B-125245, OCT. 4, 1955

B-125245, OCT. 4, 1955

TO MR. C. F. BARKER, ASSISTANT CHIEF, ACCOUNTING BRANCH, INTERNAL REVENUE SERVICE:

YOUR UNDATED LETTER (REFERENCE A:F:A:F), RECEIVED IN OUR CLAIMS DIVISION ON MARCH 23, 1955, SETS FORTH THE SERVICE RECORD OF GEORGE J. KAISER, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE, AND REQUESTS ADVICE AS TO WHETHER MR. KAISER SHOULD HAVE BEEN GIVEN THE SECOND LONGEVITY STEP INCREASE IN HIS GRADE ON APRIL 26, 1953.

IN THE ABSENCE OF A SIGNED CLAIM FROM THE EMPLOYEE FOR THE AMOUNT INVOLVED, DIRECT SETTLEMENT MAY NOT BE EFFECTED BY THE GENERAL ACCOUNTING OFFICE. HOWEVER, SINCE THERE WAS ENCLOSED WITH YOUR LETTER A PAYROLL VOUCHER COVERING THE AMOUNT BELIEVED TO BE DUE FROM APRIL 26, 1953, TO MARCH 12, 1955, WE HAVE CONSIDERED THE MATTER AS A REQUEST BY YOU, AS AUTHORIZED CERTIFYING OFFICER, FOR AN ADVANCE DECISION AS TO THE LEGALITY OF CERTIFYING THE VOUCHER FOR PAYMENT.

IT APPEARS FROM THE SERVICE RECORD RECITED IN YOUR LETTER THAT MR. KAISER HAS BEEN CONTINUOUSLY EMPLOYED IN POSITIONS SUBJECT TO THE CLASSIFICATION ACT SINCE APRIL 11, 1929, AND THAT, ON APRIL 16, 1950, HE WAS GIVEN THE FIRST LONGEVITY STEP INCREASE IN GRADE CAF-5, $3,975. THE INCREASE WAS BASED UPON TEN YEARS OF SERVICE IN GRADE CAF-5 AND IN HIGHER GRADES, PLUS THREE YEARS AT THE TOP SCHEDULED RATE OF THAT GRADE.

YOUR LETTER STATES THAT ON JULY 22, 1951, MR. KAISER WAS GIVEN A SEPARATION TRANSFER--- WITH REEMPLOYMENT RIGHTS--- FROM HIS GS-5 POSITION IN THE INTERNAL REVENUE SERVICE TO THE TOP SCHEDULED RATE OF GS-7 IN THE ECONOMIC STABILIZATION AGENCY. HE SERVED IN THAT POSITION UNTIL MARCH 25, 1953, WHEN HE WAS RESTORED TO HIS FORMER POSITION IN THE INTERNAL REVENUE SERVICE AT THE FIRST LONGEVITY STEP. YOU EXPRESS THE OPINION THAT MR. KAISER SHOULD HAVE BEEN GIVEN THE SECOND LONGEVITY STEP INCREASE IN GRADE GS-5 ON APRIL 26, 1953, WHICH APPARENTLY IS THE BEGINNING DATE OF THE FIRST PAY PERIOD FOLLOWING EXPIRATION OF THREE YEARS FROM APRIL 16, 1950, THE EFFECTIVE DATE OF THE FIRST LONGEVITY STEP INCREASE. ALTHOUGH THE BASIS FOR THAT OPINION IS NOT STATED IN YOUR LETTER IT IS UNDERSTOOD INFORMALLY THAT SUCH ACTION WAS THOUGHT TO BE REQUIRED UNDER CIVIL SERVICE REGULATIONS PERTAINING TO REEMPLOYMENT RIGHTS OF EMPLOYEES WHO ARE RESTORED TO THEIR FORMER POSITIONS AFTER A PERIOD OF SERVICE IN A DEFENSE AGENCY.

THE REGULATIONS IN EFFECT AT THE TIME HERE INVOLVED PROVIDED THAT AN EMPLOYEE WITH REEMPLOYMENT RIGHTS SHALL BE REEMPLOYED BY THE ORIGINAL AGENCY IN WHICH HE WAS GRANTED SUCH RIGHTS, WITHIN 30 DAYS OF HIS APPLICATION THEREFOR, IN THE OCCUPATIONAL FIELD AND AT THE SAME GRADE LEVEL WHICH HE LAST HELD ON A PERMANENT BASIS (FEDERAL PERSONNEL MANUAL Z1 -248, SECTION 8-114C). FROM THE FACTS PRESENTED, IT APPEARS THAT MR. KAISER WAS REEMPLOYED IN COMPLIANCE WITH THE CITED REGULATIONS AND NO RIGHT TO CREDITABLE SERVICE TOWARD A LONGEVITY INCREASE ACCRUED TO HIM THEREUNDER. MOREOVER, THE CIVIL SERVICE REGULATIONS IN EFFECT AT THE TIME INVOLVED (FEDERAL PERSONNEL MANUAL Z-1-316.01) DEFINE A LONGEVITY PERIOD AS THREE YEARS OF THE AGGREGATE TEN-YEAR PERIOD OF CONTINUOUS SERVICE (1) AT THE MAXIMUM SCHEDULED RATE OF THE EMPLOYEE'S GRADE, OR (2) AT A LONGEVITY RATE OF THE EMPLOYEE'S GRADE OR (3) AT A RATE IN EXCESS OF SUCH MAXIMUM SCHEDULED RATE, WHEN AUTHORIZED BY LAW, AND PROVIDES THAT INTERVENING MILITARY SERVICE INTERRUPTING CONTINUOUS SERVICE AT ONE OF THREE RATES IS CREDITABLE FOR LONGEVITY STEP INCREASES. SINCE NO PROVISION WAS MADE FOR CREDITING INTERVENING CIVILIAN SERVICE, WE MUST CONCLUDE THAT NO RIGHTS IN THAT RESPECT ACCRUED TO MR. KAISER BY VIRTUE OF HIS REEMPLOYMENT.

THE LAW AND REGULATIONS GOVERNING LONGEVITY SERVICE REQUIREMENTS, WHICH WERE IN EFFECT DURING THE PERIOD COVERED BY MR. KAISER'S TRANSFER TO THE ECONOMIC STABILIZATION AGENCY, AND HIS SUBSEQUENT REEMPLOYMENT IN THE INTERNAL REVENUE SERVICE, PROVIDED IN EFFECT THAT ANY CHANGE OF GRADE OR BASIC RATE OF COMPENSATION STARTS A NEW LONGEVITY PERIOD AND NO CREDIT WAS AUTHORIZED FOR PREVIOUS SERVICE AT THE MAXIMUM OR HIGHER RATE OF FORMER GRADES. UNDER THAT REQUIREMENT THE SUBJECT EMPLOYEE STARTED A NEW LONGEVITY PERIOD ON MARCH 25, 1953, THE DATE HE WAS RESTORED TO HIS POSITION IN THE INTERNAL REVENUE SERVICE AT THE FIRST LONGEVITY STEP OF GS -5.

HOWEVER, UNDER THE PROVISIONS OF SECTION 102 OF THE ACT OF SEPTEMBER 1, 1954, PUBLIC LAW 763, 68 STAT. 1105, AMENDING SECTION 703 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 112 (A), AND CIVIL SERVICE REGULATIONS ISSUED THEREUNDER (FEDERAL PERSONNEL MANUAL Z1-316.01, SECTION 25.52 (D) (, AN EMPLOYEE DEMOTED IN GRADE MAY RETAIN IN HIS NEW GRADE THE SERVICE CREDITED TOWARD THE LONGEVITY STEP INCREASE THAT HE HAS EARNED IN THE GRADE FROM WHICH REDUCED. ALSO, SECTION 25.52 (D) OF THE CIVIL SERVICE REGULATIONS CITED ABOVE ALLOWS THE CREDITING OF PRIOR SERVICE IN GRADES BELOW GS-11. SEE 34 COMP. GEN. 687.

THEREFORE, SINCE MR. KAISER WAS REDUCED FROM THE TOP SCHEDULED RATE OF GRADE GS-7 TO THE FIRST LONGEVITY STEP OF GS-5 AND SEVERAL IN SUCH GRADES AND RATES CONTINUOUSLY FROM APRIL 16, 1950 (THE EFFECTIVE DATE OF HIS FIRST LONGEVITY STEP INCREASE), THE REQUIRED LONGEVITY PERIOD FOR THE SECOND STEP INCREASE PROPERLY SHOULD BE COMPUTED FROM THAT DATE.

HOWEVER, SINCE THE LEGISLATION AUTHORIZING THE CREDITING OF PRIOR SERVICE IN A HIGHER GRADE WAS NOT EFFECTIVE UNTIL THE BEGINNING OF THE FIRST PAY PERIOD FOLLOWING SEPTEMBER 1, 1954, THE DATE OF ENACTMENT, PAYMENT OF THE STEP INCREASE MAY NOT BE MADE EFFECTIVE UNTIL THAT DATE.

ACCORDINGLY, WHILE THE EMPLOYEE INVOLVED IS ENTITLED TO PAYMENT OF THE SECOND LONGEVITY STEP INCREASE IN GRADE GS-5 FROM THE EFFECTIVE DATE OF SECTION 102 ABOVE, THE SUBMITTED VOUCHER, COVERING A PERIOD PRIOR THERETO, MAY NOT BE CERTIFIED FOR PAYMENT.