B-174835, FEB 18, 1972

B-174835, FEB 18, 1972

CIVILIAN EMPLOYEE - FOREIGN SERVICE ASSIGNMENT - DOMESTIC REEMPLOYMENT - WITHIN-GRADE INCREASE - ERROR IN COMPUTATION DECISION ALLOWING CLAIM OF CHRIS H. CHRISTENSEN FOR BACK SALARY DUE INCIDENT TO HIS REEMPLOYMENT BY THE DEPARTMENT OF THE INTERIOR. THE AUTHORITY FOR CLAIMANT'S FOREIGN SERVICE ASSIGNMENT, 22 U.S.C. 2385(D)(2), ENTITLES HIM TO THE BENEFITS OF 22 U.S.C. 928, WHICH SPECIFY THAT UPON REINSTATEMENT, AN EMPLOYEE SHALL RECEIVE THE WITHIN GRADE SALARY ADVANCEMENTS HE WOULD HAVE BEEN ENTITLED TO RECEIVE HAD HE REMAINED IN HIS REGULAR POSITION OF DOMESTIC EMPLOYMENT. CONSEQUENTLY, MR. CHRISTENSEN'S WITHIN-GRADE INCREASE UNDER THE FOREIGN SERVICE EMPLOYMENT SHOULD BE IGNORED IN THE COMPUTATION OF HIS PRESENT DOMESTIC GRADE LEVEL, AND THE ENCLOSURES SUPPORTING HIS CLAIM ARE RETURNED FOR PAYMENT.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 21, 1971, WITH ENCLOSURES, REFERENCE 7-360, FROM MR. C. S. MERMAN, ASSISTANT TO THE REGIONAL DIRECTOR -ADMINISTRATIVE MANAGEMENT, BUREAU OF RECLAMATION, REGION 7, WHICH REQUESTS AN ADVANCE DECISION ON THE CLAIM FOR BACK SALARY BY MR. CHRIS H. CHRISTENSEN, AN EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR, UNDER THE CIRCUMSTANCES HEREINAFTER DESCRIBED.

THE RECORD SHOWS THAT MR. CHRISTENSEN LEFT HIS POSITION WITH THE DEPARTMENT OF THE INTERIOR EFFECTIVE JUNE 26, 1966, TO ASSUME A FOREIGN SERVICE POST WITH THE UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT, RECIFE, BRAZIL. AS A CONSEQUENCE THEREOF HE WAS GIVEN REEMPLOYMENT RIGHTS WITH THE DEPARTMENT OF THE INTERIOR AT THE TERMINATION OF HIS FOREIGN DUTY. EFFECTIVE SEPTEMBER 1, 1968, HE REENTERED THE DOMESTIC SERVICE WITH THE DEPARTMENT OF THE INTERIOR. MR. CHRISTENSEN HAS NOW SUBMITTED A CLAIM FOR BACK SALARY TO WHICH HE FEELS HE IS ENTITLED BECAUSE OF AN ALLEGED ERRONEOUS COMPUTATION OF EFFECTIVE DATES OF WITHIN-GRADE INCREASES FOR THE PURPOSE OF ESTABLISHING A WAITING PERIOD FOR WITHIN-GRADE INCREASES.

MR. CHRISTENSEN ASSERTS THAT HAD HE CONTINUED TO SERVE IN THE UNITED STATES IN HIS GS-12 POSITION, HE WOULD HAVE RECEIVED HIS LATEST WITHIN GRADE INCREASE TO STEP 6 ON JANUARY 10, 1971, AS A RESULT OF A DOMESTIC SERVICE MEASURING DATE OF JANUARY 15, 1967. INSTEAD OF THE ABOVE, THE MEASURING DATE FOR WITHIN-GRADE ADVANCEMENT PURPOSES WAS SET AT JUNE 30, 1968, AS A CONSEQUENCE OF A WITHIN-GRADE INCREASE GIVEN HIM INCIDENT TO HIS FOREIGN SERVICE POSITION.

ACCORDING TO MR. CHRISTENSEN, THE RESULT OF UTILIZING THE DATE OF THE WITHIN-GRADE INCREASE OBTAINED FROM HIS TOUR OF FOREIGN DUTY AS OPPOSED TO USE OF ONLY THOSE DATES WHICH WOULD HAVE BEEN APPLIED HAD HE STAYED IN THE DOMESTIC SERVICE IS TO CREATE AN UNDERPAYMENT OF BACK SALARY IN THE APPROXIMATE AMOUNT OF $1,003 AS OF SEPTEMBER 18, 1971.

THUS, THE QUESTION IN THE INSTANT CLAIM, AS STATED BY MR. A. R. NOVAK, REGIONAL PERSONNEL OFFICER FOR REGION 7, IN A MEMORANDUM DATED DECEMBER 2, 1971, IS:

"IN DETERMINING WHEN THE NEXT WITHIN-GRADE INCREASE IS DUE TO AN EMPLOYEE WHO IS RETURNED TO THE POSITION, GRADE AND STEP HE WOULD HAVE HELD HAD HE REMAINED IN THE DOMESTIC SERVICE IS HIS LAST EQUIVALENT INCREASE THE ONE HE RECEIVED IN THE FOREIGN SERVICE OR THE LAST WITHIN GRADE INCREASE GRANTED IN RECONSTRUCTING HIS POSITION IN THE DOMESTIC SERVICE TO ESTABLISH THE PROPER GRADE AND STEP HE IS ENTITLED TO UPON HIS RETURN TO THE DOMESTIC SERVICE?"

MR. CHRISTENSEN HAS STATED IT WAS HIS UNDERSTANDING THAT:

" *** UPON RETURN TO DOMESTIC SERVICE THE COMPUTATION OF EFFECTIVE DATES FOR WITHIN-GRADE WAITING PERIODS WOULD CARRY ON AS IF I HAD NEVER LEFT DOMESTIC SERVICE. *** "

THE AUTHORITY FOR MR. CHRISTENSEN'S ASSIGNMENT TO THE FOREIGN SERVICE POST, SECTION 625(D)(2) OF THE ACT FOR INTERNATIONAL DEVELOPMENT OF 1961, WHICH IS CODIFIED IN 22 U.S.C. 2385(D)(2), STATES THAT PERSONS APPOINTED TO FOREIGN DUTY POSTS UNDER THE AUTHORITY OF SUCH STATUTE ARE ENTITLED TO THOSE BENEFITS CONFERRED BY 22 U.S.C. 928 PERTAINING TO THE RIGHTS OF THOSE PERSONS APPOINTED TO THE FOREIGN SERVICE RESERVE. AN EMPLOYEE RETURNING FROM THE FOREIGN SERVICE RESERVE IS ENTITLED UNDER 22 U.S.C. 928 TO:

" *** REINSTATEMENT IN THE GOVERNMENT AGENCY BY WHICH HE IS REGULARLY EMPLOYED IN THE SAME POSITION HE OCCUPIED AT THE TIME OF ASSIGNMENT, OR IN A CORRESPONDING OR HIGHER POSITION. UPON REINSTATEMENT HE SHALL RECEIVE THE WITHIN-GRADE SALARY ADVANCEMENTS HE WOULD HAVE BEEN ENTITLED TO RECEIVE HAD HE REMAINED IN THE POSITION IN WHICH HE IS REGULARLY EMPLOYED UNDER CHAPTER 51 AND SUBCHAPTER III OF CHAPTER 53 OF TITLE 5, OR ANY CORRESPONDING PROVISION OF LAW APPLICABLE TO THE POSITION IN WHICH HE IS SERVING. *** "

IN 40 COMP. GEN. 600 (1961) WE RULED THAT, PURSUANT TO THE ABOVE QUOTED STATUTE, AN EMPLOYEE RETURNING TO THE DOMESTIC SERVICE FROM A POSITION IN THE FOREIGN SERVICE IS ENTITLED TO CREDIT FOR SERVICE RENDERED IN THE FOREIGN SERVICE FOR WITHIN-GRADE SALARY PURPOSES. FURTHERMORE, IN B- 106791, AUGUST 13, 1968, COPY HEREWITH, WE RULED THAT PURSUANT TO 22 U.S.C. 928 AN EMPLOYEE COVERED THEREUNDER IS ENTITLED, UPON HIS RETURN TO DOMESTIC SERVICE, TO THE WITHIN-GRADE SALARY ADVANCEMENT AND THE STATUTORY PAY INCREASES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN ASSIGNED OUTSIDE THE UNITED STATES. CF. PROSTERMAN V UNITED STATES, 144 CT. CL. 692 (1959) AND B-165059, SEPTEMBER 20, 1968, COPY HEREWITH.

IN OTHER WORDS, SUCH AN EMPLOYEE IS NOT TO SUFFER ANY LOSS OF BASIC COMPENSATION BY REASON OF HIS ACCEPTANCE OF THE FOREIGN SERVICE ASSIGNMENT. HIS COMPENSATION IS TO BE DETERMINED ON THE BASIS OF HIS HAVING REMAINED IN THE SAME POSITION AND PERFORMED SATISFACTORILY DURING THE DURATION OF THE OVERSEAS ASSIGNMENT. CF. 38 COMP. GEN. 237 (1958) AND 40 ID. 600 SUPRA.

IN COMPUTING MR. CHRISTENSEN'S COMPENSATION UPON HIS REINSTATEMENT WITH THE DEPARTMENT OF THE INTERIOR AND THE SUBSEQUENT ENTITLEMENTS TO WITHIN- GRADE INCREASES, THE WITHIN-GRADE INCREASE UNDER THE FOREIGN SERVICE APPOINTMENT SHOULD BE IGNORED AND THE STEP INCREASES SHOULD BE COMPUTED AS THOUGH HE HAD NOT UNDERTAKEN AN OVERSEAS POSITION DURING SUCH PERIOD.

THE ENCLOSURES SUPPORTING THE CLAIM ARE RETURNED HEREWITH AND PAYMENT MAY BE MADE IN THE AMOUNT ADMINISTRATIVELY DETERMINED TO BE DUE.