B-76936, JUNE 22, 1948, 27 COMP. GEN. 772

B-76936, JUNE 22, 1948, 27 COMP. GEN. 772

COMPENSATION - RATES - RETROACTIVE CORRECTION OF ERRORS IN VIEW OF THE FACT THAT SECTION 13 (D) OF THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1945, FIXING THE SALARY RATES OF GARAGEMEN-DRIVERS OF THE MOTOR VEHICLE SERVICE, MAKES NO REIMBURSEMENT THAT APPOINTMENTS BE MADE INITIALLY TO THE FIRST SALARY GRADE, THE STATUS AND SALARY GRADE OF AN EMPLOYEE WHO WAS INITIALLY APPOINTED AS GARAGEMAN-DRIVER AT THE FIRST SALARY GRADE, RATHER THAN AT GRADE 5 TO WHICH HE WOULD HAVE BEEN APPOINTED HAD THE ADMINISTRATIVE OFFICE HAD KNOWLEDGE OF HIS PRIOR FEDERAL CIVILIAN AND MILITARY SERVICE, MAY BE ADJUSTED BY ADMINISTRATIVE ACTION RETROACTIVELY TO THE DATE OF APPOINTMENT WITHOUT RESULTING IN A RETROACTIVE PROMOTION.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, JUNE 22, 1948:

I HAVE YOUR LETTER OF MAY 25, 1948, REFERENCE 43, AS FOLLOWS:

THE POSTMASTER OF BALTIMORE, MARYLAND, PRESENTED FOR CONSIDERATION PAPERS COVERING THE APPOINTMENT OF WILLIAM B. JACKSON AS TEMPORARY REGULAR GARAGEMAN-DRIVER IN THE MOTOR VEHICLE SERVICE AT BALTIMORE, EFFECTIVE JANUARY 1, 1946, NO MENTION BEING MADE THEREIN THAT MR. JACKSON HAD EVER BEEN EMPLOYED IN ANY OTHER FEDERAL POSITION. IN ACCORDANCE WITH SUCH PRESENTATION, AUTHORITY WAS GRANTED FOR THE EMPLOYMENT OF MR. JACKSON ON JANUARY ST AS A TEMPORARY REGULAR GARAGEMAN-DRIVER, GRADE ONE, $1,600 PER ANNUM. ON FEBRUARY 11, 1946, THE POSTMASTER RECOMMENDED THAT MR. JACKSON'S APPOINTMENT BE CHANGED FROM TEMPORARY REGULAR GARAGEMAN-DRIVER TO CLASSIFIED REGULAR GARAGEMAN-DRIVER EFFECTIVE JANUARY 23, 1946, UNDER AUTHORITY GRANTED BY THE REGIONAL DIRECTOR, FOURTH U.S. CIVIL SERVICE REGIONON JANUARY 23RD; HOWEVER, ON OCTOBER 25, 1946, THE POSTMASTER RECOMMENDED THAT SUCH CLASSIFIED APPOINTMENT BE AMENDED TO SHOW REINSTATEMENT TO CLASSIFIED REGULAR GARAGEMAN-DRIVER AND CITED AS AUTHORITY CIVIL SERVICE CERTIFICATE NO. V-3087 DATED OCTOBER 11, 1946. WAS LEARNED THAT SUCH REINSTATEMENT WAS DUE TO MR. JACKSON HAVING PREVIOUSLY BEEN EMPLOYED AS A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT.

AT THE TIME OF ISSUING AUTHORITY FOR THE EMPLOYMENT OF MR. JACKSON, THE DEPARTMENT WAS UNAWARE THAT HE HAD RECEIVED ORIGINAL APPOINTMENT ON OCTOBER 8, 1940, WITH THE CONSTRUCTING QUARTERMASTER, BALTIMORE, MARYLAND, AND HAD BEEN TRANSFERRED TO THE BALTIMORE DISTRICT, CORPS OF ENGINEERS, BALTIMORE, MARYLAND, ON DECEMBER 16, 1941, AND GRANTED FURLOUGH WITHOUT PAY FOR MILITARY DUTY EFFECTIVE DECEMBER 19, 1941. MR. JACKSON HAS FURNISHED A PHOTOSTATIC COPY OF HIS HONORABLE DISCHARGE FROM THE UNITED STATES ARMY SHOWING DISCHARGE EFFECTIVE DECEMBER 18, 1945, OR JUST PRIOR TO RECEIVING HIS FIRST APPOINTMENT IN THE MOTOR VEHICLE SERVICE AT BALTIMORE.

IF THE DEPARTMENT HAD RECEIVED COMPLETE INFORMATION AS TO MR. JACKSON'S PREVIOUS FEDERAL SERVICE AS WELL AS HIS MILITARY SERVICE, HE WOULD HAVE BEEN ASSIGNED TO THE POSITION OF TEMPORARY REGULAR GARAGEMAN-DRIVER, GRADE FIVE, $2,400 PER ANNUM, ON JANUARY 1, 1946, AND HIS REINSTATEMENT AS CLASSIFIED REGULAR GARAGEMAN-DRIVER JANUARY 23, 1946, WOULD HAVE BEEN TO GRADE FIVE $2,400 PER ANNUM AS HIS SALARY WOULD HAVE BEEN ADMINISTRATIVELY DETERMINED IN ACCORDANCE WITH PRESENT POLICY, THE SALARY RATE OF $2,400 BEING IN ACCORDANCE WITH THAT PRESCRIBED FOR GRADE FIVE OF THE GARAGEMAN- DRIVER DESIGNATION UNDER PUBLIC LAW 134, ACT OF JULY 6, 1945, AND PUBLIC LAW 386, ACT. OF MAY 21, 1946, SUCH POLICY BEING IN CONFORMITY WITH DECISION RENDERED BY YOUR OFFICE JANUARY 10, 1936, NO. A-66724. (15 COMP. GEN. 595)

THIS MATTER IS PRESENTED FOR DECISION AS TO WHETHER THE DEPARTMENT MAY RETROACTIVELY ASSIGN MR. JACKSON TO GRADE FIVE, $2,400 PER ANNUM, INSTEAD OF GRADE ONE, $2,000 PER ANNUM (THE SALARY RATE OF $1,600 BEING CHANGED TO $2,000 UNDER PUBLIC LAW 386, ACT OF MAY 21, 1946, EFFECTIVE JANUARY 1, 1946).

IN THE DECISION OF JANUARY 10, 1936, A-66724, REFERRED TO BY YOU, PUBLISHED IN 15 COMP. GEN. 595, IT WAS HELD, QUOTING FROM THE SYLLABUS:

THERE BEING NO STATUTORY REQUIREMENT THAT ORIGINAL APPOINTMENTS OF DRIVER -MECHANICS IN THE MOTOR VEHICLE SERVICE OF THE POSTAL SERVICE SHALL BE IN THE FIRST SALARY GRADE, IT IS WITHIN ADMINISTRATIVE DISCRETION, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, TO TRANSFER AND APPOINT, EMPLOYEES FROM SOME OTHER BRANCH OF THE POSTAL SERVICE, INCLUDING A MECHANIC'S HELPER WITH THE NECESSARY QUALIFICATIONS, TO THE POSITION OF DRIVER-MECHANIC, AND PAY THEM INITIALLY IN ANY OF THE FIVE AUTOMATIC SALARY GRADES.

WHILE THE ABOVE DECISION WAS RENDERED UNDER THE POSTAL EMPLOYEES PAY ACT OF 1925, 43 STAT. 1060, AS AMENDED, I FIND THAT SECTION 13 (D) OF THE POSTAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 446, FIXING THE SALARY RATE OF GARAGEMEN-DRIVERS LIKEWISE MAKES NO REQUIREMENT THAT SUCH EMPLOYEES BE APPOINTED INITIALLY TO THE FIRST GRADE OR SALARY RATE; HENCE, THE ABOVE DECISION WOULD BE FOR APPLICATION TO ORIGINAL APPOINTMENTS AS GARAGEMEN- DRIVERS IN THE POSTAL SERVICE UNDER THE PRESENT POSTAL EMPLOYEES PAY ACT.

IN 24 COMP. GEN. 341, IT WAS HELD, QUOTING THE SYLLABUS:

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. (21 COMP. GEN. 791, AMPLIFIED.)

IN VIEW OF YOUR STATEMENTS WITH RESPECT TO THE GRADE TO WHICH THIS EMPLOYEE WOULD HAVE BEEN APPOINTED HAD YOU BEEN AWARE AT THE TIME OF HIS PAST HISTORY, SHOULD YOU NOW TAKE ADMINISTRATIVE ACTION TO ADJUST THIS EMPLOYEE'S STATUS AND SALARY GRADE RETROACTIVELY TO THE DATE OF HIS APPOINTMENT IN THE POSTAL SERVICE, SUCH ACTION WOULD NOT BE CONSIDERED AS A RETROACTIVE PROMOTION AND CREDIT FOR PAYMENTS MADE IN ACCORDANCE THEREWITH WOULD BE ALLOWED IN THE DISBURSING OFFICER'S ACCOUNTS.