B-175372, APR 13, 1972

B-175372: Apr 13, 1972

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ADKISSON'S CLAIM IS SUBJECT TO THE GENERAL RULE THAT A PERSONNEL ACTION MAY NOT BE MADE RETROACTIVE SO AS TO INCREASE AN EMPLOYEE'S RIGHT TO COMPENSATION. 40 COMP. IT IS WELL-SETTLED THAT FEDERAL EMPLOYEES ARE ENTITLED ONLY TO THE SALARIES OF THEIR APPOINTED POSITIONS. CONCERNING RETROACTIVE PROMOTIONS WHICH MAY HAVE BEEN PREVIOUSLY GRANTED IN SIMILAR CIRCUMSTANCES. IT IS THE OPINION OF THE COMP. THAT SUCH ACTIONS CONSTITUTE ERRONEOUS PAYMENTS OF PAY AND WOULD BE SUBJECT TO COLLECTION FROM THE EMPLOYEES INVOLVED UNLESS THE COLLECTIONS ARE WAIVED UNDER THE PROVISIONS OF 5 U.S.C. 5584. THE CLAIM IS DENIED. WAS EFFECTED ON JUNE 8. THE ONLY DOCUMENTS YOU KNEW WOULD BE REQUIRED WERE YOUR FINAL REPORT CARDS AND A DIPLOMA SHOWING THAT YOU HAD RECEIVED A B.S.

B-175372, APR 13, 1972

CIVILIAN EMPLOYEE - ALLEGED DELAY IN PROMOTION - PROPOSED RETROACTIVITY DECISION DISALLOWING A CLAIM OF JOHN F. ADKISSON FOR BACK PAY INCIDENT TO A 5-WEEK DELAY IN PROMOTION FROM STUDENT TRAINEE TO NUCLEAR ENGINEER AT THE NAVAL AIR STATION, PENSACOLA, FLA. IN VIEW OF THE AGENCY'S BROAD DISCRETIONARY POWER PURSUANT TO SECTION 1- 4, CHAPTER 335 OF THE FEDERAL PERSONNEL MANUAL, AND ABSENT ANY INDICATION OF ADMINISTRATIVE ERROR, MR. ADKISSON'S CLAIM IS SUBJECT TO THE GENERAL RULE THAT A PERSONNEL ACTION MAY NOT BE MADE RETROACTIVE SO AS TO INCREASE AN EMPLOYEE'S RIGHT TO COMPENSATION. 40 COMP. GEN. 207 (1960). ADDITION, IT IS WELL-SETTLED THAT FEDERAL EMPLOYEES ARE ENTITLED ONLY TO THE SALARIES OF THEIR APPOINTED POSITIONS, REGARDLESS OF THE DUTIES THEY ACTUALLY PERFORM. DIANISH V. UNITED STATES, 183 CT. CL. 702 (1968). CONCERNING RETROACTIVE PROMOTIONS WHICH MAY HAVE BEEN PREVIOUSLY GRANTED IN SIMILAR CIRCUMSTANCES, IT IS THE OPINION OF THE COMP. GEN. THAT SUCH ACTIONS CONSTITUTE ERRONEOUS PAYMENTS OF PAY AND WOULD BE SUBJECT TO COLLECTION FROM THE EMPLOYEES INVOLVED UNLESS THE COLLECTIONS ARE WAIVED UNDER THE PROVISIONS OF 5 U.S.C. 5584. IN VIEW OF THE FOREGOING, THE CLAIM IS DENIED.

TO MR. JOHN F. ADKISSON:

WE REFER TO YOUR LETTER OF FEBRUARY 7, 1972, FORWARDED BY ENDORSEMENT OF THE COMMANDER (CODE 170), NORFOLK NAVAL SHIPYARD, AND TO YOUR LETTERS OF FEBRUARY 28, 1972, AND MARCH 3, 1972, WHICH REQUEST CONSIDERATION OF YOUR CLAIM FOR BACK PAY ALLEGED TO BE DUE YOU BECAUSE OF A 5-WEEK DELAY OF YOUR PROMOTION FROM STUDENT TRAINEE (ELECTRICAL ENGINEERING), GS-4 TO NUCLEAR ENGINEER, GS-5.

YOUR RETURN TO DUTY FROM LEAVE WITHOUT PAY (LWOP), WHICH HAD BEEN GRANTED TO ALLOW YOU TO RETURN TO COLLEGE, WAS EFFECTED ON JUNE 8, 1971. PRIOR TO YOUR RETURN TO DUTY, YOU HAD APPARENTLY DISCUSSED WITH PERSONNEL OF THE NORFOLK NAVAL SHIPYARD THE DOCUMENTS YOU WOULD BE REQUIRED TO PRESENT UPON YOUR RETURN TO DUTY. THE ONLY DOCUMENTS YOU KNEW WOULD BE REQUIRED WERE YOUR FINAL REPORT CARDS AND A DIPLOMA SHOWING THAT YOU HAD RECEIVED A B.S. DEGREE IN PHYSICS ON JUNE 6, 1971. YOU FURNISHED COPIES OF THESE DOCUMENTS TO SHIPYARD PERSONNEL ON JUNE 10, 1971.

AFTER YOUR RETURN TO DUTY, YOU WERE INFORMED THAT YOUR PROMOTION TO NUCLEAR ENGINEER COULD NOT BE EFFECTED UNTIL THE INDUSTRIAL RELATIONS OFFICE AT THE SHIPYARD HAD RECEIVED A FINAL COLLEGE TRANSCRIPT. THIS TRANSCRIPT WAS RECEIVED IN THE INDUSTRIAL RELATIONS OFFICE ON JUNE 28, 1971. YOUR PROMOTION WAS THEN PROCESSED AND BECAME EFFECTIVE ON JULY 13, 1971. YOU REQUEST THAT YOUR PROMOTION BE MADE RETROACTIVELY EFFECTIVE TO JUNE 8, 1971, AND THAT YOUR SALARY AT THE GS-5 LEVEL BE MADE RETROACTIVE TO THAT DATE ALSO.

AS A GENERAL RULE A PERSONNEL ACTION MAY NOT BE MADE RETROACTIVE SO AS TO INCREASE THE RIGHT OF AN EMPLOYEE TO COMPENSATION. SEE 40 COMP. GEN. 207 (1960). WE HAVE MADE EXCEPTIONS TO THIS RULE WHERE THROUGH ADMINISTRATIVE OR CLERICAL ERROR A PERSONNEL ACTION WAS NOT EFFECTED AS ORIGINALLY INTENDED, WHERE NONDISCRETIONARY ADMINISTRATIVE REGULATIONS OR POLICIES HAVE NOT BEEN CARRIED OUT, OR WHERE AN ADMINISTRATIVE ERROR HAS DEPRIVED THE EMPLOYEE OF A RIGHT GRANTED BY STATUTE OR REGULATION. SEE B-172077, APRIL 7, 1971; B-168715, JANUARY 22, 1970; COPIES ENCLOSED.

FROM THE DOCUMENTS FORWARDED TO US WITH YOUR CLAIM, WE HAVE FOUND NOTHING TO INDICATE THAT THERE WAS ANY ADMINISTRATIVE INTENTION TO PROMOTE YOU ON JUNE 8, 1971. WE HAVE NOT DISCOVERED EVIDENCE OF ANY FAILURE TO CARRY OUT A NONDISCRETIONARY ADMINISTRATIVE REGULATION OR POLICY IN YOUR CASE, NOR HAVE WE FOUND THAT YOU HAVE BEEN DEPRIVED OF ANY RIGHT GRANTED BY STATUTE OR REGULATION BECAUSE OF THE 5-WEEK DELAY IN YOUR PROMOTION. IN THIS CONNECTION SECTION 1-4, CHAPTER 335 OF THE FEDERAL PERSONNEL MANUAL, PROMOTION AND INTERNAL PLACEMENT, PROVIDES IN PERTINENT PART:

"A. THE EFFECTIVE DATE OF A POSITION CHANGE GENERALLY IS DETERMINED BY THE AGENCY. A POSITION CHANGE CANNOT BE MADE EFFECTIVE, HOWEVER, BEFORE -

"(2) THE EMPLOYEE HAS MET LEGAL AND QUALIFICATION REQUIREMENTS *** "

IN VIEW OF THE DISCRETION ALLOWED BY THIS REGULATION AND THE LACK OF ANY INDICATION OF ADMINISTRATIVE ERROR, WE CONCLUDE THAT THE RULE AGAINST MAKING PERSONNEL ACTIONS RETROACTIVELY EFFECTIVE IS APPLICABLE TO YOUR CASE.

REGARDING YOUR ASSERTIONS THAT YOU WERE PERFORMING NUCLEAR ENGINEER WORK WHILE YOU WERE STILL IN THE GS-4 TRAINEE POSITION, YOU ARE ADVISED THAT FEDERAL EMPLOYEES ARE ENTITLED ONLY TO THE SALARIES OF THE POSITIONS TO WHICH THEY ARE APPOINTED REGARDLESS OF THE DUTIES THEY ACTUALLY PERFORM. SEE DIANISH V. UNITED STATES, 183 CT. CL. 702 (1968); COLEMAN V. UNITED STATES, 100 CT. CL. 41 (1943).

WITH RESPECT TO THE PROMOTIONS OF OTHER EMPLOYEES TO WHICH YOU REFER, WE UNDERSTAND THAT THE NAVY HAS CONCLUDED THAT THE HANDLING OF THOSE CASES WAS IN ERROR. APPARENTLY, THEIR PROMOTIONS WERE MADE RETROACTIVE AS A RESULT OF A MISINTERPRETATION OF THE REGULATIONS. ANY ADDITIONAL COMPENSATION RECEIVED AS A RESULT OF THESE ERRONEOUS PERSONNEL ACTIONS COULD CONSTITUTE ERRONEOUS PAYMENTS OF PAY AND WOULD BE SUBJECT TO COLLECTION FROM THE EMPLOYEES INVOLVED UNLESS SUCH COLLECTION BE WAIVED UNDER THE PROVISIONS OF 5 U.S.C. 5584.

IN VIEW OF THE ABOVE, THERE IS NO BASIS FOR MAKING YOUR PROMOTION EFFECTIVE PRIOR TO JULY 13, 1971. ACCORDINGLY, YOUR CLAIM MUST BE DENIED.