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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
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.