGISLATION TO CONSIDER THE RETURNING EMPLOYEE, FOR PAY ENTITLEMENT AND PAY DETERMINATION PURPOSES, AS NEVER HAVING LEFT THE POSITION "IN WHICH HE IS REGULARLY EMPLOYED.' (ITALICS SUPPLIED.) THIS PROVISION APPLIES TO A RETURNING EMPLOYEE, WHETHER HE BE REINSTATED TO THE SAME POSITION HE OCCUPIED AT THE TIME OF ASSIGNMENT, OR TO A CORRESPONDING OR HIGHER POSITION. UNDER THE STATUTE, A RETURN TO A HIGHER POSITION IS ALSO A "RETIREMENT.'

* * * IT IS OUR VIEW THAT PLACING THE EMPLOYEE IN THIS CASE IN THE FIRST STEP OF GS-15 WAS AN ERROR.

WE CONCUR IN THE VIEWS EXPRESSED BY THE ACTING ADMINISTRATOR. THE SETTING OF THE EMPLOYEE'S SALARY RATE AT STEP ONE OF GS-15 UPON HIS PROMOTION DEPRIVED HIM OF THE BENEFITS OF THE WITHIN-GRADE SALARY ADVANCEMENT HE WOULD HAVE RECEIVED HAD HE REMAINED IN THE GS-14 POSITION. IN VIEW OF THE MANDATORY PROVISIONS AND THE EVIDENT INTENT OF SECTION 528 OF THE FOREIGN SERVICE ACT TO SAVE AN EMPLOYEE'S RIGHTS TO WITHIN-GRADE SALARY ADVANCEMENTS, THE EMPLOYEE IS ENTITLED TO CREDIT FOR HIS SERVICE IN THE ICA-4 POSITION AS SERVICE IN GRADE GS-14. SEE B 126350, MARCH 1, 1956. THEREFORE, IF OTHERWISE PROPER, THE EMPLOYEE WAS ENTITLED TO SALARY AT STEP TWO UPON REINSTATEMENT IN GRADE GS-15 AND HIS SALARY RATE MAY BE RETROACTIVELY ADJUSTED ACCORDINGLY.