B-132493, AUGUST 5, 1957, 37 COMP. GEN. 87

B-132493: Aug 5, 1957

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THE SUBMITTED RECORD SHOWS THAT THE POSITION OF DEPUTY ASSISTANT SECRETARY OF DEFENSE ( HEALTH AND MEDICAL) WAS ESTABLISHED AND SALARY FIXED THEREFOR AT $15. CUSHING WAS QUALIFIED FOR A SALARY OF $17. A PAY ADJUSTMENT WAS EFFECTED ON NOVEMBER 23 TO PERMIT HIM TO DRAW THE $17. UPON ADMINISTRATIVE DETERMINATION THAT THE POSITION OF DEPUTY ASSISTANT SECRETARY OF DEFENSE ( HEALTH AND MEDICAL) WAS ANALOGOUS TO THAT OF THE DEPUTY SURGEON GENERAL OF THE UNITED STATES PUBLIC HEALTH SERVICE WITH A YEARLY COMPENSATION OF $19. ACTION WAS TAKEN ON JANUARY 8. CIVIL SERVICE COMMISSION APPROVAL WAS ASKED FOR THIS RATE ON THE SAME DATE. HAVE BEEN MET IN TAKING APPROPRIATE ADMINISTRATIVE ACTION AND IN OBTAINING APPROVAL OF THE CIVIL SERVICE COMMISSION AND THE SALARY RATES EFFECTED WERE IN EACH INSTANCE PROPER ON THE DATE ESTABLISHED.

B-132493, AUGUST 5, 1957, 37 COMP. GEN. 87

COMPENSATION - INCREASES - SCIENTIFIC AND PROFESSIONAL PERSONNEL - EFFECTIVE DATE THE AUTHORITY FOR THE ESTABLISHMENT OF SCIENTIFIC AND PROFESSION POSITIONS IN THE DEPARTMENT OF DEFENSE AND THE FIXING OF RATES OF COMPENSATION THEREFOR, 5 U.S.C. 171P, CONTEMPLATES APPROVAL BY THE CIVIL SERVICE COMMISSION OF BOTH THE QUALIFICATIONS OF THE PROPOSED APPOINTEE AND THE RATE OF COMPENSATION, AND NEITHER ACTION MAY BE GIVEN RETROACTIVE EFFECT.

TO THE SECRETARY OF DEFENSE, AUGUST 5, 1957:

BY LETTER DATED JULY 8, 1957, WITH ENCLOSED VOUCHER, THE DIRECTOR, ADMINISTRATIVE OPERATIONS DIVISION, DEPARTMENT OF THE NAVY, REQUESTED ADVANCE APPROVAL OF RETROACTIVE SALARY PAYMENT TO DR. EDWARD HARVEY CUSHING, DEPUTY ASSISTANT SECRETARY OF DEFENSE ( HEALTH AND MEDICAL).

THE SUBMITTED RECORD SHOWS THAT THE POSITION OF DEPUTY ASSISTANT SECRETARY OF DEFENSE ( HEALTH AND MEDICAL) WAS ESTABLISHED AND SALARY FIXED THEREFOR AT $15,000 PER ANNUM UNDER AUTHORITY OF THE ACT OF AUGUST 1, 1947, 61 STAT. 715, PUBLIC LAW 313, 5 U.S.C. 171P. THE ACT OF JULY 31, 1956, 70 STAT. 741, PUBLIC LAW 854, 5 U.S.C. 171P, AMENDED THE FIRST SECTION OF THE ACT OF AUGUST 1, 1947, RELATING TO SALARY LIMITATIONS OF SPECIALLY QUALIFIED SCIENTIFIC OR PROFESSIONAL PERSONNEL BY STRIKING OUT "$10,000" AND "$15,000" AND INSERTING IN LIEU THEREOF "$12,500" AND $19,000," RESPECTIVELY.

SUBSEQUENT TO THIS AMENDMENT THE OFFICE OF THE SECRETARY OF DEFENSE DETERMINED, ON OCTOBER 4, 1956, THAT DR. CUSHING WAS QUALIFIED FOR A SALARY OF $17,000 AND WITH APPROVAL BY THE CIVIL SERVICE COMMISSION ON NOVEMBER 23, 1956, A PAY ADJUSTMENT WAS EFFECTED ON NOVEMBER 23 TO PERMIT HIM TO DRAW THE $17,000 RATE FROM THAT DATE. UPON ADMINISTRATIVE DETERMINATION THAT THE POSITION OF DEPUTY ASSISTANT SECRETARY OF DEFENSE ( HEALTH AND MEDICAL) WAS ANALOGOUS TO THAT OF THE DEPUTY SURGEON GENERAL OF THE UNITED STATES PUBLIC HEALTH SERVICE WITH A YEARLY COMPENSATION OF $19,000, ACTION WAS TAKEN ON JANUARY 8, 1957, TO RAISE THE COMPENSATION RATE OF DR. CUSHING TO $19,000. CIVIL SERVICE COMMISSION APPROVAL WAS ASKED FOR THIS RATE ON THE SAME DATE. THE COMMISSION APPROVAL LETTER DATED FEBRUARY 13, 1957, PRECEDED SALARY ADJUSTMENT TO $19,000 AS OF FEBRUARY 13, 1957.

THE FACTS PRESENTED SHOW THAT THE REQUIREMENTS OF SECTION 501 (B), 5 U.S.C. 171P NOTE, 70 STAT. 762, AND SECTION 118, 70 STAT. 741, 5 U.S.C. 171P NOTE, HAVE BEEN MET IN TAKING APPROPRIATE ADMINISTRATIVE ACTION AND IN OBTAINING APPROVAL OF THE CIVIL SERVICE COMMISSION AND THE SALARY RATES EFFECTED WERE IN EACH INSTANCE PROPER ON THE DATE ESTABLISHED. HOWEVER, THE QUESTION FOR DECISION IS WHETHER THE PROPER EFFECTIVE DATE FOR THE NEW SALARY RATE IN EACH INSTANCE IS THE DATE OF ADMINISTRATIVE DETERMINATION OF ENLISTMENT OR THE DATE OF THE COMMISSION'S APPROVAL OF THE ADMINISTRATIVE ACTION.

THE LANGUAGE OF THE FIRST SECTION OF THE ACT OF AUGUST 1, 1947, 61 STAT. 715, AS AMENDED BY SECTION 501 (A) OF PUBLIC LAW 854, 5 U.S.C. 171P, AUTHORIZES THE SECRETARY OF DEFENSE TO FIX THE COMPENSATION RATES OF THE ESTABLISHED POSITIONS WITHIN THE STATED LIMITATIONS WITH THE PROVISO THAT SUCH RATES ARE SUBJECT TO APPROVAL BY THE CIVIL SERVICE COMMISSION.

WE BELIEVE THAT THE STATUTE CONTEMPLATES PRIOR APPROVAL BY THE COMMISSION BOTH OF THE QUALIFICATIONS OF THE PROPOSED APPOINTEE AND OF THE COMPENSATION, ADMINISTRATIVELY FIXED, AS CONDITIONS PRECEDENT TO APPOINTMENT OF AN EMPLOYEE AND THE PAYMENT OF HIS COMPENSATION, NEITHER OF WHICH SHOULD BE RETROACTIVE IN EFFECT. THE STATUTORY REQUIREMENTS ARE ANALOGOUS TO THOSE PROVIDED FOR APPOINTMENTS TO THE SO-CALLED "SUPER GRADE" CLASSIFICATION ACT POSITIONS. TO THE EXTENT THAT OUR DECISION HERE DIFFERS FROM THAT OF FEBRUARY 26, 1957, B-130246, WE MUST POINT OUT THAT THE FACTS BEFORE US IN THAT CASE DIFFERED MATERIALLY FROM THOSE HERE PRESENT AND THAT THE ACTION THERE TAKEN TO CORRECT AN OTHERWISE IRREGULAR SITUATION IS NOT TO BE VIEWED AS A PRECEDENT.

ACCORDINGLY, WE FIND NO BASIS FOR INCREASING DR. CUSHING'S RATE OF COMPENSATION RETROACTIVELY. THE VOUCHER TRANSMITTED WITH THE DIRECTOR'S LETTER IS RETAINED.