B-148225, OCT 3, 1974

B-148225: Oct 3, 1974

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SO AS TO CONSTITUTE ADMINISTRATIVE ERROR WHEN THE TEMPORARY PROMOTION WAS NOT EFFECTED AND THEREFORE EMPLOYEE IS ENTITLED ONLY TO COMPENSATION OF POSITION TO WHICH HE WAS DULY APPOINTED. IS NOT REGARDED AS AUTHORIZING RETROACTIVE TEMPORARY PROMOTION. OR EVIDENCE THAT THERE IS A COLLECTIVE BARGAINING AGREEMENT IN EFFECT MAKING SUCH PROMOTION MANDATORY WITHIN A SPECIFIED PERIOD OF TIME. THE RECORD INDICATES THAT THE EMPLOYEE WAS PROMOTED TO THE POSITION OF SUPERVISORY SUBSISTENCE INSPECTION SPECIALIST. HE WAS REASSIGNED FROM MUNICH. REQUEST FOR PERSONNEL ACTION HE WAS TO BE DETAILED EFFECTIVE NOVEMBER 24. THERE IS NOTHING IN THE RECORD TO SHOW THAT THE ALLEGED DETAIL WAS DOCUMENTED BY A PERSONNEL ACTION OR A TEMPORARY PROMOTION.

B-148225, OCT 3, 1974

STATEMENT BY SUPERVISOR OF GS-11 EMPLOYEE ON SF 172 THAT EMPLOYEE HAD PERFORMED DUTIES OF GS-12 ON DETAIL DOES NOT EVIDENCE ADMINISTRATIVE INTENT TO TEMPORARILY PROMOTE HIM, SO AS TO CONSTITUTE ADMINISTRATIVE ERROR WHEN THE TEMPORARY PROMOTION WAS NOT EFFECTED AND THEREFORE EMPLOYEE IS ENTITLED ONLY TO COMPENSATION OF POSITION TO WHICH HE WAS DULY APPOINTED, REGARDLESS OF DUTIES PERFORMED. FURTHERMORE, EXTENSION OF DETAIL BEYOND PERIOD AUTHORIZED IN FPM CHAPTER 300, SUBCHAPTER 8, IS NOT REGARDED AS AUTHORIZING RETROACTIVE TEMPORARY PROMOTION, ABSENT MANDATORY PROVISION THEREIN SPECIFICALLY DIRECTING PROMOTION IN THESE CIRCUMSTANCES, OR EVIDENCE THAT THERE IS A COLLECTIVE BARGAINING AGREEMENT IN EFFECT MAKING SUCH PROMOTION MANDATORY WITHIN A SPECIFIED PERIOD OF TIME.

MR. SIDNEY A. NOVITCH - COMPENSATION FOR DETAIL ASSIGNMENT:

THIS ACTION CONSTITUTES A REQUEST FOR RECONSIDERATION OF OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT OF MAY 31, 1974, DISALLOWING THE CLAIM OF MR. SIDNEY A. NOVITCH, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FOR ADDITIONAL COMPENSATION WHILE DETAILED TO A HIGHER GRADE POSITION IN GERMANY IN 1970 AND 1971.

THE RECORD INDICATES THAT THE EMPLOYEE WAS PROMOTED TO THE POSITION OF SUPERVISORY SUBSISTENCE INSPECTION SPECIALIST, GS-1905-11, STEP 2, EFFECTIVE MARCH 9, 1966; THAT ON OCTOBER 26, 1969, HE WAS REASSIGNED FROM MUNICH, GERMANY, TO THE POSITION OF SUPERVISORY SUBSISTENCE INSPECTOR, GS- 1905-11, STEP 4, AT ZWEIBRUCKEN, GERMANY; AND THAT BY UNDATED STANDARD FORM 52, REQUEST FOR PERSONNEL ACTION HE WAS TO BE DETAILED EFFECTIVE NOVEMBER 24, 1970, FOR A PERIOD NOT EXCEEDING 120 DAYS AS SUPERVISORY SUBSISTENCE INSPECTION SPECIALIST, GS-1905-12. THERE IS NOTHING IN THE RECORD TO SHOW THAT THE ALLEGED DETAIL WAS DOCUMENTED BY A PERSONNEL ACTION OR A TEMPORARY PROMOTION.

ALTHOUGH IT IS NOT CLEAR FOR WHAT PRECISE PERIOD THE EMPLOYEE IS CLAIMING ADDITIONAL COMPENSATION, IT WOULD APPEAR THAT HE IS BASING HIS CLAIM ON A SF 172 (SUPPLEMENTAL EXPERIENCE AND QUALIFICATIONS STATEMENT) IN THE RECORD WHICH IS DATED OCTOBER 29, 1971, AND ON WHICH HE INDICATED THAT HE WAS EMPLOYED FROM JULY 1970 TO AUGUST 1971 AS CHIEF, INSPECTION SERVICES DIVISION (SUPERVISORY INSPECTION SPECIALIST), GS-1960-12. AT THE BOTTOM OF THIS FORM, HIS SUPERVISOR, COLONEL RALPH L. SCHWARZ, SIGNED THE FOLLOWING STATEMENT:

"I HEREBY CERTIFY THAT MR. SIDNEY A. NOVITCH OCCUPIED AND PERFORMED THE POSITION AND DUTIES DURING THE TIME AND PLACE SPECIFIED ABOVE."

THERE IS NOTHING IN THE RECORD OTHER THAN THE ABOVE STATEMENT TO INDICATE THAT THE DETAIL COMMENCED BEFORE NOVEMBER 24, 1970; HOWEVER, THE RECORD SUGGESTS THAT IT MAY POSSIBLY HAVE CONTINUED TO AUGUST 8, 1971, WHEN THE EMPLOYEE EXERCISED HIS RETURN RIGHTS TO HIS FORMER GS-9 POSITION WITH DSA- DCSAR IN ATLANTA, GEORGIA.

ALTHOUGH IT WAS ERRONEOUSLY ASSUMED IN THE CERTIFICATE OF SETTLEMENT THAT THE EMPLOYEE HAD BEEN PAID AT THE GS-12 LEVEL FOR ANY PORTION OF THE DETAIL PERIOD, DISALLOWANCE OF THE EMPLOYEE'S CLAIM WAS PROPERLY BASED ON THE WELL-ESTABLISHED RULE OF THIS OFFICE AND OF THE COURTS, I.E., THAT AN EMPLOYEE IS ENTITLED ONLY TO THE COMPENSATION OF THE POSITION TO WHICH HE HAS BEEN DULY APPOINTED EVEN THOUGH HE MAY BE ASSIGNED TO PERFORM DUTIES OF A HIGHER GRADE POSITION. SEE 52 COMP. GEN. 631 (1973); 52 ID. 920, 923 (1973); GANSE V. UNITED STATES, 376 F.2D 900, 902 (CT. CL. 1967); AND BIELEC V. UNITED STATES, 456 F.2D 690, 696 (CT. CL. 1972).

IN HIS REQUEST FOR REVIEW, THE CLAIMANT WOULD APPEAR TO ASSUME THAT THE STATEMENT OF HIS SUPERVISOR ON THE SF 172, DATED OCTOBER 29, 1971, SUPRA, WAS INDICATIVE OF AN ADMINISTRATIVE INTENT TO PROMOTE HIM TO THE POSITION HE OCCUPIED DURING THE PERIOD OF HIS DETAIL AND THAT THE FAILURE OF THE PERSONNEL OFFICE TO OFFICIALLY PROMOTE HIM TO THE HIGHER POSITION WAS AN ADMINISTRATIVE ERROR - CONTRARY "TO THE REQUEST OF OFFICIAL ACTION."

WE CANNOT, HOWEVER, REGARD THIS STATEMENT EITHER AS EVIDENCE OF ADMINISTRATIVE INTENT TO PROMOTE THE CLAIMANT, OR AS A REQUEST FOR OFFICIAL ACTION TO DO SO, AND THERE IS NO OTHER EVIDENCE SUPPORTING SUCH INTENTION OR DOCUMENTING A TEMPORARY PROMOTION. THE ADMINISTRATIVE REPORT FROM THE CLAIMS DIVISION OF THE ARMY FINANCE CENTER DOES NOT RECOMMEND PAYMENT "SINCE EMPLOYEE WAS NOT OFFICIALLY PROMOTED TO GS-12."

IN ANY EVENT, WE DO NOT VIEW THE STATUTORY AUTHORITY TO DETAIL EMPLOYEES FOR LIMITED PERIODS AS CONTAINED IN CIVIL SERVICE COMMISSION REGULATIONS (FPM CHAPTER 300, SUBCHAPTER 8) AS AUTHORIZING RETROACTIVE PROMOTIONS FOR EMPLOYEES WHO HAVE HAD DETAILS EXTENDED BEYOND THE TIME LIMIT IMPOSED THEREBY, NOR ARE WE AWARE OF ANY OTHER PROVISION OF LAW TO THIS EFFECT. WE ALSO KNOW OF NO MANDATORY PROVISIONS IN THESE REGULATIONS WHICH SPECIFICALLY DIRECT THAT AN AGENCY MUST TEMPORARILY PROMOTE AN EMPLOYEE SO DETAILED WITHIN A PRESCRIBED TIME LIMIT NOR DOES THE RECORD SHOW THAT THE AGENCY ACCEPTED SUCH A REQUIREMENT THROUGH A COLLECTIVE BARGAINING AGREEMENT. B-178488, JUNE 21, 1973, AND 52 COMP. GEN. 920 (1973), SUPRA. CF. 48 COMP. GEN. 258 (1968).

THEREFORE, WE FIND NO BASIS ON WHICH MR. NOVITCH IS LEGALLY ENTITLED TO ADDITIONAL COMPENSATION AND THE SETTLEMENT ACTION DENYING HIS CLAIM IS SUSTAINED.