B-138268, AUG. 27, 1959

B-138268, AUG. 27, 1959

TO THE SECRETARY OF THE NAVY:

ON JULY 28, 1959, THE ASSISTANT SECRETARY OF THE NAVY FORWARDED HERE A LETTER DATED MAY 4, 1959 (FILE OIR 280:MHF), FROM THE CHIEF OF INDUSTRIAL RELATIONS, REQUESTING OUR DECISION CONCERNING A PROPOSED SALARY ADJUSTMENT IN BEHALF OF MR. FRANK J. REAGAN, INVOLVING THE PERIOD FROM JULY 11, 1953 TO JULY 25, 1955, WHILE AN EMPLOYEE OF THE U.S. NAVAL GUN FACTORY, WASHINGTON, D.C.

THE REPORTED FACTS SHOW THAT MR. REAGAN WAS INDUCTED INTO THE ARMED FORCES ON NOVEMBER 10, 1918, AND DISCHARGED THEREFROM THE UNDER THE LAW THEN IN EFFECT. HOWEVER, IN 1951, HIS RIGHT TO SUCH PREFERENCE WAS WITHDRAWN PURSUANT TO INSTRUCTIONS FROM THE U.S. CIVIL SERVICE COMMISSION. AS A RESULT THEREOF, THE NAVAL GUN FACTORY WAS REQUIRED TO PLACE MR. REAGAN IN RETENTION GROUP II-B (NONVETERAN) FOR THE PURPOSES OF REDUCTION IN FORCE. HOWEVER, IN 1958, IT WAS DETERMINED THAT HIS VETERANS' PREFERENCE FOLLOWING DAY. IN 1934, HE WAS GRANTED 5-POINT VETERANS' PREFERENCE SHOULD HAVE BEEN PRESERVED AND, IN COMPLIANCE WITH INSTRUCTIONS ISSUED BY THE CIVIL SERVICE COMMISSION ON SEPTEMBER 9, 1958, HIS EARLIER PREFERENCE WAS RESTORED.

IN 1953, THE NAVAL GUN FACTORY WAS REQUIRED TO EFFECT A REDUCTION IN FORCE. ON JUNE 5, 1953, MR. REAGAN, WHO WAS THEN EMPLOYED AS LEADINGMAN MACHINIST (3RD STEP), $5,636.80 PER ANNUM WAS NOTIFIED THAT HIS SERVICES WOULD BE TERMINATED EFFECTIVE AT THE CLOSE OF BUSINESS JULY 10, 1953. LIEU OF SUCH SEPARATION, HOWEVER, HE WAS ASSIGNED TO THE POSITION OF MACHINIST, $18.08 PER DIEM (4TH STEP), EFFECTIVE JULY 11, 1953. THEREAFTER, IT WAS DETERMINED THAT THE ASSIGNMENT LAST MENTIONED WAS IN ERROR, AND ON FEBRUARY 17, 1954, HE WAS ADVISED THAT HE IN FACT BECAME ELIGIBLE TO RETREAT TO AND OCCUPY THE POSITION OF SHOP PLANNER (MACHINIST), 3RD STEP, $19.44 PER DIEM, EFFECTIVE JULY 11, 1953. HIS PROMOTION TO THE POSITION OF LEADINGMAN MACHINIST $5,824 PER ANNUM, 3RD STEP, WAS EFFECTIVE JULY 25, 1955.

ADDITIONAL SALARY (BACK PAY) HAS BEEN ALLOWED MR. REAGAN FOR THE DIFFERENCE BETWEEN THE PER DIEM RATE PRESCRIBED FOR THE POSITION OF SHOP PLANNER (MACHINIST), AND THAT OF MACHINIST, COVERING THE PERIOD FROM JULY 11, 1953 TO FEBRUARY 22, 1954. HOWEVER, HIS CLAIM FOR THE DIFFERENCE BETWEEN THE AMOUNT HE RECEIVED AND THE RATE OF PAY PRESCRIBED FOR LEADINGMAN MACHINIST COVERING THE PERIOD FROM JULY 11, 1953, TO JULY 22, 1955, WAS DISALLOWED FOR THE REASONS SET FORTH IN OUR DECISION OF MARCH 19, 1959, B-138268, ADDRESSED TO MR. REAGAN.

THE TWO QUESTIONS SUBMITTED FOR OUR CONSIDERATION READ, AS FOLLOWS:

"A. IN VIEW OF THE FACT THAT MR. REAGAN'S DEMOTION FROM LEADINGMAN MACHINIST RESULTED FROM AN ADMINISTRATIVE ERROR, MAY HIS SUBSEQUENT PROMOTION TO LEADINGMAN MACHINIST BE CONSIDERED A RESTORATION ENTITLING HIM TO BACK PAY?

"B. IF SO, MAY THE DEPARTMENT OF THE NAVY RETROACTIVELY DIRECT SUCH RESTORATION ALSO ENTITLING HIM TO BACK PAY?

IT IS ADMINISTRATIVELY REPORTED THAT MR. REAGAN HAS BEEN IN THE FEDERAL SERVICE CONTINUOUSLY SINCE MARCH 1, 1934, AND THAT HAD HE BEEN RETAINED AS A PREFERENCE ELIGIBLE EMPLOYEE HE WOULD NOT HAVE BEEN REACHED FOR THE REDUCTION IN FORCE EFFECTED IN 1953.

IN THE ABOVE-MENTIONED DECISION DATED MARCH 19, 1959, WE INFORMED MR. REAGAN THAT HIS RIGHT TO RETAIN THE POSITION HELD AT THE TIME OF THE REDUCTION IN FORCE WAS A MATTER PROPERLY FOR DETERMINATION BY THE EMPLOYING AGENCY AND THE CIVIL SERVICE COMMISSION. THE LAW PROVIDES THAT IN ANY REDUCTION IN PERSONNEL IN ANY CIVILIAN SERVICE OF ANY FEDERAL AGENCY, COMPETING EMPLOYEES SHALL BE RELEASED IN ACCORDANCE WITH CIVIL SERVICE REGULATIONS WHICH SHALL GIVE DUE EFFECT TO TENURE OF EMPLOYMENT, MILITARY PREFERENCE, LENGTH OF SERVICE, AND EFFICIENCY RATINGS. SEE SECTION 12 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, SUPRA (5 U.S.C. 861). SEE, ALSO, SECTION 20.5 (B) TITLE 5, CODE OF FEDERAL REGULATIONS, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/B) EMPLOYEES IN POSITIONS IN THE COMPETITIVE SERVICE.

"/1) NO EMPLOYEE MAY BE SEPARATED, FURLOUGHED FOR MORE THAN THIRTY (30) DAYS, OR REDUCED IN PAY OR GRADE IN A REDUCTION IN FORCE WHILE A COMPETING EMPLOYEE WITH LOWER RETENTION STANDING (AND WITHOUT RETENTION PRIORITY BASED ON A STATUTORY RETENTION RIGHT) IS RETAINED IN THE SAME COMPETITIVE LEVEL. * * *.'

IN OUR DECISION OF MAY 3, 1955, B-121070, 34 COMP. GEN. 561, WE HELD (QUOTING FROM THE SYLLABUS):

"A DEMOTED EMPLOYEE WHO IS ORDERED RETROACTIVELY RESTORED TO HIS FORMER POSITION AFTER A SUCCESSFUL APPEAL UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, IS ENTITLED TO COMPENSATION FOR THE PERIOD OF THE UNJUSTIFIED DEMOTION PURSUANT TO THE AMENDATORY ACT OF AUGUST 4, 1947, COMPUTED ON THE BASIS OF THE AMOUNT WHICH WOULD HAVE BEEN EARNED FOR THE PERIOD IN THE GRADE FROM WHICH DEMOTED. 33 COMP. GEN. 192 AND 28 COMP. GEN. 489, MODIFIED.'

SEE, ALSO, 38 COMP. GEN. 135, CONCERNING BACK PAY DUE VETERANS' PREFERENCE ELIGIBLE EMPLOYEES WHO HAVE BEEN ADMINISTRATIVELY RESTORED TO THEIR FORMER GRADES BECAUSE THEIR DEMOTIONS WERE FOUND TO BE PROCEDURALLY DEFECTIVE.

SINCE IT NOW IS APPARENT THAT MR. REAGAN'S DEMOTION IN JULY 1953 WAS NOT JUSTIFIED, THE ERROR DENYING VETERANS' PREFERENCE ONLY RECENTLY HAVING BEEN DISCOVERED AND SINCE THE MATTER IS SO COMMINGLED WITH THE PREVIOUS CORRECTIVE ACTION, WE WOULD NOT OBJECT IN THIS PARTICULAR INSTANCE TO FURTHER ADMINISTRATIVE ACTION BY YOUR DEPARTMENT EFFECTING THE RETROACTIVE RESTORATION OF MR. REAGAN TO THE POSITION FROM WHICH HE WAS DEMOTED EFFECTIVE JULY 11, 1953, SO AS TO ENABLE YOUR OFFICE TO AUTHORIZE PAYMENT OF THE ADDITIONAL SALARY WHICH HE WOULD HAVE EARNED IN SUCH POSITION HAD HE NOT BEEN DEMOTED IN GRADE.