B-156769, MAY 21, 1965

B-156769, MAY 21, 1965

TO THE HONORABLE SECRETARY OF THE AIR FORCE:

WE HAVE FROM YOUR SPECIAL ASSISTANT FOR MANPOWER, PERSONNEL AND RESERVE FORCES, A LETTER DATED MAY 11, 1965, IN WHICH HE REQUESTS OUR DECISION CONCERNING THE CASE OF MR. DAN WOMACK, A CIVILIAN EMPLOYEE AT NORTON AIR FORCE BASE, WHOSE RATE OF COMPENSATION WAS ADVERSELY AFFECTED AS A RESULT OF A COMBINATION OF CIRCUMSTANCES OCCURRING IN OCTOBER 1962.

THE FACTS CONCERNING THE CASE ARE SUMMARIZED IN YOUR SPECIAL ASSISTANT'S LETTER AS FOLLOWS:

"TWO DIFFERENT BI-WEEKLY PAY PERIOD CYCLES ARE IN EFFECT FOR CIVILIAN EMPLOYEES OF THE AIR FORCE AT NORTON AIR FORCE BASE, CALIFORNIA. AS A RESULT, THE FEDERAL SALARY REFORM ACT OF 1962, APPROVED OCTOBER 11, 1962, TO BECOME EFFECTIVE ON THE FIRST DAY OF THE FIRST PAY PERIOD FOLLOWING THAT DATE, BECAME EFFECTIVE AS TO SOME NORTON EMPLOYEES ON OCTOBER 14, 1962, BUT AS TO OTHERS, NOT UNTIL OCTOBER 21, 1962.

"ON OCTOBER 14, 1962, MR. DAN WOMACK WAS DEMOTED IN LIEU OF SEPARATION IN CONNECTION WITH A REDUCTION IN FORCE. THIS DEMOTION WAS FROM GS-11, STEP 3, IN THE DIRECTORATE OF MAINTENANCE, WHERE THE PAY LAW BECAME EFFECTIVE THAT DAY, TO A GS-9 POSITION IN THE DIRECTORATE OF MATERIEL MANAGEMENT, WHERE THE EFFECTIVE DATE WAS OCTOBER 21. SINCE HE HAD LESS THAN TWO YEARS CONTINUOUS SERVICE AT GS-11 OR ABOVE, WOMACK WAS NOT ELIGIBLE FOR THE SALARY RETENTION BENEFITS PROVIDED BY SECTION 507 OF THE CLASSIFICATION ACT OF 1949.

"UNDER AIR FORCE REGULATIONS, IMPLEMENTING SECTION 25.103 (B) OF THE CIVIL SERVICE REGULATIONS, THE PAY OF AN EMPLOYEE DEMOTED WITHOUT FAULT ON HIS PART IS ESTABLISHED AT A RATE AT LEAST EQUAL TO HIS PRIOR RATE, OR AT THE HIGHEST SCHEDULED RATE IN HIS NEW GRADE, WHICHEVER IS LOWER. IF HIS PRIOR RATE FALLS BETWEEN TWO SCHEDULED RATES, THE EMPLOYEE RECEIVES THE HIGHER OF THE TWO. AT THE TIME OF HIS DEMOTION WOMACK WAS EARNING $8,575 PER YEAR AS A STEP 3, GS-11. SINCE THE DIRECTORATE TO WHICH HE TRANSFERRED WAS STILL OPERATING UNDER THE OLD PAY LAW, THE HIGHEST SCHEDULED RATE IN GS-9 WAS STEP G, $7,425 PER YEAR. WOMACK WAS THEREFORE ASSIGNED THIS RATE, WHICH WAS RAISED TO $8,025 PER YEAR WHEN THE NEW LAW BECAME EFFECTIVE IN HIS DIRECTORATE

"UNDER THE FEDERAL SALARY REFORM ACT OF 1962, GS-9 CONTAINS TEN SCHEDULED RATES RATHER THAN SEVEN, AS UNDER THE FORMER LAW. HAD THE DIRECTORATE TO WHICH HE WAS TRANSFERRED BEEN OPERATING ON THE SAME PAY CYCLE AS HIS FORMER DIRECTORATE, WOMACK WOULD HAVE BEEN ENTITLED TO THE HIGHEST RATE IN GS-9, STEP 10, $8,700 PER YEAR. UNDER SECTION 602 (B) OF THE NEW LAW, HOWEVER, WOMACK APPEARS TO BE ENTITLED ONLY TO STEP 7, AT $8,025 PER YEAR. IT IS, IN OUR OPINION, INEQUITABLE TO DEPRIVE WOMACK OF THIS HIGHER RATE SIMPLY BECAUSE OF THE VARIANCE IN PAY CYCLES EXISTING AT NORTON AIR FORCE BASE.'

THE QUESTION PRESENTED IS WHETHER MR. WOMACK'S SALARY MAY BE ESTABLISHED AT STEP 10 OF GRADE GS-9 UNDER THE CLASSIFICATION ACT AMENDMENTS OF 1962, TITLE II OF PUB.L. 87-793, 76 STAT. 843, 5 U.S.C. 1113 (B), EVEN THOUGH THOSE AMENDMENTS DID NOT BECOME EFFECTIVE IN THE DIRECTORATE OF MATERIEL MANAGEMENT TO WHICH HE WAS TRANSFERRED UNTIL ONE WEEK AFTER HIS DEMOTION.

SECTION 602 (B) OF PUB.L. 87-793 APPROVED OCTOBER 11, 1962, WHICH CONTAINED THE CLASSIFICATION ACT AMENDMENTS REFERRED TO ABOVE, PROVIDED THAT COMPENSATION SCHEDULE I OF THAT ACT, WOULD BECOME EFFECTIVE ON THE FIRST DAY OF THE FIRST PAY PERIOD BEGINNING ON OR AFTER THE DATE OF ENACTMENT. SEE ALSO SECTION 610 OF THAT ACT, 76 STAT. 850.

BY VIRTUE OF HIS TRANSFER ON OCTOBER 14, 1962, WHICH RELATED BACK TO MIDNIGHT OF THAT DAY, MR. WOMACK NO LONGER WAS IN A POSITION WITH RESPECT TO WHICH COMPENSATION SCHEDULE I BECAME EFFECTIVE ON OCTOBER 14, 1962. RATHER, ON THAT DATE HE WAS OCCUPYING A POSITION IN REGARD TO WHICH THE NEW SCHEDULE BECAME OPERATIVE ON OCTOBER 21, 1962. THEREFORE, IN FIXING THE STEP RATE TO WHICH HE BECAME ENTITLED IN GRADE GS-9 UNDER THE HIGHEST PREVIOUS RATE RULE THERE COULD BE CONSIDERED ONLY THE STEP RATES PROVIDED BY THE GENERAL SCHEDULE OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1960, 74 STAT. 298. THE MAXIMUM GENERAL SCHEDULE RATE IN GRADE GS-9 UNDER THE 1960 ACT WAS STEP G, $7,425 PER ANNUM. THAT RATE WAS THE ONE GRANTED THE EMPLOYEE UPON HIS DEMOTION AND TRANSFER AND WE ARE AWARE OF NO AUTHORITY UNDER WHICH HE COULD HAVE BEEN GRANTED A HIGHER RATE.

THEREFORE, THE QUESTION PRESENTED BY YOUR SPECIAL ASSISTANT MUST BE ANSWERED IN THE NEGATIVE.