B-244202, May 5, 1992

B-244202: May 5, 1992

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Is entitled upon repromotion to application of the highest previous rate rule. She is entitled to have her salary rate based upon her highest previous salary rate of grade GS-8. Is appealing the settlement action by our Claims Group which disallowed her claim for a higher rate of pay upon repromotion. /1/ Ms. Komovic was employed as a social security insurance representative at the GS-10. She was employed by the Department of Defense on July 17. Was $25. Komovic was repromoted to the GS-9 grade level. the time of her repromotion. Komovic's annual salary was $26. Komovic contends that FAA should have applied the "highest previous rate" rule based upon her previous employment at GS-8. She would have been repromoted to GS-9.

B-244202, May 5, 1992

CIVILIAN PERSONNEL - Compensation - Rates - Determination - Highest previous rate rule DIGEST: FAA employee, who has performed continuous, career-conditional federal service since 1963 to the present, is entitled upon repromotion to application of the highest previous rate rule. Therefore, upon repromotion to GS-9 in June 1990, she is entitled to have her salary rate based upon her highest previous salary rate of grade GS-8, step 9. See 5 C.F.R. 531.203(c)(1) and (d) (1991) and ch. 1, paras. 4d and 12, FAA Order 3550.14, Jan. 15, 1985.

Caroline J. Komovic:

Ms. Caroline J. Komovic, an employee of the Federal Aviation Administration (FAA), is appealing the settlement action by our Claims Group which disallowed her claim for a higher rate of pay upon repromotion. /1/

Ms. Komovic has had continuous federal service since 1963 as a permanent career-conditional employee without a break in service. From March 26 to May 6, 1978, Ms. Komovic was employed as a social security insurance representative at the GS-10, step 2, grade level. After several job changes, she was employed by the Department of Defense on July 17, 1983, at the GS-8, step 9, grade level. In May 1985, Ms. Komovic's salary as a GS-8, step 9, was $25,004. On May 12, 1985, she voluntarily accepted a transfer to a lower grade position as an administrative officer with FAA at the GS-7, step 10, grade level.

On June 17, 1990, Ms. Komovic was repromoted to the GS-9 grade level. the time of her repromotion, Ms. Komovic's annual salary was $26,252, the salary rate for GS-7, step 10. In determining Ms. Komovic's highest previous salary rate upon her repromotion, FAA used the applicable provisions of FAA Order 3550.14, January 15, 1985, and the "two-step rule" as authorized under section 5334(b) of title 5, United States Code, 1988. /2/ This resulted in placing her in step 5 of GS-9 ($28,001).

Ms. Komovic contends that FAA should have applied the "highest previous rate" rule based upon her previous employment at GS-8, step 9. /3/ Had this rule been used, she would have been repromoted to GS-9, step 6, at an annual salary of $28,825.

Section 531.203(c) of title 5, Code of Federal Regulations, issued by the Office of Personnel Management (OPM), provides that an agency may utilize the employee's highest previous rate of pay in establishing a new rate of pay upon promotion unless the employee is entitled to a higher rate under the promotion provisions of 5 U.S.C. Sec. 5334(b). The "highest previous rate" means the highest actual rate of basic pay for the highest grade and step previously held by an individual while employed in a General Schedule position. /4/

The highest previous rate rule as adopted by FAA is found in chapter 1, paragraph 12, FAA Order 3550.14. The regulation encourages the use of the highest previous rate whenever practicable and states that it must be applied consistently and equitably. That rate is to be used unless the employee is entitled to a higher rate under the mandatory two-step rule for promotions or grade and pay retention purposes. /5/

We agree with Ms. Komovic. Under the FAA and OPM regulations, Ms. Komovic is entitled to a higher rate under the highest previous rate rule than under the two-step rule. Therefore, upon her repromotion to GS-9 in June 1990, she was entitled to have her highest previous salary rate based upon her salary as a grade GS-8, step 9, which would have placed her in step 6 of grade GS-9.

Based upon the foregoing, FAA should take appropriate action to correct Ms. Komovic's pay records to place her in step 6 of grade GS-9 as of the date of her repromotion.

/1/ Settlement Certificate Z-2866892, May 8, 1991. 5 U.S.C. Sec. 5334(b) provides that an employee who is promoted to a position in a higher grade is entitled to basic pay at the lowest rate of the highest grade which exceeds her existing rate of basic pay by not less than two step increases of the grade from which she was promoted.

/2/ Ms. Komovic contends that her highest previous salary rate could also be based on her grade GS-10, step 2, position in 1978. We have used her tenure at GS-8, step 9, since she occupied the GS-8 position for almost 2 years from July 1983 until May 1985. However, using GS-10, step 2, would also place her at the GS-9, step 6, grade level. See 5 C.F.R. Sec. 531.202(f) (1991). See also 5 C.F.R. Sec. 531.203(c)(1) (1991). Settlement Certificate Z-2866892, May 8, 1991.

/3/ 5 U.S.C. Sec. 5334(b) provides that an employee who is promoted to a position in a higher grade is entitled to basic pay at the lowest rate of the highest grade which exceeds her existing rate of basic pay by not less than two step increases of the grade from which she was promoted.

/4/ Ms. Komovic contends that her highest previous salary rate could also be based on her grade GS-10, step 2, position in 1978. We have used her tenure at GS-8, step 9, since she occupied the GS-8 position for almost 2 years from July 1983 until May 1985. However, using GS-10, step 2, would also place her at the GS-9, step 6, grade level.

/5/ See 5 C.F.R. Sec. 531.202(f) (1991). See also 5 C.F.R. Sec. 531.203(c)(1) (1991).