B-45244, NOVEMBER 2, 1944, 24 COMP. GEN. 341

B-45244: Nov 2, 1944

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PROVIDED THERE WAS NO PURPOSE TO REDUCE THE EMPLOYEE FOR ANY OTHER REASON. 1944: I HAVE YOUR LETTER OF OCTOBER 16. AS FOLLOWS: YOUR DECISION IS REQUESTED UPON THE QUESTIONS ARISING FROM THE CIRCUMSTANCES HEREINAFTER SET FORTH. MISS ALZADA EATON WAS A CIVILIAN EMPLOYEE OF THE FINANCE OFFICE. WAS BEING PAID AT THE RATE OF $1740 PER ANNUM. 1943 SHE WAS GIVEN A PROMOTION TO GRADE CAF-4 AT $1800 PER ANNUM. 1944 SHE WAS TRANSFERRED TO DIBBLE GENERAL HOSPITAL. THE CIVILIAN PERSONNEL SERVICES FOR THE HOSPITAL WERE PERFORMED BY THE PERSONNEL OFFICE OF THE PRESIDIO OF SAN FRANCISCO AND ALL PERSONNEL RECORDS AND REGULATIONS WERE KEPT THERE. THE RECOMMENDATION FOR PERSONNEL ACTION WHICH WAS FORWARDED TO THE PRESIDIO.

B-45244, NOVEMBER 2, 1944, 24 COMP. GEN. 341

COMPENSATION - WITHIN-GRADE PROMOTIONS - RETENTION RIGHTS UPON TRANSFER; RETROACTIVE CORRECTION OF ERRORS WHERE THERE EXISTS NO ADMINISTRATIVE REGULATION, PRACTICE, OR POLICY TO DENY, UPON TRANSFER OF EMPLOYEES TO OTHER POSITIONS EITHER IN THE SAME OR DIFFERENT AGENCY, THE WITHIN-GRADE SALARY ADVANCEMENTS PREVIOUSLY ATTAINED UNDER THE ACT OF AUGUST 1, 1941, AN ADMINISTRATIVE ERROR IN TRANSFERRING AN EMPLOYEE AT A SALARY RATE WHICH DID NOT SAVE SUCH ADVANCEMENTS TO HIM MAY BE CORRECTED RETROACTIVELY EFFECTIVE FROM THE DATE OF THE TRANSFER SO AS TO SAVE THE LAWFUL SALARY RATE RECEIVED PRIOR TO THE TRANSFER, PROVIDED THERE WAS NO PURPOSE TO REDUCE THE EMPLOYEE FOR ANY OTHER REASON. COMP. GEN. 791, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, NOVEMBER 2, 1944:

I HAVE YOUR LETTER OF OCTOBER 16, 1944, AS FOLLOWS:

YOUR DECISION IS REQUESTED UPON THE QUESTIONS ARISING FROM THE CIRCUMSTANCES HEREINAFTER SET FORTH.

MISS ALZADA EATON WAS A CIVILIAN EMPLOYEE OF THE FINANCE OFFICE, SAN FRANCISCO, CALIFORNIA SERVING AS A CLERK, CAF-3. PRIOR TO DECEMBER 1, 1943 SHE HAD RECEIVED TWO WITHIN GRADE PROMOTIONS AND, CONSEQUENTLY, WAS BEING PAID AT THE RATE OF $1740 PER ANNUM. EFFECTIVE DECEMBER 1, 1943 SHE WAS GIVEN A PROMOTION TO GRADE CAF-4 AT $1800 PER ANNUM.

ON MARCH 6, 1944 SHE WAS TRANSFERRED TO DIBBLE GENERAL HOSPITAL, MENLO PARK, CALIFORNIA AS A CLERK, CAF-3, AT $1620 PER ANNUM. AT THE TIME OF THE TRANSFER, THE CIVILIAN PERSONNEL SERVICES FOR THE HOSPITAL WERE PERFORMED BY THE PERSONNEL OFFICE OF THE PRESIDIO OF SAN FRANCISCO AND ALL PERSONNEL RECORDS AND REGULATIONS WERE KEPT THERE. THE RECOMMENDATION FOR PERSONNEL ACTION WHICH WAS FORWARDED TO THE PRESIDIO, WAS A ROUTINE PROCESSING ACTION AND IT WAS NOT REALIZED THAT ANY ALTERNATIVE EXISTED EXCEPT TO TRANSFER THE EMPLOYEE TO A CAF-3 CLASSIFICATION AT THE LOWEST RATE OF COMPENSATION AUTHORIZED FOR THAT GRADE.

A PERSONNEL OFFICE HAS BEEN RECENTLY ESTABLISHED AT THE HOSPITAL AND A REVIEW OF MISS EATON'S 201 FILE DISCLOSED THE REDUCTION IN COMPENSATION RESULTING FROM THE TRANSFER. PERMISSION HAS BEEN REQUESTED TO RESTORE THE SALARY RATE OF $1800 PER ANNUM SINCE NO CIVILIAN PERSONNEL REGULATIONS WERE AVAILABLE AT THE TIME OF THE TRANSFER NOW WAS THE ADMINISTRATIVE OFFICER ADVISED BY THE PERSONNEL OFFICER OF THE PRESIDIO THAT ANY DISCRETION EXISTED AS TO THE SALARY RATE WHICH SHOULD BE PRESCRIBED IN THIS CASE.

IN NUMEROUS DECISIONS OF YOUR OFFICE IT HAS BEEN HELD THAT, UNDER SECTION 10 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, A TRANSFER, REAPPOINTMENT OR REINSTATEMENT OF AN EMPLOYEE DOES NOT CONSTITUTE A "NEW" APPOINTMENT WITHIN THE MEANING OF THE CLASSIFICATION ACT, AND THAT IT IS WITHIN THE ADMINISTRATIVE DISCRETION TO TRANSFER AN EMPLOYEE TO A NEW GRADE OR POSITION WITHOUT REDUCTION OF SALARY RATE, INCLUDING PERIODIC OR MERITORIOUS WITHIN-GRADE ADVANCEMENTS, OR WITH AS LITTLE LOSS OF SALARY AS IS NECESSARY TO PAY A RATE PROVIDED FOR THE GRADE TO WHICH TRANSFERRED (21 COMP. GEN. 791; 19 ID. 845). IT IS BELIEVED THAT THIS DISCRETION IS VESTED WITH THE EMPLOYING AGENCY TO WHICH THE EMPLOYEE IS TRANSFERRED AND, THAT, IF THE ADMINISTRATIVE OFFICER AT DIBBLE GENERAL HOSPITAL HAD BEEN AWARE OF THIS FACT MISS EATON COULD AND WOULD HAVE BEEN TRANSFERRED TO THE HOSPITAL AS A CLERK, CAF-3, AND COMPENSATED AT THE RATE OF $1,800 PER ANNUM, THE RATE SHE WAS RECEIVING IN THE POSITION FROM WHICH TRANSFERRED.

IN VIEW OF THE ABOVE, YOUR DECISION IS RESPECTFULLY REQUESTED UPON THE FOLLOWING QUESTIONS:

1. MAY THE ADMINISTRATIVE DISCRETION WHICH WOULD HAVE PERMITTED MISS EATON TO HAVE BEEN TRANSFERRED WITHOUT REDUCTION OF SALARY NOW BE EXERCISED AND, IF SO, MAY THE RESTORATION OF SALARY TO $1,800 PER ANNUM BE MADE RETROACTIVELY EFFECTIVE TO MARCH 6, 1944, THE DATE OF TRANSFER?

2. WHAT WILL BE THE BEGINNING DATE OF THE NEW WAITING PERIOD FOR THE PURPOSE OF ADMINISTERING THE PROVISIONS OF PUBLIC LAW 200, 77TH CONGRESS, RELATIVE TO AUTOMATIC WITHIN-GRADE PROMOTIONS, IF (A) THE COMPENSATION OF THE EMPLOYEE MAY BE RESTORED RETROACTIVELY EFFECTIVE TO MARCH 6, 1944, (B) THE COMPENSATION OF THE EMPLOYEE MAY NOW BE RESTORED TO THE FORMER RATE WITH NO RETROACTIVE EFFECT AND (C) THE COMPENSATION OF THE EMPLOYEE MAY NOT BE RESTORED TO THE FORMER RATE?

IN THE DECISION OF FEBRUARY 21, 1942, 21 COMP. GEN. 791, CITED IN YOUR LETTER, IT WAS HELD, INTER ALIA, AS FOLLOWS (QUOTING THE FIRST PARAGRAPH OF THE SYLLABUS):

THE VESTED RIGHT OF AN EMPLOYEE TO OBTAIN A PERIODIC OR MERITORIOUS WITHIN-GRADE SALARY ADVANCEMENT GRANTED PURSUANT TO THE ACT OF AUGUST 1, 1941, MAINTAINS ONLY SO LONG AS HE REMAINS IN THE POSITION IN WHICH THE ADVANCEMENT WAS GRANTED, BUT, UPON THE TRANSFER, PROMOTION, OR REDUCTION OF AN EMPLOYEE FROM ONE POSITION TO ANOTHER WITH DIFFERENT DUTIES AND RESPONSIBILITIES, WHETHER IN THE SAME OR DIFFERENT GRADE, IT IS WITHIN ADMINISTRATIVE DISCRETION UNDER SECTION 10 OF THE CLASSIFICATION ACT OF 1923 TO FIX HIS INITIAL SALARY IN THE NEW POSITION AT SUCH PRESCRIBED RATE OF THE GRADE AS WILL SAVE TO HIM THE BENEFIT OF A WITHIN-GRADE SALARY ADVANCEMENT TO WHICH HE PREVIOUSLY HAD BECOME ENTITLED.

THE WITHIN-GRADE PROMOTION PLAN PRESCRIBED BY LAW (ACT OF AUGUST 1, 1941, 55 STAT. 613) AND THE PRESIDENT'S REGULATIONS THEREUNDER (SEE PARTICULARLY SECTION 2 OF EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941), HAS FOR ITS PURPOSE THE INCREASING OF COMPENSATION OF FEDERAL EMPLOYEES OCCUPYING PERMANENT POSITIONS SUBJECT TO THE CLASSIFICATION ACT BASED UPON THE LENGTH OF EFFICIENT AND SATISFACTORY SERVICE IN THE FEDERAL CIVIL SERVICE, REGARDLESS OF THE POSITION OR AGENCY IN WHICH EMPLOYED. WHILE IT WAS NECESSARY TO HOLD IN THE CITED DECISION THAT THE RIGHT TO RETAIN A WITHIN- GRADE SALARY ADVANCEMENT MAINTAINS ONLY SO LONG AS AN EMPLOYEE REMAINS IN THE SAME POSITION, SAID DECISION DOES NOT PRECLUDE SAVING AN EMPLOYEE'S PERIODIC ADVANCEMENT ATTAINED BY REASON OF LENGTH OF EFFICIENT AND SATISFACTORY FEDERAL SERVICE DURING THE ENTIRE TIME AN EMPLOYEE REMAINS IN THE FEDERAL SERVICE, REGARDLESS OF THE POSITION IN WHICH EMPLOYED--- SUCH ACTION CLEARLY APPEARING PERMISSIBLE AND DESIRABLE. ACCORDINGLY, WHERE THERE EXISTS NO ADMINISTRATIVE REGULATION, PRACTICE, OR POLICY DENYING WITHIN-GRADE SALARY ADVANCEMENTS PREVIOUSLY ATTAINED IN ONE POSITION UPON TRANSFER TO ANOTHER POSITION EITHER IN THE SAME OR DIFFERENT AGENCY, AND THROUGH ADMINISTRATIVE MISUNDERSTANDING OR MISTAKE THE TRANSFER WAS MADE AT A SALARY RATE WHICH DID NOT SAVE THE EMPLOYEE'S WITHIN-GRADE SALARY ADVANCEMENTS PREVIOUSLY ATTAINED, AND THERE WAS NO PURPOSE TO REDUCE THE EMPLOYEE FOR ANY OTHER REASON, IT IS PROPER TO CORRECT THE ADMINISTRATIVE ERROR RETROACTIVELY EFFECTIVE FROM THE DATE OF THE TRANSFER SO AS TO SAVE TO THE EMPLOYEE THE LAWFUL SALARY RATE RECEIVED PRIOR TO THE TRANSFER.

ACCORDINGLY, AS $1,800 PER ANNUM IS A SALARY RATE IN GRADE CAF-3, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, PROVIDED THE EMPLOYEE'S EFFICIENCY, SERVICE, AND CONDUCT BE SUCH AS TO WARRANT SUCH ACTION.

REFERRING TO QUESTION 2 (A), WITH THE UNDERSTANDING THAT THE ABOVE STATED CONDITIONS HAVE BEEN MET AND THE ADJUSTMENT IN THE SALARY OF THE EMPLOYEE WHOSE CASE HAS BEEN PRESENTED PROPERLY MAY BE MADE RETROACTIVELY EFFECTIVE FROM THE DATE OF THE TRANSFER MARCH 6, 1944, THE WAITING PERIOD BEGAN TO RUN DECEMBER 1, 1943, WHEN THE EMPLOYEE WAS PROMOTED FROM $1,740 PER ANNUM IN GRADE CAF-3 TO $1,800 PER ANNUM IN GRADE CAF-4. IN THE LIGHT OF THE ABOVE ANSWER, NO ANSWERS TO QUESTIONS 2 (B) AND (C) ARE REQUIRED.