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Office of the General Counsel

Date: April 7, 1998
File Number: S001372
Matter of: [xxx]

OPM Contact: Paul Britner

An agency proposed to remove an employee for refusing to transfer with his position to another duty station. Before the effective date of that action, though, the employee accepted a discontinued service retirement and resigned. Subsequently, after a break in service of about one month, the agency offered the employee another position at a lower grade and promised the employee that he could retain the pay of his former position. After the claimant started in the new position, the agency determined that he was not eligible for retained pay because of the break in his service.

The applicable regulation states that an employee is not eligible for retained pay if there is a break in service of one day or more "after the employee had received written notification that his or her pay is to be reduced". The claimant alleges that his break in service should not disqualify him from receiving retained pay because the written notice of his job offer did not state that his pay was to be reduced. The agency states that the proposed notice of removal satisfied the written notice requirement.

The agency is correct. Because the claimant's break in service followed the proposed notice of removal, he no longer was eligible for retained pay. The agency's subsequent offer of a position with retained pay was based on an erroneous understanding of the law. Such an error, however, may not create an entitlement to pay that otherwise is contrary to law.

Accordingly, the claim is denied.

Control Panel