B-144966, APR. 13, 1961

B-144966, APR. 13, 1961

TO MRS. MARY D. MALONE:

YOUR LETTERS OF JANUARY 10 AND MARCH 29, 1961, POINT OUT THAT THE DIRECTOR, EIGHTH CIVIL SERVICE REGION, DETERMINED ON JULY 9, 1957, THAT YOU WERE ENTITLED TO SAVED SALARY UNDER THE PROVISIONS OF PUBLIC LAW 594, 70 STAT. 291, THE PAY PERIOD FOLLOWING JUNE 18, 1956. YOU ASK THAT WE RECONSIDER YOUR CLAIM FOR SAVED SALARY FOR THE PERIOD OCTOBER 9, 1955, TO JUNE 30, 1956 (WHICH WAS DISALLOWED BY OUR OFFICE ON DECEMBER 28, 1960), UNDER THE PROVISIONS OF SECTION 25.103 (E), FEDERAL EMPLOYEES PAY REGULATIONS, ISSUED PURSUANT TO THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1071, ET SEQ.

THE FOREGOING SECTION READS AS FOLLOWS:

"EMPLOYEES WHO ON THE EFFECTIVE DATE OF TITLE VI OF THE CLASSIFICATION ACT OF 1949 OCCUPIED POSITIONS (1) WHICH IMMEDIATELY PRIOR TO SUCH DATE WERE SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, (2) WHICH WERE INITIALLY ALLOCATED TO ANY OF THE GRADES OF THE CLASSIFICATION ACT OF 1949 IN THE MANNER PRESCRIBED THEREIN, AND (3) WHICH THEREAFTER ARE REDUCED BELOW SUCH GRADE, MAY CONTINUE TO RECEIVE THE SAME RATES OF BASIC COMPENSATION WHICH THEY RECEIVED ON THE EFFECTIVE DATE OF THE ACTION TAKEN TO REDUCE THE GRADE OF SUCH POSITION, SO LONG AS THEY REMAIN IN THE SAME POSITIONS WHICH THEY OCCUPIED ON THE EFFECTIVE DATE OF TITLE VI.'

YOU STATE THAT IN YOUR OPINION AND IN THE OPINION OF THE IMMEDIATE OFFICE WHERE YOUR POSITION WAS LOCATED NO CHANGE IN MAJOR DUTIES OF SUCH POSITION HAD TAKEN PLACE. YOU ALSO INVITE ATTENTION TO OUR DECISION 31 COMP. GEN. 520 (THE CORRECT CITATION IS 32 COMP. GEN. 520), WHEREIN SALARY WAS PERMITTED TO BE SAVED UNDER THE PROVISIONS OF SECTION 25.103 (E).

SECTION 25.103 (E) QUOTED ABOVE WAS PLACED IN FORCE AND EFFECT BY UNITED STATES CIVIL SERVICE COMMISSION ON AUGUST 18, 1951. THE COMMISSION REVOKED SECTION 25.103 (E) EFFECTIVE JULY 23, 1955. BY TRANSMITTAL SHEET NO. 509 DATED JULY 22, 1955, THE COMMISSION PUT INTO EFFECT NEW SALARY RETENTION REGULATIONS GOVERNING THE USE OF SAVED RATES IN DEMOTION ACTIONS. THE APPLICATION OF THE NEW REGULATIONS WAS ENTIRELY DISCRETIONARY WITH THE AGENCY. HOWEVER, OUR DECISION, 35 COMP. GEN. 251 HELD THE FOREGOING SALARY RETENTION REGULATIONS INVALID. THEREUPON, THE COMMISSION REVOKED THOSE REGULATIONS. BUT, THE COMMISSION DID NOT REISSUE SECTION 25.103 (E) WHICH HAD BEEN REVOKED JULY 23, 1955, AS STATED ABOVE.

YOU ARE CLAIMING SAVED SALARY FOR THE PERIOD OCTOBER 9, 1955, TO JUNE 30, 1956. SINCE SECTION 25.103 (E) OF THE COMMISSION'S REGULATIONS, UNDER WHICH YOU ASSERT YOUR CLAIM WAS REVOKED ON JULY 23, 1955, PRIOR TO THE DATE YOUR CLAIM AROSE AND WAS NOT REISSUED AFTER THE NEW SALARY RETENTION REGULATIONS WERE DECLARED INVALID, NO APPLICABLE SALARY SAVINGS PROVISIONS EXISTED TO AUTHORIZE SALARY RETENTION IN A CASE SUCH AS YOURS COVERING THE PERIOD OCTOBER 9, 1955, TO JUNE 30, 1956. FURTHER, YOU MAY BE ADVISED THAT EVEN IF SUCH PROVISIONS HAD BEEN IN FORCE AND EFFECT, THE APPLICATION THEREOF WAS DISCRETIONARY WITH THE DEPARTMENT OF THE ARMY. IN ADDITION, IT MAY BE POINTED OUT THAT PRESUMING THAT THE AGENCY HAD DETERMINED NO CHANGE HAD TAKEN PLACE IN THE DUTIES OF YOUR POSITION, NEVERTHELESS, IT COULD STILL HAVE DETERMINED NOT TO PERMIT SALARY SAVING THEREUNDER IN YOUR CASE.

SINCE THE SALARY SAVED IN THE CASE INVOLVED IN OUR DECISION IN 32 COMP. GEN. 520, COVERED A PERIOD DURING WHICH SECTION 25.103 (E) WAS STILL IN FORCE AND EFFECT, THAT DECISION HAS NO APPLICATION TO YOUR CASE. ALSO, IN THAT CASE THE ADMINISTRATIVE OFFICE INDICATED THAT IT DESIRED TO EXERCISE ITS DISCRETION TO GRANT THE EMPLOYEES THE BENEFIT OF SALARY RETENTION IN THE LOWER GRADES.

IN VIEW OF THE FOREGOING NO BASIS EXISTS, UPON THE PRESENT RECORD, FOR THE ALLOWANCE OF YOUR CLAIM.