B-140637, OCT. 6, 1959

B-140637, OCT. 6, 1959

TO MR. ROBERT W. TWOMBLY, AUTHORIZED CERTIFYING OFFICER, U.S. NAVAL ORDNANCE LABORATORY:

ON JUNE 19, 1959, THE SUPERVISOR, ACCOUNTS RECEIVABLE AND CLAIMS DIVISION, U.S. NAVY REGIONAL ACCOUNTS OFFICE, REFERENCE FR-10/CC:RW) L6) (L), CL VOU 132447, FORWARDED HERE A VOUCHER FOR $559.55, WHICH WAS BEFORE YOU FOR CERTIFICATION, REPRESENTING SAVED PAY FOR MR. MASON R. LOWE UNDER THE PROVISIONS OF PUBLIC LAW 85-737, 72 STAT. 830. IT IS REQUESTED THAT WE RENDER A DECISION AS TO THE PROPRIETY OF CERTIFYING THAT VOUCHER FOR PAYMENT.

THE RECORD SHOWS THAT MR. MASON R. LOWE RECEIVED AN APPOINTMENT AS AN AUDITOR GS-510-12 ON JULY 17, 1955, IN THE INTERNAL REVIEW DIVISION OF THE NAVAL ORDNANCE LABORATORY AT WHITE OAK, SILVER SPRING, MARYLAND. SERVED IN THAT POSITION UNTIL JULY 13, 1958, WHEN HE WAS CHANGED TO A LOWER GRADE AS AN ACCOUNTANT GS-510-11 WITH A CHANGE IN HIS SALARY FROM $9,530 PER ANNUM TO $8,470 PER ANNUM. THAT ACTION WAS THE RESULT OF A REDUCTION IN FORCE. WHEN MR. LOWE'S POSITION WAS ABOLISHED, HE WAS OFFERED A POSITION AS A SYSTEMS ACCOUNTANT GS-510-12 AT THE SAME SALARY HE WAS RECEIVING BUT HE DECLINED THAT OFFER BECAUSE OF THE AMOUNT OF TRAVEL INVOLVED AND ACCEPTED THE CHANGE TO A LOWER GRADE AT THAT TIME.

PUBLIC LAW 85-737, 72 STAT. 830, WHICH AMENDS SECTION 507 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, ENTITLES AN EMPLOYEE TO RETAIN HIS EXISTING RATE OF COMPENSATION FOR A PERIOD OF TWO YEARS FROM THE EFFECTIVE DATE OF SUCH REDUCTION IN GRADE OR FROM THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS AFTER THE ENACTMENT OF THE STATUTE, WHICHEVER IS LATER, ONLY IF AMONG OTHER THINGS HE "CONTINUES IN THE SAME DEPARTMENT WITHOUT A BREAK IN SERVICE OF ONE WORK DAY OR MORE AND IS NOT DEMOTED * * * AT HIS OWN REQUEST, OR IN A REDUCTION IN FORCE DUE TO LACK OF FUNDS OR CURTAILMENT OF WORK.'

THE ISSUE IS WHETHER MR. LOWE'S ELECTION TO ACCEPT THE GRADE GS-11 POSITION RATHER THAN THE GRADE GS-12 POSITION MAY BE VIEWED AS A DEMOTION AT HIS OWN REQUEST.

THE INITIAL ACTION HERE WAS NOT THE RESULT OF THE REQUEST OF THE EMPLOYEE BUT RATHER THE RESULT OF A REDUCTION IN FORCE STEMMING FROM A REORGANIZATION. THE EMPLOYEE IN DECLINING TO ACCEPT ANOTHER POSITION IN THE SAME GRADE AND SALARY BECAUSE OF THE TRAVEL INVOLVED CANNOT BE SAID TO HAVE REQUESTED THE ALTERNATIVE, WHICH WAS A DEMOTION TO A LOWER GRADE. WHILE THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THIS ACT EXPLAINING THE BARE LANGUAGE "AT HIS OWN REQUEST" THERE IS SOME EVIDENCE THAT THE TERM CONTEMPLATED DEMOTIONS DIRECTLY INITIATED BY THE EMPLOYEE FOR REASONS PERSONAL TO HIM. SUCH IS NOT THE FACT IN THIS CASE IN WHICH THE EMPLOYEE WAS REQUIRED TO MAKE A CHOICE OF TWO POSITIONS, NEITHER OF WHICH WOULD HE HAVE REQUESTED HAD IT NOT BEEN MADE NECESSARY BY THE REDUCTION IN FORCE.

CONSEQUENTLY, THE VOUCHER TRANSMITTED WITH YOUR LETTER IS RETURNED HEREWITH AND PROPERLY MAY BE CERTIFIED FOR PAYMENT IF CORRECT IN OTHER RESPECTS.