B-155460, NOV. 25, 1964

B-155460, NOV. 25, 1964

TO THE HONORABLE JOHN W. MACY, JR., CHAIRMAN UNITED STATES CIVIL SERVICE COMMISSION:

YOUR LETTER OF OCTOBER 21, 1964, REQUESTS OUR DECISION CONCERNING THE SALARY PAYMENTS WHICH AN EMPLOYEE HAS RECEIVED SINCE JULY 5, 1964, THAT DATE APPARENTLY BEING THE BEGINNING DATE OF A PAY PERIOD FOR THE EMPLOYEE. ON THAT DATE, YOU SAY, BY REASON OF THE "HIGHEST PREVIOUS RATE RULE," CIVIL SERVICE REGULATION 531.203 (C) (4). HIS SALARY RATE WAS "PROPERLY FIXED" AT THE GS-7, STEP 8 RATE, $7,160 PER ANNUM BASED ON A GS- 9, STEP 1 RATE, WHICH THE EMPLOYEE HAD ATTAINED DURING SOME PREVIOUS SERVICES.

PRIOR TO THE ENACTMENT OF PUB.L. 88-426, APPROVED AUGUST 14, 1964, 78 STAT. 400, THE STEP 1 RATE OF GS-9 WAS $7,030 PER ANNUM, 76 STAT. 843, 5 U.S.C. 1113/B), SCHEDULE II, AND THAT RATE WAS USED ON JULY 5, 1964, TO ARRIVE AT THE SALARY RATE OF $7,160 IN STEP 8 OF GRADE GS-7. HOWEVER, STEP 1 OF GRADE GS-9 WAS INCREASED TO $7,220 BY SECTION 102 (A), TITLE I, OF PUB.L. 88-426. BY VIRTUE OF SECTION 501/A) OF THAT ACT "THE INCREASES IN COMPENSATION" UNDER TITLE I OF THAT ACT BECAME EFFECTIVE ON THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN ON OR AFTER JULY 1, 1964, OR, IN THIS CASE JULY 5, 1964, THE SAME DATE THE "HIGHEST PREVIOUS RATE RULE WAS APPLIED. THUS, IF THE NEW SALARY RATES BE SUBSTITUTED FOR THOSE ORIGINALLY USED IN THE COMPUTATION, A DIFFERENT RESULT IS OBTAINED, NAMELY, THAT THE EMPLOYEE IS TO BE PLACED IN STEP 7 OF GRADE GS-7, RATHER THAN STEP 8, AS OF JULY 5, 1964.

WHILE UNDER THE ABOVE CITED RULE THE EMPLOYEE'S GS-7 SALARY RATE WAS FIXED ADMINISTRATIVELY ON JULY 5, 1964, PRIOR TO PUB.L. 88-426 BEING ENACTED ON AUGUST 14, 1964, NEVERTHELESS, THE RETROACTIVE SALARY PROVISIONS OF SUCH ACT ARE REGARDED AS REQUIRING CORRECTION OF THE EMPLOYEE'S SALARY RATE FOR THE PAY PERIODS ON AND AFTER THE LAWS EFFECTIVE DATE SO AS TO REFLECT THE PAY STATUS HE WOULD HAVE ATTAINED HAD THE AMENDED PAY SCHEDULE BEEN OPERATIVE AND APPLIED CURRENTLY DURING SUCH PAY PERIODS. IN OTHER WORDS, THE SALARY STEP RATE IN GS-7 IS FOR DETERMINATION UNDER THE "HIGHEST PREVIOUS RATE RULE" AS THOUGH THE DETERMINATION UNDER THE "HIGHEST PREVIOUS RATE ULE" AS THOUGH THE INCREASED RATE OF GS-9, STEP 1, $7,220 PER ANNUM, WAS ACTUALLY IN EFFECT AT THE TIME THAT THE REGULATION 530 203 (C) (4) BECAME APPLICABLE TO HIS POSITION ON JULY 5, 1964. 31 COMP. GEN. 166; 38 ID. 188; B-155068, SEPTEMBER 24, 1964, 44 COMP. GEN. - . WE DO NOT VIEW THE LATTER DECISION AS BEING PREDICATED ON THE ENTITLEMENT OF THE EMPLOYEE THERE INVOLVED TO THE STEP IN GRADE WHICH WAS MOST BENEFICIAL TO HIM AS SUGGESTED IN YOUR LETTER. THE "SIMULTANEOUS BENEFITS RULE," 36 COMP. GEN. 217, WAS NOT REGARDED AS APPLICABLE IN THAT CASE AND WE DO NOT REGARD IT AS APPLICABLE HERE.

THEREFORE, OUR ANSWER TO YOUR SPECIFIC QUESTIONS IS THAT THE SALARY STEP OF THE EMPLOYEE IN THIS CASE MUST BE CHANGED FROM STEP 8 TO STEP 7 OF GS-7 RETROACTIVELY EFFECTIVE TO JULY 5, 1964, AND THAT HE IS REQUIRED TO REFUND THE DIFFERENCE IN SALARY HE HAS RECEIVED FROM THAT DATE, NAMELY, THE DIFFERENCE BETWEEN $7,250 AND $7,450 PER ANNUM.