B-152102, SEP. 23, 1963

B-152102: Sep 23, 1963

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THE PRESENT MATTER FOR REVIEW CONCERNS ONLY WHETHER YOU ARE ENTITLED TO A RATE OF SALARY HIGHER THAN THAT WHICH THE RECORD SHOWS YOU HAVE RECEIVED UNDER THE LAW AND REGULATIONS APPLICABLE TO PROMOTIONS. YOUR CLAIM ESSENTIALLY IS THAT YOU ARE DUE A RETROACTIVE ADJUSTMENT OF YOUR SALARY BECAUSE OF THE SALARY RATE OF $4. WHILE THAT RATE APPARENTLY WAS OVERLOOKED UPON YOUR INITIAL APPOINTMENT OF AUGUST 22. ACTION WAS TAKEN TO CORRECT THE ERROR RETROACTIVELY. THE RECORD SHOWS THAT IN PROCESSING YOUR PROMOTION TO GRADE GS-5 APPROPRIATE ADMINISTRATIVE ACTION WAS TAKEN. - IF APPROPRIATIONS ARE AVAILABLE. - AN EMPLOYEE MAY BE RE-EMPLOYED AT SUCH RATE ABOVE THE MINIMUM OF HIS GRADE AS WILL NOT EXCEED THE HIGHEST SALARY ATTAINED IN ANY PREVIOUS GOVERNMENT POSITION.

B-152102, SEP. 23, 1963

TO MRS. RUTH L. CAMPBELL:

YOUR LETTER OF JULY 9, 1963, WITH ENCLOSURES, REQUESTS REVIEW OF OUR CLAIMS DIVISION SETTLEMENT OF JULY 3, 1963, WHICH, FOR THE REASONS STATED THEREIN, DISALLOWED YOUR CLAIM FOR ADDITIONAL SALARY ALLEGEDLY DUE YOU SINCE JUNE 25, 1961, THE DATE OF YOUR PROMOTION FROM CLERK STENOGRAPHER GS -312-4, TO REPORTING STENOGRAPHER GS-312-5, WHILE EMPLOYED BY THE TREASURY DEPARTMENT, INTERNAL REVENUE SERVICE.

THE PRESENT MATTER FOR REVIEW CONCERNS ONLY WHETHER YOU ARE ENTITLED TO A RATE OF SALARY HIGHER THAN THAT WHICH THE RECORD SHOWS YOU HAVE RECEIVED UNDER THE LAW AND REGULATIONS APPLICABLE TO PROMOTIONS. YOUR CLAIM ESSENTIALLY IS THAT YOU ARE DUE A RETROACTIVE ADJUSTMENT OF YOUR SALARY BECAUSE OF THE SALARY RATE OF $4,980 PER ANNUM (GRADE GS-7) WHICH YOU RECEIVED IN A PRIOR EMPLOYMENT. WHILE THAT RATE APPARENTLY WAS OVERLOOKED UPON YOUR INITIAL APPOINTMENT OF AUGUST 22, 1960, BY THE INTERNAL REVENUE SERVICE, PHOENIX DISTRICT OFFICE, ACTION WAS TAKEN TO CORRECT THE ERROR RETROACTIVELY. HOWEVER, THE RECORD SHOWS THAT IN PROCESSING YOUR PROMOTION TO GRADE GS-5 APPROPRIATE ADMINISTRATIVE ACTION WAS TAKEN, AS OUTLINED IN THE LETTER OF DECEMBER 27, 1962, FROM THE DIRECTOR, PERSONNEL DIVISION, INTERNAL REVENUE SERVICE, TO YOU AS FOLLOWS:

"THE CG HAS CONSISTENTLY AND REPEATEDLY RULED, OVER A NUMBER OF YEARS, THAT AT THE DISCRETION OF THE ADMINISTRATIVE OFFICE--- IF APPROPRIATIONS ARE AVAILABLE--- AN EMPLOYEE MAY BE RE-EMPLOYED AT SUCH RATE ABOVE THE MINIMUM OF HIS GRADE AS WILL NOT EXCEED THE HIGHEST SALARY ATTAINED IN ANY PREVIOUS GOVERNMENT POSITION. HOWEVER, ONCE THE SALARY IS SET, THE RULINGS ALLOW NO FURTHER ADJUSTMENT UNLESS ADMINISTRATIVE ERROR WAS INVOLVED.

"THE REGION'S AUTHORITY TO ADJUST YOUR PAY RETROACTIVELY TO THE MAXIMUM STEP OF GRADE GS-4 FROM AUGUST 22, 1960, THROUGH JUNE 24, 1961, RESTED UPON AN ADMINISTRATIVE ERROR.

"BUT AT THE TIME OF YOUR PROMOTION TO GS-5 THE PHOENIX OFFICE, WITH REGIONAL APPROVAL, FOLLOWED THE ESTABLISHED PROCEDURE IN SETTING YOUR SLARY BELOW THE MAXIMUM IN THE GRADE. THIS DID NOT INVOLVE ANY ADMINISTRATIVE ERROR. THEREFORE, WE FIND THE REGION'S DECISION CORRECT. ACCORDINGLY, YOUR APPEAL TO THE NATIONAL OFFICE IS DENIED.'

FURTHER, THE DIRECTOR OR PERSONNEL, TREASURY DEPARTMENT, ADVISED YOU ON MARCH 15, 1963, AS FOLLOWS:

"A CAREFUL REVIEW HAS BEEN MADE OF THE COMPLETE FILE IN YOUR CASE AND WE FIND NO BASIS FOR DIFFERING WITH THE FINDING OF THE DIRECTOR,PERSONNEL DIVISION, INTERNAL REVENUE SERVICE. THE PHOENIX OFFICE, WITH REGIONAL APPROVAL, FOLLOWED ESTABLISHED PROCEDURE IN SETTING YOUR SALARY AT A LEVEL BELOW THE MAXIMUM STEP IN THE GRADE. IN THE ABSENCE OF ADMINISTRATIVE ERROR, UNDER EXISTING COMPTROLLER GENERAL RULINGS, THERE WOULD BE NO BASIS FOR MAKING ANY CHANGE UPWARD IN THE SALARY RATE ALREADY ESTABLISHED. IS NOTED IN SETTING THE GRADE 5 SALARY THAT ALLOWANCE WAS MADE FOR PROVIDING AT LEAST A FULL STEP INCREASE AS REQUIRED AT THE TIME BY THE CLASSIFICATION ACT OF 1949 (AS AMENDED).

"I REGRET TO ADVISE YOU, THEREFORE, THAT THE DECISION OF THE DIRECTOR, PERSONNEL DIVISION, INTERNAL REVENUE SERVICE, IS UPHELD.'

OUR SETTLEMENT OF JULY 3, 1963, ADVISED YOU THAT NO EMPLOYEE HAS A VESTED RIGHT UPON PROMOTION TO RECEIVE THE HIGHEST SALARY RATE PREVIOUSLY PAID AND THAT IN A PROMOTION THE FIXING OF SALARY AT A RATE OF THE GRADE AS WILL NOT EXCEED THE HIGHEST SALARY ATTAINED BY THE EMPLOYEE IN ANY PRIOR GOVERNMENT POSITION IS ENTIRELY DISCRETIONARY WITH THE ADMINISTRATIVE AGENCY; CITING 26 COMP. GEN. 368--- ALSO SEE SUBSECTION 25.103 (B) (1) OF THE FEDERAL EMPLOYEES PAY REGULATIONS, 5 CFR 25.103 (B) (1); FEDERAL PERSONNEL MANUAL, PAGE Z1-315. THE SETTLEMENT FURTHER ADVISED YOU THAT CORRECTION OF A SALARY RATE OR AN ADJUSTMENT THEREOF, SUCH AS YOU CLAIM, CAN BE ACCOMPLISHED ONLY UPON A SHOWING THAT AN ADMINISTRATIVE ERROR, IN FACT, WAS MADE IN FIXING THE RATE. 31 COMP. GEN. 15.

IN THAT REGARD YOU SAY THAT ADMINISTRATIVE ERROR WAS, IN FACT, COMMITTED IN THAT THE REQUEST OF JUNE 19, 1961, FOR AUTHORITY TO DEVIATE FROM DEPARTMENTAL POLICY WAS PREDICTED UPON STATEMENTS THEREIN THAT IT WAS NOT KNOWN THAT YOU PREVIOUSLY HAD RECEIVED A HIGHER RATE.

A CAREFUL REVIEW OF THE ADMINISTRATIVE LETTER OF JUNE 19, 1961, FAILS TO DISCLOSE THAT THE REQUEST FOR THE DEVIATION WAS PREDICATED UPON THE MATTER REFERRED BY YOU. RATHER, THE BASES FOR THE REQUEST ARE SPECIFICALLY SET FORTH IN ITEMS NUMBERED 1 TO 4 ON PAGES 2 AND 3 OF THE LETTER. FURTHER, THE FACT THAT THE REQUEST FOR A DEVIATION WAS MADE, IS EVIDENCE IN ITSELF OF KNOWLEDGE ON THE PART OF THE OFFICIAL CONCERNED THAT YOU HAD, IN FACT, RECEIVED A HIGHER RATE IN YOUR PRIOR EMPLOYMENT.

THUS, WE CANNOT ACCEPT THE MATTERS ALLEGED BY YOU, INCLUDING THE PURPORTED VIOLATION OF THE CIVIL SERVICE REGULATIONS, AS A BASIS FOR MODIFYING A RATE INTENDED TO BE GRANTED YOU ADMINISTRATIVELY AND WHICH APPEARS TO BE IN ALL RESPECTS A LEGAL RATE.

THEREFORE, BASED UPON THE PRESENT RECORD, OUR OFFICE SETTLEMENT OF JULY 3, 1963, IS SUSTAINED.

THE PAPERS WHICH ACCOMPANIED YOUR LETTER OF JULY 9, 1963, ARE RETURNED, AS REQUESTED.