Washington, DC

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code

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Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance



06/08/2016

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Date

The claimant is a Federal civilian employee of the Department of the Army (DA) in Charlottesville, Virginia.  Based on careful review of the claimant’s numerous submissions, we find his claim properly characterized as follows:  (1) he requests the U.S. Office of Personnel Management (OPM) find his acceptance of a job offer resulting in his change to lower grade (from grade 13 to grade 12) was involuntary and, thus, should be reversed and, (2) the Department of Defense (DoD) and DA implementation of the Defense Civilian Intelligence Personnel System’s (DCIPS) “elimination of a salary tool called Highest Previous Rate,” which resulted in his salary being set at a lower rate of basic pay upon his change to lower grade, was contrary to OPM’s regulations and, thus, should be reversed.  As a result, he requests back pay from June 2, 2008, to April 8, 2012.[1]  We received the claim request on June 30, 2015.  For the reasons discussed herein, the claim is denied.

Background

The record shows that at all times relevant to this claim, the claimant was a title 10, United States Code (U.S.C.), employee covered under the Defense Civilian Intelligence Personnel System (DCIPS), or its predecessor title 10 excepted service system, the Civilian Intelligence Personnel Management System (CIPMS), and was employed by DA’s Intelligence and Security Command (INSCOM).  Prior to accepting the Intelligence Specialist, GG-132-12,[2] position at issue in this claim, he occupied an Intelligence Specialist, GG-132-13, step 6, position in Seoul, South Korea.  In 2008, he applied and was selected for two positions in the United States, an Intelligence Specialist, GG-132-13[3], position in Washington, D.C., and an Intelligence Specialist, GG-132-12, position in Charlottesville, Virginia, both with INSCOM’s National Ground Intelligence Center.  The claimant accepted the Intelligence Specialist, GG-132-12, position in Charlottesville and was placed on it through a change to lower grade action effective June 2, 2008.  The Notification of Personnel Action, Standard Form (SF) 50, documenting the action shows he was selected from a competitive recruitment action (RPA #08APR9STFMOBXX702815) referral list (WTST08466215, dated 26-MAR-2008) and that the position was at the full performance level.  Although the claimant came into his new position at step 10, the highest step on the GG pay scale, this change in positions still resulted in a loss of basic pay, from $80,065 to $75,025.

In July 2009, the Secretary of Defense and Secretary of the Army directed that DA DCIPS positions and personnel be converted from “GG” pay grades to a pay-banded system that contained five bands.  As a result, the claimant was converted on July 19, 2009, from Intelligence Specialist, GG-12, Step 10, to an Intelligence Specialist, IA-132-03, at the same basic pay ($77,194) in accordance with DCIPS conversion guidance as discussed in the DCIPS Conversion Fact Sheet of June 2009:

Conversion – How It Works

DCIPS civilian employees convert to DCIPS Pay Bands based on their permanent position of record and are placed into the appropriate DCIPS pay band. There is no loss in pay.

As part of the conversion process, eligible employees may receive a salary increase based on the time worked towards their next Within Grade Increase (WGI). This is called a WGI buy-in. Employees receive a WGI buy-in if they are:

􀂃 Below step 10 of their grade. Note: If employees are at or above Step 10, they are ineligible for a WGI buy-in because they have received all the step increases allowed within their grade. (emphasis added)

The record shows DA transitioned March 25, 2012, from DCIPS pay bands to DCIPS grades.  As discussed in the DCIPS Transition Guidance, Transition to DCIPS Grades, March 2011, page 14, states in relevant part:

1. When the employee’s base rate of pay at the point of transition falls at, or below, step 10 of his or her DCIP’s grade, the employee's base pay will be set at the step closest to, but not lower than, his or her current base rate.

As a result, the claimant was converted on March 25, 2012, from an Intelligence Specialist, IA-132-03, position to an Intelligence Specialist, GG-132-12, step 10, position with a $3 increase in his basic pay ($78,355).  He was re-promoted as the result of a competitive action effective April 8, 2012, to an Intelligence Specialist, GG-132-13, step 6, position which returned him to his grade and step prior to his June 2, 2008, change to lower grade.

The claimant’s change to lower grade on April 8, 2008, was voluntary

OPM’s authority to adjudicate and settle Federal civilian employee claims for compensation and leave under the authority of 31 U.S.C. § 3702(a)(2) includes the authority to determine whether an employee’s pay has been set properly upon movement from one position to another.  The agency set the claimant’s pay at GG-12, step 10, which is equivalent to setting his pay at his highest previous rate as defined in subpart B of part 531, of title 5, Code of Federal Regulations (CFR); i.e., his pay was set at the highest step of the rate range for the GG-12 level.  Thus, his assertion that, because he was not properly informed that highest previous rate policy would not apply to his placement in the GG-12 position that his acceptance of the position was therefore involuntary, is without merit.

Further, it appears the claimant is also asserting that he should have received retained pay and not that his pay should have been set using a highest previous rate policy; i.e., GG-13, step 6, the same rate of pay he was receiving prior to his placement in the GG-12 position.  The Army Regulation 690-13, Civilian Intelligence Personnel Management System (CIPMS)-Policies and Procedures, in effect at the time of the claimant’s placement in the GG-12 position stated, in relevant part:  “OPM and Army Regulations on all forms of pay and pay setting, apply.”  Thus, the retained grade and pay provisions of part 536 of title 5, CFR, would have been applicable at the time of his change to lower grade.  The record clearly shows he applied for the position and opted to accept the offer, in lieu of the offer of a GG-13 position for which he had also applied, knowing that his pay would be reduced.  Because the claimant voluntarily applied and was selected for and subsequently placed in the GG-12 position as discussed previously, he was ineligible for retained pay since 5 CFR 536.308(a)(4) provides that eligibility for pay retention terminates when:  “The employee is reduced in grade for personal cause or at the employee’s request…." (emphasis added).

Payments of money from the Federal Treasury are limited to those authorized by law, and erroneous advice or information provided by a Government employee cannot bar the Government from denying benefits which are not otherwise permitted by law.  See Office of Personnel Management v. Richmond, 496 U.S. 414, rehearing denied, 497 U.S. 1046, 111 S. Ct. 5 (1990).  Therefore, the claimant’s assertion that his not being advised that the agency would end its highest previous rate policy rendered his change to lower grade involuntary is unavailing since the end of that policy was permitted by law as will be discussed later in this decision.[4]

Claimant’s pay was set properly under DCIPS

Although not discussed in his June 5, 2012, agency claim,[5] the claimant’s alternative argument is that DCIPS should have provided for setting his pay at a rate equivalent to GG-13, step 6, when his position was converted from GG-12 to IA-03.  In his later submissions to OPM in support of his claim, the claimant argues OPM did not authorize DoD to eliminate the use of highest previous rate in its conversion from CIPMS to DCIPS and, thus, DoD lacked authority to end the use of highest previous rate and thus received a lower rate of pay than was authorized by regulations.

The authority to adjudicate and settle Federal civilian employee claims for compensation and leave under the authority of 31 U.S.C. § 3702(a)(2) is narrow and does not provide for reviewing agency policies and procedures at the behest of a claimant as the claimant appears, in part, to request.  In the case of a pay setting claim, OPM’s authority is limited to determining whether a claimant’s pay has been set properly in accordance with controlling law, regulation, and agency policies and procedures.  Thus, we may only respond to the claimant’s assertions regarding the DCIPS failure to retain a highest previous rate policy as it relates to the setting of the claimant’s pay.

The claimant’s assertions regarding DCIPS’s failure to provide for a highest previous rate policy, which he asserts resulted in his underpayment, as requiring OPM review and approval are misplaced.  The provisions of 10 U.S.C. §1601(a) vest the Secretary of Defense with exclusive authority to establish excepted service positions, appoint personnel, and fix the rates of pay for defense intelligence positions (emphasis added).[6]  The plain language of 10 U.S.C. §1601(b) makes clear the Secretary of Defense is not affected or bound by any other laws in doing so:  “(b) Construction With Other Laws.—The authority of the Secretary of Defense under subsection (a) applies without regard to the provisions of any other law relating to the appointment, number, classification, or compensation of employees.”

Thus, OPM's pay regulations are not directly applicable to the setting of DCIPS pay.[7]  As a result, DoD’s determination whether or not to adopt a highest previous rate policy is not subject to oversight or review by OPM.  DCIPS failure to adopt and apply a highest previous rate policy at the time of the claimant’s conversion from his GG-12 position to his IA-03 position was well within DoD’s statutory authority and the claimant’s assertions that he was due the benefits of that policy fail as a matter of law.  Accordingly, this claim is denied in its entirety.

This settlement is final.  No further administrative review is available within OPM.  Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.

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