B-160240, NOV. 7, 1966

B-160240, NOV. 7, 1966

TO MR. ARNOLD D. ROSENTHAL:

WE REFER TO YOUR LETTER OF OCTOBER 7, 1966, REQUESTING REVIEW OF OUR OFFICE SETTLEMENT DATED SEPTEMBER 22, 1966, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE ADJUSTMENT IN COMPENSATION AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY.

ON OCTOBER 10, 1965, YOU TRANSFERRED FROM THE NEW YORK NAVAL SHIPYARD TO THE U.S. ARMY NEW YORK PROCUREMENT DISTRICT, WHICH LATER WAS SUCCEEDED BY THE NEW YORK PROCUREMENT DETACHMENT. APPROXIMATELY SIX MONTHS PRIOR TO YOUR TRANSFER YOU RECEIVED A TEMPORARY LIMITED PROMOTION FROM GRADE GS-12, STEP 4, TO GRADE GS-13, STEP 1 ($12,075 PER ANNUM).

YOU STATE THAT DURING YOUR PREEMPLOYMENT INTERVIEW WITH THE COMMANDING OFFICER OF THE NEW YORK PROCUREMENT DISTRICT NO SPECIFIC SALARY RATE WAS DISCUSSED BUT YOU WERE ADVISED THAT THE POLICY OF THAT INSTALLATION WAS TO OFFER NEW EMPLOYEES THE HIGHEST SALARY RATE PERMISSIBLE UNDER THE DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATIONS. THEREFORE, YOU ASSUMED THAT YOUR SALARY RATE FOR YOUR GRADE GS-12 POSITION WITH THE DEPARTMENT OF THE ARMY WOULD BE BASED UPON YOUR PRIOR SERVICE IN GRADE GS- 13. HOWEVER, UPON LEARNING THAT YOUR PRIOR SERVICE IN GRADE GS-13 HAD BEEN PERFORMED UNDER A TEMPORARY LIMITED PROMOTION, THE OFFICIALS OF YOUR ADMINISTRATIVE OFFICE DETERMINED THAT SUCH SALARY RATE COULD NOT BE USED AS A BASIS FOR ESTABLISHING YOUR INITIAL RATE OF PAY FOR YOUR NEW POSITION. THAT DETERMINATION WAS BASED IN PART UPON THE FOLLOWING PROVISIONS OF THE CIVILIAN PERSONNEL REGULATIONS.

CPR P3.2-2B:

"* * * UPON TRANSFER FROM ANOTHER AGENCY INVOLVING A CHANGE IN CLASSIFICATION ACT GRADE, PAY WILL BE ESTABLISHED IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPHS 2-3, 2-6, OR 2-7, AS APPROPRIATE. * * *"

CPR P3.2-6D:

"WHEN AN EMPLOYEE IS REDUCED TO A LOWER GRADE FOLLOWING TEMPORARY LIMITED PROMOTION AS AUTHORIZED IN CPR N1.4-2A, HIS SALARY WILL BE FIXED AT THAT RATE TO WHICH HE WOULD HAVE PROGRESSED BY MEANS OF WITHIN-GRADE INCREASES HAD HE NOT BEEN ASSIGNED TO THE HIGHER GRADE.'

BASED UPON THE PROVISIONS QUOTED ABOVE, YOUR SALARY WAS ESTABLISHED AT STEP 4 OF GRADE GS-12 ($11,315 PER ANNUM).

YOU EXPRESS THE VIEW THAT SECTION 3.2-6D, QUOTED ABOVE, IS INAPPLICABLE TO YOUR CASE AND THAT YOUR ADMINISTRATIVE OFFICE SHOULD HAVE APPLIED SECTION 3.2-6B, WHICH PROVIDES:

"WHEN THE CHANGE TO LOWER GRADE IS THE RESULT OF AN EMPLOYEE'S APPLICATION OR REQUEST UNDER CIRCUMSTANCES WHERE SALARY RETENTION IS IMPROPER, HIS PAY MAY BE FIXED AT ANY STEP RATE OF THE NEW GRADE WHICH IS NOT IN EXCESS OF HIS LAST EARNED RATE. WHEN APPROPRIATE, THE HIGHEST PREVIOUS RATE RULE (PAR. 1-2C) MAY BE UTILIZED.'

YOU CONCEDE THAT UNDER THAT REGULATION UTILIZATION OF THE EMPLOYEE'S HIGHEST PREVIOUS RATE OR LAST EARNED RATE IS DISCRETIONARY WITH THE ADMINISTRATIVE OFFICIALS, BUT YOU SAY THAT YOUR ADMINISTRATIVE OFFICE WOULD HAVE GIVEN YOU THE BENEFIT OF YOUR GRADE GS-13 SALARY RATE HAD THEY NOT ERRONEOUSLY APPLIED SECTION 3.2-6D.

WE DO NOT BELIEVE THAT IT IS NECESSARY TO DETERMINE WHETHER AN ERROR WAS MADE BY YOUR ADMINISTRATIVE OFFICE IN APPLYING SECTION 3.2-6D OF THE REGULATIONS IN YOUR CASE, FOR, CONTRARY TO YOUR ALLEGATION, THE EVIDENCE OF RECORD DOES NOT SHOW THAT YOUR ADMINISTRATIVE OFFICE WOULD HAVE ESTABLISHED YOUR SALARY ON THE BASIS OF YOUR PREVIOUS GRADE GS-13 SALARY RATE EVEN IF THEY HAD CONCLUDED THAT SUCH ACTION WAS PERMISSIBLE UNDER THE REGULATIONS.

IN HIS REPORT ON YOUR CLAIM THE COMMANDING OFFICER OF YOUR INSTALLATION STATES:

"2. OVER TWO HUNDRED PERSONS WERE RECRUITED UNDER THE DEPARTMENT OF DEFENSE PRIORITY PLACEMENT PROGRAM TO FILL POSITIONS IN THIS NEWLY ACTIVATED AGENCY ALL OF WHOM WERE AFFECTED BY BASE CLOSINGS IN THE NEW YORK AREA. OF THESE PERSONS ONLY 8 TRANSFERRED FROM HIGHER GRADES HELD UNDER TEMPORARY PROMOTION. EACH OF THE 8 TRANSFERRED FROM THE NEW YORK NAVAL SHIPYARD. NO OTHER ACTIVITY UTILIZED THE TEMPORARY PROMOTION METHOD, ALTHOUGH ALL WERE FACED WITH THE SAME PROBLEMS OF PHASING OUT OF EXISTENCE. SINCE WE HIRED SO MANY OTHERS WHO HAD NOT BENEFITTED BY TEMPORARY PROMOTIONS, I CONSIDERED IT MOST EQUITABLE TO THE MAJORITY TO BASE SALARY RATES ON PERMANENT GRADE LEVEL.'

WE HAVE HELD CONSISTENTLY IN OUR DECISIONS THAT APPLICATION OF THE HIGHEST PREVIOUS RATE RULE IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE IN FIXING THE INITIAL SALARY RATE OF AN EMPLOYEE UPON TRANSFER AND UNLESS IT IS SHOWN THAT THE AGENCY CONCERNED COMMITTED AN ERROR, UNDER ITS POLICY AND REGULATIONS, IN FIXING THE EMPLOYEE'S COMPENSATION AT A SALARY RATE WHICH IS LOWER THAN THE HIGHEST SALARY RATE PREVIOUSLY HELD BY HIM, THERE IS NO AUTHORITY TO ADJUST THE EMPLOYEE'S SALARY RATE. 24 COMP. GEN. 341; 26 ID. 368; 31 ID. 15; ID. 367. IN PARTICULAR, SEE 32 COMP. GEN. 463 WHICH INVOLVED AN ERRONEOUS ADMINISTRATIVE INTERPRETATION OF THE REGULATIONS.

SINCE THE RATE AT WHICH YOUR SALARY WAS ESTABLISHED WAS PROPER UNDER THE APPLICABLE ADMINISTRATIVE REGULATIONS, THERE BEING NO MANDATORY POLICY OR REGULATION REQUIRING A HIGHER RATE, AND SINCE THE EVIDENCE DOES NOT INDICATE THAT A HIGHER RATE WAS INTENDED, WE MUST CONCLUDE THAT THERE IS NO LEGAL BASIS TO ADJUST YOUR COMPENSATION. THEREFORE, OUR SETTLEMENT OF SEPTEMBER 22 IS SUSTAINED.