Ronald E. Ferguson, B-215542

Decision Date01 August 1985
Docket NumberB-215542
PartiesRONALD E. FERGUSON:
CourtComptroller General of the United States

Compensation - periodic step-increases - civilian on military duty digest 1. An employee of the FAA was on leave without pay while performing active duty for training in the army reserve. The agency delayed the employee's periodic step increase based on the period of time he was in leave-without-pay status. The agency acted erroneously since under applicable regulations time spent in leave-without-pay status due to military service is creditable service in the computation of a waiting period for purposes of the periodic step increase and no distinction is made between active duty for training and other active duty. Leaves of absence - civilian on military duty - leave, etc. Status 2. An employee of the FAA was on leave without pay while performing active duty for training in the army reserve. The employee was erroneously advised that he would be accruing annual leave during the period he was in leave without pay status, and consequently exhausted his leave. The government is not bound by the erroneous acts of its agents and such advice does not provide a basis for allowing leave to be credited to the employee where applicable regulations provide for reduction in leave accumulation while the employee was in a leave without-pay status.

This action is in response to a request for an advance decision from the federal aviation administration.[1] the agency asks whether an employee in leave without pay status, performing active duty for training, May be credited with annual leave for that period of military duty. The agency also asks whether the time spent on active duty for training in a nonpay status should be counted as creditable service in determining whether to grant a within-grade increase to such employee. We find that annual leave May not be granted to an employee in a leave without-pay status performing active duty for training. However, time spent on active duty for training in a nonpay status should be counted as creditable service in determining whether an employee May receive a periodic step increase.

Mr Ronald ferguson, an aviation safety inspector for the federal aviation administration, also is a member of the U.S. Army reserve. Was ordered to active duty for training beginning July 26, 1983, for a period of 255 days. During this period he used several categories of leave, including 1, 168 hours of leave without pay. It is this period of leave without pay with which we are concerned in this case.

Periodic step increase

Mr Ferguson received a periodic step increase (within-grade increase) to gs-13, step 4, on July 11, 1982. His next increase was to have been to step 5 on July 8, 1984 (104 weeks from the July 11, 1982 increase). However, upon his return from active duty for training, Mr. Ferguson was told that due to the time he spent in leave-without-pay status, the waiting period for the periodic step increase would be extended to January 20, 1985.

It is the agency's position that the period spent in leave-without-p status for active duty for training does not qualify as creditable service in determining whether to grant a periodic step increase. The agency contends that a distinction is made between service on active duty and service on active duty for training, and therefore the periodic step increase was properly denied.

A number of statutory and regulatory authorities are involved in this issue. Sections 2021-2026 of title 38, U.S.C.[2] set forth reemployment rights of veterans who hold nontemporary positions in the government. Under 38 U.S.C. Sec. 2024(d), an employee May request leave for the purpose of participating in active duty for training and shall be entitled to return to his position "with such seniority, status, pay and vacation as such employee would have had if such employee had not been absent for such purpose, " provided that the employee reports for work within the time specified.

The authority for granting periodic step increases for general schedule employees who occupy permanent positions is found in 5 U.S.C. Sec. 5335 and the implementing regulations issued by the office of personnel management at 5 C.F.R. Part 531, subpart D. Pursuant to these provisions, an employee who has not reached the maximum rate of pay for the grade in which his position is placed May be advanced to the next step if he has performed at an acceptable level of competence and completed the designated waiting period. The waiting period for advancement from step 4 to step 5 is 104 calendar weeks.

A waiting period includes periods of annual, sick or other paid leave. Time in a nonpay status is creditable service if the nonpay status does not exceed a specified number of weeks. In waiting periods for steps 5, 6, and 7, time spent in a nonpay status is ordinarily not creditable service if it is in excess of four workweeks during the waiting period. See 5 C.F.R. Sec. 531.406. However, 5 C.F.R. Sec. 531.405(b)(1) provides a special exception for absences due to military duty. It provides that military service as defined in 5 U.S.C. Sec. 8331(13) is creditable service in the computation of a waiting period if the employee is reemployed within 52 weeks after separation from the service.

Military service is defined in 5 U.S.C. Sec. 8331(13) as "honorable active service-- (A) in the armed forces; (B) in the regular or reserve corps of the public health service after June 30, 1961; or (C) as a commissioned officer of the environmental science services...

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