B-124419, SEPTEMBER 20, 1955, 35 COMP. GEN. 153

B-124419: Sep 20, 1955

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CLASSIFICATION OF CIVILIAN POSITIONS - APPEAL FROM DOWNGRADING - RETROACTIVE CORRECTIVE ACTION TO HIGHER GRADE WHERE ON APPEAL OF THE DOWNGRADING OF A POSITION FROM GRADE GS-8 TO GS-7 IT WAS DETERMINED THAT THE POSITION SHOULD BE RECLASSIFIED AS GRADE GS-9. THE EMPLOYEE IS ENTITLED TO RETROACTIVE CORRECTIVE ACTION ONLY TO THE EXTENT OF RESTORATION TO THE LEVEL OF THE GRADE FROM WHICH DEMOTED. REPLY WAS MADE TO THE NOTICE OF EXCEPTION STATED BY OUR AUDIT DIVISION AGAINST YOU AS CERTIFYING OFFICER ON D/O VOUCHER NO. 602998. THE BASIS FOR THE EXCEPTION WAS THAT SUCH PAYMENT WAS CONTRARY TO THE ESTABLISHED RULE AGAINST RETROACTIVE PROMOTIONS. WAS ADMINISTRATIVELY REALLOCATED DOWNWARD FROM GS-8 TO GS-7 EFFECTIVE NOVEMBER 29.

B-124419, SEPTEMBER 20, 1955, 35 COMP. GEN. 153

CLASSIFICATION OF CIVILIAN POSITIONS - APPEAL FROM DOWNGRADING - RETROACTIVE CORRECTIVE ACTION TO HIGHER GRADE WHERE ON APPEAL OF THE DOWNGRADING OF A POSITION FROM GRADE GS-8 TO GS-7 IT WAS DETERMINED THAT THE POSITION SHOULD BE RECLASSIFIED AS GRADE GS-9, THE EMPLOYEE IS ENTITLED TO RETROACTIVE CORRECTIVE ACTION ONLY TO THE EXTENT OF RESTORATION TO THE LEVEL OF THE GRADE FROM WHICH DEMOTED, AND RESTORATION TO GRADE GS-9 CONSTITUTES A PROMOTION WHICH CAN BE EFFECTIVE ONLY FROM THE DATE OF THE ADMINISTRATIVE ACTION.

TO G. M. GHIORSE, DEPARTMENT OF THE ARMY, SEPTEMBER 20, 1955:

ON MAY 27, 1955, REPLY WAS MADE TO THE NOTICE OF EXCEPTION STATED BY OUR AUDIT DIVISION AGAINST YOU AS CERTIFYING OFFICER ON D/O VOUCHER NO. 602998, ACCOUNT OF J. H. COMINGS, INVOLVING A PAYMENT TO MRS. PHILOMENA D. TASSA OF COMPENSATION IN EXCESS OF THAT APPLICABLE TO GS-8 FOR THE PERIOD NOVEMBER 29, 1953, THROUGH APRIL 3, 1954. THE EXCESS PAYMENT AMOUNTED TO $65.79, AND THE BASIS FOR THE EXCEPTION WAS THAT SUCH PAYMENT WAS CONTRARY TO THE ESTABLISHED RULE AGAINST RETROACTIVE PROMOTIONS, CITING 30 COMP. GEN. 156 IN SUPPORT OF THE AUDIT ACTION.

THE POSITION OF MRS. PHILOMENA D. TASSA, WAS ADMINISTRATIVELY REALLOCATED DOWNWARD FROM GS-8 TO GS-7 EFFECTIVE NOVEMBER 29, 1953. ON APPEAL WITHIN 30 DAYS, AND AFTER REVIEW BY THE BOARD OF JOB EVALUATION APPEALS OF THE DEPARTMENT OF THE ARMY, THE DEPARTMENT DETERMINED THAT THE POSITION PROPERLY SHOULD BE RECLASSIFIED TO GS-9. BY NOTIFICATION OF PERSONNEL ACTION DATED APRIL 15, 1954, THE EMPLOYEE WAS PROMOTED TO GRADE GS-9 RETROACTIVELY EFFECTIVE TO NOVEMBER 29, 1953, AND THE DIFFERENCE IN SALARY BETWEEN $4,955 AND $5,560 FROM NOVEMBER 29, 1953, THROUGH APRIL 3, 1954, WAS INCLUDED IN HER SALARY CHECK FOR THE PAY PERIOD APRIL 14, TO 17, 1954.

THE REFERRED-TO REPLY OF MAY 27, 1955, CITES P2 PAGES 18 AND 23, OF FEDERAL PERSONNEL MANUAL, AND CIVILIAN PERSONNEL REGULATIONS OF THE ARMY N1.3-9C AND N1.6-4D, AS AUTHORITY FOR THE PERSONNEL ACTION. THE CONTENTIONS SET OUT IN THE REPLY WERE REFERRED TO THE CIVIL SERVICE COMMISSION FOR ITS VIEWS REGARDING THE CORRECTNESS OF THE ADMINISTRATIVE ACTION IN RELYING UPON THE REFERRED-TO REGULATION AS SUPPORT FOR THE PERSONNEL ACTION TAKEN HERE. IN LETTER OF AUGUST 30, 1955, THE COMMISSION REPORTED, IN PART, AS FOLLOWS:

THE FEDERAL PERSONNEL MANUAL PROVISIONS IN QUESTION RELATE TO POSITION CLASSIFICATION APPEALS AND CORRECTIVE ACTION RAISING THE GRADE OF POSITIONS EFFECTIVE RETROACTIVELY TO THE DATE WHEN THE GRADE WAS ERRONEOUSLY LOWERED. UNDER THE FEDERAL EMPLOYEES PAY REGULATIONS, PART 25, SECTION 25.104 (B), WHEN A CLASSIFICATION CORRECTION IS MADE EFFECTIVE RETROACTIVELY AS TO THE POSITION, CORRECTIVE PERSONNEL ACTION AS TO THE EMPLOYEE CONCERNED IS TERMED A CANCELLATION OR CORRECTION, AS THE CASE MAY BE, OF THE ORIGINAL ACTION OF DEMOTION, AND THE EMPLOYEE SHALL BE ENTITLED TO RETROACTIVE PAY IN ACCORDANCE WITH THE TERMS OF THE CORRECTIVE ACTION.

A PROMOTION OF THE EMPLOYEE BEYOND THE REQUIREMENTS OF CORRECTING A DOWNGRADING IS NOT WITHIN THE SCOPE OF THIS REGULATION. THE FEDERAL PERSONNEL MANUAL CHAPTER P2 PROVISIONS UNDER DISCUSSION ARE APPLICABLE ONLY TO ADMINISTRATIVE APPEALS OF DOWNGRADINGS WHERE THE GRADES OF POSITIONS ARE RAISED TO THE ORIGINAL OR AN INTERMEDIATE GRADE. THIS CONCLUSION IS IN LINE WITH THE DECISION IN 27 COMP. GEN. 63. THE PROVISIONS OF CHAPTER P2 ARE THEREFORE INAPPLICABLE TO SITUATIONS WHERE THE ORIGINAL GRADE IS RAISED TO A HIGHER GRADE WHICH REQUIRES A PROMOTION OF THE EMPLOYEE.

THE COMMISSION FURTHER REPORTED THAT "APPROPRIATE CLARIFICATIONS AND REVISIONS" OF THE CIVIL SERVICE REGULATIONS "ARE BEING CONSIDERED.'

THE CIVILIAN PERSONNEL REGULATIONS OF THE ARMY CITED IN THE REPLY CORRECTLY RECOGNIZE THE SITUATION HERE AS A PROMOTION AND PROPERLY HOLD THAT "CORRECTIVE ACTION" ENTITLES THE EMPLOYEE TO RETROACTIVE COMPENSATION; BUT THE CORRECTIVE ACTION IN THIS CASE COULD EXTEND ONLY TO THE ACTION APPEALED FROM, THAT IS, THE DOWNGRADING FROM GS-8 TO GS 7, AND THE CORRECTION OF THAT ACTION PROPERLY WAS RETROACTIVE ONLY TO THE EXTENT THAT THE EMPLOYEE WAS RESTORED TO THE LEVEL OF THE GRADE FROM WHICH DEMOTED. THE RESTORATION TO A HIGHER GRADE CONSTITUTED A PROMOTION WHICH COULD BE MADE EFFECTIVE ONLY FROM THE DATE OF THE ADMINISTRATIVE ACTION. 27 COMP. GEN. 63., 30 ID. 156.

ACCORDINGLY, THE AUDIT EXCEPTION HERE WAS PROPERLY TAKEN AND UPON REVIEW THAT ACTION IS SUSTAINED.