B-173388, JUL 26, 1971

B-173388: Jul 26, 1971

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GOVERNMENT EMPLOYEES ARE ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH THEY ARE APPOINTED REGARDLESS OF DUTIES PERFORMED. UNLESS CLAIMANT IS REINSTATED OR RESTORED TO DUTY. THERE IS NO AUTHORITY BY WHICH COMPENSATION MAY BE GRANTED FOR THE PERIOD OF UNEMPLOYMENT OR THE PAY DIFFERENTIAL. TO MILTON KARCHIN: THIS WILL REFER TO YOUR LETTERS OF JUNE 6 AND 10. THE RECORD INDICATES THAT YOUR CLAIM IS FOR ADDITIONAL COMPENSATION DUE FOR (1) PERFORMING THE DUTIES OF A GS-4 POSITION WHILE HOLDING AN APPOINTMENT IN GS-3. (3) FOR PAY DIFFERENTIALS WHILE YOU WERE EMPLOYED IN A TEMPORARY POSITION OUTSIDE THE GOVERNMENT EARNING LESS THAN HAD YOU CONTINUED IN GOVERNMENT SERVICE. YOUR LETTERS OF APPEAL HAVE NOT PROVIDED ANY ADDITIONAL RELEVANT FACTS THAT REQUIRE DISCUSSION AT THIS TIME SINCE THE CIRCUMSTANCES UNDERLYING YOUR CLAIM WERE FULLY STATED IN THE SETTLEMENT CERTIFICATE OF MAY 25.

B-173388, JUL 26, 1971

BACK PAY - RESIGNATION FROM SERVICE DECISION REAFFIRMING DENIAL BY CLAIMS DIVISION OF CLAIM OF MILTON KARCHIN FOR ADDITIONAL COMPENSATION DUE FOR (1) PERFORMING GS-4 DUTIES WHILE IN A GS-3 POSITION; (2) PERIOD OF UNEMPLOYMENT FOLLOWING RESIGNATION FROM THE VETERANS ADMINISTRATION; (3) PAY DIFFERENTIAL FOR LESSENED EARNINGS OUTSIDE GOVERNMENT SERVICE. GOVERNMENT EMPLOYEES ARE ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH THEY ARE APPOINTED REGARDLESS OF DUTIES PERFORMED. UNLESS CLAIMANT IS REINSTATED OR RESTORED TO DUTY, THERE IS NO AUTHORITY BY WHICH COMPENSATION MAY BE GRANTED FOR THE PERIOD OF UNEMPLOYMENT OR THE PAY DIFFERENTIAL.

TO MILTON KARCHIN:

THIS WILL REFER TO YOUR LETTERS OF JUNE 6 AND 10, 1971, REQUESTING A RECONSIDERATION OF THE DENIAL OF YOUR CLAIM BY OUR CLAIMS DIVISION.

THE RECORD INDICATES THAT YOUR CLAIM IS FOR ADDITIONAL COMPENSATION DUE FOR (1) PERFORMING THE DUTIES OF A GS-4 POSITION WHILE HOLDING AN APPOINTMENT IN GS-3, (2) FOR COMPENSATION DURING A PERIOD OF UNEMPLOYMENT OCCURRING AFTER YOUR RESIGNATION FROM THE VETERANS ADMINISTRATION IN CLEVELAND, AND (3) FOR PAY DIFFERENTIALS WHILE YOU WERE EMPLOYED IN A TEMPORARY POSITION OUTSIDE THE GOVERNMENT EARNING LESS THAN HAD YOU CONTINUED IN GOVERNMENT SERVICE.

YOUR LETTERS OF APPEAL HAVE NOT PROVIDED ANY ADDITIONAL RELEVANT FACTS THAT REQUIRE DISCUSSION AT THIS TIME SINCE THE CIRCUMSTANCES UNDERLYING YOUR CLAIM WERE FULLY STATED IN THE SETTLEMENT CERTIFICATE OF MAY 25, 1971. YOU HAVE DIRECTED OUR ATTENTION TO THE "WILFUL AND FLAGRANT VIOLATIONS OF CSC (CIVIL SERVICE COMMISSION) REGULATIONS" THAT OCCURRED INCIDENT TO THE DENIAL OF YOUR PROMOTION. IN THAT CONNECTION WE WOULD POINT OUT THAT IT IS NO PART OF THE DUTY OR FUNCTION OF THE GENERAL ACCOUNTING OFFICE TO REGULATE OR REVIEW THE POLICIES AND ACTIONS OF OTHER AGENCIES OF THE GOVERNMENT RELATING TO THE PROMOTION PROGRAM FOR EMPLOYEES OF SUCH OTHER AGENCIES. SUCH MATTERS ARE PRIMARILY FOR DETERMINATION AND CONSIDERATION BY THE EMPLOYING AGENCY WITHIN THE GENERAL GUIDELINES PRESCRIBED BY THE CIVIL SERVICE COMMISSION.

THE RECORD INDICATES THAT AT THE END OF YOUR DUTY PERIOD IN A TRAINEE POSITION YOUR SUPERVISOR DECLINED TO OFFER YOU THE EXPECTED PROMOTION BECAUSE HE DETERMINED THAT YOU HAD NOT SATISFACTORILY COMPLETED THE TRAINING PERIOD. YOU PROTESTED THAT DECISION AND WERE GRANTED A HEARING WHICH UPHELD THE DECISION OF YOUR SUPERVISOR. SOON AFTER THAT HEARING YOUR SUPERVISOR APPARENTLY REASSIGNED YOU TO THE DUTIES YOU HAD PERFORMED BEFORE UNDERTAKING THE TRAINING POSITION. THIS REASSIGNMENT SEEMS TO BE CONSISTENT WITH INSTRUCTIONS CONTAINED IN THE FEDERAL PERSONNEL MANUAL, CHAPTER 335, SUBCHAPTER 4-2B(4), WHICH PROVIDES IN PART THAT: "A TRAINEE WHO DOES NOT SATISFACTORILY COMPLETE THE TRAINING PERIOD IS REASSIGNED TO A DIFFERENT LINE OF WORK OR OTHERWISE REMOVED FROM THE POSITION." COMPARE WITH B-147079, SEPTEMBER 28, 1961, COPY ENCLOSED. WHILE YOUR APPEAL FROM THE FINDINGS OF THE HEARING, REFERRED TO ABOVE, WAS PENDING YOU RESIGNED FROM GOVERNMENT EMPLOYMENT, AND CONSEQUENTLY THE APPEAL WAS ABANDONED BEFORE A FINAL OPINION COULD BE RENDERED ON THE MERITS OF YOUR COMPLAINT.

IT IS WELL-SETTLED LAW THAT GOVERNMENT EMPLOYEES ARE ENTITLED ONLY TO THE SALARY OF POSITION TO WHICH THEY ARE APPOINTED, REGARDLESS OF THE DUTIES THEY ACTUALLY PERFORM. GANSE V UNITED STATES, 180 CT. CL. 183 (1967). SINCE YOU WERE NEVER APPOINTED TO A GS-4 POSITION, THERE IS NO BASIS FOR ESTABLISHING YOUR ENTITLEMENT TO COMPENSATION AT A GS-4 LEVEL FOR ANY OF THE TIME PERIODS IN QUESTION.

AS STATED IN OUR SETTLEMENT CERTIFICATE OF MAY 25, 1971, YOUR CLAIM FOR COMPENSATION WHILE YOU WERE UNEMPLOYED AND TEMPORARILY EMPLOYED IN PRIVATE INDUSTRY AFTER LEAVING THE VETERANS ADMINISTRATION WOULD BE ALLOWABLE IF AT ALL UNDER THE BACK PAY ACT OF 1966, CODIFIED AS 5 U.S.C. 5596. AWARD UNDER THAT LAW HOWEVER IS CONDITIONED UPON THE CORRECTION OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WHICH HAS BEEN ESTABLISHED BY AN APPROPRIATE ADMINISTRATIVE PROCESS. IN THE ABSENCE OF YOUR REINSTATEMENT OR RESTORATION TO DUTY BY AN APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION, THERE IS NO AUTHORITY IN LAW FOR THE PAYMENT TO YOU OF ANY BACK PAY. SEE B-169753, JUNE 29, 1970, COPY ENCLOSED.

IN VIEW OF THE FOREGOING APPLICABLE PROVISIONS OF LAW, THE DISALLOWANCE OF YOUR CLAIM MUST BE SUSTAINED.