B-193551, AUG 13, 1979

B-193551, AUG 13, 1979

DIGEST: EMPLOYEE WAS DETAILED TO HIGHER LEVEL POSITION ON SEVERAL OCCASIONS FOR VARYING PERIODS. HE IS ONLY ENTITLED TO RETROACTIVE TEMPORARY PROMOTION FOR EACH INDIVIDUAL DETAIL WHICH LASTED FOR MORE THAN 120 DAYS. EACH DETAIL IS TREATED AS A SEPARATE AND DISTINCT PERSONNEL ACTION.

LOUIS L. JACKSON, SR. - DETAIL TO HIGHER GRADE POSITION:

THIS ACTION IS TAKEN PURSUANT TO A REQUEST FOR RECONSIDERATION OF THE DENIAL ON OCTOBER 6, 1978, BY OUR CLAIMS DIVISION OF THE PORTION OF A CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR THE PERIOD JANUARY 1974 THROUGH JULY 1975, BY MR. LOUIS L. JACKSON, SR., AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, SAN ANTONIO AIR LOGISTICS CENTER.

MR. JACKSON WAS EMPLOYED AT KELLY AIR FORCE BASE, TEXAS, AS A WG-10 OFFSET PRESS OPERATOR. MR. JACKSON CLAIMS THAT FOR A CONTINUOUS 10 MONTH PERIOD DURING THE 18-MONTH PERIOD OF JANUARY 1974 AND AUGUST 1975, HE PERFORMED THE DUTIES OF A WG-12 OFFSET PRESS OPERATOR. HOWEVER, HE HAS NOT STATED WHEN THE 10-MONTH PERIOD BEGAN OR ENDED. MOREOVER, ALTHOUGH THE CLAIMANT HAS INDICATED THAT HE MAINTAINED A RECORD ON HIS CALENDAR OF THE DATES HE DID PERFORM THE WG-12 DUTIES, HE HAS NOT FURNISHED SUCH EVIDENCE TO OUR OFFICE. INSTEAD HE HAS PROVIDED A STATEMENT, CERTIFIED BY HIS SUPERVISOR, THAT HE DID PERFORM THE DUTIES OF A WG-12 OFFSET PRESS OPERATOR FOR A CUMULATIVE TOTAL OF 10 MONTHS DURING THE 18-MONTH PERIOD FROM JANUARY 1974 THROUGH JULY 1975. THE CLAIM FOR THE PERIOD OF DETAIL WAS DENIED BECAUSE IT IS THE AIR FORCE'S POSITION THAT NO PERIOD DURING THE 18 MONTHS IN QUESTION EXCEEDED 120 DAYS. IT REPORTS THAT MR. JACKSON PERFORMED THE WG-12 DUTIES FOR ABOUT 3 MONTHS FROM DECEMBER 1974 UNTIL MARCH 1975, AND THE REMAINDER OF MR. JACKSON'S PERFORMANCE AT THE WG-12 LEVEL WAS ON AN INTERMITTENT BASIS "USUALLY FOR ONE OR TWO DAYS AT A TIME, BUT SELDOM MORE THAN A WEEK AT A TIME."

IN OUR TURNER-CALDWELL DECISION, 55 COMP.GEN. 539 (1975), AFFIRMED AT 56 ID. 427 (1977), WE HELD THAT AN AGENCY'S DISCRETIONARY AUTHORITY TO RETAIN AN EMPLOYEE ON DETAIL TO A HIGHER GRADE POSITION CONTINUES NO LONGER THAN 120 DAYS AND THE AGENCY MUST EITHER SEEK PRIOR APPROVAL OF THE CIVIL SERVICE COMMISSION FOR AN EXTENSION OF THE DETAIL OR TEMPORARILY PROMOTE THE DETAILED EMPLOYEE AT THE END OF THE SPECIFIED TIME PERIOD. WHERE AN AGENCY FAILS TO SEEK PRIOR APPROVAL OF THE COMMISSION TO EXTEND AN EMPLOYEE'S DETAIL PERIOD IN A HIGHER GRADE POSITION PAST 120 DAYS, THE AGENCY HAS A MANDATORY DUTY TO AWARD THE EMPLOYEE A TEMPORARY PROMOTION IF HE CONTINUES TO PERFORM THE HIGHER GRADE POSITION. WE HAVE ALSO HELD THAT AN EMPLOYEE WHO WAS DETAILED TO A HIGHER LEVEL POSITION ON SEVERAL OCCASIONS FOR VARYING PERIODS WAS ONLY ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION FOR EACH INDIVIDUAL DETAIL WHICH LASTED MORE THAN 120 DAYS. WILLIAM G. ATHERTON, B-173783.200, JULY 31, 1978.

IN THE INSTANT CASE MR. JACKSON ALLEGES THAT HE SERVED A CONTINUOUS DETAIL OF 10 MONTHS, BUT THE AGENCY STATES THAT HE DID NOT. THUS, THE FACTS AS PRESENTED BY THE EMPLOYEE AND THE AGENCY ARE IN DIRECT CONFLICT. THIS OFFICE DOES NOT CONDUCT ADVERSARY HEARINGS IN ADJUDICATING CLAIMS BUT DECIDES THEM ON THE BASIS OF THE WRITTEN RECORD PRESENTED TO US BY THE PARTIES. WHEN THE RECORD CONTAINS A DISPUTE OF FACT WHICH CANNOT BE RESOLVED WITHOUT AN ADVERSARY PROCEEDING, IT IS THE LONG-STANDING PRACTICE OF THIS OFFICE TO RESOLVE THE MATTER IN FAVOR OF THE GOVERNMENT. B-167782, JANUARY 21, 1970; B-188461, DECEMBER 20, 1977.

IN VIEW OF THE ABOVE THE DISALLOWANCE BY OUR CLAIMS DIVISION IS AFFIRMED.