B-195301, OCT 19, 1979

B-195301, OCT 19, 1979

DIGEST: EMPLOYEE OF DEPARTMENT OF THE ARMY WAS DENIED A RETROACTIVE TEMPORARY PROMOTION BY THE CLAIMS DIVISION ON THE BASIS OF AGENCY STATEMENT THAT THE POSITION TO WHICH HE WAS ALLEGEDLY DETAILED HAD NEVER BEEN ESTABLISHED. RECORD SHOWS THAT POSITION WAS IN FACT ESTABLISHED DURING MAJORITY OF CLAIM AND TEMPORARY PROMOTION MAY BE GRANTED FOR THAT PERIOD.

ROBERT G. LAUTTMAN - RETROACTIVE PROMOTION:

BY LETTER DATED JUNE 4, 1979, MR. ROBERT G. LAUTTMAN, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, APPEALS THE ACTION OF THE CLAIMS DIVISION IN CERTIFICATE OF SETTLEMENT NO. Z-2795218, ISSUED MAY 22, 1979. IN THAT ACTION MR. LAUTTMAN'S CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FROM DECEMBER 13, 1972, TO AUGUST 27, 1977, AND FROM DECEMBER 26, 1977, TO FEBRUARY 23, 1978, WAS DENIED.

THE DENIAL OF THE CLAIMS DIVISION WAS BASED ON A LETTER DATED JUNE 13, 1978, FROM THE CIVILIAN PERSONNEL OFFICER, FORT MONMOUTH, NEW JERSEY, WHICH STATED IN PART:

"WE HAVE REVIEWED AND CAREFULLY CONSIDERED YOUR 23 FEBRUARY 1978 CLAIM FOR RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR THE PERIODS 13 DECEMBER 1972 TO 27 AUGUST 1977 AND 26 DECEMBER 1977 TO 23 FEBRUARY 1978.

"IN RESPONSE TO OUR INQUIRY, MANAGEMENT HAS REPLIED THAT THERE IS NO KNOWLEDGE THAT AN OFFICIAL POSITION WAS ESTABLISHED AT THE GS-14 LEVEL DURING THE PERIOD OF YOUR CLAIM FROM DECEMBER 1972 TO APRIL 1977 (SEE INCL 1). IN ADDITION NO DOCUMENTATION TO SUPPORT THE PREMISE THAT A GS 14 POSITION WAS ESTABLISHED DURING THE PERIOD HAS BEEN DISCOVERED DURING THE INVESTIGATION OF YOUR CLAIM. ***"

ENCLOSURE 1 REFERRED TO BY THE CIVILIAN PERSONNEL OFFICER IS A MEMORANDUM DATED MAY 16, 1978, BY THE CHIEF, TECHNICAL PROGRAMS DIVISION, PPA DIRECTORATE, WHICH STATES IN PART:

"5. TO THE BEST OF MY KNOWLEDGE NO OFFICIAL POSITION WAS ESTABLISHED AT THE GS-14 LEVEL *** HOWEVER I CANNOT ATTEST TO THAT AS A CERTAINTY."

THE RECORD BEFORE US, HOWEVER, SHOWS THAT FROM AUGUST 28 TO DECEMBER 25, 1977, THE 6-MONTH PERIOD FOR WHICH MR. LAUTTMAN IS NOT CLAIMING A RETROACTIVE TEMPORARY PROMOTION, HE WAS TEMPORARILY PROMOTED TO THE POSITION OF PHYSICAL SCIENTIST, GS-14, POSITION NUMBER 75-66E. THE RECORD FURTHER INDICATES THAT THE GS-14 POSITION WAS ESTABLISHED ON AUGUST 7, 1974, AND REFLECTS MANAGEMENT'S RECOGNITION OF THE FACT THAT MR. LAUTTMAN PERFORMED THE DUTIES OF THAT HIGHER LEVEL POSITION UNTIL HE WAS TEMPORARILY PROMOTED ON AUGUST 28, 1977. THEREFORE, WE FIND THAT MR. LAUTTMAN IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION BEGINNING THE 121ST DAY AFTER AUGUST 7, 1974, AND LASTING UNTIL AUGUST 27, 1977. SEE MATTER OF TURNER-CALDWELL, 55 COMP.GEN. 539 (1975), AFFIRMED 56 ID. 427 (1977). THE ACTION OF OUR CLAIMS DIVISION IS MODIFIED ACCORDINGLY.

WITH REGARD TO THAT PORTION OF MR. LAUTTMAN'S CLAIM PRIOR TO AUGUST 7, 1974, WE HAVE BEEN UNABLE TO DETERMINE THAT AN ESTABLISHED GS-14 POSITION EXISTED IN THE TECHNICAL PROGRAMS DIVISION AT THAT TIME. THE RECORD PROVIDES SOME SUPPORT FOR MR. LAUTTMAN'S CONTENTION THAT HE WAS PERFORMING DUTIES AT A GRADE LEVEL HIGHER THAN THAT COVERED BY HIS JOB DESCRIPTION PRIOR TO AUGUST 7, 1974. ALTHOUGH THE DOCUMENTATION PROVIDED IN SUPPORT OF MR. LAUTTMAN'S CLAIM CONTAINS A REFERENCE TO A GS-14 POSITION IN EXISTENCE IN FEBRUARY 1972, THERE IS NO INDICATION THAT THE DUTIES PERFORMED BY MR. LAUTTMAN WERE CLASSIFIED PRIOR TO AUGUST 7, 1974, NOR IS THERE CLEAR EVIDENCE OF THE PERIOD BEFORE THAT DATE DURING WHICH HE PERFORMED DUTIES WHICH WERE PROPERLY CLASSIFIED AT GRADE GS-14. ACCORDINGLY, THAT PORTION OF THE ACTION OF THE CLAIMS DIVISION SETTLEMENT DENYING MR. LAUTTMAN'S CLAIM PRIOR TO AUGUST 7, 1974, IS SUSTAINED. SEE B-185730, JUNE 1, 1977.

WITH REGARD TO THAT PORTION OF THE CLAIM SUBSEQUENT TO DECEMBER 26, 1977, IT APPEARS THAT MR. LAUTTMAN PERFORMED THE SAME DUTIES WHICH HE HAD BEEN PERFORMING PRIOR TO AND DURING HIS TEMPORARY PROMOTION UNTIL MAY 1, 1978. THE RECORD SHOWS THAT ON APRIL 25, 1977, HE WAS DETAILED TO HEADQUARTERS ERADCOM IN ADELPHI, MARYLAND, IN A GS-14 POSITION. THIS ASSIGNMENT CONTINUED UNTIL MAY 1, 1978, AND INCLUDED THE PERIOD OF HIS TEMPORARY PROMOTION. SINCE MR. LAUTTMAN'S DETAIL TO ERADCOM AND HIS TEMPORARY PROMOTION INVOLVED HIS CONTINUED PERFORMANCE OF THE DUTIES OF THE GS-14 POSITION FOR WHICH HE IS ENTITLED TO RETROACTIVE TEMPORARY PROMOTION THROUGH AUGUST 27, 1977, HE IS ALSO ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION FROM DECEMBER 26, 1977, UNTIL MAY 1, 1978. THE ACTION OF THE CLAIMS DIVISION IS MODIFIED ACCORDINGLY.