B-142400, APR. 8, 1960

B-142400: Apr 8, 1960

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SINCE A POWER OF ATTORNEY WAS NOT FURNISHED BY MR. YOUR POSITION WAS CHANGED FROM PHOTOGRAPHIC ENGINEER (GENERAL). " (STANDARD FORM 50) SHOWING THAT PROMOTION WAS PREPARED. THE DATE A PERSONNEL ACTION TAKES EFFECT IS THE DATE THE ACTION IS ADMINISTRATIVELY APPROVED. CLEARLY SHOWS THAT IT WAS THE INTENT OF THE ADMINISTRATIVE OFFICIALS THAT YOUR PROMOTION SHOULD TAKE EFFECT ON JUNE 22. THE DATE THE ACTION WAS APPROVED. THAT EFFECTIVE DATE WAS SET ACCORDING TO DEPARTMENT OF THE ARMY. THE STATEMENTS OF CERTAIN ARMY OFFICIALS THAT ACTION SHOULD HAVE BEEN TAKEN TO EFFECT YOUR PROMOTION PRIOR TO JUNE 20. EVEN THOUGH SUCH ACTION COULD HAVE BEEN TAKEN AT THE TIME THE PROMOTION WAS ORIGINALLY APPROVED.

B-142400, APR. 8, 1960

TO MR. MICHAEL J. VENEZIA:

ON MARCH 15, 1960, MR. ALSTON BEEKMAN, JR., REQUESTED, ON YOUR BEHALF, THAT WE RECONSIDER OUR SETTLEMENT OF DECEMBER 8, 1959, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION FROM THE DATE OF YOUR PROMOTION IN JUNE 1958, AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FORT MONMOUTH, NEW JERSEY. SINCE A POWER OF ATTORNEY WAS NOT FURNISHED BY MR. BEEKMAN WE SHALL REPLY DIRECT TO YOU.

THE RECORD SHOWS THAT, PURSUANT TO A SURVEY BY THE CIVIL SERVICE COMMISSIONER, YOUR POSITION WAS CHANGED FROM PHOTOGRAPHIC ENGINEER (GENERAL), GRADE GS-801.Q-12 TO SUPERVISORY PHOTOGRAPHIC ENGINEER (GENERAL), GRADE GS-801.Q-13 AND THAT ON JUNE 18, 1958, A "NOTIFICATION OF PERSONNEL ACTION," (STANDARD FORM 50) SHOWING THAT PROMOTION WAS PREPARED. BLOCK 6 OF THAT FORM SETS JUNE 22, 1958, AS THE EFFECTIVE DATE OF THE ACTION. THE DATE A PERSONNEL ACTION TAKES EFFECT IS THE DATE THE ACTION IS ADMINISTRATIVELY APPROVED, OR SUCH LATER DATE AS MAY BE ADMINISTRATIVELY FIXED. 30 COMP. GEN. 156; 22 ID. 526. SEE, ALSO, 5 C.F.R. 36.1; PAGE P2-23, FEDERAL PERSONNEL MANUAL. THE STANDARD FORM 50 OF JUNE 18, CLEARLY SHOWS THAT IT WAS THE INTENT OF THE ADMINISTRATIVE OFFICIALS THAT YOUR PROMOTION SHOULD TAKE EFFECT ON JUNE 22, 1958, AND NOT JUNE 18, 1958, THE DATE THE ACTION WAS APPROVED. THAT EFFECTIVE DATE WAS SET ACCORDING TO DEPARTMENT OF THE ARMY, CIVILIAN PERSONNEL MANUAL N1.4-6, WHICH DIRECTS THAT PERSONNEL ACTIONS SHALL GENERALLY TAKE EFFECT ON THE FIRST DAY OF A PAY PERIOD. THE STATEMENTS OF CERTAIN ARMY OFFICIALS THAT ACTION SHOULD HAVE BEEN TAKEN TO EFFECT YOUR PROMOTION PRIOR TO JUNE 20, 1958, SO AS TO MAKE YOU ELIGIBLE FOR A HIGHER RATE OF PAY, CANNOT CHANGE YOUR ENTITLEMENT TO COMPENSATION UNDER THE ORIGINAL PERSONNEL ACTION, EVEN THOUGH SUCH ACTION COULD HAVE BEEN TAKEN AT THE TIME THE PROMOTION WAS ORIGINALLY APPROVED, NOR COULD ACTION BY THE DEPARTMENT OF THE ARMY AFTER JUNE 22 HAVE CHANGED YOUR ENTITLEMENT TO COMPENSATION SINCE IT IS AN ESTABLISHED RULE THAT A PERSONNEL ACTION MAY NOT BE MADE RETROACTIVELY EFFECTIVE SO AS TO INCREASE OR DECREASE THE COMPENSATION OF THE EMPLOYEE.

THE "NOTIFICATION OF PERSONNEL ACTION" DATED JUNE 27, 1958, DID NOT CHANGE THE EFFECTIVE DATE OF YOUR PROMOTION; NEITHER DID IT CHANGE YOUR ENTITLEMENT TO COMPENSATION. IT MERELY CORRECTED THE RATES OF YOUR COMPENSATION BECAUSE THE RATES APPEARING ON THE ORIGINAL NOTIFICATION BECAME OBSOLETE WITH THE ENACTMENT, ON JUNE 20, 1958, OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, 72 STAT. 203.

THE CIVIL SERVICE COMMISSION, PRIOR TO JUNE 20, 1958, ESTABLISHED THE MINIMUM RATES OF COMPENSATION FOR GRADES GS-801.Q-12 AND GS-801.A 13 AT STEP SIX OF THOSE GRADES UNDER THE AUTHORITY OF SECTION 803 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED BY THAT ACT OF SEPTEMBER 1, 1954, 68 STAT. 1106, 5 U.S.C. 1133. THAT ACT PROVIDES FOR THE ESTABLISHMENT OF SUCH HIGHER RATES OF COMPENSATION BY THE COMMISSION AND ALSO PROVIDES THAT THE COMMISSION MAY REVISE SUCH RATES. UNDER THAT AUTHORITY THE COMMISSION ISSUED THE REGULATION FOUND IN SECTION 25.105 (I) OF THE CIVIL SERVICE REGULATIONS, PAGE Z1-319.02, FEDERAL PERSONNEL MANUAL, WHICH PROVIDES THAT "A STATUTORY REVISION OF PAY SCHEDULES * * * SHALL AUTOMATICALLY CHANGE THE MINIMUM RATE AUTHORIZED * * * TO THE NEAREST STEP RATE OF THE NEW SCHEDULE WHICH DOES NOT RESULT IN A DECREASE OF SUCH AUTHORIZED MINIMUM RATE.' SINCE, ON THE EFFECTIVE DATE OF YOUR PROMOTION, THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958 HAD BECOME EFFECTIVE THE REGULATION QUOTED ABOVE AUTOMATICALLY REVISED THE MINIMUM STEP RATE AUTHORIZED FOR YOUR POSITION IN GRADE 13 TO THE SECOND STEP THEREOF.

ALTHOUGH SECTION 2 (B) (6) OF THE 1958 ACT PROVIDES FOR RETENTION BY EMPLOYEES IN POSITIONS HAVING MINIMUM RATES OF COMPENSATION SET UNDER SECTION 803 OF THE 1949 ACT, OF THE SALARY INCIDENT TO THE NUMERICAL STEP THEY RECEIVED PRIOR TO ENACTMENT, NO PROVISION IN THAT ACT CAN BE INTERPRETED SO AS TO SAVE THE MINIMUM NUMERICAL STEP FOR EMPLOYEES PROMOTED OR HIRED AFTER THE ACT WENT INTO EFFECT.

FOR THE REASONS STATED OUR PREVIOUS SETTLEMENT MUST BE, AND IS, SUSTAINED AND YOUR CLAIM FOR ADDITIONAL COMPENSATION DISALLOWED.