B-148664, APR. 24, 1962

B-148664: Apr 24, 1962

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NELSON WAS NOTIFIED THAT HE HAD BEEN SELECTED FOR APPOINTMENT AS A BRIDGE ENGINEER GRADE GS-12 ON JUNE 10. THE SALARY RATE MENTIONED AT THAT TIME WAS $8. A STANDARD FORM 50 (NOTIFICATION OF PERSONNEL ACTION) WAS PREPARED SHOWING THE EFFECTIVE DATE OF HIS APPOINTMENT AS JULY 11. THE DAY HIS APPOINTMENT WAS EFFECTIVE. THE FIRST STEP OF THAT GRADE FROM THE DATE OF HIS APPOINTMENT UNDER THE THEORY THAT HE WAS EFFECTIVELY EMPLOYED BEFORE JULY 11. HIS COMPENSATION WAS INCREASED TO THE NEW RATE FOR GRADE GS-12. ALTHOUGH HE COULD HAVE BEEN APPOINTED AT A PRIOR DATE THE FACT IS THAT HIS APPOINTMENT WAS NOT EFFECTIVE UNTIL JULY 11. THERE IS NOTHING IN THE FILE TRANSMITTED BY YOU WHICH IS INCONSISTENT WITH SUCH APPOINTMENT DATE.

B-148664, APR. 24, 1962

TO AUTHORIZED CERTIFYING OFFICER, U.S. DEPARTMENT OF AGRICULTURE, FOREST SERVICE:

YOUR LETTER OF APRIL 6, 1962, REFERENCE 6540, REQUESTS OUR DECISION WHETHER, IN THE CIRCUMSTANCES DESCRIBED BELOW, YOU MAY CERTIFY THE ENCLOSED PAYROLL FOR PAYMENT OF ADDITIONAL COMPENSATION TO MR. FLOYD L. NELSON, AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE, FOREST SERVICE, STATIONED AT OGDEN, UTAH.

MR. NELSON WAS NOTIFIED THAT HE HAD BEEN SELECTED FOR APPOINTMENT AS A BRIDGE ENGINEER GRADE GS-12 ON JUNE 10, 1960, AFTER PRELIMINARY CORRESPONDENCE BEGINNING IN APRIL OF THAT YEAR. THE SALARY RATE MENTIONED AT THAT TIME WAS $8,810 PER ANNUM, THE THIRD STEP OF THE GRADE, AS ESTABLISHED BY THE CIVIL SERVICE COMMISSION AS THE MINIMUM RATE FOR THE POSITION UNDER SECTION 803 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED BY SECTION 104 OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1106, 5 U.S.C. 1133. MR. NELSON INDICATED THAT HE WOULD REPORT FOR DUTY ON JUNE 27, BUT HE LATER INFORMED THE FORESTSERVICE THAT HE WOULD NOT BE ABLE TO REPORT FOR DUTY UNTIL JULY 9, BECAUSE OF PERSONAL REASONS. ON JULY 8, A STANDARD FORM 50 (NOTIFICATION OF PERSONNEL ACTION) WAS PREPARED SHOWING THE EFFECTIVE DATE OF HIS APPOINTMENT AS JULY 11. HE ARRIVED IN OGDEN ON SATURDAY, JULY 9, AND BEGAN WORK ON MONDAY, JULY 11, THE DAY HIS APPOINTMENT WAS EFFECTIVE.

MR. NELSON TRAVELED AT GOVERNMENT EXPENSE FROM CAMP HILL, PENNSYLVANIA, HIS RESIDENCE AT THE TIME OF SELECTION, TO OGDEN HIS FIRST DUTY STATION UNDER THE AUTHORITY OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED BY THE ACT OF AUGUST 25, 1958, (PUBLIC LAW 85-749), 72 STAT. 843, 5 U.S.C. 73B-3 (B/-/D).

THE PAYROLL SUBMITTED WOULD ALLOW MR. NELSON THE DIFFERENCE BETWEEN COMPENSATION AT THE THIRD STEP OF GRADE GS-12, $9,475, AND THE FIRST STEP OF THAT GRADE FROM THE DATE OF HIS APPOINTMENT UNDER THE THEORY THAT HE WAS EFFECTIVELY EMPLOYED BEFORE JULY 11, AT THE THIRD STEP OF GRADE GS-12, $8,810, AND THAT ACCORDING TO SECTION 111 (B) (1) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1960, 74 STAT. 298, HIS COMPENSATION WAS INCREASED TO THE NEW RATE FOR GRADE GS-12, STEP 3.

WE FIND NO EVIDENCE IN THE PAPERS TRANSMITTED BY YOU TO INDICATE THAT MR. NELSON MUST BE CONSIDERED AN EMPLOYEE OF THE UNITED STATES PRIOR TO THE DATE OF HIS APPOINTMENT. ALTHOUGH HE COULD HAVE BEEN APPOINTED AT A PRIOR DATE THE FACT IS THAT HIS APPOINTMENT WAS NOT EFFECTIVE UNTIL JULY 11. THERE IS NOTHING IN THE FILE TRANSMITTED BY YOU WHICH IS INCONSISTENT WITH SUCH APPOINTMENT DATE. ALTHOUGH HE TRAVELED AT GOVERNMENT EXPENSE PRIOR TO JULY 11, UNDER THE PROVISION OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, THAT SECTION PROVIDES IN PERTINENT PART:

"TRAVEL AND TRANSPORTATION EXPENSES MAY BE ALLOWED WHETHER THE PERSON SELECTED HAS BEEN APPOINTED OR NOT AT THE TIME OF SUCH TRAVEL.'

MR. NELSON MAY HAVE BEEN READY TO BEGIN WORK AT HIS DUTY STATION ON SATURDAY, JULY 9, OR SUNDAY, JULY 10, BUT HE DID NOT ACTUALLY BEGIN UNTIL MONDAY, JULY 11. A PERSONNEL ACTION IF PROPERLY TAKEN MAY NOT BE RETROACTIVELY CHANGED TO ALTER COMPENSATION OF THE EMPLOYEE CONCERNED. UNDER CIVIL SERVICE COMMISSION CIRCULAR NO. 793, SUPPLEMENT 61, DATED JULY 6, 1960, THE MINIMUM RATE OF GRADE GS-12, WAS THE ONLY LAWFUL RATE PAYABLE TO HIM ON THE EFFECTIVE DATE OF HIS APPOINTMENT.

THEREFORE, SINCE MR. NELSON'S COMPENSATION WAS SET AT THE RATE LEGALLY APPLICABLE ON THE DAY OF HIS APPOINTMENT THERE IS NO AUTHORITY TO ALLOW HIM A HIGHER RATE OF COMPENSATION RETROACTIVELY.