B-194687.OM, SEP 3, 1980

B-194687.OM, SEP 3, 1980

SUBJECT:

CLAIM OF JOSEPH B. CURTIS, JR., FOR RETAINED PAY - B-194687-O.M.

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858):

MR. JOSEPH B. CURTIS, JR., HAS APPEALED THE DENIAL OF HIS CLAIM FOR RETAINED PAY UPON REDUCTION IN GRADE. CERTIFICATE OF SETTLEMENT NO. Z 2714260, DECEMBER 27, 1978, DENIED HIS CLAIM BECAUSE AT THE TIME OF HIS REDUCTION IN GRADE HE HELD A TEMPORARY APPOINTMENT.

ON FRIDAY, APRIL 18, 1975, MR. CURTIS WAS SEPARATED BY REDUCTION IN FORCE FROM HIS POSITION AS ORDNANCE MAN, WAGE GRADE 07, STEP 04, AT $5.66 PER HOUR, WITH THE NAVAL ORDNANCE STATION, INDIAN HEAD, MARYLAND. ON MONDAY, APRIL 21, 1975, WITHOUT A BREAK IN SERVICE, THE NAVAL ORDNANCE STATION GAVE HIM A TEMPORARY APPOINTMENT NOT TO EXCEED MAY 30, 1975, AT THE REDUCED GRADE OF PAINTER WORKER, WAGE GRADE 05, STEP 05, AT $5.30 PER HOUR. HE WAS SEPARATED ON MAY 30, 1975, WHEN THIS APPOINTMENT EXPIRED. HE RECEIVED 1 WEEK OF SEVERANCE PAY, AND EFFECTIVE JUNE 9, 1975, HE WAS REINSTATED AS A CAREER EMPLOYEE WITH THE ARMY, MILITARY DISTRICT OF WASHINGTON, AT THE PENTAGON MOTOR POOL, IN THE POSITION OF SERVICE STATION ATTENDANT WITH A FURTHER GRADE REDUCTION TO WAGE GRADE 04, STEP 05, AT $5.01 PER HOUR.

THE STATUTORY AUTHORITY GOVERNING THE ENTITLEMENT OF MR. CURTIS TO RETAINED PAY WAS 5 U.S.C. SEC. 5345 (SUPP. IV, 1974) COVERING PREVAILING RATE EMPLOYEES. CIVIL SERVICE COMMISSION INSTRUCTIONS IN FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT 532-1, PARAGRAPH S9-3B, JANUARY 16, 1973, PROVIDED THAT TO BE ELIGIBLE FOR PAY RETENTION A PREVAILING RATE EMPLOYEE MUST:

"ON THE EFFECTIVE DATE OF THE CHANGE TO LOWER GRADE OR REASSIGNMENT HOLD A CAREER OR CAREER-CONDITIONAL APPOINTMENT IN THE COMPETITIVE CIVIL SERVICE OR AN APPOINTMENT OF EQUIVALENT TENURE IN THE EXCEPTED SERVICE;"

FURTHER, PARAGRAPH S9-3F, PROVIDED:

"AN EMPLOYEE'S PAY IS RETAINED *** FOR A PERIOD OF TWO YEARS UNLESS IT IS TERMINATED EARLIER BY ONE OF THE FOLLOWING CONDITIONS:

"1. A BREAK IN SERVICE OF ONE OR MORE WORKDAYS ***."

CONCERNING THE REQUIREMENT FOR A CAREER OR CAREER-CONDITIONAL APPOINTMENT ON THE EFFECTIVE DATE OF THE CHANGE TO LOWER GRADE OR REASSIGNMENT, NAVY REGULATIONS IN THE OFFICE OF CIVILIAN MANPOWER MANAGEMENT INSTRUCTION (CMMI) 12000.1 CH54, MAY 4, 1971, PROVIDED:

"(1) AN EMPLOYEE WHO IS GIVEN A TEMPORARY APPOINTMENT FOLLOWING SEPARATION FROM A CAREER OR CAREER-CONDITIONAL APPOINTMENT WITHOUT A BREAK IN SERVICE OF ONE WORKDAY IS CONSIDERED TO BE THE SAME AS A CAREER OR CAREER-CONDITIONAL EMPLOYEE FOR ENTITLEMENT TO PAY RETENTION ***."

AS STATED ABOVE, MR. CURTIS HAD A TEMPORARY APPOINTMENT AS A PAINTER WORKER BEGINNING MONDAY, APRIL 21, 1975, FOLLOWING TERMINATION OF HIS CAREER APPOINTMENT ON FRIDAY, APRIL 18, 1975, WITHOUT A BREAK IN SERVICE OF ANY WORKDAYS. HE THEREBY SATISFIED THE ABOVE PROVISION IN CMMI 12000.1 THAT SUCH TEMPORARY APPOINTMENT IS EQUIVALENT TO CAREER OR CAREER- CONDITIONAL STATUS AS REQUIRED FOR PAY RETENTION BY FPM SUPPLEMENT 532-1, PARAGRAPH S9-3B.

WE NOTE THAT MR. CURTIS HAD A BREAK IN SERVICE OF 5 WORKDAYS BEFORE HE WAS REINSTATED AS A CAREER EMPLOYEE WITH THE ARMY ON JUNE 9, 1975, AND IN ACCORDANCE WITH THE LITERAL TERMS OF FPM SUPPLEMENT 532-1, PARAGRAPH S9- 3F, QUOTED ABOVE, HE WOULD LOSE ENTITLEMENT TO PAY RETENTION BECAUSE OF THE BREAK IN SERVICE. HOWEVER, FPM SUPPLEMENT 296 31, BOOK I, PARA. S2-3, P. I-9, MAY 17, 1968 (REVISED JULY 1969), PROVIDED:

"IF THE PROSPECTIVE APPOINTEE IS CURRENTLY EMPLOYED IN ANOTHER AGENCY, ARRANGE TO SET A MUTUALLY AGREEABLE EFFECTIVE DATE WITH THE LOSING AGENCY. NOTIFY THE LOSING AGENCY OF THE DATE FINALLY SET SO THAT THE EMPLOYEE WILL NOT BE SEPARATED BEFORE THE APPOINTMENT DATE ***."

SINCE IT IS NOT ALWAYS POSSIBLE FOR THE LOSING AND APPOINTING AGENCY TO COMMUNICATE SOON ENOUGH TO AVOID A BREAK IN SERVICE, FPM SUPPLEMENT 296- 31, BOOK III, PARA. S2-4B, P. III-9, SEPTEMBER 17, 1971, PROVIDED:

"(2) THE SEPARATION SHOULD BE EFFECTIVE ON THE DAY BEFORE THE TRANSFER OR APPOINTMENT. THE ACTION MAY BE TAKEN RETROACTIVELY IF NECESSARY, AND MAY INVOLVE CORRECTION OF A PREVIOUSLY PROCESSED SEPARATION MADE EFFECTIVE AT AN EARLIER DATE."

DISPOSITION FORM 2496, APRIL 25, 1975, SIGNED BY MR. ROBERT G. BEIER, DEPUTY CHIEF, SECURITY DIVISION, ADDRESSED TO MR. RYMSHAW, CIVILIAN PERSONNEL OFFICER, MILITARY DISTRICT OF WASHINGTON, STATES THAT THE PRE- EMPLOYMENT SECURITY CHECK OF MR. CURTIS MADE HIM ELIGIBLE TO BE CONSIDERED FOR EMPLOYMENT. THE SECURITY CHECK, MORE THAN 1 MONTH BEFORE MR. CURTIS' SEPARATION FROM THE NAVY ON MAY 30, 1975, IS AN INDICATION THAT MR. CURTIS WAS A "PROSPECTIVE APPOINTEE" OF THE ARMY PRIOR TO THE TERMINATION OF HIS TEMPORARY APPOINTMENT WITH THE NAVY.

BY LETTER OF JANUARY 30, 1980, MS. PATRICIA R. FRANTUM, CHIEF, TECHNICAL SERVICE BRANCH, FT. MYER CIVILIAN PERSONNEL OFFICE, HEADQUARTERS U. S. ARMY MILITARY DISTRICT OF WASHINGTON, STATES MR. CURTIS MAY HAVE BEEN A POTENTIAL CANDIDATE FOR EMPLOYMENT BEFORE HIS SEPARATION FROM THE NAVY THROUGH THE DEPARTMENT OF DEFENSE PROGRAM FOR STABILITY OF CIVILIAN EMPLOYMENT (DOD PRIORITY PLACEMENT PROGRAM). IF MR. CURTIS WAS WITHIN THE DOD PRIORITY PLACEMENT PROGRAM, HE WOULD HAVE HAD PREFERENCE FOR JOB REFERRAL AND PLACEMENT WITHIN DOD BECAUSE OF THE REDUCTION IN FORCE AND THE NAVY WOULD HAVE BEEN RESPONSIBLE FOR REGISTERING HIM IN THE PROGRAM.

MR. C. R. HOLMAN, CIVILIAN PERSONNEL OFFICER, NAVAL ORDNANCE STATION, INDIAN HEAD, REPORTS TO US IN A LETTER OF MARCH 12, 1980, THAT ALTHOUGH MR. CURTIS WAS ELIGIBLE FOR REGISTRATION, ALL RECORDS INDICATING WHETHER HE WAS IN THE PROGRAM WERE DESTROYED AFTER 2 YEARS IN ACCORDANCE WITH RECORD MAINTENANCE PROCEDURES. HOWEVER, HE FURTHER STATES THAT THERE IS NO OBJECTION TO CHANGING MR. CURTIS' SEPARATION DATE TO AVOID A BREAK IN SERVICE. HE SUGGESTS THAT MR. CURTIS AND THE MILITARY DISTRICT OF WASHINGTON SHOULD REQUEST A CHANGE OF SEPARATION DATE IN WRITING IF THEY ARE IN AGREEMENT WITH THE CHANGE. HE ALSO STATES THAT, ALTHOUGH THE RECORD "LACK OF WORK" WAS USED AS THE REASON FOR THE RIF, MR. CURTIS' RIGHT TO RETAINED PAY IS NOT TO BE DENIED BECAUSE HIS REDUCTION IN FORCE DID NOT RESULT FROM A "CURTAILMENT OF WORK" AS PROVIDED IN CMMI 12000.1 CH54, MAY 4, 1971, SUPP. 532-1, PARA. S9-3B(2) AND FPM SUPP. 990-2, BOOK 531, PARA. S5-4D, BUT FROM A REARRANGEMENT OF WORK.

MR. CURTIS, IN A STATEMENT DATED MARCH 25, 1980, SAYS THAT, TOGETHER WITH FELLOW EMPLOYEES SUBJECT TO REDUCTION IN FORCE AT THE NAVAL ORDNANCE STATION, HE WAS PLACED ON THE "STOPPER LIST" (LIST FOR JOB REFERRAL UNDER THE DOD PRIORITY PLACEMENT PROGRAM) ON ABOUT APRIL 1, 1975, OR IN ANY EVENT BEFORE HE WAS SEPARATED FROM THE NAVY. ALTHOUGH THE RECORDS INDICATING JOB REFERRAL UNDER THE PROGRAM WERE DISPOSED OF AFTER APPROXIMATELY 2 YEARS (EVIDENTLY APRIL-JUNE 1977), THE CLAIM FILE INDICATES THAT HE HAS SOUGHT RETAINED PAY SINCE AT LEAST JULY 1976, BUT HAS BEEN GIVEN AN INCORRECT REASON FOR THE DENIAL OF THE CLAIM.

SINCE HIS CLAIM WAS TIMELY FILED BEFORE RECORDS DISPOSAL, WE MAY RELY ON HIS WRITTEN STATEMENT AND HIS ENTITLEMENT TO BE REGISTERED IN THE DOD PRIORITY PLACEMENT PROGRAM AS SUFFICIENT EVIDENCE THAT HE WAS A "PROSPECTIVE APPOINTEE" WITHIN THE MEANING OF FPM SUPP. 296-31, BOOK I, PARA. S2-3, AND IN THE PROCESS OF BEING HIRED BY THE ARMY MILITARY DISTRICT OF WASHINGTON THROUGH THE PROGRAM BEFORE HIS SEPARATION FROM THE NAVY. SEE B-174660-O.M., SEPTEMBER 27, 1971. THE COMPLETION OF HIS PRE- EMPLOYMENT SECURITY CHECK ON APRIL 25, 1975, GIVES ADDED WEIGHT TO THIS CONCLUSION.

WE HELD IN B-112802, FEBRUARY 2, 1953, THAT AN EMPLOYEE WHO RESIGNED ONE POSITION TO ACCEPT A POSITION WITH ANOTHER AGENCY MAY BE CHARGED ANNUAL LEAVE OR LEAVE WITHOUT PAY TO AVOID A BREAK IN SERVICE NOT INTENDED BY THE PARTIES INVOLVED. THERE IS NO INDICATION OF AN INTENT TO CREATE A BREAK IN SERVICE BY HAVING THE NAVAL ORDNANCE STATION IMMUTABLY FIX MR. CURTIS' SEPARATION ON MAY 30, 1975, WHEN THE ARMY WAS IN THE PROCESS OF HIRING HIM. TO DO SO WOULD BE CONTRARY TO THE DOD POLICY OF PROTECTING THE INCOMES OF EMPLOYEES SUBJECT TO REDUCTION IN FORCE. DOD DIRECTIVE 1400.20, AUGUST 13, 1971, PARA. III A.

ACCORDINGLY, MR. CURTIS' SEPARATION DATE FROM THE NAVY SHOULD RETROACTIVELY BE CHANGED TO AVOID A BREAK IN SERVICE AS PROVIDED IN FPM SUPP. 296-31, BOOK III, PARA. S2-4B(2), P. III-9. HE IS ENTITLED TO RECEIVE RETAINED PAY BEGINNING WITH HIS FIRST REDUCTION OF PAY ON APRIL 21, 1975, AND CONTINUING AFTER HIS SEPARATION FROM THE NAVY ON MAY 30, 1975. THE AMOUNT OF SEVERANCE PAY MR. CURTIS RECEIVED, EVIDENTLY $225 FOR 40 HOURS DURING THE BREAK IN SERVICE, SHOULD BE DEDUCTED FROM THE RETAINED PAY.

THE NAVAL ORDNANCE STATION HAS INFORMED US THAT MR. CURTIS WOULD BE LIABLE FOR REPAYMENT OF $212 PAID FOR 40 HOURS OF ANNUAL LEAVE. MR. CURTIS HAS REQUESTED A LUMP-SUM PAYMENT OF 40 HOURS OF LEAVE. IN THIS CONNECTION THE ADMINISTRATIVE REPORT OF APRIL 6, 1977, BY THE COMMANDING OFFICER, NAVAL ORDNANCE STATION, STATES:

"MR. CURTIS WAS PAID 40-HOURS LUMP-SUM TOGETHER WITH HIS LAST WEEK OF SERVICE ON PAYROLL 25 MAY 07 JUNE 1975, CHECK DATED 12 JUNE 1975."

SINCE THE NAVAL ORDNANCE CENTER'S RECORDS INDICATE A LUMP-SUM PAYMENT OF 40 HOURS AND THE RECORDS ARE TO BE CORRECTED TO SHOW A SEPARATION DATE OF JUNE 8, 1975, THE LUMP-SUM LEAVE SHOULD BE CONSIDERED 40 HOURS OF ANNUAL LEAVE TAKEN DURING JUNE 2-6, 1975, WHEN MR. CURTIS DID NOT WORK. CONSEQUENTLY, IT DOES NOT APPEAR THAT MR. CURTIS IS LIABLE FOR REPAYMENT OF $212 FOR THIS PERIOD OF LEAVE.

THE ABOVE DETERMINATION AUTHORIZING RETAINED PAY IS CONDITIONAL UPON YOUR VERIFICATION THAT THE OTHER REQUIREMENT OF 5 U.S.C. SEC. 5345 (IN EFFECT DURING THE PERIOD IN QUESTION) HAS BEEN MET. FURTHER, THE DISPOSITION IS LIMITED TO THE UNUSUAL FACTS OF THIS PARTICULAR CASE.

BOTH THE NAVY AND THE ARMY SHOULD BE ADVISED OF THE ABOVE. THE CLAIM FILE IS RETURNED WITH THIS MEMORANDUM.