B-124904, SEP. 12, 1955

B-124904: Sep 12, 1955

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VETERANS ADMINISTRATION REGIONAL OFFICE: REFERENCE IS MADE TO YOUR LETTER OF JULY 28. GATZ WAS DEMOTED ON OCTOBER 27. HE WAS PROMOTED FROM HIS GRADE GS-4 POSITION TO A POSITION IN GRADE GS-7. GATZ WAS REASSIGNED TO THE SAME TYPE OF WORK HE PREVIOUSLY HAD DONE FOR APPROXIMATELY FIVE YEARS AT THE MINIMUM STEP OF THE GRADE GS-7 POSITION. THIS ACTION PLACED HIM WITH A GROUP OF EXAMINERS DOING IDENTICAL WORK ALL OF WHOM WERE AT THE TOP STEP IN GRADE GS-7. IN EXCEPTIONAL CASES WHERE FUNDS ARE AVAILABLE AND IT HAS BEEN DETERMINED THAT UNUSUAL CIRCUMSTANCES JUSTIFY SUCH ACTION. MAY BE MADE ONLY ON THE BASIS OF THE MERITS OF INDIVIDUAL CASES AND ARE NOT TO BE MADE A PART OF THE GENERAL SALARY ADJUSTMENT POLICY OF ANY VA INSTALLATION.

B-124904, SEP. 12, 1955

TO MR. VANCE P. HILL, AUTHORIZED CERTIFYING OFFICER, VETERANS ADMINISTRATION REGIONAL OFFICE:

REFERENCE IS MADE TO YOUR LETTER OF JULY 28, 1955, YOUR REFERENCE 3067-A, TRANSMITTING A VOUCHER FOR $1,201.89 IN FAVOR OF MR. FRANK GATZ, AN EMPLOYEE OF THE VETERANS ADMINISTRATION, AND ASKING, IN EFFECT, WHETHER HIS SALARY MAY BE RETROACTIVELY ADJUSTED AS ADMINISTRATIVELY RECOMMENDED BASED UPON THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

THE RECORD SHOWS THAT BECAUSE OF A REDUCTION IN FORCE MR. GATZ WAS DEMOTED ON OCTOBER 27, 1951, FROM GRADE GS-9, $5,100 PER ANNUM, TO GRADE GS-4, $3,355 PER ANNUM. HE WAS PROMOTED FROM HIS GRADE GS-4 POSITION TO A POSITION IN GRADE GS-7, FIRST STEP, $4,205 PER ANNUM, ON MARCH 16, 1952. ON FEBRUARY 15, 1953, MR. GATZ WAS REASSIGNED TO THE SAME TYPE OF WORK HE PREVIOUSLY HAD DONE FOR APPROXIMATELY FIVE YEARS AT THE MINIMUM STEP OF THE GRADE GS-7 POSITION. THIS ACTION PLACED HIM WITH A GROUP OF EXAMINERS DOING IDENTICAL WORK ALL OF WHOM WERE AT THE TOP STEP IN GRADE GS-7, OR HAD A SAVED SALARY IN GRADE GS-9--- THE POSITION HAVING BEEN RECLASSIFIED FROM GS-9 TO GS-7. ON MARCH 31, 1955, MR. GATZ- IMMEDIATE SUPERVISOR FIRST CALLED THIS SITUATION TO THE ATTENTION OF HIS CHIEF. THAT OFFICIAL TOOK THE MATTER UP WITH THE PERSONNEL OFFICER ON JUNE 7, 1955. THE PERSONNEL OFFICER ON JUNE 17, 1955, SUBMITTED THE MATTER TO THE MANAGER OF THE REGIONAL OFFICE RECOMMENDING THAT AN ADJUSTMENT BE MADE OF MR. GATZ- SALARY RETROACTIVE TO FEBRUARY 15, 1953, UNDER THE AUTHORITY IN VETERANS ADMINISTRATION MANUAL M5-2, PART I, CHAPTER 4A.13.B/1). THAT AUTHORITY READS AS FOLLOWS:

"/1) DEVIATION FROM INSTRUCTIONS. IN EXCEPTIONAL CASES WHERE FUNDS ARE AVAILABLE AND IT HAS BEEN DETERMINED THAT UNUSUAL CIRCUMSTANCES JUSTIFY SUCH ACTION, DEVIATIONS FROM THESE INSTRUCTIONS MAY BE AUTHORIZED, WITHIN LIMITS OF DISCRETION PERMITTED BY STATUTE, CIVIL SERVICE RULES AND REGULATIONS, AND COMPTROLLER GENERAL DECISIONS, AS PROVIDED IN SUBPARAGRAPH (A) BELOW. SUCH DEVIATION, HOWEVER, MAY BE MADE ONLY ON THE BASIS OF THE MERITS OF INDIVIDUAL CASES AND ARE NOT TO BE MADE A PART OF THE GENERAL SALARY ADJUSTMENT POLICY OF ANY VA INSTALLATION. AUTHORITY TO DEVIATE IS RESTRICTED SOLELY TO PERSONS DESIGNATED BELOW AND IS NOT TO BE FURTHER DELEGATED BY THEM. DEVIATIONS WILL BE AUTHORIZED IN WRITING AND A COPY FILED IN THE EMPLOYEE'S PERSONNEL FOLDER. THE APPROPRIATE SF 52, REQUEST FOR PERSONNEL ACTION, MAY BE USED FOR THIS PURPOSE.'

ON JUNE 27, 1955, THE MANAGER APPROVED THE RECOMMENDATION. AT THE TIME OF MR. GATZ- REASSIGNMENT ON FEBRUARY 15, 1953, THE POLICY OF THE VETERANS ADMINISTRATION, ACCORDING TO THE ABOVE REFERRED-TO MANUAL, WAS TO EXTEND TO REASSIGNED EMPLOYEES THE PRINCIPLE OF THE HIGHEST PREVIOUS RATE RULE. FURTHER, THE INSTRUCTIONS IN THAT MANUAL SHOW THAT INITIAL SALARIES FIXED BY VA INSTALLATIONS AT STEP RATES LOWER THAN AUTHORIZED UNDER THESE INSTRUCTIONS ARE TO BE ADJUSTED RETROACTIVELY TO THE APPROPRIATE STEP RATE CONSISTENT WITH DECISIONS OF THE COMPTROLLER GENERAL.

IN OUR DECISIONS WE HAVE CONSISTENTLY HELD THAT WHERE, UPON A PROPER SHOWING, AN ADMINISTRATIVE ERROR HAS BEEN MADE AT THE TIME OF TRANSFER, REEMPLOYMENT, ETC., IN FIXING AN EMPLOYEE'S SALARY AT THE MINIMUM RATE INSTEAD OF AT THE HIGHEST RATE HE HAD PREVIOUSLY EARNED, RETROACTIVE SALARY ADJUSTMENTS MAY BE MADE PROVIDED SUCH ACTION IS NOT PRECLUDED BY ADMINISTRATIVE REGULATIONS, PRACTICE, OR POLICY. SEE 34 COMP. GEN. 380; 32 ID. 211; 31 ID. 15; 26 ID. 368.

WHILE THIS CASE CONCERNS A REASSIGNMENT TO A FORMER POSITION AFTER A DOWNGRADING, WE SEE NO BASIS FOR NOT APPLYING HERE THE ABOVE PRINCIPLE. THEREFORE, SINCE AT THE TIME OF REASSIGNMENT IT WAS THE ADMINISTRATIVE POLICY TO ACCORD EMPLOYEES THE BENEFITS OF THE HIGHEST PREVIOUS RATE RULE, AND SINCE IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT AN ADMINISTRATIVE ERROR WAS MADE IN NOT EXTENDING THAT PRINCIPLE TO THE EMPLOYEE HERE INVOLVED UPON HIS REASSIGNMENT BACK TO A FORMER POSITION ON FEBRUARY 15, 1953, WE WILL RAISE NO OBJECTION TO THE RETROACTIVE ADJUSTMENT HERE PROPOSED.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IN THE ABSENCE OF OTHER OBJECTION.