B-191386.OM, APR 9, 1980

B-191386.OM: Apr 9, 1980

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CLAIMS GROUP (ROOM 5858): RETURNED HEREWITH IS FILE Z-2630950. HAU'S CLAIM IS SUPPORTED BY A SIGNED STATEMENT FROM HIS SUPERVISOR DATED AUGUST 25. PAPERWORK WAS SUBMITTED TO PROMOTE HIM TO GS-7 BUT THAT THE PROMOTION WAS NOT MADE BECAUSE OF PERSONNEL CUTBACKS. UNTIL HE WAS PROMOTED TO GS 9 EFFECTIVE APRIL 23. HAU'S DETAIL TO PERFORM THE DUTIES AND RESPONSIBILITIES OF AN ELECTRONICS ENGINEER AT GRADE LEVELS GS- 5 AND GS-7 WAS NOT TO ANY VALID. HAU'S CLAIM ON THE GROUNDS THAT HE WAS NOT DETAILED TO A POSITION ACTUALLY CLASSIFIED AT A HIGHER GRADE AND. WHILE HIS POSITION MAY HAVE BEEN MISCLASSIFIED. HE WAS ENTITLED ONLY TO THE PAY OF THE POSITIONS TO WHICH HE WAS APPOINTED. WE HAVE RECEIVED ADDITIONAL INFORMATION FROM MR.

B-191386.OM, APR 9, 1980

SUBJECT: CLAIM OF ANDREW C. HAU FOR RETROACTIVE PROMOTION WITH BACK PAY - B-191386-O.M.:

ASSOCIATE DIRECTOR, FGMSD, CLAIMS GROUP (ROOM 5858):

RETURNED HEREWITH IS FILE Z-2630950. MR. ANDREW C. HAU, AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, APPEALED YOUR DISALLOWANCE OF HIS CLAIM FOR A TEMPORARY PROMOTION AND BACK PAY PURSUANT TO OUR TURNER CALDWELL DECISIONS, 55 COMP.GEN. 539 (1975) AND 56 ID. 427 (1977).

BY LETTER RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON APRIL 20, 1976, MR. HAU CLAIMED A TEMPORARY PROMOTION BASED ON A DETAIL FROM HIS POSITION AS A GS-4 ENGINEERING AIDE TO THE DUTIES OF A GS-5/7 ELECTRONIC ENGINEER FOR THE PERIOD FEBRUARY 21, 1970, UNTIL MARCH 3, 1972. MR. HAU'S CLAIM IS SUPPORTED BY A SIGNED STATEMENT FROM HIS SUPERVISOR DATED AUGUST 25, 1971, WHICH SAYS THAT, SOON AFTER MR. HAU GRADUATED FROM COLLEGE IN JANUARY 1970 WITH A BS DEGREE IN ELECTRICAL ENGINEERING, PAPERWORK WAS SUBMITTED TO PROMOTE HIM TO GS-7 BUT THAT THE PROMOTION WAS NOT MADE BECAUSE OF PERSONNEL CUTBACKS. HOWEVER, THE SUPERVISOR ALSO STATED THAT MR. HAU HAD FUNCTIONED AS AN ELECTRONIC ENGINEER FOR 18 MONTHS AND HAD SUCCESSFULLY PERFORMED THE DUTIES OF A GS-7 ELECTRONICS ENGINEER FOR THE LAST YEAR PRECEDING HIS STATEMENT. MR. HAU CLAIMED THE DIFFERENCE IN PAY BETWEEN HIS GRADES OF GS-4 AND GS 5 AND THOSE OF GS-5 AND GS-7, RESPECTIVELY, UNTIL HE WAS PROMOTED TO GS 9 EFFECTIVE APRIL 23, 1972. HE ALSO CLAIMED AN ADJUSTMENT IN THE PAY FOR HIS GS-9 POSITION BASED ON A SPECIAL RATE OF PAY FOR GS-7 IN EFFECT DURING THE TIME OF THE DETAIL. IN THIS CONNECTION THE ADMINISTRATIVE REPORT SHOWS THAT THE CLAIMS COVER THE PERIOD FEBRUARY 21, 1970, TO DECEMBER 29, 1973.

THE AIR FORCE DENIED THE CLAIM BECAUSE MR. HAU'S DETAIL TO PERFORM THE DUTIES AND RESPONSIBILITIES OF AN ELECTRONICS ENGINEER AT GRADE LEVELS GS- 5 AND GS-7 WAS NOT TO ANY VALID, CLASSIFIED AND ESTABLISHED POSITION VACANCY IN ACCORDANCE WITH AIR FORCE REGULATION 40-296. YOU DISALLOWED MR. HAU'S CLAIM ON THE GROUNDS THAT HE WAS NOT DETAILED TO A POSITION ACTUALLY CLASSIFIED AT A HIGHER GRADE AND, WHILE HIS POSITION MAY HAVE BEEN MISCLASSIFIED, HE WAS ENTITLED ONLY TO THE PAY OF THE POSITIONS TO WHICH HE WAS APPOINTED.

WE HAVE RECEIVED ADDITIONAL INFORMATION FROM MR. WALDEMAR J. MOEHRING, CHIEF, STAFFING SECTION, PERSONNEL DIVISION, HEADQUARTERS SACRAMENTO AIR LOGISTICS CENTER, MCCLELLAN AIR FORCE BASE, CALIFORNIA. BY LETTER OF FEBRUARY 8, 1980, ATTACHED, HE STATES THAT A POSITION NEED NOT BE VACANT TO EFFECT A RETROACTIVE TEMPORARY PROMOTION. HE ALSO STATES THAT, ALTHOUGH RECORDS ARE NO LONGER AVAILABLE TO UNEQUIVOCALLY RECONSTRUCT THE ENGINEERING POSITIONS CLASSIFIED IN MR. HAU'S UNIT OVER 3 YEARS AGO, IT WAS THE EMPLOYING OFFICE'S PRACTICE TO ESTABLISH TRAINEE POSITIONS WHERE POSSIBLE. THEREFORE, MR. MOEHRING CONCLUDES THAT IT WOULD BE LOGICAL TO ASSUME ELECTRONIC ENGINEERING TRAINING POSITIONS EXISTED AT THE GS-5 AND GS-7 LEVELS IN MR. HAU'S UNIT.

BASED ON THE NEW INFORMATION, WE CONCLUDE THAT THERE WERE ESTABLISHED TRAINING POSITIONS IN EXISTENCE DURING THE PERIOD IN QUESTION. THUS, IT APPEARS THAT MR. HAU WAS DETAILED TO A PARTICULAR POSITION AND THAT HIS POSITION WAS NOT MERELY MISCLASSIFIED.

IN VIEW OF THE FOREGOING, MR. HAU'S CLAIM SHOULD BE ALLOWED IF OTHERWISE PROPER. THE SETTLEMENT SHOULD BE BASED ON A RETROACTIVE TEMPORARY PROMOTION TO GS-5 EFFECTIVE ON THE 121ST DAY OF HIS DETAIL AND A RETROACTIVE TEMPORARY PROMOTION TO GS-7, 1 YEAR AFTER THAT DATE. MARY LEE GROOVER, B-190174, APRIL 21, 1978. FURTHER, AN ADJUSTMENT IN THE PAY FOR MR. HAU'S GS-9 POSITION BASED ON A SPECIAL RATE OF PAY FOR GS-7 IN EFFECT AT THE TIME OF HIS PROMOTION SHOULD BE MADE. SEE 5 C.F.R. SEC. 531.204(B) (1972).