B-153481, MAR. 5, 1964

B-153481: Mar 5, 1964

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HICKMAN'S OFFICIAL PERSONNEL FOLDER SHOWS THAT HE WAS SEPARATED BY REDUCTION IN FORCE FROM THE NAVAL AIR STATION. HE WAS A GS-4. WAS REINSTATED BY NASA. OUR WALLOPS ISLAND INSTALLATION WAS UNDER THE JURISDICTION OF OUR LANGLEY RESEARCH CENTER. LANGLEY'S POLICY AT THAT TIME IN REINSTATEMENT CASES WAS TO ALLOW CREDIT FOR ALL TIME SPENT AT THE GRADE TO WHICH REINSTATED. THE "A" STEP OF GRADE GS-5 WAS SELECTED. ALTHOUGH THE "C" STEP OF GS-5 COULD HAVE BEEN SELECTED AT THAT TIME. SUCH AN ACTION WOULD NOT HAVE BEEN CONSISTENT WITH LANGLEY'S PAY POLICY APPLICABLE TO REINSTATEMENT CASES. "WE HAVE NOT COMMENTED UPON THE OTHER CASES MENTIONED IN MR. THE SAME POLICY IS STILL BEING FOLLOWED AT WALLOPS IN REINSTATEMENT CASES.

B-153481, MAR. 5, 1964

TO MR. ASA T. HICKMAN:

ON FEBRUARY 7, 1964, YOU REQUESTED THAT WE CONSIDER YOUR ENTITLEMENT TO ADDITIONAL COMPENSATION AS AN EMPLOYEE OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION STATIONED AT WALLOPS ISLAND, VIRGINIA.

ON FEBRUARY 25, 1964, THE DIRECTOR OF PERSONNEL, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, REPORTED THE CIRCUMSTANCES INVOLVED IN YOUR EMPLOYMENT AND IN THE DETERMINATION OF YOUR INITIAL COMPENSATION AS FOLLOWS:

"MR. HICKMAN'S OFFICIAL PERSONNEL FOLDER SHOWS THAT HE WAS SEPARATED BY REDUCTION IN FORCE FROM THE NAVAL AIR STATION, CHINCO TEAGUE, VIRGINIA ON APRIL 18, 1959. AT THAT TIME, HE WAS A GS-4,"G" STEP, $4325 A YEAR. MR. HICKMAN, AFTER A BREAK IN SERVICE, WAS REINSTATED BY NASA, AS A CAREER EMPLOYEE, ON JUNE 29, 1959, AS A GS-5,"A" STEP, $4040 A YEAR.

"IN APPLYING THE HIGHEST PREVIOUS RATE RULE, EACH OF OUR INSTALLATIONS CAN ESTABLISH ITS OWN POLICY. AT THE TIME OF MR. HICKMAN'S REINSTATEMENT, OUR WALLOPS ISLAND INSTALLATION WAS UNDER THE JURISDICTION OF OUR LANGLEY RESEARCH CENTER, LANGLEY, VIRGINIA. LANGLEY'S POLICY AT THAT TIME IN REINSTATEMENT CASES WAS TO ALLOW CREDIT FOR ALL TIME SPENT AT THE GRADE TO WHICH REINSTATED, OR AT ANY HIGHER GRADE. IN APPLYING THIS POLICY TO MR. HICKMAN, THE "A" STEP OF GRADE GS-5 WAS SELECTED, SINCE HE HAD NOT HAD ANY PREVIOUS FEDERAL SERVICE AT GRADE GS-5, OR HIGHER. ALTHOUGH THE "C" STEP OF GS-5 COULD HAVE BEEN SELECTED AT THAT TIME, SUCH AN ACTION WOULD NOT HAVE BEEN CONSISTENT WITH LANGLEY'S PAY POLICY APPLICABLE TO REINSTATEMENT CASES.

"WE HAVE NOT COMMENTED UPON THE OTHER CASES MENTIONED IN MR. HICKMAN'S LETTER SINCE HE HAS NOT IDENTIFIED THEM. IN GENERAL, HOWEVER, THE SAME POLICY IS STILL BEING FOLLOWED AT WALLOPS IN REINSTATEMENT CASES. APPOINTMENTS BY TRANSFER TO THE SAME GRADE, THE EMPLOYEES RECEIVES THE SAME SALARY. IN APPOINTMENTS BY TRANSFER TO HIGHER GRADES, THE SALARY SETTING RULE APPLICABLE TO PROMOTIONS IS FOLLOWED.'

THE SALARY OF AN EMPLOYEE UPON APPOINTMENT MAY BE SET AT A RATE IN EXCESS OF THE MINIMUM OF THE GRADE TO WHICH HE IS APPOINTED, OR REINSTATED ON THE BASIS OF THE FACT THAT HE HAS EARNED A HIGHER RATE OF PAY IN PRIOR FEDERAL EMPLOYMENT. SECTIONS 801 AND 802 OF THE CLASSIFICATION ACT OF 1949, APPROVED OCTOBER 28, 1949, CH. 782, 63 STAT. 969, AS AMENDED, 5 U.S.C. 1131, 1132, AND THE CIVIL SERVICE REGULATIONS (SECTION 25.103 WAS IN FORCE AT THE TIME OF YOUR APPOINTMENT IN 1959), UPON WHICH THAT RULE IS PREDICATED, AUTHORIZE BUT DO NOT REQUIRE THE APPOINTING AGENCY TO SET AN EMPLOYEE'S INITIAL SALARY AT THE HIGHEST RATE PERMITTED. THUS, THE DETERMINATION OF THE RATE OF COMPENSATION TO BE ALLOWED IN YOUR CASE WAS A MATTER WITHIN THE JURISDICTION OF THE EMPLOYING AGENCY.

IN 31 COMP. GEN. 15 WE SAID:

"THE CORRECTION OF SUCH ADMINISTRATIVE ERRORS CAN BE ACCOMPLISHED ONLY BY ADMINISTRATIVE ACTION AND UPON SHOWING THAT AN ADMINISTRATIVE ERROR WAS, IN FACT, MADE IN FIXING THE ORIGINAL SALARY RATE UPON REEMPLOYMENT. THERE IS NO VESTED RIGHT IN AN EMPLOYEE UPON REEMPLOYMENT TO RECEIVE THE HIGHEST SALARY RATE PREVIOUSLY PAID TO HIM, AND IT IS WITHIN THE ADMINISTRATIVE DISCRETION TO FIX THE INITIAL SALARY RATE AT THE MINIMUM SALARY OF THE GRADE TO WHICH APPOINTED.'

SINCE THE SALARY RATE PAID YOU AT THE TIME YOU WERE APPOINTED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION WAS THE RATE INTENDED BY THEM, AND WAS IN ACCORDANCE WITH THEIR PRACTICE AT THE TIME, YOUR SALARY MAY NOT BE RETROACTIVELY INCREASED TO A RATE ABOVE THE MINIMUM OF THE GRADE TO WHICH YOU WERE APPOINTED.

CONCERNING YOUR STATUS DURING THE PERIOD APRIL 17 TO JUNE 29, 1959, IT APPEARS THAT YOU WERE SEPARATED FROM THE SERVICE APRIL 16 AND PAID A LUMP SUM COVERING ANNUAL LEAVE. WHILE, IN ACCORDANCE WITH LAW, YOU WERE REQUIRED TO REFUND THAT PART OF THE LUMP-SUM LEAVE WHICH WAS COMPUTED OVER THE PERIOD SUBSEQUENT TO YOUR REEMPLOYMENT ON JUNE 29, 1959, YOU DID NOT OCCUPY AN EMPLOYEE STATUS BETWEEN APRIL 17 AND JUNE 29.

WE ARE SENDING A COPY OF THIS LETTER TO SENATOR BYRD WHO HAS EXPRESSED AN INTEREST IN YOUR CASE.