B-171271, JAN 19, 1971

B-171271: Jan 19, 1971

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

DESIGNATED TO GIVE THE EFFECTIVE DATE WAS LEFT BLANK. STANDARD FORM 50 WAS DATED NOVEMBER 14. DOES NOT GRANT A VESTED RIGHT TO HAVE PROMOTION. SOL SHEINBEIN: THIS IS IN REPLY TO YOUR LETTER DATED OCTOBER 30. WAS PREPARED FOR THE SIGNATURE OF AND SIGNED BY THE PATENT FIELD DIRECTOR. THE SPACE DESIGNATED TO GIVE THE EFFECTIVE DATE WAS LEFT BLANK. WAS DATED NOVEMBER 14. UNDER THE RULE THAT THE EFFECTIVE DATE OF A CHANGE OF SALARY RESULTING FROM ADMINISTRATIVE ACTION IS THE DATE OF APPROVAL THEREOF BY A PROPER ADMINISTRATIVE OFFICIAL. DOES NOT GRANT A VESTED RIGHT TO YOU TO HAVE A PROMOTION. YOU DID HAVE A RIGHT TO HAVE YOUR PROMOTION. ONCE IT WAS APPROVED. EFFECTED NOT LATER THAN THE BEGINNING OF THE SECOND PAY PERIOD FOLLOWING THE DATE OF THE CLASSIFICATION ACTION (NAVAL CIVILIAN INSTRUCTIONS 510.7-2) AND YOUR PROMOTION WAS EFFECTED WITHIN THAT PERIOD.

B-171271, JAN 19, 1971

COMPENSATION - PROMOTION - EFFECTIVE DATE DENIAL OF CLAIM OF AN EMPLOYEE OF THE NAVAL RESEARCH LABORATORY, WASHINGTON, D.C., FOR THE DIFFERENCE IN COMPENSATION BETWEEN $13,103 AND $14,281 FOR THE PERIOD NOVEMBER 2, THRU 16, 1969. ALTHOUGH THE PATENT COUNSEL RECOMMENDED PROMOTION OF CLAIMANT TO PATENT ADVISER (GENERAL) GS-12 EFFECTIVE NOVEMBER 2, 1969, THE SPACE ON THE PERSONNEL ACTION, STANDARD FORM 52, DESIGNATED TO GIVE THE EFFECTIVE DATE WAS LEFT BLANK, THE NOTIFICATION OF PERSONNEL ACTION, STANDARD FORM 50 WAS DATED NOVEMBER 14, 1969, AND STATED THEREON THE EFFECTIVE DATE OF THE PROMOTION AS NOVEMBER 16, 1969. THE FACT THAT THE ORIGINAL REQUEST FOR PROMOTION RECOMMENDED NOVEMBER 2 AS THE STARTING DATE, DOES NOT GRANT A VESTED RIGHT TO HAVE PROMOTION, IF APPROVED, EFFECTIVE ON THAT DATE.

TO MR. SOL SHEINBEIN:

THIS IS IN REPLY TO YOUR LETTER DATED OCTOBER 30, 1970, APPEALING FROM OUR OFFICE SETTLEMENT Z-2422744, OCTOBER 2, 1970, DENYING YOUR CLAIM FOR THE DIFFERENCE IN COMPENSATION BETWEEN $13,103 AND $14,281 FOR THE PERIOD NOVEMBER 2 TO NOVEMBER 16, 1969, AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, NAVAL RESEARCH LABORATORY, WASHINGTON, D.C.

THE RECORD SHOWS THAT ON OCTOBER 15, 1969, MR. ARTHUR L. BRANNING, PATENT COUNSEL, RECOMMENDED YOUR PROMOTION TO PATENT ADVISER (GENERAL) GS-12, EFFECTIVE NOVEMBER 2, 1969, SUBJECT TO APPROVAL OF THE FIELD DIRECTOR. REQUEST FOR PERSONNEL ACTION, STANDARD FORM 52, DATED OCTOBER 20, 1969, WAS PREPARED FOR THE SIGNATURE OF AND SIGNED BY THE PATENT FIELD DIRECTOR, APPROVED BY THE PATENT COUNSEL FOR THE NAVY, AND RELEASED BY THE CLASSIFICATION OFFICE ON OCTOBER 29, 1969. THE SPACE DESIGNATED TO GIVE THE EFFECTIVE DATE WAS LEFT BLANK. THE NOTIFICATION OF PERSONNEL ACTION, STANDARD FORM 50, WAS DATED NOVEMBER 14, 1969, AND STATED THEREON THE EFFECTIVE DATE OF YOUR PROMOTION AS NOVEMBER 16, 1969.

AS INDICATED BY THE FOREGOING, AND UNDER THE RULE THAT THE EFFECTIVE DATE OF A CHANGE OF SALARY RESULTING FROM ADMINISTRATIVE ACTION IS THE DATE OF APPROVAL THEREOF BY A PROPER ADMINISTRATIVE OFFICIAL, OR SUCH SUBSEQUENT DATE AS MAY BE ADMINISTRATIVELY FIXED, 21 COMP. GEN. 95 (1941), YOUR PROMOTION BECAME EFFECTIVE NOVEMBER 16, 1969. THE FACT THAT THE ORIGINAL REQUEST FOR YOUR PROMOTION INCLUDED A RECOMMENDATION THAT IT BE EFFECTIVE NOVEMBER 2, 1969, DOES NOT GRANT A VESTED RIGHT TO YOU TO HAVE A PROMOTION, IF APPROVED, EFFECTED ON THAT DATE. YOU DID HAVE A RIGHT TO HAVE YOUR PROMOTION, ONCE IT WAS APPROVED, EFFECTED NOT LATER THAN THE BEGINNING OF THE SECOND PAY PERIOD FOLLOWING THE DATE OF THE CLASSIFICATION ACTION (NAVAL CIVILIAN INSTRUCTIONS 510.7-2) AND YOUR PROMOTION WAS EFFECTED WITHIN THAT PERIOD, EVEN IF SUCH PERIOD WERE TO BE CALCULATED FROM OCTOBER 20, 1969, THE DATE THE PERSONNEL ACTION WAS REQUESTED BY THE PATENT FIELD DIRECTOR AND POSSIBLY APPROVED BY THE PATENT COUNSEL FOR THE NAVY.

WHILE THERE MAY HAVE BEEN A BRIEF PERIOD OF DELAY IN THE PROCESSING OF YOUR PROMOTION, THERE IS NOTHING IN THE RECORD TO SHOW THAT THROUGH AN ADMINISTRATIVE ERROR, YOUR PROMOTION WAS NOT MADE EFFECTIVE ON THE DATE INTENDED. THE DECISION CITED BY YOU, B-168683, DATED JANUARY 22, 1970, CONCERNED A FACTUAL SITUATION MATERIALLY DIFFERENT FROM YOURS, AND THE QUESTION THERE FOR DECISION WAS WHETHER AN ADMINISTRATIVE OFFICE MAY MAKE A SALARY CHANGE RETROACTIVELY EFFECTIVE WHERE A PROMOTION WAS NOT MADE ON THE DATE INTENDED BY THE PROPER AUTHORITY, AND THE FAILURE TO TIMELY EFFECT THE PROMOTION WAS CAUSED BY CLERICAL ERROR. THE ADMINISTRATIVE OFFICE HAS REVIEWED THE ACTION TAKEN INCIDENT TO YOUR PROMOTION AND HAS DETERMINED THAT NOVEMBER 16, 1969, WAS THE PROPER EFFECTIVE DATE. IN VIEW THEREOF IT CAN ONLY BE CONCLUDED THAT YOUR PROMOTION WAS MADE EFFECTIVE ON THE DATE ADMINISTRATIVELY INTENDED AND THEREFORE AN EXCEPTION TO THE GENERAL RULE SUCH AS MADE IN DECISION B-168683, SUPRA, MAY NOT BE MADE IN YOUR CASE.

ACCORDINGLY, OUR PRIOR ACTION DENYING YOUR CLAIM IS SUSTAINED.