B-80254, MAR. 16, 1964

B-80254, MAR. 16, 1964

TO MRS. HELEN M. BAILEY, NASA HEADQUARTERS:

THIS REFERS TO YOUR LETTERS OF JANUARY 9, 1964, AND SEPTEMBER 26, 1963, WITH ENCLOSURES, REQUESTING A DECISION FROM OUR OFFICE CONCERNING YOUR RIGHT TO A PERIODIC STEP-INCREASE OR A SAVED PAY UNDER THE CIRCUMSTANCES RELATED BELOW.

THE MEMORANDUM OF SEPTEMBER 16, 1963, FROM THE OFFICE OF THE GENERAL COUNSEL OF THE NATIONAL AERONAUTICAL SPACE AGENCY, TO MR. PHILIP H. SLEAD, WHICH ACCOMPANIED YOUR LETTER OF SEPTEMBER 26, 1963, SAYS THAT YOU AGREE WITH THE HISTORY OF YOUR EMPLOYMENT WHICH ACCOMPANIED THE MEMORANDUM, AS CORRECT. THEREFORE, WE WILL ACCEPT YOUR EMPLOYMENT HISTORY CONTAINED IN THE MEMORANDUM AS ACCURATE. THIS SHOWS THAT YOU WERE PROMOTED TO THE FIRST STEP OF GRADE GS-11, $7,560 ON FEBRUARY 19, 1961. YOU HELD THAT GRADE UNTIL TAKING A POSITION WITH THE NATIONAL AERONAUTICAL SPACE AGENCY ON JULY 22, 1962. AT THAT TIME IN ORDER TO FOLLOW YOUR BOSS OVER TO THE NATIONAL AERONAUTICAL SPACE AGENCY, YOU TOOK A CUT IN GRADE AND SALARY TO STEP 7 OF GRADE GS-9, $7,425. ON SEPTEMBER 30, 1962, YOU WERE PROMOTED TO STEP 5 OF GRADE GS-10, $7,655.

YOU SUBMIT THE FOLLOWING QUESTIONS FOR OUR CONSIDERATION:

1. WHETHER YOU BECAME ELIGIBLE FOR A PERIODIC STEP-INCREASE, EITHER ON AUGUST 19, 1962, OR ON FEBRUARY 19, 1963.

2. WHETHER YOU HAVE BEEN GRANTED AN EQUIVALENT INCREASE DURING THE PERIODS UNDER DISCUSSION.

3. WHETHER SERVICE TO BE CREDITED TOWARD WITHIN-GRADE INCREASES MUST BE LIMITED TO SERVICE IN THE SAME GRADE, EVEN THOUGH A DEMOTION AND A SO- CALLED PROMOTION OCCURRED WITHIN THE PRESCRIBED WAITING PERIOD.

4.WHETHER A SAVED RATE OF PAY COULD NOT HAVE BEEN APPLIED IN ORDER TO PROTECT YOUR SALARY DURING THE PERIOD UNDER DISCUSSION.

THE CONDITIONS WHICH MUST BE MET FOR AN EMPLOYEE TO BECOME ENTITLED TO A PERIODIC STEP-INCREASE ARE THOSE SET FORTH IN SECTION 25.151 (H) AND SECTION 25.155 OF THE FEDERAL PERSONNEL MANUAL, PAGES Z1-317 AND Z1-318, WHICH PROVIDE IN PERTINENT PART, AS FOLLOWS:

"25.151 (H) "WAITING PERIOD" IS THE MINIMUM TIME REQUIREMENT OF CREDITABLE SERVICE TO BECOME ELIGIBLE FOR CONSIDERATION FOR A STEP INCREASE. * * *"

"SEC. 25.155. EQUIVALENT INCREASE. AN "EQUIVALENT INCREASE" IS AN INCREASE IN BASIC COMPENSATION EQUAL TO OR GREATER THAN THE AMOUNT OF THE STEP INCREMENT OF THE GRADE IN WHICH THE EMPLOYEE IS SERVING OR HAS SERVED DURING THE WAITING PERIOD UNDER CONSIDERATION. * * *"

AN INCREASE IN COMPENSATION RESULTING FROM A PROMOTION TO A HIGHER GRADE IS NOT WITHIN THE EXCEPTIONS TO THE ABOVE-QUOTED GENERAL RULE. THUS, THE INCREASE OF $230 PER ANNUM RECEIVED BY YOU UPON YOUR PROMOTION TO GRADE GS -10 ON SEPTEMBER 30, 1962, WHICH INCREASE IS GREATER THAN THE STEP- INCREASE IN GRADE GS-9 FROM WHICH YOU WERE PROMOTED, MUST BE CONSIDERED TO BE AN EQUIVALENT INCREASE WITHIN THE MEANING OF THE CITED REGULATIONS AND THE RECEIPT OF THAT EQUIVALENT INCREASE OPERATES TO PRECLUDE THE COUNTING OF SERVICE RENDERED IN GRADE GS-11 FOR STEP-INCREASE PURPOSES. SEE 27 COMP. GEN. 59; 34 ID. 209.

UNDER SECTION 701 (A), TITLE VII--- STEP-INCREASES, OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1121, AS AMENDED BY SECTION 603 OF THE ACT OF OCTOBER 11, 1962, PUB.L. 87-793, 76 STAT. 847, YOU ARE REQUIRED TO SERVE THE WAITING PERIOD OF 104 CALENDAR WEEKS IN STEP 5 OF GRADE GS-10 BEFORE YOU ARE ENTITLED TO THE SIXTH STEP OF THAT GRADE. THIS IS PROVIDED YOU MEET THE OTHER REQUIREMENTS OF SECTION 701 (A).

QUESTION 1 IS ANSWERED IN THE NEGATIVE.

QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.

ONLY THE TIME SERVED IN GRADE GS-10 MAY BE CREDITABLE TO A PERIODIC STEP- INCREASE IN THAT GRADE.

QUESTION 3 IS ANSWERED ACCORDINGLY.

SECTION 507 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1107, AS AMENDED BY SECTION 1 (A) OF PUB.L. 85-737, CONCERNING THE PRESERVATION OF THE RATE OF BASIC COMPENSATION OF CERTAIN OFFICERS OR EMPLOYEES IN CASES INVOLVING DOWNGRADING ACTIONS, PROVIDES SO FAR AS HERE PERTINENT THAT AN EMPLOYEE IS ENTITLED TO RETAIN HIS RATE OF COMPENSATION AFTER A DEMOTION OCCURRING AFTER THE DATE OF ENACTMENT OF SUCH LAW ONLY IF, AMONG OTHER THINGS, HE SERVED IN THE SAME DEPARTMENT FOR 2 CONTINUOUS YEARS IN GRADES HIGHER THAN THE GRADE TO WHICH DEMOTED. SINCE IT APPEARS THAT YOUR SERVICE IN GRADES HIGHER THAN GRADE GS-9 WAS ONLY FOR A PERIOD OF LESS THAN 2 YEARS, WE ARE OF THE VIEW THAT YOU ARE NOT ELIGIBLE FOR SALARY RETENTION RIGHTS UNDER PUB.L. 85-737. HOWEVER, THE CIVIL SERVICE COMMISSION HAS AUTHORITY TO CONSIDER APPEALS FROM ADMINISTRATIVE ACTIONS IN SALARY RETENTION CASES. SEE SUBCHAPTER 5-7, FEDERAL PERSONNEL MANUAL.