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B-175279, DEC 11, 1972

B-175279 Dec 11, 1972
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PENTICOFF: THIS IS IN REFERENCE TO YOUR LETTER OF AUGUST 10. WE UNDERSTAND IT IS YOUR CONTENTION THAT THE POSITION WHICH WAS OFFICIALLY CLASSIFIED ON JULY 1. IF SUCH WERE THE CASE. THE NAVY WOULD NOT HAVE BEEN UNDER AN OBLIGATION TO PROMOTE YOU TO THAT POSITION OR OTHERWISE TO REMOVE YOU THEREFROM. UNDER WHICH CIRCUMSTANCES THE NAVY WOULD HAVE BEEN OBLIGED TO PROMOTE YOU OR TO TAKE APPROPRIATE ACTION TO REMOVE YOU FROM THAT POSITION AS EXPLAINED IN MR. AS WE HAVE EXPLAINED AND AS YOU APPARENTLY RECOGNIZE. TO RECLASSIFY YOUR PARTICULAR POSITION WAS NEVER FINALLY APPROVED. YOU FEEL THAT THIS ACTION ALSO RECLASSIFIED YOUR POSITION INASMUCH AS YOU WERE PERFORMING THE DUTIES REFERRED TO IN THE POSITION DESCRIPTION OF THE NEWLY CLASSIFIED POSITION.

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B-175279, DEC 11, 1972

CIVILIAN PERSONNEL - BACK PAY - POSITION RECLASSIFICATION - NON PROMOTION DECISION AFFIRMING THE DENIAL OF THE CLAIM OF ROBERT B. PENTICOFF, FOR ADDITIONAL PAY ALLEGED TO BE DUE BECAUSE OF THE FAILURE OF THE DEPARTMENT OF THE NAVY TO PROMOTE HIM AFTER RECLASSIFICATION OF THE POSITION HE OCCUPIED. TO QUALIFY FOR BACK PAY UNDER 5 U.S.C. 5596(B) THERE MUST BE A CORRECTION OF THE PERSONNEL ACTION UNDER WHICH THE EMPLOYEE HAS SUFFERED A LOSS OF COMPENSATION.

TO MR. ROBERT B. PENTICOFF:

THIS IS IN REFERENCE TO YOUR LETTER OF AUGUST 10, 1972, EXPRESSING YOUR CONCERN THAT OUR LETTER, B-175279 OF JULY 17, 1972, AFFIRMING THE DISALLOWANCE OF YOUR CLAIM BY OUR TRANSPORTATION AND CLAIMS DIVISION, DID NOT GIVE FULL CONSIDERATION TO THE POINTS RAISED IN YOUR LETTER OF APRIL 28, 1972. YOUR CLAIM INVOLVES ADDITIONAL PAY ALLEGED TO BE DUE BECAUSE OF THE FAILURE OF THE DEPARTMENT OF THE NAVY TO PROMOTE YOU AFTER RECLASSIFICATION OF THE POSITION WHICH YOU OCCUPIED.

WE UNDERSTAND IT IS YOUR CONTENTION THAT THE POSITION WHICH WAS OFFICIALLY CLASSIFIED ON JULY 1, 1966, ALTHOUGH IT DID NOT PURPORT TO CLASSIFY YOUR PARTICULAR POSITION, IN FACT INCLUDED THE SAME DUTIES AS DID THE POSITION DESCRIPTION OF THE POSITION WHICH YOU HELD.

THE DEPARTMENT OF THE NAVY APPARENTLY CONSIDERS THAT BY ITS ACTION OF JULY 1, 1966, IT CREATED A NEW AND VACANT POSITION RATHER THAN THE RECLASSIFICATION OF AN OLD AND OCCUPIED POSITION. IF SUCH WERE THE CASE, THE NAVY WOULD NOT HAVE BEEN UNDER AN OBLIGATION TO PROMOTE YOU TO THAT POSITION OR OTHERWISE TO REMOVE YOU THEREFROM. THE CIVIL SERVICE COMMISSION THROUGH ITS GENERAL COUNSEL, ANTHONY L. MONDELLO, TAKES THE DIFFERENT VIEW THAT THE NAVY'S ACTIONS ON FEBRUARY 3, 1966 (OR JULY 1, 1966, AS LATER CONCEDED) APPEARED TO RECLASSIFY YOUR OCCUPIED POSITION, UNDER WHICH CIRCUMSTANCES THE NAVY WOULD HAVE BEEN OBLIGED TO PROMOTE YOU OR TO TAKE APPROPRIATE ACTION TO REMOVE YOU FROM THAT POSITION AS EXPLAINED IN MR. MONDELLO'S LETTER TO YOU OF APRIL 15, 1970.

AS WE HAVE EXPLAINED AND AS YOU APPARENTLY RECOGNIZE, THE PROPOSED ACTION OF FEBRUARY 3, 1966, TO RECLASSIFY YOUR PARTICULAR POSITION WAS NEVER FINALLY APPROVED. THE NAVY DID APPARENTLY CLASSIFY THE POSITION HELD BY MR. HILTON, EFFECTIVE JULY 1, 1966. YOU FEEL THAT THIS ACTION ALSO RECLASSIFIED YOUR POSITION INASMUCH AS YOU WERE PERFORMING THE DUTIES REFERRED TO IN THE POSITION DESCRIPTION OF THE NEWLY CLASSIFIED POSITION. ALSO, YOU INDICATE THAT THE ACTION IN REASSIGNING YOU TO ANOTHER GS-11 POSITION ON AUGUST 28, 1966, WAS INEFFECTIVE BECAUSE YOU PERFORMED THE SAME DUTIES AND RECEIVED NO MORE SUPERVISION THAN MR. HILTON WHO WAS IN THE GRADE GS-12 POSITION AT THAT TIME.

AT THE TIME OF EITHER OR BOTH OF THE ACTIONS AFFECTING YOUR POSITION ON JULY 1, 1966, AND ON AUGUST 28, 1966, AND AFFECTING MR. HILTON'S POSITION ON JULY 1, 1966, YOU SHOULD PROPERLY HAVE FILED AN APPEAL WITH THE CIVIL SERVICE COMMISSION AND HAD YOU DONE SO, THEY MAY WELL HAVE FOUND THAT THE NAVY'S ACTION ON JULY 1, 1966, SHOULD HAVE BEEN REGARDED AS A RECLASSIFICATION OF YOUR POSITION. IN THAT EVENT WE ASSUME YOU WOULD HAVE BEEN PLACED IN THE GS-12 POSITION. HOWEVER, YOU NEGLECTED TO APPEAL IN A TIMELY MANNER AND AS MR. MONDELLO ADVISED YOU IN HIS LETTER OF APRIL 15, 1970, "YOU HAVE NO RIGHT TO APPEAL TO THE COMMISSION AT THIS TIME." UNDER THE CIRCUMSTANCES WE ARE UNABLE TO SAY THAT THE DETERMINATIONS OF THE NAVY DEPARTMENT THAT YOUR POSITION WAS NOT RECLASSIFIED TO GRADE GS-12 ON JULY 1, 1966, AND THAT YOU DID NOT OCCUPY A GRADE GS-12 POSITION AFTER AUGUST 28, 1966, WERE IMPROPER. THAT WAS A FUNCTION OF THE CIVIL SERVICE COMMISSION WHO HAS DECLINED TO ASSUME JURISDICTION IN THE MATTER.

THE GENERAL COUNSEL OF THE CIVIL SERVICE COMMISSION IN RECOMMENDING THAT YOU FILE A CLAIM WITH THIS OFFICE FURTHER SUGGESTED THAT IF YOU WERE REGARDED AS OCCUPYING A GRADE GS-12 POSITION ON AUGUST 28, 1966, THEN THE FACT THAT THE PROPER PROCEDURES WERE NOT FOLLOWED IN REASSIGNING YOU TO ANOTHER GS-11 POSITION MIGHT BE A BASIS FOR YOUR CLAIM FOR BACK PAY AFTER THAT DATE. WE ASSUME MR. MONDELLO IS REFERRING TO BACK PAY UNDER THE PROVISIONS OF 5 U.S.C. 5596(B) WHICH PROVIDES AS FOLLOWS:

"(B) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE -

"(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD ***"

TO QUALIFY FOR BACK PAY UNDER THE ABOVE PROVISIONS OF LAW THERE MUST BE A CORRECTION OF THE PERSONNEL ACTION UNDER WHICH AN EMPLOYEE HAS SUFFERED A LOSS OF COMPENSATION. THIS DID NOT OCCUR IN YOUR CASE AND AS PREVIOUSLY INDICATED WAS NOT CONSIDERED BY YOUR AGENCY OR THE CIVIL SERVICE COMMISSION DUE TO YOUR FAILURE TO APPEAL THEREFROM.

IN THE LIGHT OF THE FOREGOING WE MUST AGAIN DENY YOUR CLAIM FOR ADDITIONAL COMPENSATION.

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