B-154037, JUN. 22, 1964

B-154037: Jun 22, 1964

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BURKE'S SALARY LEVEL WAS CHANGED FROM PFS-9. THE CHANGE TO LOWER GRADE WAS CANCELLED AS RECOMMENDED BY THE CIVIL SERVICE COMMISSION. BURKE WAS DUE A STEP-INCREASE TO PFS-9. HE WAS ADVISED ON MAY 3. THE SUBMITTED VOUCHER IS FOR THE DIFFERENCE BETWEEN PFS-9. BURKE HAS VETERANS PREFERENCE AND WE ASSUME THAT HIS APPEAL TO THE CIVIL SERVICE COMMISSION WAS MADE UNDER THE VETERANS PREFERENCE ACT OF 1944. GIVES A PREFERENCE-ELIGIBLE EMPLOYEE THE RIGHT TO BACK PAY FOR THE PERIOD OF HIS DEMOTION TO BE COMPUTED ON THE BASIS OF THE AMOUNT WHICH THE EMPLOYEE WOULD HAVE EARNED FOR THE PERIOD OF HIS DEMOTION IN THE GRADE FROM WHICH DEMOTED RATHER THAN ON THE BASIS OF THE RATE OF COMPENSATION RECEIVED ON THE DATE OF DEMOTION. 34 COMP.

B-154037, JUN. 22, 1964

TO MR. LEROY P. AFDEM, AUTHORIZED CERTIFYING OFFICER, POST OFFICE DEPARTMENT:

YOUR LETTER OF APRIL 23, 1964, WITH ENCLOSURES, REQUESTS A DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER IN FAVOR OF MR. EMMET P. BURKE IN THE AMOUNT OF $37.84, REPRESENTING ADDITIONAL SALARY.

THE INFORMATION FURNISHED SHOWS THAT MR. BURKE'S SALARY LEVEL WAS CHANGED FROM PFS-9, STEP 3, $7,255 PER ANNUM TO PFS-4, $7,255 PER ANNUM (SAVED RATE) ON MAY 10, 1963. ON NOVEMBER 12, 1963, THE CHANGE TO LOWER GRADE WAS CANCELLED AS RECOMMENDED BY THE CIVIL SERVICE COMMISSION.

MR. BURKE WAS DUE A STEP-INCREASE TO PFS-9, STEP 4, $7,480 PER ANNUM, ON MAY 11, 1963. HOWEVER, HE WAS ADVISED ON MAY 3, 1963, THAT HIS STEP- INCREASE WOULD BE WITHHELD BECAUSE HIS SERVICES HAD NOT BEEN ENTIRELY SATISFACTORY. YOU ASK WHETHER IT WOULD BE PROPER TO COMPUTE THE AMOUNT DUE MR. BURKE BEGINNING ON NOVEMBER 9, 1963, AT PFS-9, STEP 4, $7,480 PER ANNUM, FOR THE REASONS HEREINAFTER INDICATED. THE SUBMITTED VOUCHER IS FOR THE DIFFERENCE BETWEEN PFS-9, STEP 3, $7,255 AND PFS-9, STEP 4, $7,480 PER ANNUM FOR THE PERIOD NOVEMBER 9, 1963, THROUGH JANUARY 3, 1964.

THE FILE SHOWS THAT MR. BURKE HAS VETERANS PREFERENCE AND WE ASSUME THAT HIS APPEAL TO THE CIVIL SERVICE COMMISSION WAS MADE UNDER THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED. THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 354, PERTAINING TO BACK PAY DOES NOT COVER DEMOTIONS IN GRADE OR COMPENSATION. HOWEVER, A MANDATORY RETROACTIVE RESTORATION RECOMMENDATION BY THE CIVIL SERVICE COMMISSION UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED BY THE ACT OF AUGUST 4, 1947, 61 STAT. 723, GIVES A PREFERENCE-ELIGIBLE EMPLOYEE THE RIGHT TO BACK PAY FOR THE PERIOD OF HIS DEMOTION TO BE COMPUTED ON THE BASIS OF THE AMOUNT WHICH THE EMPLOYEE WOULD HAVE EARNED FOR THE PERIOD OF HIS DEMOTION IN THE GRADE FROM WHICH DEMOTED RATHER THAN ON THE BASIS OF THE RATE OF COMPENSATION RECEIVED ON THE DATE OF DEMOTION. 34 COMP. GEN. 561.

SECTION 754.123B OF THE POSTAL MANUAL PROVIDES THAT AN EMPLOYEE RECOVERS ELIGIBILITY FOR A STEP-INCREASE WHEN HIS SERVICES BECOME SATISFACTORY OR ON THE COMPLETION OF 13 PAY PERIODS AFTER THE INCREASE WAS WITHHELD, WHICHEVER IS LATER. IT ALSO PROVIDES THAT IF AN EMPLOYEE'S SERVICES HAVE NOT BECOME SATISFACTORY BY THE END OF THE 13 PAY PERIODS AFTER THE STEP- INCREASE WAS OTHERWISE DUE, CONSIDERATION SHALL BE GIVEN TO THE PREFERMENT OF CHARGES LOOKING TO HIS SEPARATION FROM THE SERVICE. SINCE THERE IS NOTHING OF RECORD TO SHOW THAT THE SERVICE OF THE EMPLOYEE BECAME SATISFACTORY PRIOR TO THE EXPIRATION OF THE 13TH PAY PERIOD AFTER THE INCREASE WAS WITHHELD AND THERE IS NO INFORMATION TO SHOW THAT THE EMPLOYEE'S SERVICES HAD NOT BECOME SATISFACTORY BY THE END OF THE 13 PAY PERIODS AFTER THE STEP-INCREASE WAS OTHERWISE DUE, WE ARE OF THE OPINION THAT AT THAT TIME HE WOULD HAVE BEEN ENTITLED TO A STEP-INCREASE. HENCE, THE EMPLOYEE WAS ENTITLED TO BE PAID AT THE SALARY RATE OF $7,480 PER ANNUM BEGINNING NOVEMBER 9, 1963.

YOU HAVE RAISED ANOTHER QUESTION CONCERNING THE POSSIBLE INDEBTEDNESS OF THE EMPLOYEE ARISING OUT OF THE GRANTING OF SAVED PAY TO HIM AND THE PAYMENT OF 10 PERCENT NIGHT DIFFERENTIAL ON SUCH SAVED PAY DURING THE PERIOD COVERED BY THE DOWNGRADING. AS PREVIOUSLY INDICATED, THE EMPLOYEE IS TO BE REGARDED AS ENTITLED TO BACK PAY DURING THE PERIOD OF HIS DEMOTION AT THE BASIC RATE OF $7,255 PER ANNUM. THEREFORE, THE EMPLOYEE IS NOT ENTITLED TO ANY ADDITIONAL AMOUNT AS BACK PAY--- OTHER THAN FROM NOVEMBER 9, 1963--- SINCE BY REASON OF BEING PAID AT THE SAVED RATE OF $7,255 PER ANNUM HE RECEIVED THE SAME BASIC COMPENSATION HE WOULD HAVE RECEIVED IF THE ERRONEOUS DOWNGRADING HAD NOT OCCURRED. HOWEVER, IF THE GRANTING OF SAVED PAY BE HELD TO BE ERRONEOUS IT APPEARS THAT THE EMPLOYEE SHOULD ONLY HAVE BEEN PAID NIGHT DIFFERENTIAL ON THE SALARY RATE TO WHICH HE OTHERWISE WOULD HAVE BEEN ASSIGNED (STATED TO BE PFS-4, STEP 12, $6,325 PER ANNUM) RATHER THAN ON THE RATE OF $7,255 PER ANNUM.

SECTIONS 3560 (B) (3) AND 3560 (B) (5) OF TITLE 39, U.S.C. 75 STAT. 569, PERTAINING TO THE PROTECTION OF THE SALARY STANDING OF POSTAL FIELD SERVICE EMPLOYEES, PROVIDES, SO FAR AS PERTINENT HERE, THAT ANY EMPLOYEE WHO AT ANY TIME AFTER JULY 1, 1961, IS REDUCED IN SALARY STANDING FOR OTHER THAN PERSONAL CAUSE AND WHERE PERFORMANCE OF WORK DURING THE TWO YEARS PRIOR TO THE REDUCTION IN SALARY STANDING IS OR WAS SATISFACTORY, SHALL BE ENTITLED TO RECEIVE FOR TWO YEARS THE RATE OF BASIC SALARY TO WHICH HE WAS ENTITLED IMMEDIATELY PRIOR TO SUCH REDUCTION IN SALARY STANDING.

SINCE IT IS STATED THAT THE DEMOTION OF THE EMPLOYEE WAS BASED ON HIS INEFFICIENCY AND THAT HIS PERFORMANCE OF WORK DURING THE TWO-YEAR PERIOD PRIOR TO HIS DEMOTION WAS NOT SATISFACTORY AS REQUIRED BY THE STATUTE HE WAS NOT ENTITLED TO BE GRANTED "SAVED PAY" DURING THE PERIOD IN QUESTION. THEREFORE, YOU WOULD BE REQUIRED TO COLLECT FROM MR. BURKE THE DIFFERENCE BETWEEN WHAT HE SHOULD HAVE BEEN PAID AS POSTMASTER AT PFS-9, STEP 3, $7,255 PER ANNUM, FOR THE PERIOD HE SERVED AT PFS-4 AND THE AMOUNT HE WAS ACTUALLY PAID AS CLERK DURING THE PERIOD INCLUDING NIGHT DIFFERENTIAL.

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT AND APPLIED TO THE INDEBTEDNESS RESULTING FROM THE GRANTING OF "SAVED PAY.'