B-172077, APR 7, 1971

B-172077: Apr 7, 1971

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RETROACTIVELY EFFECTIVE ADJUSTMENTS OF SALARY RATES HAVE BEEN PERMITTED WHERE ERROR OCCURRED IN THE FAILURE TO CARRY OUT NONDISCRETIONARY REGULATIONS OR POLICIES. WHERE CLAIMANT WAS ON MILITARY DUTY AT THE TIME ELIGIBLE ATTORNEYS WERE PROMOTED FROM GS-9 TO GS-11. THE FAILURE TO INCLUDE CLAIMANT VIOLATED 5 CFR 353.301(A) AND 5 U.S.C. 5335(B) WHICH MAKE IT MANDATORY THAT AN EMPLOYEE ABSENT IN THE MILITARY SERVICE BE CONSIDERED FOR PROMOTION AND IF ELIGIBLE BE PROMOTED EFFECTIVE THE SAME DATE AS HE WOULD HAVE BEEN HAD HE REMAINED IN HIS CIVILIAN POSITION. THEREFORE AN ADJUSTMENT IN THE EMPLOYEE'S PROMOTION MAY BE MADE AND HIS CLAIM FOR BACK PAY IS ALLOWED. HE WAS CALLED TO ACTIVE MILITARY SERVICE AND WAS NOT RESTORED TO HIS CIVILIAN EMPLOYMENT WITH IRS UNTIL OCTOBER 6.

B-172077, APR 7, 1971

RETROACTIVE PAY ADJUSTMENT DECISION ALLOWING CLAIM FOR BACK PAY BY JAMES J. BAJGROWICZ, AN ESTATE TAX EXAMINER WITH THE INTERNAL REVENUE SERVICE. WHILE GAO HAS LONG FOLLOWED THE RULE THAT A PERSONNEL ACTION MAY NOT BE RETROACTIVELY EFFECTIVE TO INCREASE THE RIGHT OF AN EMPLOYEE TO ADDITIONAL COMPENSATION, RETROACTIVELY EFFECTIVE ADJUSTMENTS OF SALARY RATES HAVE BEEN PERMITTED WHERE ERROR OCCURRED IN THE FAILURE TO CARRY OUT NONDISCRETIONARY REGULATIONS OR POLICIES. THEREFORE, WHERE CLAIMANT WAS ON MILITARY DUTY AT THE TIME ELIGIBLE ATTORNEYS WERE PROMOTED FROM GS-9 TO GS-11, THE FAILURE TO INCLUDE CLAIMANT VIOLATED 5 CFR 353.301(A) AND 5 U.S.C. 5335(B) WHICH MAKE IT MANDATORY THAT AN EMPLOYEE ABSENT IN THE MILITARY SERVICE BE CONSIDERED FOR PROMOTION AND IF ELIGIBLE BE PROMOTED EFFECTIVE THE SAME DATE AS HE WOULD HAVE BEEN HAD HE REMAINED IN HIS CIVILIAN POSITION. THEREFORE AN ADJUSTMENT IN THE EMPLOYEE'S PROMOTION MAY BE MADE AND HIS CLAIM FOR BACK PAY IS ALLOWED.

TO MR. STANLEY J. TREASURE:

WE REFER TO YOUR LETTER, WITH ENCLOSURES, OF MARCH 2, 1971 (REFERENCE D:MI:DC:F), IN WHICH YOU REQUEST OUR DECISION ON THE CLAIM OF MR. JAMES J. BAJGROWICZ FOR BACK PAY AS AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE (IRS) UNDER THE CIRCUMSTANCES HEREINAFTER RELATED.

MR. BAJGROWICZ HELD A POSITION IN THE COMPETITIVE SERVICE AS AN ESTATE TAX EXAMINER WITH IRS. WHILE SO EMPLOYED, HE WAS CALLED TO ACTIVE MILITARY SERVICE AND WAS NOT RESTORED TO HIS CIVILIAN EMPLOYMENT WITH IRS UNTIL OCTOBER 6, 1969. IN SEPTEMBER OF 1968, THE CIVIL SERVICE COMMISSION WAS ENGAGED IN THE PROCESS OF OFFERING CONVERSION PRIVILEGES FROM EXAMINER TO ATTORNEY FOR THOSE IRS EMPLOYEES WHO COULD QUALIFY. THE CONVERSION WAS ACCOMPLISHED BY THE SURRENDER OF EMPLOYMENT STATUS IN THE COMPETITIVE SERVICE IN EXCHANGE FOR A HIGHER GRADE ATTORNEY CLASSIFICATION IN THE EXCEPTED SERVICE. THE MATTER IS EXPLAINED FURTHER IN A LETTER DATED JANUARY 20, 1971, FROM THE REGIONAL PERSONNEL OFFICER, WESTERN REGION, INTERNAL REVENUE SERVICE, AS FOLLOWS:

" *** EARLY IN SEPTEMBER 1968, THE CIVIL SERVICE COMMISSION ESTABLISHED A NEW HIRING PATTERN FOR ENTRANCE LEVEL ATTORNEY POSITIONS WHICH PROVIDED HIGHER GRADES. ATTORNEYS ON THE ROLLS AT GRADE GS-9 WHO MET THE NEW QUALIFICATION REQUIREMENTS BECAME ELIGIBLE FOR PROMOTION TO GS-11. SOME OF THESE ATTORNEYS, HOWEVER, FAILED TO MEET THE WHITTEN RESTRICTION OF ONE YEAR IN GRADE. THROUGH OUR WASHINGTON HEADQUARTERS OFFICE, THE NAMES OF THE ATTORNEYS WHO DID NOT MEET THE WHITTEN RESTRICTION WERE PRESENTED TO THE CIVIL SERVICE COMMISSION WITH A REQUEST FOR A WAIVER OF THIS RESTRICTION. THE CIVIL SERVICE COMMISSION APPROVED THE REQUEST FOR A WAIVER ON SEPTEMBER 20, 1968. ELIGIBLE GS 9 ATTORNEYS ON THE ROLLS WERE SUBSEQUENTLY PROMOTED TO GS-11, EFFECTIVE SEPTEMBER 22, 1968. UNFORTUNATELY, MR. BAJGROWICZ WAS IN THE MILITARY SERVICE AT THAT TIME AND WAS OVERLOOKED."

YOUR LETTER INDICATES THAT AN ADDITIONAL REASON FOR THE FAILURE TO INCLUDE MR. BAJGROWICZ'S NAME IN THE REQUEST FOR A WAIVER OF THE WHITTEN RESTRICTION WAS THAT HE WAS NOT OFFICIALLY CLASSIFIED AS GS-9 AT THE TIME THE REQUEST WAS PREPARED. YOU STATE THAT THIS WAS DUE TO AN ADMINISTRATIVE ERROR WHICH WAS SUBSEQUENTLY CORRECTED. A LETTER DATED DECEMBER 15, 1970, FROM THE REGIONAL DIRECTOR OF THE CIVIL SERVICE COMMISSION STATES: " *** THERE IS NO QUESTION THAT IF HIS NAME HAD APPEARED ON THE LIST SUBMITTED FOR WAIVER ONE WOULD HAVE BEEN APPROVED EFFECTIVE SEPTEMBER 22, 1968."

MR. BAJGROWICZ'S ACTUAL PERSONNEL RECORD REFLECTS A PROMOTION TO GS 11 EFFECTIVE, IN ABSENTIA, ON NOVEMBER 3, 1968. HE WAS RESTORED TO DUTY AT GS-11, STEP 1, ON OCTOBER 6, 1969, BUT IN LIGHT OF THE CIRCUMSTANCES DESCRIBED ABOVE, HE CLAIMS THAT HIS PROMOTION TO GS-11, STEP 1, SHOULD BE MADE EFFECTIVE AS OF SEPTEMBER 22, 1968. THE CONSEQUENCES OF A PERSONNEL CORRECTION TO THAT EFFECT ARE:

" *** THAT MR. BAJGROWICZ WOULD HAVE BEEN UNDERPAID FROM THE TIME OF HIS RETURN TO DUTY ON OCTOBER 6, 1969, AT GS-11, STEP 1, TO THE TIME OF HIS FIRST WITHIN-GRADE INCREASE TO GS-11, STEP 2, ON NOVEMBER 2, 1969. THE PERIOD BEGINNING WITH OCTOBER 6, 1969, TO NOVEMBER 2, 1969, TWENTY WORK DAYS, WOULD HAVE BEEN AT GS-11, STEP 2, RATHER THAN GS-11, STEP 1. ADDITION, THE PERIOD BEGINNING WITH SEPTEMBER 20, 1970, WHEN HE WOULD HAVE RECEIVED HIS SECOND WITHIN-GRADE, TO NOVEMBER 1, 1970, WHEN HE ACTUALLY RECEIVED HIS SECOND WITHIN-GRADE, THIRTY WORK DAYS, WOULD HAVE BEEN AT GS- 11, STEP 3, RATHER THAN GS-11, STEP 2."

WE HAVE LONG FOLLOWED THE RULE THAT A PERSONNEL ACTION MAY NOT BE RETROACTIVELY EFFECTIVE TO INCREASE THE RIGHT OF AN EMPLOYEE TO ADDITIONAL COMPENSATION, 40 COMP. GEN. 207 (1960), AND THAT THE EFFECTIVE DATE OF A SALARY CHANGE RESULTING FROM ADMINISTRATIVE ACTION IS THE DATE WHEN THAT ACTION IS TAKEN BY THE PROPER ADMINISTRATIVE OFFICIAL OR A SUBSEQUENT DATE FIXED BY HIM. SEE B-168683, JANUARY 22, 1970, AND DECISIONS CITED THEREIN. WE HAVE MADE EXCEPTIONS TO THAT RULE WHERE THROUGH ADMINISTRATIVE ERROR A PERSONNEL ACTION WAS NOT EFFECTED AS INTENDED, AND WE HAVE PERMITTED RETROACTIVELY EFFECTIVE ADJUSTMENTS OF SALARY RATES IN CERTAIN CASES WHERE ERRORS OCCURRED IN THE FAILURE TO CARRY OUT NONDISCRETIONARY ADMINISTRATIVE REGULATIONS OR POLICIES. SEE B-168715, JANUARY 22, 1970, CITING 34 COMP. GEN. 380 (1955) AND 39 ID. 550 (1960).

THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, 5 CFR 353.301(A), ISSUED PURSUANT TO 50 U.S.C. APP. 459, PROVIDE IN PERTINENT PART AS FOLLOWS:

"EACH AGENCY SHALL CONSIDER EVERY EMPLOYEE ABSENT ON MILITARY DUTY FOR ALL PROMOTIONS FOR WHICH HE WOULD BE CONSIDERED WERE HE NOT ABSENT. PROMOTION BASED ON THIS CONSIDERATION IS EFFECTIVE ON THE DATE IT WOULD HAVE BEEN MADE IF THE EMPLOYEE WERE NOT ABSENT."

THERE IS ALSO FOR CONSIDERATION 5 U.S.C. 5335(B) WHICH PROVIDES IN PART AS FOLLOWS:

"UNDER REGULATIONS PRESCRIBED BY THE CIVIL SERVICE COMMISSION, THE BENEFIT OF SUCCESSIVE STEP-INCREASES SHALL BE PRESERVED FOR EMPLOYEES WHOSE CONTINUOUS SERVICE IS INTERRUPTED IN THE PUBLIC INTEREST BY SERVICE WITH THE ARMED FORCES *** ."

UNDER THE ABOVE REGULATIONS, IT IS MANDATORY THAT AN EMPLOYEE ABSENT IN THE MILITARY SERVICE BE CONSIDERED FOR PROMOTION AND IF ELIGIBLE BE PROMOTED EFFECTIVE THE SAME DATE AS HE WOULD HAVE BEEN HAD HE REMAINED IN HIS CIVILIAN POSITION. IN THIS CASE IT IS CLEAR THAT HAD MR. BAJGROWICZ REMAINED IN THE INTERNAL REVENUE SERVICE A WAIVER WOULD HAVE BEEN OBTAINED AND HIS PROMOTION PROCESSED ON THE SAME DATE AS OTHER EMPLOYEES WHO REMAINED ON THE JOB.

ACCORDINGLY, THE DATE OF THE EMPLOYEE'S PROMOTION TO GRADE GS-11 MAY BE CHANGED TO SEPTEMBER 22, 1968, WITH CORRESPONDING ADJUSTMENTS IN THE DATES OF STEP INCREASES, AND HIS CLAIM FOR BACK PAY ALLOWED IF OTHERWISE CORRECT.