B-175349, APR 27, 1972

B-175349, APR 27, 1972

CIVILIAN EMPLOYEE - TERMINATION OF TEMPORARY PROMOTION - DISPUTED SALARY RATE - HIGHEST PREVIOUS RATE RULE DECISION SUSTAINING PRIOR DISALLOWANCE OF A CLAIM OF ORVILLE D. PEARL FOR ADDITIONAL COMPENSATION INCIDENT TO THE SETTING OF HIS SALARY RATE UPON CHANGE TO A LOWER GRADE AFTER TERMINATION OF A TEMPORARY POSITION AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY. APPLICATION OF THE HIGHEST PREVIOUS RATE RULE, 5 CFR 531.203(C), IS PERMISSIVE. IN THE INSTANT CASE THE SETTING OF MR. PEARL'S SALARY RATE IN ACCORDANCE WITH PARAGRAPH 3.2-6D OF THE ARMY CIVILIAN PERSONNEL REGULATIONS WAS PROPERLY WITHIN THE AGENCY'S ADMINISTRATIVE DISCRETION AND, THEREFORE, THE PRIOR DISALLOWANCE OF THE CLAIM MUST BE SUSTAINED.

TO MR. ORVILLE D. PEARL:

WE REFER FURTHER TO YOUR LETTER OF FEBRUARY 3, 1972, WHEREIN YOU REQUEST REVIEW OF OUR CLAIMS SETTLEMENT ACTION OF JANUARY 20, 1972, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION INCIDENT TO THE SETTING OF YOUR SALARY RATE UPON CHANGE TO A LOWER GRADE AFTER TERMINATION OF A TEMPORARY PROMOTION AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY.

THE FACTS IN YOUR CASE AS SET FORTH IN THE CLAIMS SETTLEMENT ACTION STATED:

"THE RECORD SHOWS THAT YOU ARE AN EMPLOYEE OF THE U.S. ARMY MOBILITY EQUIPMENT COMMAND, ST. LOUIS, MISSOURI. YOU WERE GIVEN A TEMPORARY LIMITED PROMOTION ON SEPTEMBER 28, 1969, FROM GS-1102-14, STEP 4, TO THE POSITION OF CHIEF OF THE PROCUREMENT DIVISION, GS-1102-15, STEP 2, FOR A PERIOD NOT TO EXCEED ONE YEAR. AFTER SERVING ONE YEAR IN THIS POSITION, AN EXTENSION OF THE TEMPORARY PROMOTION WAS APPROVED FOR AN ADDITIONAL YEAR. SINCE YOU HAD SERVED AT THE GS-15/2 LEVEL FOR ONE YEAR, A WITHIN GRADE INCREASE TO STEP 3, $25,867.00 PER YEAR, WAS PROCESSED EFFECTIVE SEPTEMBER 28, 1970. ON JUNE 1, 1971, YOUR TEMPORARY PROMOTION ENDED AND YOU WERE CHANGED TO A LOWER GRADE SINCE A MILITARY OFFICER WAS ASSIGNED TO ASSUME THE DUTIES TO WHICH YOU HAD BEEN TEMPORARILY PROMOTED. YOUR GRADE WAS THEN FIXED AT GS-14, STEP 5, WITH A SALARY OF $23,591.00 PER YEAR. WHILE YOUR GRADE AT THE TIME OF YOUR PROMOTION WAS GS-14/4, YOUR GRADE WAS ADJUSTED AT GS-14/5 WHICH WAS THE GRADE AND STEP YOU WOULD HAVE REACHED IF THE TEMPORARY PROMOTION HAD NOT OCCURRED."

THE BASIS FOR THUS SETTING YOUR SALARY WAS REPORTED ADMINISTRATIVELY TO BE PARAGRAPH 3.2-6D OF THE ARMY CIVILIAN PERSONNEL REGULATIONS AND WAS QUOTED IN THE CLAIMS SETTLEMENT LETTER AS FOLLOWS:

"'D. 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.'"

YOU URGE THAT YOUR PAY RATE BE FIXED AT GS-14, STEP 8, CITING AS AUTHORITY THE FEDERAL PERSONNEL MANUAL AT 531-10, S2-5B(4), WHICH REFERS TO DECISION 35 COMP. GEN. 370 (1955). THE SYLLABUS OF THAT DECISION READS:

"THE SALARY RATE RECEIVED DURING PERIODS OF TEMPORARY PROMOTION MAY BE USED FOR ESTABLISHING THE INITIAL SALARY RATE ON THE SUBSEQUENT APPOINTMENT, REASSIGNMENT OR DEMOTION TO A PERMANENT POSITION PROVIDING THE HIGHEST PREVIOUS RATE IS BASED ON A REGULAR TOUR OF DUTY AT SUCH RATE UNDER AN APPOINTMENT NOT LIMITED TO 90 DAYS OR LESS, OR A CONTINUOUS PERIOD OF 90 DAYS UNDER ONE OR MORE APPOINTMENTS WITHOUT A BREAK IN SERVICE."

THE REGULATIONS PERTAINING TO THE APPLICATION OF THE SO-CALLED "HIGHEST PREVIOUS RATE" ARE FOUND IN 5 CFR 531.203(C) AND STATE IN PART THAT WHEN AN EMPLOYEE IS REEMPLOYED, TRANSFERRED, REASSIGNED, PROMOTED, OR DEMOTED, THE AGENCY MAY PAY HIM AT ANY RATE OF HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE.

AGENCY AUTHORITY UNDER THE HIGHEST PREVIOUS RATE RULE IS PERMISSIVE AND, IN SITUATIONS AS DESCRIBED IN YOUR CASE, YOUR AGENCY EXERCISED ITS DISCRETION BY ISSUING THE AGENCY REGULATION QUOTED ABOVE - PARAGRAPH 3.2- 6D. AS LONG AS SUCH AGENCY RULE IS IN EFFECT, RATES OF PAY IN ALL CASES UPON REDUCTION TO A LOWER GRADE AFTER A TEMPORARY PROMOTION MUST BE SET IN ACCORDANCE WITH THE AGENCY REGULATION. THE FACT THAT YOUR PARTICULAR POSITION IN GRADE 14 MAY HAVE BEEN ABOLISHED AND PART OF THE DUTIES ABSORBED IN THE POSITION TO WHICH TEMPORARILY PROMOTED WOULD NOT BE MATERIAL SINCE THERE WERE OTHER POSITIONS IN GRADE 14 TO WHICH YOU COULD BE REASSIGNED. THIS IS EVIDENCED BY THE FACT THAT YOU WERE RETURNED TO A GS-14 POSITION ON JUNE 1, 1971.

SINCE YOUR RATE OF PAY WAS FIXED IN ACCORDANCE WITH THE APPLICABLE AGENCY REGULATION, WE CAN ONLY SUSTAIN THE ACTION DISALLOWING YOUR CLAIM.