B-152501, OCT. 11, 1963

B-152501, OCT. 11, 1963

TO MR. MAX A. ENSELEIT:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 5, 1963, PROTESTING OUR SETTLEMENT OF AUGUST 23, 1963, WHICH DISALLOWED YOUR CLAIM FOR AN ADJUSTMENT OF PAY FOR A PERIODIC STEP-INCREASE AS AN EMPLOYEE OF THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY.

THE RECORD DISCLOSES THAT ON NOVEMBER 6, 1960, YOU WERE GRANTED A PERIODIC STEP-INCREASE TO $9,735 PER ANNUM, THE FOURTH STEP IN GRADE GS- 12. ON FEBRUARY 11, 1962, YOU WERE REDUCED TO A GRADE GS-11 POSITION AT A SALARY OF $8,860, THE TOP SCHEDULED RATE OF THAT GRADE. ON MAY 6, 1962, YOU WERE PROMOTED BACK TO GRADE GS-12, STEP 4, AT $9,735 PER ANNUM, THE RATE YOU PREVIOUSLY HELD. YOU CONTEND THAT THE TIME YOU SERVED IN GRADE GS-11 CANNOT BE INCLUDED IN THE PRESCRIBED 78 WEEK WAITING PERIOD FOR A STEP-INCREASE IN GRADE GS-12, AND THAT YOUR PROMOTION FROM GRADE GS-11 TO GRADE GS-12, STEP 4, DID NOT CONSTITUTE AN EQUIVALENT INCREASE IN COMPENSATION, AS THOSE TERMS ARE USED IN THE FEDERAL EMPLOYEES PAY REGULATIONS, SINCE SUCH PROMOTION OCCURRED WHILE YOU WERE IN GRADE GS-11.

SECTION 701 (A) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 967, IN EFFECT PRIOR TO THE BEGINNING OF THE FIRST PAY PERIOD AFTER OCTOBER 11, 1962, PROVIDED IN PART AS FOLLOWS:

"EACH OFFICER OR EMPLOYEE COMPENSATED ON A PER ANNUM BASIS, AND OCCUPYING A PERMANENT POSITION WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT, WHO HAS NOT ATTAINED THE MAXIMUM SCHEDULED RATE OF COMPENSATION FOR THE GRADE IN WHICH HIS POSITION IS PLACED, SHALL BE ADVANCED IN COMPENSATION SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN THE GRADE AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE COMPLETION OF * * * (2) EACH SEVENTY-EIGHT CALENDAR WEEKS OF SERVICE IF HIS POSITION IS IN A GRADE IN WHICH THE STEP-INCREASES ARE $200 OR MORE, SUBJECT TO THE FOLLOWING CONDITIONS:

"/A) THAT NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD * * *"

SECTION 25.155 OF THE FEDERAL EMPLOYEES PAY REGULATIONS APPLICABLE TO THE ABOVE DEFINED ,EQUIVALENT INCREASE" AS AN INCREASE IN BASIC COMPENSATION EQUAL TO OR GREATER THAN THE AMOUNT OF THE STEP INCREMENT OF THE GRADE IN WHICH THE EMPLOYEE IS SERVING OR HAS SERVED DURING THE WAITING PERIOD UNDER CONSIDERATION ($200 IN YOUR CASE). "BASIC COMPENSATION," AS DEFINED IN THE SAME REGULATIONS, MEANS THE COMPENSATION FIXED BY LAW OR ADMINISTRATIVE ACTION FOR THE POSITION HELD BY AN OFFICER OR EMPLOYEE.

DURING THE PERIOD NOVEMBER 6, 1960, THROUGH FEBRUARY 10, 1962, YOU SERVED 66 WEEKS IN GRADE GS-12, STEP 4. UPON YOUR REDUCTION TO THE TOP STEP OF GRADE GS-11, SUCH TIME AS WAS SERVED IN GRADE GS-12 WAS CREDITABLE TOWARD A STEP-INCREASE (OR LONGEVITY INCREASE) IN GRADE GS 11. ON MAY 6, 1962, YOU WERE REPROMOTED TO STEP 4 OF GRADE GS-12. THIS ACTION, IN ACCORDANCE WITH THE CLEAR AND UNAMBIGUOUS LANGUAGE OF THE REGULATIONS, CONSTITUTED AN EQUIVALENT INCREASE IN COMPENSATION. WHILE IT IS TRUE THAT THE EFFECT OF THIS PROMOTION WAS TO RESTORE YOU TO THE PAY LEVEL YOU HAD PREVIOUSLY OCCUPIED, THE INDISPUTABLE FACT REMAINS THAT ON MAY 6, 1962, YOU DID RECEIVE AN INCREASE OF $875 IN YOUR PRESENT BASIC COMPENSATION OF $8,860, WHICH INCREASE WAS MORE THAN FOUR TIMES GREATER THAN THE AMOUNT OF THE STEP INCREMENT OF THE GRADE IN WHICH YOU HAD SERVED DURING THE WAITING PERIOD.

THE WAITING PERIOD OF 78 WEEKS TOWARD STEP 5, GRADE GS-12, IN YOUR CASE, MAY NOT BE RELATED BACK TO THE DATE OF YOUR ADVANCEMENT TO STEP 4 OF SUCH GRADE (NOVEMBER 6, 1960), BECAUSE AT THE END OF 78 WEEKS IT COULD NOT BE ACCURATELY STATED THAT NO "EQUIVALENT INCREASE" HAD BEEN RECEIVED DURING THE PAST 78 WEEKS. THIS CONCLUSION MAY NOT BE REGARDED AS ALTERED BY THE FACT THAT THE SERVICE IN GRADE GS-12 WAS MERELY INTERRUPTED BY A TEMPORARY INTERVENING PERIOD OF SERVICE IN GRADE GS-11. WE HAVE NEVER REGARDED CREDITABLE SERVICE FOR STEP INCREASES AS BEING LIMITED TO SERVICE IN A PARTICULAR STEP OR GRADE. SEE 22 COMP. GEN. 336, AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION. ALSO, SEE OUR DECISION OF NOVEMBER 15, 1962, B-150219, 42 COMP. GEN. 249, CONCERNING THE AMENDMENT OF SECTION 701 (A) OF THE CLASSIFICATION ACT OF 1949, BY SECTION 603 OF THE FEDERAL SALARY REFORM ACT OF 1962, PUB.L. 87-793. THEREFORE, IF NOT OTHERWISE PRECLUDED YOUR SERVICE IN GRADE GS-12 AND/OR GRADE GS-11 WOULD HAVE BEEN CREDITABLE FOR STEP-INCREASE PURPOSES.

YOUR REDUCTION TO GRADE GS-11 RESULTED IN A CHANGE OF SALARY STATUS AND IT IS ONLY BY VIRTUE OF A SUBSEQUENT INCREASE IN COMPENSATION THAT YOU RETURNED TO GRADE GS-12, STEP 4. SINCE UNDER THE STATUTE AN INCREASE IN COMPENSATION "FROM ANY CAUSE" RENDERS AN EMPLOYEE INELIGIBLE FOR A FURTHER STEP-INCREASE, A NEW WAITING PERIOD BEGAN TO RUN FROM THE DATE OF YOUR RETURN TO GRADE GS-12, STEP 4, WHICH WAS MAY 6, 1962.

LANGUAGE IDENTICAL WITH THAT OF SECTION 701 (A) (A) OF THE CLASSIFICATION ACT OF 1949 FIRST APPEARED IN THE ACT OF AUGUST 1, 1941, 55 STAT. 613, 614, WHICH PROVIDED A STATUTORY BASIS FOR PERIODIC STEP INCREASES. IT WAS RETAINED IN SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND SIMILAR LANGUAGE NOW APPEARS IN SECTION 603 OF THE CLASSIFICATION ACT AMENDMENTS OF 1962, TITLE II OF PUB.L. 87-793.

ON OCTOBER 2, 1941, THIS OFFICE HELD, IN A SITUATION CLOSELY ANALOGOUS TO YOURS, THAT AN INCREASE IN COMPENSATION INCIDENT TO A REPROMOTION TO A FORMER POSITION BEGAN A NEW WAITING PERIOD. 21 COMP. GEN. 285. SINCE THAT TIME WE HAVE RENDERED NUMEROUS DECISIONS INVOLVING THE SAME OR SIMILAR SITUATIONS AND HAVE CONSISTENTLY ADHERED TO THE VIEWS AS EXPRESSED IN THE ABOVE-CITED OPINION. SEE 21 COMP. GEN. 326; 27 ID. 59; 34 ID. 209; B-146616, AUGUST 29, 1961.

IN VIEW OF THE FOREGOING, THE DISALLOWANCE OF YOUR CLAIM MUST BE SUSTAINED.