B-152963, DEC. 20, 1963

B-152963: Dec 20, 1963

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REQUESTS OUR DECISION WHETHER PAYMENT OF THE VOUCHER ENCLOSED IS AUTHORIZED REPRESENTING ADDITIONAL COMPENSATION TO MR. AT THE TIME OF THAT TRANSFER HE COULD HAVE BEEN ALLOWED A RATE OF COMPENSATION ABOVE THE MINIMUM RATE OF GRADE GS-5 UNDER THE HIGHEST PREVIOUS RATE RULE ON THE BASIS OF HIS PRIOR SERVICE IN A GRADE GS-8 POSITION WITH THE FEDERAL AVIATION AGENCY. HIS SALARY WAS SET AT THE MINIMUM RATE OF THAT GRADE BECAUSE THE APPOINTING OFFICER WAS NOT AWARE OF THE PREVIOUS SERVICE WHICH WOULD HAVE ENABLED HIM TO SET A HIGHER RATE. 565 MINIMUM RATE AND THE AMOUNT HE WOULD HAVE RECEIVED HAD HE BEEN ALLOWED COMPENSATION AT THE 4TH STEP OF GRADE GS-5. 045 PER ANNUM THE RATE WHICH WOULD HAVE BEEN SET HAD THE APPOINTING OFFICER BEEN AWARE OF THE PRIOR EMPLOYMENT RATE.

B-152963, DEC. 20, 1963

TO LIEUTENANT COLONEL J. L. CLANCY:

YOUR LETTER OF OCTOBER 28, 1963, REFERENCE FINCA-G, REQUESTS OUR DECISION WHETHER PAYMENT OF THE VOUCHER ENCLOSED IS AUTHORIZED REPRESENTING ADDITIONAL COMPENSATION TO MR. DONALD C. MEYER, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, U.S. ARMY ADJUTANT GENERAL'S SCHOOL, FORT BENJAMIN HARRISON, INDIANAPOLIS, INDIANA.

THE FILE INDICATES THAT MR. MEYER RECEIVED A PROMOTION FROM GRADE GS 4TO GRADE GS-5 IN CONNECTION WITH HIS TRANSFER FROM A POSITION WITH QUARTERMASTER AND POST SUPPLY AT FORT BENJAMIN HARRISON, TO A POSITION WITH THE ADJUTANT GENERAL'S SCHOOL ON OCTOBER 14, 1962. AT THE TIME OF THAT TRANSFER HE COULD HAVE BEEN ALLOWED A RATE OF COMPENSATION ABOVE THE MINIMUM RATE OF GRADE GS-5 UNDER THE HIGHEST PREVIOUS RATE RULE ON THE BASIS OF HIS PRIOR SERVICE IN A GRADE GS-8 POSITION WITH THE FEDERAL AVIATION AGENCY. HOWEVER, HIS SALARY WAS SET AT THE MINIMUM RATE OF THAT GRADE BECAUSE THE APPOINTING OFFICER WAS NOT AWARE OF THE PREVIOUS SERVICE WHICH WOULD HAVE ENABLED HIM TO SET A HIGHER RATE. THE VOUCHER ENCLOSED WOULD AUTHORIZE PAYMENT TO MR. MEYER OF THE DIFFERENCE BETWEEN THE AMOUNT OF COMPENSATION HE RECEIVED AT THE $4,565 MINIMUM RATE AND THE AMOUNT HE WOULD HAVE RECEIVED HAD HE BEEN ALLOWED COMPENSATION AT THE 4TH STEP OF GRADE GS-5, $5,045 PER ANNUM THE RATE WHICH WOULD HAVE BEEN SET HAD THE APPOINTING OFFICER BEEN AWARE OF THE PRIOR EMPLOYMENT RATE.

AT THE TIME IN QUESTION DEPARTMENT OF THE ARMY POLICY REGARDING THE APPOINTMENT OF EMPLOYEES AT RATES ABOVE THE MINIMUM RATE OF THE APPROPRIATE GRADE UNDER THE HIGHEST PREVIOUS RATE RULE WAS CONTAINED IN CIVILIAN PERSONNEL REGULATION P3.1. UNDER THAT POLICY THE ALLOWANCE OF COMPENSATION AT A HIGHER WITHIN-GRADE RATE ON THE BASIS OF THE HIGHEST PREVIOUS RATE RULE WAS NOT THE NORMAL PROCEDURE ALTHOUGH APPOINTING OFFICERS WERE ALLOWED TO MAKE USE OF THAT RULE "WHEN NECESSARY TO OBTAIN DESIRED SERVICES OR WHEN OTHERWISE DETERMINED TO BE IN THE BEST INTERESTS OF THE DEPARTMENT OF THE ARMY.' THE APPLICABLE INSTALLATION REGULATIONS WERE SIMILAR TO THE DEPARTMENTAL REGULATION IN THAT RESPECT. THUS, THE FIXING OF MR. MEYER'S RATE OF PAY IN EXCESS OF THE MINIMUM RATE OF GRADE GS-5 WAS A DISCRETIONARY MATTER WITHIN THE AUTHORITY OF OFFICIALS AT THE INSTALLATION AT WHICH HE WAS EMPLOYED.

WE HAVE PERMITTED RETROACTIVE ADJUSTMENTS IN SALARY RATES TO BE MADE IN CERTAIN CASES WHEN BONA FIDE ERRORS HAVE OCCURRED IN FAILURES TO CARRY OUT WRITTEN ADMINISTRATIVE POLICY OF A NONDISCRETIONARY NATURE OR IN COMPLYING WITH ADMINISTRATIVE REGULATIONS HAVING MANDATORY EFFECT. 31 COMP. GEN. 15; 34 ID. 380; 39 ID. 550. ALSO, WE HAVE RECOGNIZED THAT A RETROACTIVE ADJUSTMENT IS PERMISSIBLE WHERE THE APPOINTMENT PAPERS CONTAIN A NOTATION THAT THE RATE OF PAY IS SUBJECT TO UPWARD ADJUSTMENT UPON RECEIPT OF VERIFICATION OF PRIOR SERVICE AT A HIGHER SALARY RATE.

THE ADMINISTRATIVE ERROR ALLEGED IN THIS CASE IS THAT A HIGHER SALARY RATE WOULD HAVE BEEN AUTHORIZED HAD THE APPOINTING OFFICER BEEN AWARE OF MR. MEYER'S PRIOR EMPLOYMENT AT A HIGHER GRADE. THE RATE SET, HOWEVER, WAS A LEGAL RATE, THERE BEING NO MANDATORY POLICY OR REQUIREMENT THAT A HIGHER RATE BE GIVEN EVEN IF THE APPOINTING OFFICER HAD BEEN AWARE OF THE CIRCUMSTANCES. FURTHERMORE, IT WAS THE RATE WHICH THE APPOINTING OFFICER INTENDED TO SET AT THE TIME THE PROMOTION AND TRANSFER WAS EFFECTED. THEREFORE, WE DO NOT BELIEVE THAT AN EXCEPTION TO THE RULE AGAINST ALLOWING RETROACTIVE INCREASES IN COMPENSATION IS JUSTIFIED IN THIS CASE.