B-168683, JAN. 22, 1970

B-168683: Jan 22, 1970

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AFTER BEING NOTIFIED OF SELECTION FOR PROMOTION AND ASSUMING NEW DUTIES DID NOT HAVE PROMOTION PERSONNEL ACTION PROCESSED UNTIL MORE THAN A MONTH LATER MAY HAVE PROMOTION SELECTION LETTER REGARDED AS ESTABLISHING INTENTION TO PROMOTE EMPLOYEE AND FAILURE OF PROCESSING PAPERS REGARDED AS CLERICAL ERROR. MISS BROWN WAS OFFICIALLY NOTIFIED OF THE FACT THAT SHE HAD BEEN SELECTED FOR PROMOTION TO THE POSITION OF SECRETARY (STENOGRAPHY). SHE WAS DIRECTED TO REPORT TO THE OFFICE OF INTERNATIONAL PATENT AND TRADEMARK AFFAIRS AT 8:30 A.M. THE LETTER OF AUGUST 20 WAS SIGNED BY MRS. WE HAVE BEEN ADVISED. WAS VESTED WITH THE AUTHORITY TO APPROVE MISS BROWN'S PROMOTION. AT THE TIME THE LETTER OF AUGUST 20 WAS SENT TO MISS BROWN A STANDARD FORM 52 (REQUEST FOR PERSONNEL ACTION) SHOULD HAVE BEEN FORWARDED TO THE PERSONNEL OFFICE FOR PROCESSING IN ACCORDANCE WITH ESTABLISHED ADMINISTRATIVE PROCEDURE.

B-168683, JAN. 22, 1970

CIVIL PAY--PROMOTIONS--RETROACTIVE DECISION TO COMMISSIONER OF PATENTS CONCERNING RETROACTIVE CORRECTION OF PROMOTION. AN EMPLOYEE WHO, AFTER BEING NOTIFIED OF SELECTION FOR PROMOTION AND ASSUMING NEW DUTIES DID NOT HAVE PROMOTION PERSONNEL ACTION PROCESSED UNTIL MORE THAN A MONTH LATER MAY HAVE PROMOTION SELECTION LETTER REGARDED AS ESTABLISHING INTENTION TO PROMOTE EMPLOYEE AND FAILURE OF PROCESSING PAPERS REGARDED AS CLERICAL ERROR. THEREFORE, RETROACTIVE CORRECTION MAY BE MADE.

TO MR. BRENNER:

BY LETTER DATED DECEMBER 19, 1969, MR. C. A. KALK, ACTING ASSISTANT COMMISSIONER FOR ADMINISTRATION, REQUESTED OUR DECISION WHETHER THE PROMOTION OF MISS PEGGY A. BROWN, AN EMPLOYEE OF THE PATENT OFFICE, MAY BE MADE EFFECTIVE RETROACTIVELY TO SEPTEMBER 7, 1969.

BY LETTER DATED AUGUST 20, 1969, MISS BROWN WAS OFFICIALLY NOTIFIED OF THE FACT THAT SHE HAD BEEN SELECTED FOR PROMOTION TO THE POSITION OF SECRETARY (STENOGRAPHY), GRADE GS-4, $5,522 PER ANNUM. SHE WAS DIRECTED TO REPORT TO THE OFFICE OF INTERNATIONAL PATENT AND TRADEMARK AFFAIRS AT 8:30 A.M. ON MONDAY, SEPTEMBER 8, 1969, FOR THE PURPOSE OF ASSUMING HER NEW POSITION. THE LETTER OF AUGUST 20 WAS SIGNED BY MRS. ANNE K. STROH WHO, WE HAVE BEEN ADVISED, WAS VESTED WITH THE AUTHORITY TO APPROVE MISS BROWN'S PROMOTION.

AT THE TIME THE LETTER OF AUGUST 20 WAS SENT TO MISS BROWN A STANDARD FORM 52 (REQUEST FOR PERSONNEL ACTION) SHOULD HAVE BEEN FORWARDED TO THE PERSONNEL OFFICE FOR PROCESSING IN ACCORDANCE WITH ESTABLISHED ADMINISTRATIVE PROCEDURE. HOWEVER, DUE TO AN OVERSIGHT, THIS WAS NOT DONE. AS A RESULT THEREOF MISS BROWN'S PROMOTION WAS NOT FORMALLY PROCESSED UNTIL OCTOBER 5, 1969, ALTHOUGH SHE HAD BEEN PERFORMING THE DUTIES OF THE GS-4 POSITION SINCE SEPTEMBER 8, 1969.

THE RULE IS WELL ESTABLISHED THAT THE EFFECTIVE DATE OF A SALARY CHANGE RESULTING FROM ADMINISTRATIVE ACTION IS THE DATE WHEN ACTION IS TAKEN BY THE PROPER ADMINISTRATIVE OFFICIAL OR A SUBSEQUENT DATE FIXED BY HIM. COMP. GEN. 95 (1941). WHILE, AS A GENERAL RULE, AN ADMINISTRATIVE CHANGE IN SALARY MAY NOT BE MADE RETROACTIVELY EFFECTIVE, WE HAVE PERMITTED RETROACTIVE ADJUSTMENTS IN SALARY RATES IN CASES WHERE THROUGH CLERICAL ERROR A PERSONNEL ACTION WAS NOT EFFECTED AS ORIGINALLY INTENDED.

IN THE PRESENT CASE THE LETTER OF AUGUST 20, 1969, SUFFICIENTLY ESTABLISHES THAT IT WAS THE INTENTION OF MRS. STROH TO PROMOTE MISS BROWN TO GRADE GS-4 EFFECTIVE SEPTEMBER 7, 1969, THE BEGINNING OF THE PAY PERIOD, AND THE DAY IMMEDIATELY PRECEDING THE DATE THE EMPLOYEE WAS DIRECTED TO REPORT TO HER NEW POSITION. THE FAILURE TO SO EFFECT MISS BROWN'S PROMOTION RESULTED FROM A CLERICAL ERROR. IN VIEW THEREOF WE WILL NOT OBJECT TO CORRECTION OF THE PERSONNEL ACTION SO AS TO MAKE MISS BROWN'S PROMOTION EFFECTIVE AS OF SEPTEMBER 7, 1969.