B-165059, SEPT. 20, 1968

B-165059: Sep 20, 1968

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SECRETARY: THIS IS IN REPLY TO THE LETTER OF YOUR ASSISTANT SECRETARY FOR MANPOWER AND RESERVE AFFAIRS OF AUGUST 12. WHO WAS SERVING IN THE UNITED STATES UNDER A CAREER APPOINTMENT AS A GS-13. WAS ASSIGNED TO A POSITION OVERSEAS IN JANUARY 1962 AT THE SAME GRADE AND STEP. HE WAS GRANTED RETURN RIGHTS UNDER 10 U.S.C. 1586. IN JUNE 1965 HE WAS DEMOTED TO A GS-12 POSITION IN THE SAME OVERSEAS AREA BUT WAS GRANTED SAVED PAY UNDER THE PROVISIONS OF 5 U.S.C. 5337. HE CONTINUED TO SERVE IN THAT POSITION UNTIL HIS RETURN TO THE UNITED STATES IN JANUARY 1967 WHEN HE WAS PROMOTED BACK TO A GRADE GS-13 POSITION IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1586. HIS PAY WAS SET AT STEP 7 OF GRADE 13.

B-165059, SEPT. 20, 1968

TO MR. SECRETARY:

THIS IS IN REPLY TO THE LETTER OF YOUR ASSISTANT SECRETARY FOR MANPOWER AND RESERVE AFFAIRS OF AUGUST 12, 1968, REGARDING THE PROPER STEP IN WHICH TO PLACE AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE UPON RESTORATION TO HIS FORMER POSITION IN THE UNITED STATES FOLLOWING A PERIOD OF DUTY OVERSEAS.

YOU STATE THAT THE EMPLOYEE, WHO WAS SERVING IN THE UNITED STATES UNDER A CAREER APPOINTMENT AS A GS-13, STEP 6, WAS ASSIGNED TO A POSITION OVERSEAS IN JANUARY 1962 AT THE SAME GRADE AND STEP. HE WAS GRANTED RETURN RIGHTS UNDER 10 U.S.C. 1586, AS ADDED BY PUBLIC LAW 86 585, 86TH CONGRESS, H.R. 10695, APPROVED JULY 5, 1960.

ON OCTOBER 14, 1962, WHILE SERVING OVERSEAS THE EMPLOYEE RECEIVED A WITHIN-GRADE INCREASE TO GS-13, STEP 7. IN JUNE 1965 HE WAS DEMOTED TO A GS-12 POSITION IN THE SAME OVERSEAS AREA BUT WAS GRANTED SAVED PAY UNDER THE PROVISIONS OF 5 U.S.C. 5337. HE CONTINUED TO SERVE IN THAT POSITION UNTIL HIS RETURN TO THE UNITED STATES IN JANUARY 1967 WHEN HE WAS PROMOTED BACK TO A GRADE GS-13 POSITION IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1586. HIS PAY WAS SET AT STEP 7 OF GRADE 13, $15,561 PER ANNUM, ON THE BASIS OF THE HIGHEST PREVIOUS RATE RULE SET FORTH IN THE CIVIL SERVICE COMMISSION'S REGULATION 5 CFR 531.203 (C), AND HE WAS GRANTED A SIMULTANEOUS WITHIN-GRADE INCREASE TO GS-13, STEP 8, $16,009, UNDER 5 CFR 531.404 (E), RELATING TO SERVICE CREDIT UPON REEMPLOYMENT FOLLOWING A SEPARATION WITH REEMPLOYMENT RIGHTS.

YOU ADVISE THAT IF THE EMPLOYEE HAD CONTINUED TO SERVE IN HIS GS-13 POSITION IN THE UNITED STATES HE WOULD HAVE RECEIVED WITHIN-STEP INCREASES TO STEP 7 ON OCTOBER 14, 1962, AND TO STEP 8 ON OCTOBER 10, 1965. WOULD COMPLETE HIS WAITING PERIOD FOR A WITHIN-GRADE INCREASE TO STEP 9 ON OCTOBER 5, 1968, AND IF OTHERWISE ELIGIBLE, WOULD BE ENTITLED TO ADVANCE TO STEP 9 ON OCTOBER 6, 1968.

UPON FURTHER EXAMINATION IT WAS CONSIDERED BY THE DEPARTMENT THAT THE EMPLOYEE'S PAY ENTITLEMENT ON RESTORATION WAS GOVERNED BY THE PROVISIONS OF 10 U.S.C. 1586 AND CONSEQUENTLY THE FOLLOWING QUESTIONS ARE ASKED:

"A.WAS THIS EMPLOYEE, UPON RETURN TO DUTY IN A GS-13 POSITION IN THE UNITED STATES UNDER THE PROVISIONS OF SECTION 1586, TITLE 10, U.S.C. ENTITLED TO BE PAID AT GS-13, STEP 8, WITHOUT REGARD TO THE LIMITATION STATED IN SECTION 531.203 (C) OF THE CIVIL SERVICE REGULATIONS?

"B. IF YOUR ANSWER TO QUESTION A IS IN THE AFFIRMATIVE, IS ALL SERVICE FROM 10 OCTOBER 1965 (THE DATE HE WOULD HAVE BEEN ELIGIBLE FOR A WITHIN GRADE INCREASE IF HE HAD CONTINUED TO SERVE IN HIS GS-13 POSITION IN THE UNITED STATES) CREDITABLE TOWARD COMPLETION OF THE REQUIRED WAITING PERIOD FOR A WITHIN GRADE INCREASE IN THE GS-13 POSITION IN WHICH HE WAS PLACED UPON RETURN TO THE UNITED STATES?

"C. IF YOUR ANSWER TO QUESTION A OR B IS IN THE NEGATIVE, ON WHAT DATE WILL THE EMPLOYEE COMPLETE HIS REQUIRED WAITING PERIOD FOR A WITHIN GRADE INCREASE IN THE GS-13 POSITION IN WHICH HE WAS PLACED UPON RETURN TO THE UNITED STATES?

WITH RESPECT TO ROTATION PROGRAMS OF DEPARTMENT OF DEFENSE EMPLOYEES AND RETURN RIGHTS, 10 U.S.C. 1586 PROVIDES IN PART AS FOLLOWS:

"/B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE SECRETARY OF DEFENSE WITH RESPECT TO CIVILIAN EMPLOYEES OF THE DEPARTMENT OF DEFENSE OTHER THAN EMPLOYEES OF A MILITARY DEPARTMENT, AND THE SECRETARY OF EACH MILITARY DEPARTMENT WITH RESPECT TO CIVILIAN EMPLOYEES OF SUCH MILITARY DEPARTMENT, MAY, UNDER SUCH REGULATIONS AS EACH SUCH SECRETARY MAY PRESCRIBE WITH RESPECT TO THE EMPLOYEES CONCERNED AND IN ACCORDANCE WITH THE POLICY AND OTHER PROVISIONS OF THIS SECTION, ESTABLISH AND OPERATE PROGRAMS OF ROTATION WHICH PROVIDE FOR THE GRANTING OF THE RIGHT TO RETURN TO A POSITION IN THE UNITED STATES TO EACH CIVILIAN EMPLOYEE IN THE DEPARTMENT CONCERNED---

"/C) THE RIGHT TO RETURN TO A POSITION IN THE UNITED STATES GRANTED UNDER THIS SECTION SHALL BE WITHOUT REDUCTION IN THE SENIORITY, STATUS, AND TENURE HELD BY THE EMPLOYEE IMMEDIATELY BEFORE HIS ASSIGNMENT TO DUTY OUTSIDE THE UNITED STATES * * *.

"/D) EACH EMPLOYEE * * * SHALL BE PAID AT A RATE OF BASIC COMPENSATION WHICH IS NOT LESS THAN THE RATE OF BASIC COMPENSATION TO WHICH HE WOULD HAVE BEEN ENTITLED IF HE HAD NOT BEEN ASSIGNED TO DUTY OUTSIDE THE UNITED STATES.'

THE PURPOSE OF THE BILL IS SET FORTH ON PAGE 1 OF S. REPT. NO. 1624, 86TH CONGRESS, 2D SESSION, AS FOLLOWS:

"THIS MEASURE IS RECOMMENDED BY THE DEPARTMENT OF DEFENSE TO IMPROVE THE ADMINISTRATION OF THE OVERSEA DEFENSE EFFORT. ITS BASIC PURPOSE IS TO AUTHORIZE THE SECRETARY OF DEFENSE AND THE SECRETARIES OF THE MILITARY DEPARTMENTS TO GRANT RETURN RIGHTS TO CAREER AND CAREER CONDITIONAL CIVILIAN EMPLOYEES ASSIGNED TO POSTS OUTSIDE THE UNITED STATES. THE RETURN RIGHT WOULD CONSIST OF A MINIMUM GUARANTEE TO THE EMPLOYEE THAT HE WILL BE PLACED, UPON HIS RETURN FROM OVERSEAS, IN THE SAME POSITION HE VACATED TO ACCEPT THE FOREIGN ASSIGNMENT. IF HIS FORMER POST IS NO LONGER IN EXISTENCE, THE EMPLOYEE WILL BE PLACED IN ANOTHER POSITION WITHOUT REDUCTION IN SENIORITY, STATUS, OR TENURE.

"THE MEASURE EXPRESSES THE WILL OF THE CONGRESS THAT THE MILITARY DEPARTMENTS ESTABLISH A CONTINUING PERSONNEL PROGRAM DESIGNED TO FACILITATE THE ROTATION OF DEFENSE ESTABLISHMENT EMPLOYEES BETWEEN POSITIONS OVERSEAS AND POSITIONS IN THE UNITED STATES. RETURN RIGHTS WOULD SERVE AS STATUTORY FOUNDATION FOR THIS PROGRAM.'

S. REPT. NO. 1624, WHICH ACCOMPANIED H.R. 10695, IN ANALYZING THE DETAILS OF THE BILL POINTED OUT THAT THE RETURN RIGHT SHALL INCLUDE NO REDUCTION IN SENIORITY, STATUS AND TENURE HELD PRIOR TO THE EMPLOYEE'S ASSIGNMENT ABROAD AND THAT HIS "GRADE MUST BE NO LOWER THAN THAT OF HIS OLD POSITION" (PAGE 3). SIMILARLY, H. REPT. NO. 1469, 86TH CONGRESS, 2D SESSION, IN EXPLAINING PROVISIONS OF H.R. 10695 STATES:

"SUBSECTION (D) OF H.R. 10695 PROVIDES THAT PLACEMENT OF A RETURNING EMPLOYEE UNDER CLAUSE (1), (2), (3), (4), OR (6) OF SUBSECTION (C) ENTITLES THE EMPLOYEE TO AT LEAST THE BASIC COMPENSATION TO WHICH HE WOULD HAVE BEEN ENTITLED IF HE HAD NOT BEEN ASSIGNED OUTSIDE THE UNITED STATES. IN OTHER WORDS, HE WILL BE GIVEN AT LEAST THE SALARY ADJUSTMENTS OR SALARY INCREASES THAT HE WOULD HAVE RECEIVED HAD HE REMAINED IN HIS POSITION IN THE UNITED STATES.'

UNDER THE CLEAR WORDING OF THE CONTROLLING STATUTE AS WELL AS THE PLAIN INTENT OF CONGRESS AS EXPRESSED IN THE LEGISLATIVE HISTORY THEREOF, AN EMPLOYEE SUBJECT THERETO UPON ACCEPTING AN OVERSEAS ASSIGNMENT SHALL UPON RESTORATION BE PAID THE SAME RATE OF BASIC COMPENSATION TO WHICH HE WOULD HAVE BEEN ENTITLED IF HE HAD NOT BEEN ASSIGNED OUTSIDE THE UNITED STATES. IN OTHER WORDS SUCH AN EMPLOYEE IS NOT TO SUFFER ANY LOSS OF BASIC COMPENSATION BY REASON OF ACCEPTING SUCH ASSIGNMENT. HIS COMPENSATION IS TO BE DETERMINED INSOFAR AS POSSIBLE ON THE BASIS OF HIS HAVING REMAINED IN THE SAME POSITION AND PERFORMED HIS DUTY SATISFACTORILY DURING THE DURATION OF THE OVERSEAS ASSIGNMENT. CF. 38 COMP. GEN. 237, 40 ID. 600.

WE CONSIDER THAT THE EMPLOYEE IN QUESTION, UPON RETURN TO DUTY IN THE UNITED STATES, WAS ENTITLED TO BE PAID AT STEP 8 OF GRADE GS-13 WHICH HE WOULD HAVE ATTAINED IF HE HAD REMAINED IN THE UNITED STATES AND THAT HIS CREDITABLE SERVICE FOR THE NEXT WITHIN-GRADE ADVANCEMENT WOULD DATE FROM THE TIME HE WOULD HAVE ATTAINED STEP 8 IF HE HAD NOT BEEN TRANSFERRED OVERSEAS.

ACCORDINGLY, QUESTIONS "A" AND "B" ARE ANSWERED IN THE AFFIRMATIVE AND IN VIEW THEREOF NO ANSWER TO QUESTION "C" IS REQUIRED.