B-239754, Oct 30, 1990, 90-2 CPD ***

B-239754: Oct 30, 1990

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Is not entitled to have his basic pay recomputed to include the 10 percent night differential he received prior to his overseas assignment. Since his position was abolished in a reorganization during his overseas tour. His entitlement upon his return was properly determined under grade and pay retention regulations as if he had never left his position. Montgomery alleges that his salary was erroneously set by the Navy upon his return from an overseas assignment in 1984. Montgomery was employed at the Naval Weapons Station. Was receiving an additional 10 percent night differential under the provisions of 5 U.S.C. A reorganization took place at Crane and his WG-13 position was abolished. A Department of Defense civilian employee who transfers overseas is granted the right to return to a position in the United States without a reduction in the seniority.

B-239754, Oct 30, 1990, 90-2 CPD ***

CIVILIAN PERSONNEL - Compensation - Compensation retention - Administrative negotiations DIGEST: An employee, who exercised his reemployment rights under 10 U.S.C. Sec. 1586 (1988) and returned from overseas to his prior place of employment, is not entitled to have his basic pay recomputed to include the 10 percent night differential he received prior to his overseas assignment. Since his position was abolished in a reorganization during his overseas tour, his entitlement upon his return was properly determined under grade and pay retention regulations as if he had never left his position. Those regulations exclude night differential from basic pay.

Rodney Montgomery - Request for Additional Compensation - Reemployment Rights:

Mr. Rodney Montgomery, a former employee of the Department of the Navy, has appealed our Claims Group Settlement, /1/ which denied his claim for additional compensation. Mr. Montgomery alleges that his salary was erroneously set by the Navy upon his return from an overseas assignment in 1984. For the reasons that follow, we affirm our Claims Group's determination.

BACKGROUND

Mr. Montgomery was employed at the Naval Weapons Station, Crane, Indiana, at a position classified as WG-13, step 5, and was receiving an additional 10 percent night differential under the provisions of 5 U.S.C. Sec. 5343(f) (1988). In October 1979, Mr. Montgomery transferred to a position overseas. During Mr. Montgomery's tenure overseas, a reorganization took place at Crane and his WG-13 position was abolished. On August 26, 1984, Mr. Montgomery exercised his return rights under the provisions of 10 U.S.C. Sec. 1586 (1988), and returned to Crane. Under 10 U.S.C. Sec. 1586, a Department of Defense civilian employee who transfers overseas is granted the right to return to a position in the United States without a reduction in the seniority, status, and tenure held by the employee immediately before his assignment outside the United States. In addition, the statute provides that an employee who returns to a position from overseas "shall be paid at a rate of basic pay which is not less than the rate of basic pay to which he would have been entitled if he had not been assigned to duty outside the United States." 10 U.S.C. Sec. 1586(d) (1988).

Since Mr. Montgomery's previous position at Crane had been abolished before he returned, he was placed in a position based on a representative rate of pay of GS-9, step 4, with a retained rate of pay equal to that of a WG-13, step 5. Mr. Montgomery received the retained rate of basic pay until his employment was terminated on March 17, 1985.

Mr. Montgomery contends that night differential of 10 percent should have been added to his basic pay of WG-13, step 5, since that was the pay he received prior to his overseas tour. He cites as his authority 5 U.S.C. Sec. 5343(f), which provides for payment of night differential and states that a night differential is a part of basic pay. In addition, he cites to a provision in an appropriation act, Pub.L. No. 98-107, Sec. 110, Oct. 1, 1983, 97 Stat. 741, 5 U.S.C. Sec. 5343, note, which states that:

"... any rule or regulation that provides premium pay, retirement, life insurance, or any other employee benefit, that requires any deduction or contribution, or that imposes any requirement or limitation, on the basis of a rate of salary or basic pay, the rate of salary or basic pay payable after the application of this section shall be treated as the rate of salary or basic pay."

Mr. Montgomery says that since night differential is added to wage grade pay, and since, for example, retirement is deducted from this amount, night differential should be considered as basic pay under this provision.

The Navy denied Mr. Montgomery's claim for the additional 10 percent night differential since his previous position was abolished and his rights were determined on the basis of the grade and pay retention statute, 5 U.S.C. Sec. 5361 (1988), and the implementing regulations in 5 C.F.R. Part 536 (1990), which define "rate of basic pay" as exclusive of additional pay of any kind such as night differential. 5 C.F.R. Sec. 536.102 (1990). Our Claims Group concurred in this determination.

Mr. Montgomery also alleges that the Navy acted improperly in regards to his return rights, reduction in force procedures, and involuntary separation.

OPINION

The primary issue before us is that of Mr. Montgomery's entitlement to backpay for the period August 27, 1984, to March 17, 1985. Although Mr. Montgomery is correct that 5 U.S.C. Sec. 5343(f) states that a night differential is a part of basic pay, Mr. Montgomery's entitlement to pay upon return from an overseas assignment is determined as if he had never left his permanent position of record as a WG-13, step 5. Yukio Fujikawa, B-231927.2, Feb. 12, 1990. In fact, his WG-13 position was abolished prior to his return pursuant to a reorganization.

A reorganization is considered a reduction in force and qualifies an employee for grade and pay retention, if necessary. 5 U.S.C. Sec. 5361(7) (1988). Accordingly, the Navy set Mr. Montgomery's pay under the grade and retention regulations as if he had been in his position at the time of the reorganization. Those regulations provide in 5 C.F.R. Sec. 536.102 (1990) that night differential is excluded from the employee's "rate of basic pay." Therefore, the Navy was precluded by regulation from including the 10 percent night differential in setting Mr. Montgomery's retained pay. The Office of Personnel Management concurs in this conclusion. /2/ As regards Mr. Montgomery's reference to Pub.L. No. 98-107, 5 U.S.C. Sec. 5343, note, supra, we point out that similar language appears every year in appropriation acts which place a limit on the cost of living allowance for wage grade employees identical to that of general schedule employees. See e.g., Pub.L. No. 101-136, Title VI, Sec. 612, Nov. 3, 1989, 103 Stat. 818. Simply stated, the provision merely points out that the employee's annual salary for purposes of computing deductions includes the new cost-of living allowance.

Our Office has no jurisdiction to consider Mr. Montgomery's allegations that his reemployment rights were violated. Such matters should be appealed to his employing agency or the Merit Systems Protection Board (MSPB). Irene Sengstack, B-212055, Dec. 6, 1983. The same is true of alleged violations in reduction-in-force procedures, and involuntary separation. Anthony M. Ragunas, 68 Comp.Gen. 97 (1988). Carmen G. Benabe and Howell E. Bell, 66 Comp.Gen. 609 (1987); Roberta L. Randall, B-221623, Mar. 24, 1986. We also note that Mr. Montgomery appealed his removal from his position at Crane to MSPB, and, when he withdrew his appeal, the matter was dismissed with prejudice. /3/

Accordingly, Mr. Montgomery's claim for additional pay is denied, and our Claims Group's settlement is hereby sustained.

/1/ Z-2866433, January 17, 1989.

/2/ Letter of August 9, 1990, from the Acting Deputy Assistant Director for Pay Programs.

/3/ MSPB Case No. CHO3518510370, June 28, 1985.