B-149205, JUN. 27, 1962

B-149205: Jun 27, 1962

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

YOU WERE PROMOTED TO GRADE GS-12 ON FEBRUARY 24. TO AN OVERSEAS POSITION WHERE YOU WERE DETAILED TO A GRADE GS-13 POSITION. YOU WERE PROMOTED TO GRADE GS-13 ON MARCH 9. YOU SAY THE CORPS OF ENGINEERS HAD ADVISED EMPLOYEES IN AN OFFICIAL MEMORANDUM THAT EMPLOYEES WHO EXERCISED REEMPLOYMENT RIGHTS IN A CONUS POSITION OF LOWER GRADE AFTER COMPLETING A TOUR OF DUTY OVERSEAS WERE NOT ENTITLED TO SALARY RETENTION BENEFITS UNDER PUBLIC LAW 85-737. YOU FURTHER SAY THAT AFTER YOUR RETURN THIS MEMORANDUM WAS RESCINDED BY ANOTHER WHICH STATED THAT SALARY RETENTION BENEFITS DID APPLY TO SUCH EMPLOYEES. YOU SAY THAT RELIANCE ON THE EARLIER MEMORANDUM WAS THE SOLE CAUSE OF YOUR RETURN PRIOR TO THE COMPLETION OF TWO YEARS SERVICE IN GRADE GS-13.

B-149205, JUN. 27, 1962

TO MR. HOWARD J. SCHULTE:

YOUR LETTER OF MAY 28, 1962, REQUESTS RECONSIDERATION OF OUR OFFICE SETTLEMENT OF FEBRUARY 13, 1962, WHICH DISALLOWED YOUR CLAIM AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, FOR SALARY RETENTION BENEFITS UPON REDUCTION IN GRADE UNDER SECTION 507 OF THE CLASSIFICATION ACT OF 1949, AS ADDED BY THE ACT OF JUNE 18, 1956,70 STAT. 291, AS AMENDED BY SECTION 1 OF THE ACT OF AUGUST 23, 1958, PUBLIC LAW 85- 737, 72 STAT. 830, AS AMENDED, 5 U.S.C. 1107.

YOU WERE PROMOTED TO GRADE GS-12 ON FEBRUARY 24, 1957. ON SEPTEMBER 15, 1957, YOU TRANSFERRED FROM THE CORPS OF ENGINEERS, KANSAS CITY, MISSOURI, TO AN OVERSEAS POSITION WHERE YOU WERE DETAILED TO A GRADE GS-13 POSITION. UPON ATTAINING ELIGIBILITY FOR FURTHER PROMOTION, YOU WERE PROMOTED TO GRADE GS-13 ON MARCH 9, 1958, IN WHICH YOU SERVED ONE YEAR, SEVEN MONTHS, AND TWENTY-THREE DAYS. ON NOVEMBER 1, 1959, YOU TRANSFERRED BACK TO THE CORPS OF ENGINEERS, KANSAS CITY, MISSOURI, AS A SAFETY ENGINEER, GRADE GS-12. PRIOR TO YOUR RETURN, YOU SAY THE CORPS OF ENGINEERS HAD ADVISED EMPLOYEES IN AN OFFICIAL MEMORANDUM THAT EMPLOYEES WHO EXERCISED REEMPLOYMENT RIGHTS IN A CONUS POSITION OF LOWER GRADE AFTER COMPLETING A TOUR OF DUTY OVERSEAS WERE NOT ENTITLED TO SALARY RETENTION BENEFITS UNDER PUBLIC LAW 85-737. YOU FURTHER SAY THAT AFTER YOUR RETURN THIS MEMORANDUM WAS RESCINDED BY ANOTHER WHICH STATED THAT SALARY RETENTION BENEFITS DID APPLY TO SUCH EMPLOYEES. YOU SAY THAT RELIANCE ON THE EARLIER MEMORANDUM WAS THE SOLE CAUSE OF YOUR RETURN PRIOR TO THE COMPLETION OF TWO YEARS SERVICE IN GRADE GS-13; ALSO, THAT SINCE YOU ACTUALLY PERFORMED THE DUTIES OF THE GRADE GS-13 POSITION FOR TWO YEARS, YOU HAVE FOR ALL PRACTICAL PURPOSES MET THE REQUIREMENTS FOR SALARY RETENTION BENEFITS UNDER PUBLIC LAW 85-737, AND THAT YOUR CLAIM IN EQUITY IS JUST AND RIGHT.

PUBLIC LAW 85-737, REQUIRES AS ONE CONDITION FOR SALARY RETENTION BENEFITS UPON REDUCTION IN GRADE THAT THE EMPLOYEE SHALL HAVE SERVED FOR TWO CONTINUOUS YEARS, IMMEDIATELY PRIOR TO REDUCTION IN GRADE, IN THE SAME GRADE OR IN THE SAME AND HIGHER GRADES. SINCE YOU WERE IN GRADE GS-12 DURING THE TIME YOU WERE DETAILED TO THE GRADE GS-13 POSITION BEFORE BECOMING ELIGIBLE FOR PROMOTION TO GRADE GS-13, YOUR SERVICE DURING THIS DETAIL DOES NOT MEET THE SPECIFIC STATUTORY REQUIREMENT OF TWO YEARS CONTINUOUS SERVICE IN THE SAME GRADE OR IN THE SAME AND HIGHER GRADES. COMPARE B-132024, JUNE 19, 1957, COPY ENCLOSED. THE FACT THAT YOU RELIED ON THE INFORMATION GIVEN IN THE RESCINDED MEMORANDUM AFFORDS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM. WE HAVE NO AUTHORITY TO WAIVE A STATUTORY REQUIREMENT FOR SALARY RETENTION BENEFITS ON EQUITABLE GROUNDS.