B-151465, JUN. 27, 1963

B-151465, JUN. 27, 1963

TO MR. KERMIT M. ROSS:

ON JUNE 3, 1963, YOU REQUESTED OUR DECISION REGARDING AN ADMINISTRATIVE RULING AFFECTING YOUR WITHIN-GRADE INCREASES IN COMPENSATION AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE AT TINKER AIR FORCE BASE.

IT APPEARS FROM INFORMATION PREVIOUSLY FURNISHED BY YOU THAT YOU ATTAINED STEP 2 OF GRADE GS-12 ON JUNE 25, 1961. ON AUGUST 6, 1962, YOU TRANSFERRED TO ANOTHER BASE AND WERE PROMOTED TO STEP 1 OF GRADE GS-13, WHICH POSITION YOU HELD UNTIL SEPTEMBER 15, 1962, WHEN YOU RETRANSFERRED TO YOUR FORMER POSITION (GS-12, STEP 2) AT TINKER AIR FORCE BASE. YOU BELIEVE THAT UNDER THE CLASSIFICATION ACT AMENDMENTS OF 1962 (TITLE II OF PUB.L. 87-793 APPROVED OCTOBER 11, 1962) YOU WERE ELIGIBLE FOR STEP 3 OF GS-12 ON OCTOBER 14, 1962. ALSO, YOU BELIEVE THAT UNDER THE "HIGHEST PREVIOUS RATE" RULE YOU WERE ENTITLED TO A HIGHER STEP IN GRADE GS-12 BECAUSE OF YOUR SERVICE IN GS-13, AS SHOWN ABOVE.

THIS MATTER WAS THE SUBJECT OF OUR LETTER OF MAY 16, 1963, B-151465, TO SENATOR MONRONEY. IN THAT LETTER WE QUOTED THE APPLICABLE STATUTE AND REGULATIONS AND SINCE YOU SAY THE LETTER WAS FORWARDED TO YOU WE SHALL NOT REPEAT THEM HERE. WE POINTED OUT THAT THE LAW AUTHORIZES STEP INCREASES IN THE GRADES UPON COMPLETION OF STATED PERIODS OF SERVICE ONLY WHEN NO EQUIVALENT INCREASE IN COMPENSATION IS RECEIVED DURING THE WAITING PERIOD. ALSO, WE POINTED OUT THAT THE APPLICATION OF THE HIGHEST PREVIOUS RATE RULE IS DISCRETIONARY WITH EMPLOYING AGENCIES AND THAT THE DEPARTMENT BY WHICH YOU ARE EMPLOYED HAS A REGULATION UNDER WHICH THE HIGHEST PREVIOUS RATE MUST BE BASED UPON AT LEAST 90 DAYS OF SERVICE AT SUCH RATE.

YOU SAY YOU HAVE READ THE REGULATIONS SEVERAL TIMES AND DO NOT SUGGEST THAT THEY WERE ILLEGALLY CONCEIVED OR UNLAWFULLY APPLIED. HOWEVER, YOU FEEL THAT THEY TEND TO CONFLICT AND ARE CAPABLE OF MORE THAN ONE INTERPRETATION. YOU URGE THAT THE STRICT INTERPRETATION OF THE LETTER OF THE LAW HAS WORKED ON UNDUE AND UNJUST HARDSHIP ON YOU.

WE HAVE NOT OBTAINED A REPORT ON THIS MATTER FROM THE EMPLOYING DEPARTMENT BUT UPON THE BASIS OF THE FACTS AS RELATED BY YOU WE FIND NO BASIS FOR AN INTERPRETATION AND APPLICATION OF THE STATUTE AND REGULATIONS OTHER THAN THAT FOLLOWED BY THE DEPARTMENT. UPON YOUR PROMOTION FROM GRADE GS-12, STEP 2 TO GS-13, STEP 1 ON AUGUST 6 YOU RECEIVED A SALARY INCREASE OF MORE THAN FIVE TIMES THE MINIMUM INCREASE PRESCRIBED BY LAW FOR A WITHIN-GRADE STEP ADVANCEMENT IN GRADE GS-12. THAT WAS AN EQUIVALENT INCREASE IN COMPENSATION AND, THEREFORE, A NEW WAITING PERIOD BEGAN WITH THE EFFECTIVE DATE OF THE PROMOTION. YOU RETRANSFERRED TO YOUR FORMER POSITION, GRADE AND STEP ON SEPTEMBER 15. CONSEQUENTLY, YOU DID NOT SERVE THE 90 DAYS IN GRADE GS-13 REQUIRED TO BRING YOUR CASE WITHIN THE HIGHEST PREVIOUS RATE RULE UNDER THE DEPARTMENT'S REGULATIONS.

WHILE, UNDER THE CIRCUMSTANCES, YOU HAVE PERMANENTLY LOST CERTAIN SERVICE CREDIT TOWARD WITHIN-GRADE STEP INCREASES, YOUR CASE IS NOT UNIQUE AND, AS POINTED OUT IN OUR LETTER OF MAY 16, 1963, TO SENATOR MONRONEY, THE LAW AND OUR INTERPRETATIONS THEREOF HAVE NOT CHANGED SUBSTANTIALLY SINCE 1941. IN THE LIGHT OF WHAT HAS BEEN SAID, AND SINCE WE ARE UNABLE TO FIND A SUSTAINABLE LEGAL BASIS FOR MODIFYING OUR CONSTRUCTION OF THE STATUTE AND REGULATIONS, WE ARE SURE THAT YOU WILL AGREE THAT THE REMEDY LIES WITH THE CONGRESS AND NOT WITH US. THEREFORE, UPON THE FACTS AS STATED BY YOU NO ADDITIONAL COMPENSATION FOR THE PERIOD INVOLVED MAY BE AUTHORIZED.

OUR DECISIONS ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT BUT DO NOT PRECLUDE CONSIDERATION OF YOUR CASE BY THE COURT OF CLAIMS. SEE 28 U.S.C. 1491.