B-125295, NOVEMBER 2, 1955, 35 COMP. GEN. 262

B-125295: Nov 2, 1955

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COMPENSATION - FOREIGN SERVICE - INITIAL SALARY RATES - RETROACTIVE ADJUSTMENT SECTION 413 (B) OF THE FOREIGN SERVICE ACT OF 1946 RELATING TO THE APPOINTMENT OF FOREIGN SERVICE OFFICERS AT RATES OF COMPENSATION ABOVE THE MINIMUM OF THE CLASS IS NOT MANDATORY. HOWEVER WHERE FOREIGN SERVICE OFFICER APPOINTMENTS WERE MADE. NO RETROACTIVE SALARY ADJUSTMENT IS AUTHORIZED. WE UNDERSTAND THAT EACH OF THE OFFICERS INVOLVED WAS A FOREIGN SERVICE STAFF OFFICER WHO PRIOR TO HIS APPOINTMENT IN THE FOREIGN SERVICE OFFICER CORPS HAD BEEN RECOMMENDED FOR PROMOTION BY FOREIGN SERVICE STAFF CORPS REVIEW PANELS WHICH WERE IN SESSION ON AUGUST 1. WERE NOT IN THE PERSONNEL FILES OF THE OFFICERS CONCERNED AT THE TIME OF THEIR APPOINTMENTS IN THE FOREIGN SERVICE CORPS.

B-125295, NOVEMBER 2, 1955, 35 COMP. GEN. 262

COMPENSATION - FOREIGN SERVICE - INITIAL SALARY RATES - RETROACTIVE ADJUSTMENT SECTION 413 (B) OF THE FOREIGN SERVICE ACT OF 1946 RELATING TO THE APPOINTMENT OF FOREIGN SERVICE OFFICERS AT RATES OF COMPENSATION ABOVE THE MINIMUM OF THE CLASS IS NOT MANDATORY, BUT AUTHORIZES THE EXERCISE OF ADMINISTRATIVE DISCRETION IN FIXING EXCESS RATES AND UNDER THE REGULATIONS THE APPOINTING AUTHORITY MAY CONSIDER PROMOTION RECOMMENDATIONS OF THE STAFF CORPS REVIEW PANELS, HOWEVER WHERE FOREIGN SERVICE OFFICER APPOINTMENTS WERE MADE, AND THE INITIAL SALARIES FIXED AT THE MINIMUM OF THE CLASS WITHOUT REGARD TO THE REVIEW PANEL'S PROMOTION RECOMMENDATIONS, NO RETROACTIVE SALARY ADJUSTMENT IS AUTHORIZED.

TO THE SECRETARY OF STATE, NOVEMBER 2, 1955:

YOUR ASSISTANT SECRETARY'S LETTER OF AUGUST 18, 1955, REQUESTS OUR DECISION AS TO THE PROPRIETY OF RETROACTIVE ADJUSTMENTS OF SALARY IN THE CASE OF CERTAIN OFFICIALS APPOINTED AS FOREIGN SERVICE OFFICERS UNDER THE INTEGRATION PROGRAM OF THE SECRETARY OF STATE'S PUBLIC COMMITTEE ON PERSONNEL.

WE UNDERSTAND THAT EACH OF THE OFFICERS INVOLVED WAS A FOREIGN SERVICE STAFF OFFICER WHO PRIOR TO HIS APPOINTMENT IN THE FOREIGN SERVICE OFFICER CORPS HAD BEEN RECOMMENDED FOR PROMOTION BY FOREIGN SERVICE STAFF CORPS REVIEW PANELS WHICH WERE IN SESSION ON AUGUST 1, 1954. THE REVIEW PANEL PROMOTION RECOMMENDATIONS, HOWEVER, WERE NOT IN THE PERSONNEL FILES OF THE OFFICERS CONCERNED AT THE TIME OF THEIR APPOINTMENTS IN THE FOREIGN SERVICE CORPS. THEREFORE, SUCH RECOMMENDATIONS WERE NOT TAKEN INTO CONSIDERATION IN FIXING THE INITIAL SALARY RATES UPON THE APPOINTMENT OF SUCH OFFICERS IN THE FOREIGN SERVICE CORPS. WE UNDERSTAND THAT IN EACH CASE THE SALARY FOR WHICH THE INDIVIDUAL WAS QUALIFIED ON THE BASIS OF THE PROMOTION RECOMMENDATIONS OF THE STAFF CORPS REVIEW PANELS EXCEEDED THE SALARY STEP AT WHICH HE WAS APPOINTED. YOUR DEPARTMENT THEREFORE IS OF THE OPINION THAT THE SALARY OF EACH OF THE INDIVIDUALS CONCERNED SHOULD BE ADJUSTED RETROACTIVELY TO REFLECT THE PROMOTION RECOMMENDATIONS OF THE FOREIGN SERVICE STAFF CORPS REVIEW PANELS. IN SUPPORT OF SUCH VIEW, YOUR ASSISTANT SECRETARY'S LETTER RELIES UPON PARAGRAPH 13 OF THE REGULATIONS OF THE BOARD OF EXAMINERS FOR THE FOREIGN SERVICE, REVISED AUGUST 5, 1954. SUCH PARAGRAPH IS AS FOLLOWS:

EACH CANDIDATE CERTIFIED FOR APPOINTMENT AS FOREIGN SERVICE OFFICER OR RECOMMENDED FOR APPOINTMENT AS FOREIGN SERVICE RESERVE OFFICER SHALL BE CERTIFIED OR RECOMMENDED FOR A CLASS APPROPRIATE IN CONSIDERATION OF HIS AGE, QUALIFICATIONS AND EXPERIENCE WHICH WILL PERMIT COMPENSATION AT LEAST SUBSTANTIALLY EQUIVALENT TO THAT RECEIVED AS OF AUGUST 1, 1954 OR DURING THE GREATER PART OF THE PERIOD REQUIRED UNDER SECTION 517 OF THE FOREIGN SERVICE ACT OF 1946 FOR ESTABLISHING ELIGIBILITY FOR CONSIDERATION, WHICHEVER IS THE HIGHER. CONSIDERATION WILL BE GIVEN TO THE RECOMMENDATIONS OF THE FOREIGN SERVICE STAFF CORPS REVIEW PANELS WHICH WERE IN SESSION ON AUGUST 1, 1954.

THE STATUTORY AUTHORITY FOR APPOINTMENT OF OFFICERS IN CLASSES 1 THROUGH 5 OF THE FOREIGN SERVICE CORPS WITH SALARIES ABOVE THE MINIMUM RATE OF THE CLASS TO WHICH APPOINTED IS THAT CONTAINED IN THE ACT OF AUGUST 31, 1954, 68 STAT. 1051, 22 U.S.C. 868. THAT STATUTE IS MERELY PERMISSIVE IN REGARD TO THE APPOINTMENT OF A LIMITED NUMBER OF FOREIGN SERVICE OFFICERS AT RATES ABOVE THE MINIMUM RATES OF THE CLASSES TO WHICH APPOINTED AND IT DOES NOT MANDATORILY PRESCRIBE COMPENSATION RATES IN EXCESS OF THE MINIMUM FOR THE CLASS OF ANY OFFICER APPOINTED UNDER ITS PROVISIONS. THE LAW AUTHORIZES THE EXERCISE OF ADMINISTRATIVE DISCRETION IN THAT REGARD AND THE QUESTION HERE IS WHETHER THAT DISCRETION HAS BEEN EXERCISED.

THE REGULATIONS OF THE BOARD OF EXAMINERS FOR THE FOREIGN SERVICE DO NOT REQUIRE THE SALARY ADJUSTMENTS REFERRED TO; THEY MERELY PROVIDE THAT CONSIDERATION WILL BE GIVEN TO THE RECOMMENDATIONS OF THE STAFF CORPS REVIEW PANELS IN FIXING THE ENTRANCE SALARY UPON APPOINTMENT IN THE FOREIGN SERVICE CORPS. IT IS OUR UNDERSTANDING AFTER DISCUSSING THE MATTER INFORMALLY WITH A REPRESENTATIVE OF YOUR DEPARTMENT THAT, WHILE THE STAFF CORPS REVIEW PANEL MAY MAKE RECOMMENDATIONS FOR PROMOTIONS OF STAFF CORPS OFFICERS, SUCH RECOMMENDATIONS ARE NOT REQUIRED TO BE FOLLOWED BY THE APPOINTING AUTHORITY. IF THE OFFICERS INVOLVED HAD NOT BEEN TRANSFERRED TO THE FOREIGN SERVICE CORPS THERE IS NO ASSURANCE THAT THEY WOULD HAVE RECEIVED PROMOTIONS IN THE STAFF CORPS ON THE BASIS OF THE PANEL'S RECOMMENDATIONS. THUS, EVEN IF THE PANEL RECOMMENDATIONS HAD BEEN CONSIDERED INCIDENT TO THE APPOINTMENT OF THE AFFECTED PERSONNEL TO THE FOREIGN SERVICE OFFICER CORPS, IT IS NOT CLEAR THAT THEIR SALARIES WOULD HAVE BEEN ADJUSTED UPWARD IN CONSONANCE WITH SUCH RECOMMENDATIONS. ACCORDINGLY, WE MUST CONCLUDE THAT THE PERSONNEL INVOLVED HAVE NO RIGHT UNDER THE QUOTED REGULATION TO RETROACTIVE SALARY ADJUSTMENTS.