B-243482, Aug 12, 1991

B-243482: Aug 12, 1991

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Filling the position with an applicant who was neither a federal employee nor a veteran. This Office is without authority to resolve grievances arising under the Act. The claim is denied. Filling the position with an applicant who was neither a federal employee nor a veteran. Pavlos was an incumbent federal employee who was covered by the Act. The Claims Group denied his claim on the grounds that the only time the Act requires that an agency select a veteran over a non-veteran is in the case of initial hires from a list of eligible applicants. Was the Civil Service Commission. Without a determination by the appropriate authority that there was an unjustified or unwarranted personnel action.

B-243482, Aug 12, 1991

CIVILIAN PERSONNEL - Compensation - Retroactive compensation - Promotion - Veterans preferences - Violation DIGEST: A former employee complains that the agency violated the Veterans' Preference Act when the agency passed him over for a promotion, instead filling the position with an applicant who was neither a federal employee nor a veteran. (Public Law 78-359, 58 Stat. 387, approved June 27, 1944, now codified in various sections of Title 5, United States Code (1988).) The Act authorizes the Office of Personnel Management (formerly, the Civil Service Commission) to prescribe and enforce regulations for the administration of veterans' preferences. 5 U.S.C. Sec. 1302(b). Therefore, this Office is without authority to resolve grievances arising under the Act. Accordingly, the claim is denied.

Demetrios Pavlos:

Mr. Demetrios Pavlos, a former employee of Picatinny Arsenal, United States Army Armament Research and Development Command, appeals our Claims Group settlement /1/ denying his claim for retroactive promotion and back pay effective October 22, 1959. For the reasons stated below, we may not grant Mr. Pavlos the relief he seeks.

Mr. Pavlos complains that the agency violated the Veterans' Preference Act /2/ when the agency passed him over for a promotion, instead filling the position with an applicant who was neither a federal employee nor a veteran. At the time, Mr. Pavlos was an incumbent federal employee who was covered by the Act. The Claims Group denied his claim on the grounds that the only time the Act requires that an agency select a veteran over a non-veteran is in the case of initial hires from a list of eligible applicants.

The Act requires agencies to give veterans preference "in certification for appointment, and in appointment, reinstatement, reemployment, and retention...." Public Law 78-359, Sec. 2, now codified at 5 U.S.C. Sec. 1302(b) (1988). See also 5 U.S.C. Sec. 2108 (3). Furthermore, the Act authorizes the Office of Personnel Management (OPM) to prescribe and enforce regulations for the administration of veterans' preferences. U.S.C. Sec. 1302(b). In this case, the Picatinny Arsenal reviewed the personnel action at issue and found that the Veterans' Preference Act had not been violated. Mr. Pavlos did not appeal that decision to the appropriate authority, which, at the time, was the Civil Service Commission. Without a determination by the appropriate authority that there was an unjustified or unwarranted personnel action, there is no basis on which this Office may grant Mr. Pavlos's claim. Accordingly, the claim is denied.

/1/ Z-2577564, May 16, 1988.

/2/ Public Law 78-359, 58 Stat. 387, approved June 27, 1944, now codified in various sections of Title 5, United States Code (1988). The substantive provisions at issue here have not changed since Congress first passed the Act; however, the Office of Personnel Management now carries out the functions originally assigned to the Civil Service Commission. See 5 U.S.C. Sec. 1302 (1988).