Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Joint Base San Antonio
Randolph Air Force Base
San Antonio, Texas
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
08/03/2020
Date
The claimant is employed as an Auditor, GS-0511-13, step 7 with the Air Force Audit Agency (AFAA) at Joint Base San Antonio (JBSA), Randolph Air Force Base (AFB) in San Antonio, Texas. He requests the U.S. Office of Personnel Management (OPM) to retroactively set his pay upon promotion to his current position at the rate of GS-13, step 8 and authorize back pay. We received the claim request on January 29, 2019, and the agency administrative report (AAR) on October 24, 2019. For the reasons discussed herein, the claim is denied.
The claimant previously occupied an Auditor, GS-0511-13, step 5 position with the AFAA at Brooks City Base in San Antonio, Texas. On July 14, 2010, he was reassigned to a lower graded Auditor, GS-0511-12 position at Ramstein Air Base, Germany and was afforded retained pay (i.e., GS-12, step 00). The claimant remained in Germany on extended assignments, and under retained pay, until July 2017. Effective August 6, 2017, he was promoted to a GS-13 Auditor position located at JBSA. Upon promotion, his rate of basic pay was initially set at GS-13, step 5, but subsequently corrected to GS-13 step 6, with retroactive pay given to him.
The claimant challenges the agency’s pay setting action made upon his re-promotion. He asserts that the agency failed to set his pay properly because he was not given the within-grade increases he would have received absent the overseas assignment. He believes that he is entitled to certain return rights and that his pay should have been set in accordance with the provisions of section 1586 of title 10, United States Code (U.S.C.). Specifically, he states that under 10 U.S.C. 1586(d) he "should have been paid at the rate of basic pay which is not less than the rate of basic pay to which he would have been entitled if he had not been assigned to duty outside the United States." To further support his claim, he references Air Force Instruction 36-802, Pay Setting, paragraph 1.2.11, which states in part "When an employee exercises overseas return rights, pay is set upon return to the former grade in the United States at a rate at least equal to the step rate to which the employee would have progressed had the employee not gone overseas." For these reasons, he believes his pay should have been set upon his re-promotion at the rate of basic pay for a GS-13, step 8, to account for within-grade increases (WGIs) he would have received absent the overseas assignment.
The agency asserts that it set the claimant’s pay correctly using the rules provided in title 5, Code of Federal Regulations (CFR) 531.214(d)(5), for employees receiving a retained rate of pay before promotion. As it relates to the claimant’s return rights and 10 U.S.C. 1586, in its AAR to OPM, the agency explained:
The Air Force prescribed Air Force Manual 36-204, Overseas Employment, to address and administer return rights and it specifically excludes auditors from having return rights. While paragraph (d) of 10 USC 1586 includes a provision to set an employees pay upon return "at a rate of basic pay which is not less than the rate of pay to which he would have been entitled if he had not been assigned to duty outside the United States," we were unable to set [claimant’s] pay using this provision because he did not have return rights in accordance with Air Force regulations.
Section 1586 of title 10, U.S.C. sets forth the rules for the rotation of career-conditional and career employees assigned to duty outside the United States and the granting of the right to return to a position in the United States. It provides, in relevant part, the following:
(b) Not withstanding any other provision of law, the Secretary of Defense with respect to civilian employees of the Department of Defense other than employees of a military department, and the Secretary of each military department with respect to civilian employees of such military department, may, under such regulations as each such Secretary may prescribe with respect and in accordance with the policy and other provisions of this section, establish and operate programs of rotation which provide for the granting of the right to return to a position in the United States to each civilian employee in the department concerned.
(c) The right to return to a position in the United States shall be without reduction in the seniority status and tenure held by the employee immediately before his assignment to duty outside the United States…
(d) Each employee…shall be paid at a rate of basic pay which is not less than the rate of basic pay to which he would have been entitled if he had not been assigned to duty outside the United States.
In accordance with 10 U.S.C. 1586(b), the Secretary of the Air Force prescribed Air Force Manual (AFMAN) 36-204, Overseas Employment, dated April 11, 2007, which establishes Air Force guidance concerning recruitment and placement for appropriated fund positions overseas, and the rotation and return placement of civilian employees from position overseas. AFMAN 36-204 states in relevant part:
7.2.3.6. Employees accepting overseas Special Investigations and Auditor positions will have return placement under their mobility agreements…. Auditors will have their return placement managed by the Air Force Audit Agency In [sic] coordination with the Financial Management Career Field Management.
The foregoing reveals that the agency has promulgated a specific regulation relating to the overseas assignments of Auditors. However, after careful consideration of the claimant’s assertions, we find neither AFMAN 36-204 nor 10 U.S.C. 1586 require the agency to return the claimant from his overseas assignment to a grade and step he might have attained absent the overseas assignment (i.e., GS-13, step 8).
Under 5 CFR 178.105, the burden is upon the claimant to establish the liability of the United States and the claimant’s right to payment. Joseph P. Carrigan, 60 Comp. Gen. 243, 247 (1981); Wesley L. Goecker, 58 Comp. Gen. 738 (1979). As previously discussed, the claimant has failed to do so. Since an agency decision made in accordance with established regulations as is evident in the present case cannot be considered arbitrary, capricious, or unreasonable, there is no basis upon which to reverse the decision. Accordingly, the claimant is not entitled to have his pay retroactively set at the rate of pay for a GS-13, step 8 and consequently his claim for back pay is denied.
Finally, the claimant states that he was "recruited on return rights, sold return rights, as outlined in the pay setting regulation and only told about the difference in a word "Right" vs "Placement" upon completion of duty. The Air Force even told the AFAA to stop using the term return rights in recruiting overseas volunteers upon me bringing this to light." However, it is well settled by the courts that a claim may not be granted based on misinformation provided by agency officials. Payments of money from the Federal Treasury are limited to those authorized by statute, 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); Falso v. OPM, 116 F.3d 459 (Fed.Cir. 1997); and 60 Comp. Gen. 417 (1981). Therefore, that the claimant was allegedly "recruited on return rights" or understood that he could exercise return rights under the provisions of 10 U.S.C. 1586, does not confer eligibility not otherwise permitted by statute or its implementing regulations. Furthermore, even if they have no actual knowledge, Federal employees are charged with constructive knowledge of statutory requirements pertaining to them and of the implementing regulations authorized to be issued by statute. See B-173927, October 27, 1971; B-187104, April 1, 1977; and B-192510, April 6, 1979.
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.