B-127746, APR. 23, 1957

B-127746: Apr 23, 1957

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DELLIS QUALIFIED ON A SUBSTITUTE CLERK CARRIER EXAMINATION BUT IN SETTING UP THE REGISTER THE REGIONAL OFFICE OF THE CIVIL SERVICE COMMISSION GAVE HIM A 5-POINT VETERANS' PREFERENCE INSTEAD OF THE 10-POINT PREFERENCE TO WHICH HE WAS ENTITLED. AS A RESULT HE WAS PLACED LOWER ON THE REGISTER AND WAS APPOINTED AS A CAREER SUBSTITUTE CLERK FEBRUARY 16. HE WOULD HAVE BEEN REACHED FOR THE APPOINTMENT AS SUBSTITUTE ON SEPTEMBER 28. WHEN THE MILWAUKEE POST OFFICE WAS TRANSFERRED TO THE JURISDICTION OF THE POST OFFICE DEPARTMENT'S MINNEAPOLIS REGIONAL OFFICE IT WAS DETERMINED THAT THE ADJUSTMENTS MADE BY THE CHICAGO REGIONAL OFFICE WERE IMPROPER. DELLIS' SERVICE RECORDS WERE CORRECTED TO THE DATES OF HIS ORIGINAL APPOINTMENTS AS SUBSTITUTE AND REGULAR CLERK RESPECTIVELY.

B-127746, APR. 23, 1957

TO THE POSTMASTER GENERAL:

ON MARCH 6, 1957, THE DEPUTY POSTMASTER GENERAL, REQUESTED OUR DECISION WHETHER CERTAIN RETROACTIVE CHANGES IN THE STATUS OF LAWRENCE J. DELLIS, A CLERK IN THE MILWAUKEE, WISCONSIN, POST OFFICE MAY BE PERMITTED TO STAND OR, IF NOT, WHETHER HE MAY BE RELIEVED UNDER 5 U.S.C. 383 FROM REFUNDING THE ADDITIONAL COMPENSATION ERRONEOUSLY RECEIVED.

YOUR DEPARTMENT REPORTS THAT MR. DELLIS QUALIFIED ON A SUBSTITUTE CLERK CARRIER EXAMINATION BUT IN SETTING UP THE REGISTER THE REGIONAL OFFICE OF THE CIVIL SERVICE COMMISSION GAVE HIM A 5-POINT VETERANS' PREFERENCE INSTEAD OF THE 10-POINT PREFERENCE TO WHICH HE WAS ENTITLED. AS A RESULT HE WAS PLACED LOWER ON THE REGISTER AND WAS APPOINTED AS A CAREER SUBSTITUTE CLERK FEBRUARY 16, 1954. EXCEPT FOR THE ERROR, HE WOULD HAVE BEEN REACHED FOR THE APPOINTMENT AS SUBSTITUTE ON SEPTEMBER 28, 1953, AND FOR REGULAR CLERK JULY 16, 1954, AS COMPARED WITH HIS ACTUAL APPOINTMENT TO REGULAR CLERK ON OCTOBER 16, 1955. THE POST OFFICE DEPARTMENT'S REGIONAL OFFICE AT CHICAGO ATTEMPTED TO RECTIFY THE ERROR AND ADJUSTED THE SERVICE RECORD OF MR. DELLIS TO SHOW HIM AS HAVING BEEN APPOINTED AS OF SEPTEMBER 28, 1953, PROMOTED HIM RETROACTIVELY TO REGULAR CLERK AS OF JULY 16, 1954, AND AUTHORIZED SALARY ADJUSTMENTS ACCORDINGLY.

WHEN THE MILWAUKEE POST OFFICE WAS TRANSFERRED TO THE JURISDICTION OF THE POST OFFICE DEPARTMENT'S MINNEAPOLIS REGIONAL OFFICE IT WAS DETERMINED THAT THE ADJUSTMENTS MADE BY THE CHICAGO REGIONAL OFFICE WERE IMPROPER. MR. DELLIS' SERVICE RECORDS WERE CORRECTED TO THE DATES OF HIS ORIGINAL APPOINTMENTS AS SUBSTITUTE AND REGULAR CLERK RESPECTIVELY, AND HE WAS DIRECTED TO REPAY THE EXCESS COMPENSATION HE HAD RECEIVED.

IT IS A WELL-ESTABLISHED RULE THAT RETROACTIVE PROMOTIONS OR INCREASES IN SALARY ARE NOT AUTHORIZED AND CONFER NO RIGHTS TO INCREASE A COMPENSATION PRIOR TO THE DATE OF THE ADMINISTRATIVE ACTION. IN THE PRESENT CASE NOTWITHSTANDING THAT HE WAS NOT ORIGINALLY GIVEN HIS FULL PREFERENCE RIGHTS SUCH FACTS DID NOT ENTITLE HIM TO BE RETROACTIVELY APPOINTED AS A SUBSTITUTE NOR TO PROMOTIONS BASED ON SERVICES FROM THE DATE OF THE RETROACTIVE APPOINTMENT WHEN NO SUCH SERVICES WERE RENDERED. ACCORDINGLY, WE HELD THAT THE ACTION OF THE MINNEAPOLIS POST OFFICE IN DIRECTING THE CORRECTION OF MR. DELLIS' PERSONNEL RECORD TO ACCORD WITH THE ACTUAL FACTS IN THE CASE WAS CORRECT, AND THAT THE ACTION TAKEN BY THE CHICAGO REGIONAL OFFICE CANNOT BE PERMITTED TO STAND.

AS THE ADDITIONAL SALARY PAYMENTS APPARENTLY DID NOT EXCEED WHAT HE WOULD HAVE RECEIVED HAD HIS APPOINTMENTS BEEN MADE ON THE EARLIER DATES TO WHICH HIS PREFERENCE RIGHT ENTITLED HIM, OUR OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE EXERCISE OF YOUR POWER UNDER 5 U.S.C. 383 IN WAIVING RECOVERY OF THE OVERPAYMENT.