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FusterCluck  
#1 Posted : Sunday, November 07, 2010 8:49:07 PM(UTC)
FusterCluck

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I am a 2210 that is OCONUS that had the SSR 99AF incorrectly applied during conversion.
 
The 99AF was used to establish my base pay, then the Supplemental % was SUBTRACTED from my NSPS basic pay resulting in a huge decrease in Basic pay. (= lost 3 steps)
Instead of being a GS 12 step 5, I am now a GS 12 Step 2.
 
I have been awaiting an answer from my HR for 2 months but have gotten no response so I am preparing an appeal.
 
 
Is there anyone else out there that has experienced this or similar??
I'd like to hear your experience and please share any insight on this matter.
geekgirl13  
#2 Posted : Sunday, November 07, 2010 11:20:46 PM(UTC)
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This happened to all of us 2210's OCONUS, it doesn't matter if you work for the Army, DLA, Air Force, or Navy and we have all been told the same thing - that it was done correctly and nothing will be done to change it - because we didn't lose any money - (their words not mine).  One of the 2210's who posted a lot on this subject is 'itsuptoyou' and he filed a MSPB claim - he went to court on Nov 4th and we are all anxiously waiting on him to tell us what the outcome was.
geekgirl13  
#3 Posted : Sunday, November 07, 2010 11:29:35 PM(UTC)
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sorry I incorrectly identified the poster as 'itsup2you', it should have been 'itsuptoyou2'

FusterCluck  
#4 Posted : Sunday, November 07, 2010 11:48:13 PM(UTC)
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I heard that a DoD working group has been assembled to look at this.   And that apparently, is great news for all affected.

I wouldnt take anything your local HRO says as the gospel.   My HR folks were adament they were correct and chanted "we followed the guidance 100%" at every question I posed.  And yes in fact, they did follow the guidance.  Then I showed them on paper how the guidance was wrong and they just countered with "But we followed the guidance." 
I'm not saying my HR team are Sheeple (not all of them anyway) but they sounded a lot like that movie Idiocracy: "plants crave Brawndo because Brawndo has electrolytes.  But what are electrolytes?  Its what plants crave! "
I'm starting the appeal process and also waiting to hear from DoD.
 
Thanks! I been reading some of Itsuptoyou2's posts.
outdoorextreme  
#5 Posted : Tuesday, December 28, 2010 11:27:26 PM(UTC)
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Did you all hear anything more regarding getting this fixed?  I have seen/heard nothing....almost like they are ignoring it.
huetert  
#6 Posted : Wednesday, December 29, 2010 6:07:26 PM(UTC)
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Haven't heard a thing. 
FusterCluck  
#7 Posted : Monday, January 03, 2011 5:54:01 PM(UTC)
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My HRO received a response on Dec 17th 2010 from the DON Compensation Program Manager and after restating the law as it is written she added:

"...
Our office has received many questions regarding this issue, and the NSPS Program Executive Office (PEO) is fully aware of this situation and looking into the matter. There was a significant MSPB decision, Xxxxx X. Xxxxxxx v. Department of Army (see attached) related to this issue sent to us by the NSPS PEO that I have attached. 
Hope this helps. Please let me know if you have any questions.
..."
 
 
On Dec 22, 2010 my HR dept forward the OCHR email and misinterpreted it and the attached decision as a clear statement that we are just out of luck. 
 
"...
Gentlemen,
  Ms. Xxxxx, from OCHR, has provided the response to your petitions concerning your NSPS conversion concerns.  Essentially, the determination says that the adjusted salary will be used in setting pay when you return to a non-foreign area.  She has also attached a MSPB decision for your perusal.  Please let me know if you have any further questions.
..."
 
I responded with :
 
"...
 Thank you for the update and all your time and efforts to shed light on our issue.
I believe Ms Xxxxx's email states that NSPS PEO is continuing to look into the matter.  That is encouraging news since our issue is not with the interpretation or execution of the law; it is with the law itself. 
Is NSPS PEO the entity that can facilitate a change to an existing law that would correct this?
The example she provided is also encouraging as it does not state that his case and by extension our cases, are without merit.   The dismissal is of a jusrisdictional nature and states that the Army does not have jurisdiction to render a decision since the letter of the law was followed.  Instead the board advises: "The appellant's dispute concerning the actual calculation of his pay or classification of his NSPS position within the GS system must instead be taken up with DOD or OPM." 
Our course of action is to begin our appeal to DoD then if necessary to OPM.  It is my understanding we must appeal to DoD before OPM.  So, can you please provide the appropriate methodology, documentation and any pertinent information to enable us to begin an appeal to DoD?
Thanks again and happy holidays to you all!
..."
 
I havent gotten any response from my HRO since sending the reply above.
 
I will post the the MSPB decision after this
Another affected 2210 here was sent a misinformation email that stated we would retain the adjusted pay as basic pay when we transitioned back to the states.  He is getting clarification and when he receives it i will ask him if I can post it.
 
FusterCluck2011-01-04 02:11:41
FusterCluck  
#8 Posted : Monday, January 03, 2011 10:53:10 PM(UTC)
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WASHINGTON REGIONAL OFFICE
xxxxx ,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.
DOCKET NUMBER
DC-0752-10-0708-I-1
DATE: September 29, 2010
xxxxx , pro se.
 xxxx, for the agency.

BEFORE
Sarah P. Clement
Administrative Judge
INITIAL DECISION
The appellant filed an appeal alleging that he had suffered a reduction in
pay when the agency converted him from the National Security Personnel System
(NSPS) to the General Schedule (GS) pay system. For the following reasons, the
appeal is DISMISSED for lack of Board jurisdiction.
BACKGROUND
The appellant occupied an IT Specialist (Network) position in the YA02
pay band under the NSPS. On June 20, 2010, he was converted back to the GS
pay system as an IT Specialist (Network), GS-12 step 9. See Appeal File (AF),
Tabs 1, 3; see also Tab 4, Subtab 1. He alleged that since he was already a GS2
12 step 10 at the time he was converted to the NSPS pay system in November
2007, he should have been converted to a GS-13 step 6 or a GS-14 step 4 upon
his transition back to the GS system. He alleged that he has suffered a reduction
in pay as a result of his conversion back to the GS pay system, which will affect
not only his base salary but also the government’s matching contribution to his
Thrift Savings Plan account and his future retirement annuity. He asks that the
Board direct the Office of Personnel Management (OPM) and the Department of
Defense (DOD) to recalculate his grade level in accordance with the regulations
at 5 C.F.R. § 9901.372.
The agency argued that because the appellant’s basic pay actually increased
from $82,236 to $83,981 upon his conversion from NSPS to GS, he has not
suffered a reduction in pay, and the Board lacks jurisdiction to review his appeal.
ANALYSIS AND FINDINGS
It is well-established that the Board does not have jurisdiction over all
actions that are alleged to be incorrect, Marren v. Department of Justice, 49
M.S.P.R. 45, 51 (1991), and that the appellant has the burden of proving that the
Board has jurisdiction over his appeal, 5 C.F.R. § 1201.56(a)(2). The Board has
jurisdiction over a reduction in grade or pay. 5 U.S.C. § 7512. “Pay” is defined
in the applicable statute as “the rate of basic pay fixed by law or administrative
action for the position held by an employee.” 5 U.S.C. § 7511(a)(4). The
definition of “basic pay,” which prior to the passage of the Federal Workforce
Flexibility Act of 2004 did not include locality pay or other additional pay of any
kind, now includes “a GS rate, an LEO special base rate, a special rate, a locality
rate, and a retained rate.” See 5 C.F.R. § 531.203. The Board’s jurisdiction over
a claim of reduction in pay thus now requires consideration of certain additions to
basic pay, such as locality pay, because 5 C.F.R. § 752.402(f) defines “pay” in
 terms of “rate of basic pay,” and 5 C.F.R. § 531.203 now specifically defines the
term “rate of basic pay” as including locality pay.
Here, the undisputed documentary evidence shows that the appellant’s
basic pay, including locality pay, actually increased upon his conversion from the
NSPS to the GS pay system by $1745, from $82,236 to $83,981. See AF, Tabs 3
and 4, Subtab 4w. The appellant’s detailed computations showing how his future
pay will be less and how his retirement annuity will be affected by his conversion
from NSPS back to the GS system are simply not within the Board’s jurisdiction
to address or correct. The law is clear that so long as the appellant’s basic pay,
which now includes locality pay as well as other special additions to an
employee’s pay rate, was not reduced when he was converted to the new pay
system, he has not suffered a reduction in pay within the meaning of the
applicable law. See, e.g., Zajac v. Department of Agriculture, 112 M.S.P.R. 160,
162-63 (2009); Rawls v. Department of the Air Force, 104 M.S.P.R. 62, 66-67
(2006). The Board thus lacks jurisdiction to consider his claims. The appellant’s
dispute concerning the actual calculation of his pay or classification of his NSPS
position within the GS system must instead be taken up with DOD or OPM.
Because the appellant failed to raise nonfrivolous issues of fact relating to
jurisdiction, he is not entitled to a hearing in his case. See Wilson v. Merit
Systems Protection Board, 807 F.2d 1577, 1583 (Fed. Cir. 1986).
DECISION
The appeal is DISMISSED for lack of Board jurisdiction.
FOR THE BOARD: ____________/S/________________
Sarah P. Clement
Administrative Judge
NOTICE TO APPELLANT
This initial decision will become final on November 3, 2010, unless a
petition for review is filed by that date or the Board reopens the case on its own
motion. This is an important date because it is usually the last day on which you
can file a petition for review with the Board. However, if you prove that you
received this initial decision more than 5 days after the date of issuance, you may
file a petition for review within 30 days after the date you actually receive the
initial decision. If you are represented, the 30-day period begins to run upon
either your receipt of the initial decision or its receipt by your representative,
whichever comes first. You must establish the date on which you or your
representative received it. The date on which the initial decision becomes final
also controls when you can file a petition for review with the Court of Appeals
for the Federal Circuit. The paragraphs that follow tell you how and when to file
with the Board or the federal court. These instructions are important because if
you wish to file a petition, you must file it within the proper time period.
BOARD REVIEW
You may request Board review of this initial decision by filing a petition
for review. Your petition for review must state your objections to the initial
decision, supported by references to applicable laws, regulations, and the record.
You must file your petition with:
The Clerk of the Board
Merit Systems Protection Board
1615 M Street, NW.
Washington, DC 20419
A petition for review may be filed by mail, facsimile (fax), personal or
commercial delivery, or electronic filing. A petition for review submitted by
electronic filing must comply with the requirements of 5 C.F.R. § 1201.14, and
may only be accomplished at the Board's e-Appeal website
(https://e-appeal.mspb.gov).
If you file a petition for review, the Board will obtain the record in your
case from the administrative judge and you should not submit anything to the
Board that is already part of the record. Your petition must be filed with the
Clerk of the Board no later than the date this initial decision becomes final, or if
this initial decision is received by you or your representative more than 5 days
after the date of issuance, 30 days after the date you or your representative
actually received the initial decision, whichever was first. If you claim that you
and your representative both received this decision more than 5 days after its
issuance, you have the burden to prove to the Board the earlier date of receipt.
You must also show that any delay in receiving the initial decision was not due to
the deliberate evasion of receipt. You may meet your burden by filing evidence
and argument, sworn or under penalty of perjury (see 5 C.F.R. Part 1201,
Appendix 4) to support your claim. The date of filing by mail is determined by
the postmark date. The date of filing by fax or by electronic filing is the date of
submission. The date of filing by personal delivery is the date on which the
Board receives the document. The date of filing by commercial delivery is the
date the document was delivered to the commercial delivery service. Your
petition may be rejected and returned to you if you fail to provide a statement of
how you served your petition on the other party. See 5 C.F.R. § 1201.4(j). If the
petition is filed electronically, the online process itself will serve the petition on
other e-filers. See 5 C.F.R. § 1201.14(j)(1).

JUDICIAL REVIEW
If you are dissatisfied with the Board's final decision, you may file a
petition with:
The United States Court of Appeals
for the Federal Circuit
717 Madison Place, NW.
Washington, DC 20439
You may not file your petition with the court before this decision becomes final.
To be timely, your petition must be received by the court no later than 60
calendar days after the date this initial decision becomes final.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703). You may read
this law, as well as review the Board’s regulations and other related material, at
our website, http://www.mspb.gov. Additional information is available at the
court's website, www.cafc.uscourts.gov. Of particular relevance is the court's
"Guide for Pro Se Petitioners and Appellants," which is contained within the
court's Rules of Practice, and Forms 5, 6, and 11.

NOTICE TO AGENCY/INTERVENOR
The agency or intervenor may file a petition for review of this initial
decision in accordance with the Board's regulations.
itsuptoyou2  
#9 Posted : Monday, January 03, 2011 11:08:09 PM(UTC)
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I did file a Petition for Review. The whole point of the matter is the fact that upon conversion equivalent rates were not used and that is why our Base Salaries were reduced.
FusterCluck  
#10 Posted : Monday, January 03, 2011 11:30:29 PM(UTC)
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By 'equivelant rates' are you referring to locality vs SSR?

itsuptoyou2  
#11 Posted : Monday, January 03, 2011 11:48:32 PM(UTC)
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9901.372 and 531.221 both outline before any conversion, equivilent rates must be established. For example, if an employee is OCONUS as a 2210 under NSPS, he/she is only making Base Salary. Prior to the employee's actual conversion, the rate the employee's pay is converting to must be the same; in this case...NSPS Base Salary to GS Base Rate. He/she was not entitled to any Locality nor and SSR OCONUS. Therefore, the conversion of pay must reflect that. Another example for CONUS; under NSPS a 2210...he/she is making Locality. So just before conversion, the rates must be the same; NSPS with locality must be figured to a GS Locality Rate. Then once the conversion takes place, the pay established can then be moved to an SSR Pay Table. This is explicitly outlined in both regulations.
FusterCluck  
#12 Posted : Tuesday, January 04, 2011 2:38:56 PM(UTC)
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Excellent thanks for the ammo

engineer850  
#13 Posted : Thursday, June 21, 2012 12:09:32 PM(UTC)
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There has been very little posting regarding the NSPS to GS conversion mess. Have all of you had you pay corrected? If not, please see my posts under "GS to NSPS to GS mess-up" with instructions of how to get your pay fixed. I have not heard anything lately so I assume you have had your pay corrected.
deployed decoy  
#14 Posted : Monday, July 16, 2012 4:33:01 PM(UTC)
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The same MSPB judge in this thread tossed out my case.  That was before I proved OPM lied to congress on this mess in June 2010 (Charles Grimes III). Please read my post on the DoD main page, DoD wide Class Action. I have no idea how many got this corrected. One from this blog did tell me he got his back pay, sans interest or willful (double) damages. It is time we file a DoD class action. Also feel free to call Senator Akaka (he authored the law killing NSPS and was lied to by OPM in formal statement reference above) at 202.224.6361. He went to DoD for me, who farmed the reply down to Army. I have written proof from 2010 that Army G1, Jag and CPO all ordered the lawyer representing the agency in Pearson Vs Army to fight me to the death. I also have an email from Jan 2012 DoD Pay and Wage Division, my case (and several other high profile cases) were being worked in the fall of 2011. I just cannot wait to see what Army has to say now. It is time to rattle some cages, shake a few high level people from the protections they enjoy.  I hope this hurts so bad the Pentagon needs to hold bake sales to make SES payroll going forward.

deployed decoy  
#15 Posted : Monday, July 16, 2012 5:05:48 PM(UTC)
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Interesting. The MSPB case in this blog, is mine. Pretty sure any way. What the MSPB judge failed to note was Army REDUCED my final NSPS pay by just under $6,000. Then moved me into special rate table 99AF to bring me out of NSPS making more money, but losing nine years of high grade and step held in the process.  The judge told me, the lawyer representing the agency and the LTC OIC of the JAG office in one conference call. That this issue was such a problem and so many MSPB cases had been filed in Germany, that the Army Europe Chief of Personnel had formally asked MSPB to abstain from any ruling until 'BIG Army' figured it out. Big Army never did a darn thing after my case was tossed, because by default all cases across DoD were tossed. The judge did add during the last conference call, that I would have a very valid case to bring back to MSPB the minute I retire for incorrect high-3 calculations. More than a few people have received back pay. DoD Pay and Wage Division has had mine and several 'high profile' cases for a year. It is time we sue them with a class action for both violating the federal law that terminated NSPS and the CFR.  Whoever redacted my name on this MSPB case, thanks. But it is a matter of federal record and I have no fear of reprisals because I have DoD IRD inbound now over reprisals that resulted in part for this NSPS mess, as well as my getting somewhat even and reporting Fraud and Abuse...Clap

Retired Decoy  
#16 Posted : Thursday, October 24, 2013 1:30:33 AM(UTC)
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GREGGORY J. PEARSON v. DEPARTMENT OF DEFENSE Docket # DC-0752-13-0467-I-1. is now in full review in the Eastern Region of MSPB. That decision will either result in the case dismissed or a court date. DoD lawyer Steven J. Weiss, Esq., has never argued my case on merits, only that my case should have been filed against the Secretary of Army not Defense and that MSPB ruled in 2010 I had no case. Problem is in 2010 MSPB tossed everyone's cases, based on the definition of 'basic pay'. Then on 9 June 2010 OPM lied to congress on this same issue then two years later, both OPM and DoD CPMS (James Davey) refused to answer Senator Akaka in 2012 when I asked for a congress review. They waited him out, Akaka retired last Dec...That judge back in 2010 made it clear to both me and the agency that day, I would have a valid case the minute I retired based on incorrect Hi-3. I also have a sealed case I plan to open, going to cost me to do that... I'm really not in this any longer for the money. I want to see Chuck Grimes III and James Davey escorted off federal property for violating their oath of office- specifically failing to follow the law terminating NSPS. Anyone who ever received full, partial or a sealed settlement from any DoD agency or OPM concerning NSPS reconversion to GS. PLEASE tell me the story on private email.
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