Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Guantanamo Bay, Cuba
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
12/01/2014
Date
The claimant occupied an Electrical Engineer, GS-850-12, position with the U.S. Department of the Navy in Guantanamo Bay, Cuba. He asserts the agency erroneously set his pay when his position converted out of the National Security Personnel System (NSPS) and into the General Schedule (GS), and is requesting “back pay and correct step assignment due to pay setting violation.” He does not specify to which step he believes his pay should be set. We received the claim request on February 26, 2014, and the claim administrative report (AAR) on March 17, 2014. For the reasons discussed herein, the claim is denied.
On February 6, 2010, the claimant was appointed under the NSPS to an Electrical Engineer, YD-850-02, position with an adjusted basic salary of $65,320. On October 28, 2009, the President signed into law the National Defense Authorization Act (NDAA) of Fiscal Year 2010, Public Law 111-84, which repealed the statutory authority for NSPS and required the Department of Defense to convert civilian employees and positions to non-NSPS personnel and pay systems before January 1, 2012. Consequently, the claimant’s position was converted from the NSPS to a position in the GS system equivalent to GS-12, step 1, effective May 9, 2010.
The NSPS to GS Transition Guide, issued March 5, 2010, provides an understanding of transition-related personnel actions. The basic process for transitioning employees includes three steps:
1. Classify each NSPS position by applying GS classification standards and guides to the duties and responsibilities of the position and the qualifications required to perform those duties and responsibilities. This will result in a title, series, and grade determination for each position.
2. Assign each employee to the GS title, series, and grade classification for their permanent position.
3. Apply the GS mandatory pay retention rules as follows: Set each employee’s pay at the lowest step rate of the highest applicable locality, special rate, or GS base pay range (i.e., the rate range that applies to the series, grade, and geographic location of the employee’s permanent position) that meets or exceeds the employee’s current NSPS adjusted salary. Place employees with an NSPS adjusted salary above the step 10 rate of the applicable locality, special rate, or GS base pay range on pay retention.
To establish pay upon the claimant’s transition out of NSPS, while complying with the transition guide and applicable regulations, the agency compared the pay of his position immediately prior to his conversion between personnel systems ($65,320 adjusted basic pay) to the GS-12 rates of pay, the grade established by the agency and uncontested by the claimant, on the highest applicable pay range. Guantanamo Bay as an overseas location is not covered by a locality pay range; thus, only the 2010 GS base pay rate and the 2010 GS special rate, number 422F, established for GS-850 electrical engineers assigned to foreign areas, apply to the claimant’s situation. The agency compared his pay to the latter pay rate, i.e., the higher of the two pay ranges. Since his pay fell below the first step, his pay was subsequently set at GS-12, step 1 ($66,301 adjusted basic pay), on the special rate table number 422F. The record shows the claimant’s salary increased by $981. We concur with the agency’s pay setting upon his position’s conversion to the GS.
To address the claimant’s concerns described later, we explain how his pay action was reported on the Standard Form 50 (SF-50), Notification of Personnel Action. His SF-50, effective May 9, 2010, reports the position’s conversion from the NSPS to GS system. The “first action” for the NSPS position (i.e., the “from” section) reports basic pay (Block 12A) as $65,320; locality adjustment (Block 12B) as $0; and adjusted basic pay (Block 12C) as $65,320. The “second action” for the GS position (the “to” section) reports basic pay (Block 20A) as $60,274; locality adjustment (Block 20B) as $6,027; and adjusted basic pay (Block 20C) as $66,301. The $60,274 reported under Block 20A reflects the GS-12, step 1, rate from the 2010 GS base pay rate table; and the $6,027 reported under Block 20B, though called locality adjustment, is the special rate supplement applied to positions like the claimant’s covered by special rate table number 422F. Block 20C is the total of 20A and 20B.
The agency explains the claimant’s issues in its AAR as follows:
Following conversion to GS, [the claimant] questioned the information in Blocks 20A, 20B and 20C of [his SF 50]. Specifically, [the claimant] claims that upon transition to GS he subsequently had a portion of his basic pay reduced by $6,027. After various attempts to have his pay setting explained to his satisfaction by the [human resources office], [the claimant] disputes that his pay was set correctly upon conversion from NSPS to GS and requests back pay and correct step assignment due to a pay setting violation.
The claimant, in a June 19, 2012, email to a human resources official asserts that he had “a potion [sic] of [his] basic pay reduced by $6,027 and called special rate pay.” In his claim request to OPM, he further states:
My offer letter (attachment 1.2) indicates or mentions no targeted local market supplement (TLMS) which was unique to NSPS, however per attachment 1.5 most employees receiving a TLMS in their NSPS positions will become covered by a special rate supplement when their position is transitioned to the GS system, which was the case for locations in the United States and around the world ([section 9901.371(c) of title 5, Code of Federal Regulations (CFR)] and [Subchapter 1911.5.1 of the Department of Defense Civilian Personnel Management, 1400.25-M]). I on the other hand, was not receiving such supplement during my NSPS pay, and to include it in my GS pay is obvious [sic] a lost [sic] of pay given the reason for special rate pay attachment 1.4 is an incentive.
The claimant maintains his basic pay was reduced, as suggested by his basic pay decreasing from the $65,320 reported for his NSPS-covered position under Block 12A to the $60,274 reported for his GS-covered position under Block 20A on his SF-50. The $6,027 reported under Block 20B represents the supplement added to his salary under 5 U.S.C. 5305 only applicable upon his position’s conversion to the GS system with coverage by the special rate table. Thus, his adjusted basic pay; i.e., Blocks 20A and 20B, clearly exceeded his adjusted base pay under NSPS. As previously explained, his pay was set in compliance with the NSPS to GS Transition Guide. If the claimant is suggesting his position should have been covered by a special rate supplement while covered by NSPS, we note the agency addressed this issue in its June 25, 2012, email response to his pay setting inquiry. The agency, in part, states:
…there are no special salary rates in NSPS. The NSPS compensation architecture, with its broad pay band salary ranges and local market supplements (LMS), eliminates the need to use special salary rates. In NSPS, LMS replaced the GS locality pay. There is not an LMS in [Guantanamo Bay].
The claimant states that as a result of his agency’s pay setting decision, his pay will be reduced by two steps when he returns from his overseas assignment to one covered by the GS base pay table. However, he has not suffered a loss in pay as defined in the plain language of section 1113(c)(1) of the NDAA; i.e., “No employee shall suffer any loss of or decrease in pay.” Although guaranteeing no loss of pay, the NDAA does not provide for hypothetical prospective loss of pay as a result of the conversion from NSPS as described by the claimant. The record shows the claimant's actual total salary increased by $981 and as such, he did not suffer a loss of or decrease in pay. Based on our discussion above, the agency correctly set his pay upon conversion from NSPS to the GS. Accordingly, the claim is denied.
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.