B-171034, JAN 7, 1971

B-171034, JAN 7, 1971

REDUCTION IN GRADE - SALARY RETENTION DECISION HOLDING THAT SALARY RETENTION IS NOT AUTHORIZED UNDER 5 U.S.C. 5337(A) FOR AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE, UNDER THESE CONDITIONS. WHERE IRS EMPLOYEE WAS SEPARATED AND ASSIGNED TO THE AGENCY FOR INTERNATIONAL DEVELOPMENT FOR A PERIOD OF TIME, AND THEN RETURNED TO IRS, A REDUCTION IN GRADE SHORTLY AFTER HIS RETURN DOES NOT ENTITLE HIM TO SALARY RETENTION BECAUSE 5 U.S.C. 5337(A) POINTS OUT, IN PART, THAT THE EMPLOYEE MUST HAVE SERVED FOR 2 CONTINUOUS YEARS IMMEDIATELY BEFORE THE REDUCTION IN GRADE IN THE SAME AGENCY, AND BECAUSE THE HIGHER GRADE HELD DURING SERVICE WITH AID WAS NOT UNDER THE CLASSIFICATION ACT, THERE IS NO BAIS FOR SALARY RETENTION.

TO MISS MARY E. RUDDY:

YOUR LETTER OF OCTOBER 12, 1970, REFERENCE A:F:AF, ACKNOWLEDGED NOVEMBER 3, REQUESTS OUR DETERMINATION ON A QUESTION ADMINISTRATIVELY PRESENTED TO YOU WHETHER SALARY RETENTION IS AUTHORIZED BASED UPON THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED. YOU DID NOT ENCLOSE A VOUCHER WITH YOUR SUBMISSION.

WE NOTE YOUR STATEMENT THAT ORDINARILY UNDER AN AGREEMENT BETWEEN THE TREASURY DEPARTMENT AND THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID), INTERNAL REVENUE SERVICE (IRS) EMPLOYEES ARE ASSIGNED TO AID FOR WORK ON IMPROVEMENT OF TAX ADMINISTRATION IN OTHER COUNTRIES AND THAT SUCH EMPLOYEES ARE GIVEN LIMITED ASSIGNMENTS IN THE FOREIGN AREAS THEREUNDER BUT ARE NOT SEPARATED FROM IRS. HOWEVER, THE RECORD SHOWS THAT ONE OF YOUR EMPLOYEES WAS SEPARATED MARCH 25, 1967, FROM HIS GS-14 POSITION AND APPOINTED MARCH 26, 1967, BY AID, DEPARTMENT OF STATE, AS A FOREIGN SERVICE RESERVE OFFICER (NOT TO EXCEED SEPTEMBER 25, 1969) WITH REEMPLOYMENT RIGHTS UNDER SECTION 625(D)(2) OF THE FOREIGN ASSISTANCE ACT OF 1961 AS AMENDED, 75 STAT. 450. HE WAS REEMPLOYED IN A GRADE GS 14 POSITION IN IRS ON JUNE 29, 1969, RECEIVING THE PRESCRIBED REEMPLOYMENT RIGHTS AND BENEFITS. UNDER DATE OF OCTOBER 18, 1970, HE WAS CHANGED TO A LOWER GRADE AND THE CONSEQUENT QUESTION IS CAN HIS SALARY OF $25,538, TOP (10TH) STEP OF GS-14, BE SAVED TO HIM UNDER THE PROVISIONS OF 5 U.S.C. 5337.

THE DOUBT IN THIS MATTER ARISES ONLY WITH RESPECT TO THE CONDITIONS IN PARAGRAPH (4) OF 5 U.S.C. 5337(A) AS FOLLOWS:

"(4) WHO, FOR 2 CONTINUOUS YEARS IMMEDIATELY BEFORE THE REDUCTION IN GRADE, SERVED (A) IN THE SAME AGENCY AND (B) IN A GRADE OR GRADES HIGHER THAN THE GRADE TO WHICH DEMOTED *** " THE RECORD SHOWS THAT IMMEDIATELY BEFORE THE CONTEMPLATED REDUCTION IN GRADE THE EMPLOYEE WAS SERVING IN GRADE GS-14 HAVING BEEN REEMPLOYED JUNE 29, 1969, AFTER MORE THAN 2 YEARS SERVICE AS A FOREIGN SERVICE RESERVE OFFICER, DEPARTMENT OF STATE.

WE NOTE THE ARGUMENT THAT THE INTENT OF THE FOREIGN SERVICE ACT IS TO EXTEND TO PERSONNEL GIVEN EXCEPTED APPOINTMENTS OR LIMITED ASSIGNMENTS TO PERFORM FUNCTIONS UNDER THE ACT ENTITLEMENT TO THE SAME BENEFITS TO WHICH THEY WOULD HAVE BEEN ENTITLED HAD THEY REMAINED IN THE POSITION IN WHICH THEY WERE REGULARLY EMPLOYED. YOU GIVE THE EXAMPLE THAT THE EMPLOYEE MUST RECEIVE THE WITHIN-GRADE SALARY ADJUSTMENTS HE WOULD HAVE RECEIVED HAD HE NOT ACCEPTED THE ASSIGNMENT AND EXPRESSED THE BELIEF THAT IN THE CIRCUMSTANCES HERE INVOLVED THE APPOINTMENT AS A FOREIGN SERVICE RESERVE OFFICER SHOULD BE CONSIDERED AS CONTINUING HIM ON THE ROLLS OF IRS FOR SALARY RETENTION PURPOSES. PRESUMABLY THE EMPLOYEE HAS BEEN ACCORDED THE RIGHTS AND BENEFITS TO WHICH HE WAS ENTITLED UPON REEMPLOYMENT AS REQUIRED BY THE PROVISIONS OF SECTION 625(D)(2) OF THE ACT REFERRED TO ABOVE. BUT SUCH AUTHORITY DOES NOT EXTEND TO THE QUESTION OF SALARY SAVING OF SUCH EMPLOYEE. 5 U.S.C. 5337(A)(4), QUOTED ABOVE, GOVERNS IN THAT REGARD.

IN OUR DECISION B-149500, AUGUST 9, 1962 (42 COMP. GEN. 100), REGARDING THE SALARY RETENTION RIGHTS OF EMPLOYEES OF THE POSTAL FIELD SERVICE (39 U.S.C. 3560), WHICH RIGHTS ARE SIMILAR TO THOSE HERE INVOLVED, WE CONCLUDED THAT THE "TWO CONTINUOUS YEARS" SERVICE MUST BE "SERVED IN THE POSTAL FIELD SERVICE AND NOT IN A POSITION SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1071 ET SEQ." (NOW 5 U.S.C. 5101 ET SEQ.). WE FURTHER POINTED OUT THEREIN THAT NO AUTHORITY EXISTED IN SECTION 507 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1107 (NOW 5 U.S.C. 5337 THE PROVISION WE ARE HERE CONSIDERING) WHICH WOULD PERMIT COUNTING TIME SERVED IN A POSTAL FIELD SERVICE POSITION TOWARD THE TWO CONTINUOUS YEARS IN THE SAME OR HIGHER GRADE AS A CONDITION OF ELIGIBILITY FOR SUCH SALARY RETENTION. WE ALSO CONCLUDED THEREIN THAT THE LANGUAGE "SAME GRADE OR IN THE SAME AND HIGHER GRADE" (NOW CHANGED IN 5 U.S.C. 5337(A)(4) TO "(B) IN A GRADE OR GRADES HIGHER THAN THE GRADE TO WHICH DEMOTED") REFERRED ONLY TO "GRADE" OR "GRADES" UNDER THE CLASSIFICATION ACT. SECTION 531.509, FPM SUPP. 990-1, READS, IN PERTINENT PART, AS FOLLOWS:

"THE PERIOD OF TWO CONTINUOUS YEARS OF SERVICE IMMEDIATELY PRIOR TO A DEMOTION REQUIRED BY SECTION 5337(A)(4) OF TITLE 5, U.S.C. MUST BE SERVED IN A GENERAL SCHEDULE POSITION *** "

IN VIEW OF THE FOREGOING AND SINCE IT IS APPARENT ON THE RECORD THAT THE EMPLOYEE SERVED MOST OF THE "2 CONTINUOUS YEARS IMMEDIATELY BEFORE THE REDUCTION IN GRADE" ON OCTOBER 18, 1970, AS AN EMPLOYEE OF THE FOREIGN SERVICE, DEPARTMENT OF STATE, PLUS THE FACT THAT THE HIGHER GRADE HELD DURING THE SERVICE IN THE STATE DEPARTMENT WAS NOT UNDER THE CLASSIFICATION ACT, WE MUST CONCLUDE THAT THE REQUIREMENTS OF 5 U.S.C. 5337(A)(4) HAVE NOT BEEN MET IN THIS CASE. THUS, THE QUESTION PRESENTED MUST BE ANSWERED IN THE NEGATIVE.