B-197143.OM, JUN 16, 1980

B-197143.OM: Jun 16, 1980

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PRECIS-UNAVAILABLE COMPTROLLER GENERAL: WE ARE FORWARDING THE FILES RELATIVE TO THE CLAIMS OF DR. KLAUCK WAS DETAILED FROM A POSITION AT GRADE GS-13 TO ONE AT GRADE GS -15. BASTIN WAS DETAILED FROM A POSITION AT GRADE GS-9 TO ONE AT GRADE GS-12. WHEN THEIR CLAIMS WERE FIRST RECEIVED BY THE GENERAL ACCOUNTING OFFICE. THEY WERE FORWARDED TO THE VETERANS ADMINISTRATION FOR SETTLEMENT IN ACCORDANCE WITH B-190174. THE VETERANS ADMINISTRATION HAS RETURNED THESE CLAIMS STATING THAT THERE WERE NO INTERVENING POSITIONS BETWEEN THE CLAIMANTS' APPOINTED AND DETAIL POSITIONS. SINCE THE POSITIONS TO WHICH THEY WERE DETAILED WERE NORMALLY FILLED BY PROMOTION OF INDIVIDUALS FROM OTHER FACILITIES. THERE WERE POSITIONS AT THE INTERVENING GRADES IN THE "NORMAL LINE OF PROMOTION" SO THAT THE EXCEPTION TO THE TIME-IN-GRADE REQUIREMENTS OF THE WHITTEN AMENDMENT FOUND AT FEDERAL PERSONNEL MANUAL.

B-197143.OM, JUN 16, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILES RELATIVE TO THE CLAIMS OF DR. KENNETH A. KLAUCK AND MR. PAUL A. BASTIN, JR. FOR RETROACTIVE TEMPORARY PROMOTIONS WITH BACK PAY BASED ON OVERLONG DETAILS TO HIGHER GRADE POSITIONS.

DR. KLAUCK WAS DETAILED FROM A POSITION AT GRADE GS-13 TO ONE AT GRADE GS -15. MR. BASTIN WAS DETAILED FROM A POSITION AT GRADE GS-9 TO ONE AT GRADE GS-12. THE VETERANS ADMINISTRATION DENIED THEIR CLAIMS ON THE BASIS OF THE TIME-IN-GRADE REQUIREMENTS OF THE WHITTEN AMENDMENT. WHEN THEIR CLAIMS WERE FIRST RECEIVED BY THE GENERAL ACCOUNTING OFFICE, THEY WERE FORWARDED TO THE VETERANS ADMINISTRATION FOR SETTLEMENT IN ACCORDANCE WITH B-190174, APRIL 21, 1978.

THE VETERANS ADMINISTRATION HAS RETURNED THESE CLAIMS STATING THAT THERE WERE NO INTERVENING POSITIONS BETWEEN THE CLAIMANTS' APPOINTED AND DETAIL POSITIONS, AT THEIR FACILITIES. SINCE THE POSITIONS TO WHICH THEY WERE DETAILED WERE NORMALLY FILLED BY PROMOTION OF INDIVIDUALS FROM OTHER FACILITIES, THERE WERE POSITIONS AT THE INTERVENING GRADES IN THE "NORMAL LINE OF PROMOTION" SO THAT THE EXCEPTION TO THE TIME-IN-GRADE REQUIREMENTS OF THE WHITTEN AMENDMENT FOUND AT FEDERAL PERSONNEL MANUAL, CHAPTER 300, PARAGRAPH 6-2E WOULD NOT APPLY.

SINCE B-190174 STATED ONLY THAT EMPLOYEES DETAILED TWO OR MORE GRADES ABOVE THEIR REGULAR GRADES ARE ENTITLED TO RETROACTIVE TEMPORARY PROMOTIONS TO THE HIGHEST GRADE TO WHICH THEY COULD HAVE BEEN PROMOTED UNDER THE WHITTEN AMENDMENT AND OTHER APPLICABLE REQUIREMENTS, AND DID NOT DISCUSS THE MECHANISM FOR SUCH PROMOTIONS, THE VETERANS ADMINISTRATION REQUESTS INSTRUCTIONS CONCERNING HOW IT CAN LEGALLY EFFECT THE RETROACTIVE PROMOTIONS OF THESE INDIVIDUALS.

GENERALLY, EMPLOYEES CAN ONLY BE PROMOTED TO POSITIONS WHICH WERE CLASSIFIED AND ESTABLISHED ON THE DATE THE PROMOTION IS TO BE MADE EFFECTIVE. IN THE INSTANT MATTER, THE EXCEPTIONS TO THE PROHIBITION AGAINST RETROACTIVE RECLASSIFICATION (FOUND AT 5 CFR 511.701 ET SEQ. AND 5 CFR 713.271) DO NOT APPLY. SINCE B-190174 STATES THAT THE EMPLOYEES ARE ENTITLED TO PROMOTION TO A GRADE LEVEL, IT SHOULD BE DETERMINED WHETHER: 1) AN EMPLOYEE CAN BE GIVEN A RETROACTIVE TEMPORARY PROMOTION TO ANY LOCALLY AVAILABLE POSITION, AT THE GRADE LEVEL TO WHICH HE COULD BE PROMOTED, FOR WHICH HE MEETS THE PROMOTION REQUIREMENTS, EVEN THOUGH THE DUTIES OF SUCH A POSITION MAY NOT HAVE BEEN THE DUTIES HE PERFORMED 2) ANOTHER MECHANISM EXISTS FOR EFFECTING A RETROACTIVE PROMOTION IN THESE CIRCUMSTANCES; OR 3) THE EMPLOYEES' CLAIMS MUST BE DENIED ON THE BASIS THAT THERE WERE NO POSITIONS TO WHICH THEY COULD HAVE BEEN PROMOTED. (SIX CLAIMS INVOLVING A RELATED ISSUE ARE BEING CONSIDERED UNDER B-195576.)

BECAUSE OF THE DOUBTFUL ISSUES INVOLVED, WE ARE FORWARDING THE MATTER FOR YOUR CONSIDERATION.

INDORSEMENT

IN OUR INDORSEMENT B-195576-O.M. TO YOU TODAY, WE STATE THAT AN EMPLOYEE WHO IS DETAILED TO A HIGHER-LEVEL POSITION FOR WHICH HE DOES NOT QUALIFY OR MEET THE BASIC REQUIREMENTS, MAY BE PROMOTED TO AN INTERVENING-LEVEL POSITION FOR WHICH HE QUALIFIES AND MEETS THE BASIC REQUIREMENTS EVEN THOUGH THE INTERVENING POSITION IN THE RELEVANT POSITION SERIES WAS NOT ESTABLISHED AND CLASSIFIED AT THE TIME OF DETAIL. DR. KLAUCK AND MR. BASTIN ARE ENTITLED TO RETROACTIVE TEMPORARY PROMOTIONS WITH BACK PAY AS THEY COULD HAVE BEEN PROMOTED TO INTERVENING-LEVEL POSITIONS WITHIN THEIR POSITION SERIES. THEREFORE, THEIR CLAIMS MAY BE ALLOWED IF OTHERWISE PROPER.