B-180046, APR 11, 1974

B-180046: Apr 11, 1974

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RECOMMENDATION THAT EMPLOYEE BE PROMOTED WAS PLACED IN THE MAIL BUT WAS NOT DELIVERED. SECOND REQUEST WAS FORWARDED AND APPROVED. THE EMPLOYEE MAY NOT BE PROMOTED RETROACTIVELY SINCE IT IS GENERAL RULE THAT PROMOTIONS MAY NOT BE MADE RETROACTIVELY AND THERE WAS NO ADMINISTRATIVE ERROR WHICH COULD HAVE BEEN CORRECTED RETROACTIVELY. THE MATTER WAS SUBMITTED HERE FOR DECISION BY THE DECIDING OFFICIAL. WHO WAS UNABLE TO RESOLVE THE GRIEVANCE SATISFACTORILY THROUGH INFORMAL OR SUBSEQUENT FORMAL PROCEEDINGS. THE SUBMISSION WAS NOT ACCOMPANIED BY A VOUCHER OR SUPPORTING DOCUMENTATION AND WAS NOT SUBMITTED BY AN INDIVIDUAL TO WHOM THIS OFFICE IS AUTHORIZED TO RENDER DECISIONS. THE CIRCUMSTANCES UNDER WHICH THE PROMOTION IN QUESTION WAS DELAYED WERE DESCRIBED AS FOLLOWS IN THE LETTER TO THIS OFFICE: "MS.

B-180046, APR 11, 1974

RECOMMENDATION THAT EMPLOYEE BE PROMOTED WAS PLACED IN THE MAIL BUT WAS NOT DELIVERED. SECOND REQUEST WAS FORWARDED AND APPROVED. THE EMPLOYEE MAY NOT BE PROMOTED RETROACTIVELY SINCE IT IS GENERAL RULE THAT PROMOTIONS MAY NOT BE MADE RETROACTIVELY AND THERE WAS NO ADMINISTRATIVE ERROR WHICH COULD HAVE BEEN CORRECTED RETROACTIVELY.

TO DEPT. OF HEALTH, EDUCATION AND WELFARE:

THIS ACTION ARISES AS THE RESULT OF A GRIEVANCE PROCEEDING INITIATED BY AN EMPLOYEE OF THE HACKENSACK, NEW JERSEY DISTRICT OFFICE OF THE SOCIAL SECURITY ADMINISTRATION (SSA) OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW). THE GRIEVANCE CONCERNED A DELAY IN PROMOTION OF THE EMPLOYEE FROM GRADE GS-3 TO GS-4 FROM A PROPOSED EFFECTIVE DATE OF MARCH 4, 1973, TO THE ACTUAL DATE, APRIL 1, 1973. THE MATTER WAS SUBMITTED HERE FOR DECISION BY THE DECIDING OFFICIAL, THE REGIONAL EXECUTIVE OFFICER OF HEW, WHO WAS UNABLE TO RESOLVE THE GRIEVANCE SATISFACTORILY THROUGH INFORMAL OR SUBSEQUENT FORMAL PROCEEDINGS.

THE SUBMISSION WAS NOT ACCOMPANIED BY A VOUCHER OR SUPPORTING DOCUMENTATION AND WAS NOT SUBMITTED BY AN INDIVIDUAL TO WHOM THIS OFFICE IS AUTHORIZED TO RENDER DECISIONS. SEE SECTIONS 74 AND 82D, TITLE 31, UNITED STATES CODE. HOWEVER, SINCE THE LETTER OF THE REGIONAL EXECUTIVE OFFICER STATES A CLAIM AND SETS FORTH THE FACTS WITH SUFFICIENT PARTICULARITY TO ENABLE US TO DECIDE THE ISSUE, WE RENDER THIS DECISION IN THE INTEREST OF AVOIDING THE DELAY INVOLVED IN REQUIRING RESUBMISSION OF THE MATTER IN ACCORDANCE WITH NORMAL PROCEDURES.

THE CIRCUMSTANCES UNDER WHICH THE PROMOTION IN QUESTION WAS DELAYED WERE DESCRIBED AS FOLLOWS IN THE LETTER TO THIS OFFICE:

"MS. CLAUDETTE CISBANI IS A CLAIMS DEVELOPMENT CLERK, GS-4, IN THE HACKENSACK, NEW JERSEY DISTRICT OFFICE OF THE SOCIAL SECURITY ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. SHE BECAME ELIGIBLE FOR A CAREER PROMOTION FROM GS-3 TO GS-4 IN JANUARY 1973, BUT HER PROMOTION, AND THAT OF A FEW OTHER EMPLOYEES, WAS DELAYED BECAUSE OF A DEPARTMENTAL 'FREEZE.' THE 'FREEZE' WAS LIFTED AND THE PROMOTIONS OF THE OTHER EMPLOYEES BECAME EFFECTIVE ON MARCH 4, 1973. MS. CISBANI WAS NOT PROMOTED, AND SHE QUESTIONED HER SUPERVISOR AFTER WAITING FOR SEVERAL WEEKS. AN INVESTIGATION OF THE DELAY REVEALED THAT DISTRICT OFFICE MANAGEMENT HAD PREPARED A TIMELY REQUEST FOR PERSONNEL ACTION (SF-52) ON DECEMBER 11, 1972, PROPOSING HER PROMOTION TO GS-4. THE FORM WAS FORWARDED THE SAME DAY TO THE REGIONAL PERSONNEL OFFICE, NEW YORK, NEW YORK. REGIONAL OFFICE RECORDS SHOWED THAT THE SF-52 HAD NOT BEEN RECEIVED AND HAD APPARENTLY BEEN LOST IN THE MAIL. DISTRICT OFFICE MANAGEMENT DISCOVERED THIS FACT MARCH 20, 1973, AND THEN FORWARDED A SECOND SF-52 TO THE REGIONAL PERSONNEL OFFICE. THE PERSONNEL OFFICE PREPARED A NOTIFICATION OF PERSONNEL ACTION (SF-50) DATED MARCH 30, 1973, INDICATING MS. CISBANI'S PROMOTION TO GS-4 EFFECTIVE APRIL 1, 1973."

THE RULE IS WELL ESTABLISHED THAT THE EFFECTIVE DATE OF A CHANGE IN SALARY IS THE DATE ACTION IS TAKEN BY THE ADMINISTRATIVE OFFICER VESTED WITH PROPER AUTHORITY OR A SUBSEQUENT DATE FIXED BY HIM. 21 COMP. GEN. 95 (1941). ALSO, IT HAS BEEN HELD THAT RETROACTIVE PROMOTIONS WILL NOT BE SANCTIONED BY THIS OFFICE SO FAR AS PAYMENT OF SALARY IS CONCERNED. COMP. GEN. 140 (1953). HOWEVER, WHERE, DUE TO A CLERICAL OR ADMINISTRATIVE ERROR A PERSONNEL ACTION WAS NOT EFFECTED AS ORIGINALLY INTENDED, THE ERROR MAY BE CORRECTED RETROACTIVELY TO COMPLY WITH THE ORIGINAL INTENT WITHOUT VIOLATING THE RULE PROHIBITING RETROACTIVE PROMOTIONS. 30 COMP. GEN. 94 (1950); 37 COMP. GEN. 300 (1957); 37 COMP. GEN. 774 (1958); B-168683, JANUARY 22, 1970.

IN THE INSTANT CASE THE RECORD SHOWS THAT THE RECOMMENDATION FOR PROMOTION OF MS. CISBANI WAS DEPOSITED IN THE MAIL AND WAS NOT RECEIVED BY THE ADMINISTRATIVE OFFICER VESTED WITH PROPER AUTHORITY TO APPROVE PROMOTIONS. WHEN THIS WAS ASCERTAINED A SECOND RECOMMENDATION WAS FORWARDED AND APPROVED. IN CASES INVOLVING APPROVAL OF RETROACTIVE PROMOTIONS ON THE GROUND OF ADMINISTRATIVE OR CLERICAL ERROR IT IS NECESSARY THAT THE OFFICIAL HAVING DELEGATED AUTHORITY TO APPROVE THE PROMOTION HAS DONE SO. IF SUBSEQUENT TO SUCH APPROVAL FORMAL ACTION TO EFFECT THE PROMOTION IS NOT TAKEN ON A TIMELY BASIS AS INTENDED BY THE APPROVING OFFICER CONSIDERATION MAY BE GIVEN TO AUTHORIZING A RETROACTIVE EFFECTIVE DATE. HOWEVER, WHEN, AS IN THIS CASE, THE DELAY OR "ERROR" OCCURRED PRIOR TO APPROVAL BY SUCH RESPONSIBLE OFFICIAL THE INTENT OF THE AGENCY TO PROMOTE HAS NOT BEEN ESTABLISHED AND THERE IS NO BASIS FOR HOLDING THAT A PROPERLY APPROVED PROMOTION WAS DELAYED DUE TO AN ADMINISTRATIVE OR CLERICAL ERROR. BASED ON THE PRESENT RECORD THE GENERAL RULE PROHIBITING RETROACTIVE PROMOTIONS IS FOR APPLICATION. B-165307, NOVEMBER 4, 1968. ACCORDINGLY, THE PROMOTION MAY NOT BE MADE RETROACTIVELY EFFECTIVE.