B-176492, OCT 26, 1972

B-176492, OCT 26, 1972

CIVILIAN PERSONNEL - WITHIN-GRADE PROMOTION - EQUIVALENT INCREASE IN PAY DECISION AFFIRMING DENIAL OF THE CLAIM OF HAROLD J. HAMLYN FOR A WITHIN- GRADE PROMOTION AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY. WHERE AN EMPLOYEE, WHO WAS DEMOTED DUE TO A REDUCTION IN FORCE, IS REPROMOTED TO THE SAME GRADE AND STEP WHICH HE HELD BEFORE HIS DEMOTION, THE RESULTANT INCREASE IN PAY CONSTITUTES AN EQUIVALENT INCREASE UNDER 5 U.S.C. 5335(A)(3)(A). THEREFORE, A NEW WAITING PERIOD FOR IN-GRADE PROMOTION BEGINS AS OF THE DATE OF REPROMOTION, SEE 43 COMP. GEN. 507 (1964), AND THE PERIOD SERVED AT THAT SAME STEP PRIOR TO HIS DEMOTION IS DISCOUNTED.

TO MR. HAROLD J. HAMLYN:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 1, 1972, REQUESTING RECONSIDERATION OF THE DENIAL OF YOUR CLAIM BY THE TRANSPORTATION AND CLAIMS DIVISION FOR A WITHIN-GRADE PROMOTION BELIEVED DUE YOU AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY.

THE RECORD BEFORE THIS OFFICE SHOWS THAT YOU ARE EMPLOYED AT THE PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE. DURING A REDUCTION IN FORCE (RIF) YOU WERE DEMOTED FROM GS-9, STEP 2 ($10,819), WHERE YOU SERVED FOR 10-1/2 MONTHS, TO GS-2, STEP 10 ($7,989 WITH SAVED PAY) ON APRIL 11, 1971. ON JULY 25, 1971, YOU WERE REPROMOTED TO GS-9, STEP 2 ($10,819), AN ACTUAL INCREASE OF $2,830. YOUR CLAIM FOR A WITHIN-GRADE INCREASE WAS BASED ON THE ASSERTION THAT THE 10-1/2 MONTHS YOU SERVED AT GS-9, STEP 2, PRIOR TO THE RIF SHOULD BE ADDED TO YOUR TIME IN GRADE AFTER THE REPROMOTION TO DETERMINE YOUR ELIGIBILITY FOR YOUR NEXT WITHIN-GRADE INCREASE.

THE TRANSPORTATION AND CLAIMS DIVISION DENIED YOUR CLAIM ON THE BASIS THAT THE $2,830 SALARY INCREASE CONSTITUTED AN EQUIVALENT INCREASE AS DEFINED IN 5 U.S.C. 5335 WHICH READS IN PART AS FOLLOWS:

"(A) AN EMPLOYEE PAID ON AN ANNUAL BASIS, AND OCCUPYING A PERMANENT POSITION WITHIN THE SCOPE OF THE GENERAL SCHEDULE, WHO HAS NOT REACHED THE MAXIMUM RATE OF PAY FOR THE GRADE IN WHICH HIS POSITION IS PLACED, SHALL BE ADVANCED IN PAY ***

"(3) *** SUBJECT TO THE FOLLOWING CONDITIONS:

"(A) THE EMPLOYEE DID NOT RECEIVE AN EQUIVALENT INCREASE IN PAY FROM ANY CAUSE DURING THAT PERIOD ***"

IT IS YOUR POSITION THAT THE SALARY INCREASE DID NOT MEET THE REQUIREMENTS OF 5 U.S.C. 5335(A) BECAUSE "DURING THE PERIOD" MEANS TIME IN GRADE. SINCE YOU WERE NOT SERVING IN GS-9, STEP 2, AT THE TIME OF THE INCREASE, YOU CONTEND THIS CANNOT BE CONSIDERED AS AN EQUIVALENT INCREASE TO NECESSITATE THE START OF A NEW WAITING PERIOD.

THIS OFFICE CANNOT AGREE WITH YOUR DEFINITION OF "DURING THAT PERIOD." WE BELIEVE THAT THE PHRASE MAKES REFERENCE TO THE TIME LIMITS EXPRESSED IN 5 U.S.C. 5335 (12 MONTHS, 24 MONTHS AND 36 MONTHS). SINCE YOU DID RECEIVE AN EQUIVALENT INCREASE ON THE DATE OF YOUR REPROMOTION A NEW WAITING PERIOD BEGAN AS OF THAT TIME. SEE 43 COMP. GEN. 507 (1964), COPY ENCLOSED.

IN YOUR CORRESPONDENCE YOU STATE YOU ARE ABOUT TO BE AFFECTED BY ANOTHER RIF AND ASK IF THE 11 MONTHS YOU HAVE NOW SERVED AS A GS-9, STEP 2, WILL BE DISCOUNTED ON A SUBSEQUENT REPROMOTION. SINCE THE FACTS ARE SIMILAR TO THOSE CONCERNING THE FIRST RIF, THE QUESTION MUST BE ANSWERED IN THE AFFIRMATIVE.

CONCERNING YOUR QUESTION AS TO WHETHER YOU ARE ENTITLED TO A HEARING, YOU ARE ADVISED THAT OUR CASES ARE DECIDED ON THE BASIS OF THE WRITTEN RECORD. WHILE WE DO CONFER WITH CLAIMANTS UPON REQUEST IT WOULD SEEM THIS WOULD BE UNNECESSARY IN YOUR PARTICULAR SITUATION.

ENCLOSED FIND COPIES WHICH YOU REQUESTED OF THE STATUTES AND REGULATIONS CITED BY THE TRANSPORTATION AND CLAIMS DIVISION IN ITS PRIOR CORRESPONDENCE WITH YOU.