B-144499, JAN. 5, 1961

B-144499: Jan 5, 1961

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WAS GRANTED LEAVE FOR THE PERIOD OCTOBER 7 THROUGH OCTOBER 17. IT WAS CUSTOMARY TO PROMOTE INTERNAL REVENUE AGENT TRAINEES FROM GS-5 TO GS-7 WHILE THEY WERE IN THE MILITARY SERVICE IF THEY HAD COMPLETED AT LEAST 15 WEEKS OF TRAINING AND HAD DEMONSTRATED ABILITY TO LEARN THE JOB. IT MUST BE PRESUMED THAT HE WOULD HAVE COMPLETED THE 15TH WEEK OF TRAINING HAD HE NOT BEEN GRANTED LEAVE IMMEDIATELY PRIOR TO HIS ENTERING MILITARY SERVICE. THERE IS NO RECORD IN THE REVENUE SERVICE FILES TO INDICATE THAT MR. KELLER WAS INFORMED THAT HIS PROMOTION AT THE END OF SIX MONTHS. NEITHER IS THERE ANY RECORD THAT MR. "THERE IS NO RECORD THAT MR. KELLER WAS GIVEN PROMOTION CONSIDERATION AT ANY TIME DURING HIS MILITARY SERVICE.

B-144499, JAN. 5, 1961

TO THE SECRETARY OF THE TREASURY:

ON NOVEMBER 17, 1960, THE ACTING SECRETARY OF THE TREASURY REQUESTED OUR DECISION WHETHER MR. JOHN P. KELLER, INTERNAL REVENUE AGENT, GS 7, CINCINNATI, OHIO, MAY, UNDER THE FACTS RELATED BELOW, BE RETROACTIVELY PROMOTED AND BE PAID ADDITIONAL COMPENSATION AS A RESULT OF SUCH PROMOTION.

THE ACTING SECRETARY'S LETTER STATES THE FACTS AS FOLLOWS:

"MR. KELLER ENTERED ON DUTY AS AN INTERNAL REVENUE AGENT TRAINEE, GS-5, ON JULY 1, 1957. HE COMPLETED 14 WEEKS OF THE REQUIRED 26 WEEKS OF TRAINING, WAS GRANTED LEAVE FOR THE PERIOD OCTOBER 7 THROUGH OCTOBER 17, AND ENTERED THE MILITARY SERVICE ON OCTOBER 18, 1957. * * *

"UNDER THE PROVISIONS OF INTERNAL REVENUE SERVICE MANUAL SUPPLEMENT 18G- 4, AMENDMENT NO. 1, IN EFFECT AT THAT TIME, IT WAS CUSTOMARY TO PROMOTE INTERNAL REVENUE AGENT TRAINEES FROM GS-5 TO GS-7 WHILE THEY WERE IN THE MILITARY SERVICE IF THEY HAD COMPLETED AT LEAST 15 WEEKS OF TRAINING AND HAD DEMONSTRATED ABILITY TO LEARN THE JOB. WHILE MR. KELLER HAD COMPLETED ONLY 14 WEEKS OF TRAINING BEFORE HE ENTERED THE MILITARY SERVICE, IT MUST BE PRESUMED THAT HE WOULD HAVE COMPLETED THE 15TH WEEK OF TRAINING HAD HE NOT BEEN GRANTED LEAVE IMMEDIATELY PRIOR TO HIS ENTERING MILITARY SERVICE. THERE IS NO RECORD IN THE REVENUE SERVICE FILES TO INDICATE THAT MR. KELLER WAS INFORMED THAT HIS PROMOTION AT THE END OF SIX MONTHS, PROVIDED FOR BY THE TRAINING AGREEMENT, WOULD BE CONTINGENT UPON HIS COMPLETING 15 WEEKS OF TRAINING. NEITHER IS THERE ANY RECORD THAT MR. KELLER HAD NOT DEMONSTRATED ABILITY TO LEARN THE JOB.

"THERE IS NO RECORD THAT MR. KELLER WAS GIVEN PROMOTION CONSIDERATION AT ANY TIME DURING HIS MILITARY SERVICE. IN THE ABSENCE OF A RECORD TO THE CONTRARY, IT MUST BE ASSUMED THAT HE WAS NOT CONSIDERED FOR PROMOTION AS REQUIRED BY THE RESERVE FORCES ACT OF 1955, CIVIL SERVICE COMMISSION REGULATIONS, AND INTERNAL REVENUE SERVICE INSTRUCTIONS. IT CAN ONLY BE CONCLUDED, THEREFORE, THAT MR. KELLER LOST OPPORTUNITY FOR PROMOTION WHILE ON MILITARY DUTY AND THAT HE WAS RESTORED TO DUTY AT THE GS-7 LEVEL THROUGH ADMINISTRATIVE ERROR.'

MR. KELLER RETURNED TO DUTY ON OCTOBER 26, 1959, AT GRADE GS-7.

THE ACTING SECRETARY ASKS WHETHER THE INTERNAL REVENUE SERVICE MAY PROPERLY TAKE THE FOLLOWING ACTION:

"/1) CORRECT THE RECORDS TO REFLECT MR. KELLER'S PROMOTION TO GS-7 EITHER (A) SIX MONTHS AFTER INITIAL APPOINTMENT, AS PROVIDED BY THE TRAINING AGREEMENT, OR (B) ONE YEAR AFTER HIS INITIAL APPOINTMENT.

"/2) CORRECT THE RECORDS TO REFLECT MR. KELLER'S PROMOTION TO GS-9 AFTER ONE YEAR AT THE GS-7 LEVEL.

"/3) IF THE ANSWER TO (1) AND (2) ABOVE IS IN THE AFFIRMATIVE, MAY MR. KELLER BE GRANTED A PAY ADJUSTMENT RETROACTIVE TO OCTOBER 26, 1959, THE DATE HE RETURNED TO DUTY, FOR THE DIFFERENCE BETWEEN THE BASE RATE OF GS-7 AND THE RATE TO WHICH HE WOULD HAVE BEEN ENTITLED AT THE GS-9 EVEL?

THE INSTRUCTIONS OF THE CIVIL SERVICE COMMISSION AT PAGE X-1-40.03 OF THE FEDERAL PERSONNEL MANUAL REGARDING THE IMPLEMENTATION OF PART 35 OF THE FEDERAL PERSONNEL REGULATIONS, RELATING TO GIVING AN EMPLOYEE ABSENT ON ACTIVE MILITARY DUTY THE SAME CONSIDERATION FOR PROMOTION AS EMPLOYEES WHO ARE SERVING IN THE AGENCY AT THAT TIME, CONTAIN THE FOLLOWING PARAGRAPH, WHICH WAS ORIGINALLY INCORPORATED IN THE MANUAL ON FEBRUARY 19, 1957:

"A TRAINEE WHO LEAVES THE AGENCY TO ENTER MILITARY SERVICE BEFORE COMPLETING THE PRESCRIBED TRAINING COURSE MAY BE PROMPTED IN ABSENTIA PROVIDED HE HAS SUBSTANTIALLY COMPLETED THE PRESCRIBED TRAINING AND HAS DEMONSTRATED TO THE SATISFACTION OF THE AGENCY THAT HE IS PREPARED TO PERFORM THE DUTIES OF THE HIGHER GRADE POSITION. THE EFFECTIVE DATE OF THE PROMOTION WILL BE THE DATE ON WHICH THE TRAINEE WOULD HAVE BEEN PROMOTED IF HE HAD NOT ENTERED THE MILITARY SERVICE.'

INTERNAL REVENUE MANUAL SUPPLEMENT 18G-4, ISSUED TO DEFINE SUBSTANTIAL COMPLETION OF A TRAINING COURSE, PROVIDES THAT THE MINIMUM TIME REQUIRED FOR SUBSTANTIAL COMPLETION OF THE INTERNAL REVENUE AGENT TRAINING COURSE FOR GS-5 EMPLOYEES IS 15 WEEKS BUT THAT SUCH MINIMUM MAY BE WAIVED IN MERITORIOUS CASES WHEN THE TRAINEE "IS SO PATENTLY SUPERIOR TO HIS FELLOWS THAT TO DENY HIS PROMOTION IN ABSENTIA WOULD BE UNWISE.' THE MERE FACT THAT THERE IS NO RECORD THAT MR. KELLER HAD NOT DEMONSTRATED ABILITY TO LEARN HIS JOB IS NOT SUFFICIENT TO SUPPORT A DETERMINATION THAT FAILURE TO WAIVE THE 15 WEEK REQUIREMENT WAS AN ADMINISTRATIVE ERROR.

THEREFORE, QUESTION 1 (A), WHETHER MR. KELLER'S PROMOTION TO GS-7 MAY BE MADE RETROACTIVELY EFFECTIVE SIX MONTHS AFTER HIS INITIAL APPOINTMENT, IS ANSWERED IN THE NEGATIVE.

AMENDMENT 1 TO SUPPLEMENT 18G-4, DATED FEBRUARY 21, 1957, PROVIDES THAT TRAINEES WHO FAIL TO MEET THE REQUIREMENTS FOR SUBSTANTIAL COMPLETION OF THEIR TRAINING COURSES MAY BE PROMOTED WHILE IN MILITARY SERVICE IF THEY MEET THE NORMAL CIVIL SERVICE REQUIREMENTS FOR PROMOTION. THUS, ALTHOUGH HAVING FAILED TO FULFILL THE REQUIREMENTS FOR PROMOTION UNDER THE TRAINING AGREEMENT APPLICABLE TO GS-5 INTERNAL REVENUE AGENT TRAINEE, MR. KELLER WAS ELIGIBLE FOR CONSIDERATION FOR PROMOTION WHEN EMPLOYEES WHO WERE IN THE SAME CATEGORY WERE CONSIDERED FOR PROMOTION.

PURSUANT TO OUR INFORMAL REQUEST ON DECEMBER 9, 1960, YOUR DIRECTOR OF PERSONNEL SUBMITTED A REPORT ON DECEMBER 21, REGARDING YOUR POLICY FOR THE PROMOTION OF INTERNAL REVENUE AGENTS FROM GS-5 TO GS-7 AND GS 9. IN THAT REPORT THE DIRECTOR OF PERSONNEL SAYS:

"* * * EVEN WITHOUT A WAIVER OF THE 15 WEEKS OF TRAINING, MR. KELLER SHOULD HAVE BEEN CONSIDERED FOR PROMOTION TO GS-7, AS ANY OTHER EMPLOYEE NOT COVERED BY A TRAINING AGREEMENT, WHEN HE HAD COMPLETED ONE YEAR AT GS- 5 AS REQUIRED BY CIVIL SERVICE REGULATION. HE SHOULD ALSO HAVE BEEN CONSIDERED FOR PROMOTION TO GS-9, AS ANY OTHER EMPLOYEE, UPON COMPLETION OF ONE YEAR AT THE GS-7 LEVEL. MR. KELLER'S FILE DOES NOT CONTAIN ANY INFORMATION THAT HE HAD NOT DEMONSTRATED ABILITY TO LEARN THE JOB.'

INTERNAL REVENUE MANUAL SUPPLEMENT 18G-6, DATED MAY 20, 1957, SHOWS THAT THE POLICY OF THE INTERNAL REVENUE SERVICE AT THE TIME IN QUESTION WAS TO PROMOTE INTERNAL REVENUE AGENTS FROM GS-5 TO GS-9 IN A PERIOD OF 18 MONTHS. SINCE CONSIDERATION OF MR. KELLER FOR PROMOTION FROM GS 5 TO GS-7 WOULD HAVE BEEN DELAYED SIX MONTHS BECAUSE HE DID NOT SUBSTANTIALLY COMPLETE THE TRAINING PROGRAM, AND IN THE LIGHT OF THE ADMINISTRATIVE DETERMINATIONS REFLECTED IN THE ACTING SECRETARY'S LETTER, WE MAY ASSUME THAT MR. KELLER WOULD HAVE BEEN PROMOTED TO GS-7 AFTER ONE YEAR AND TO GS- 9 APPROXIMATELY TWO YEARS AFTER HIS APPOINTMENT. IN THE CIRCUMSTANCES, WE SEE NO OBJECTION TO THE ADMINISTRATIVE DETERMINATION THAT THE RESTORATION OF MR. KELLER TO THE GS-7 LEVEL WAS THROUGH ADMINISTRATIVE ERROR.

THEREFORE, THE ACTING SECRETARY'S QUESTIONS 1 (B), 2, AND 3 ARE ANSWERED IN THE AFFIRMATIVE.