B-125119, MAY 6, 1965

TO MISS KATHRYN L. ROCK, U.S. DEPARTMENT OF COMMERCE:

YOUR LETTER OF MARCH 25, 1965, REQUESTS THAT WE RECONSIDER THE QUESTION OF THE PROPRIETY OF THE PAYMENTS OF COMPENSATION MADE TO DR. RICHARD C. MOCKLER, BEGINNING JULY 5, 1964, WHICH WERE QUESTIONED IN OUR INFORMAL INQUIRY NO. 5C066. AS SET FORTH IN YOUR LETTER THE INQUIRY STATED THAT:

"THE EMPLOYEE WAS PROMOTED FROM GS-15/3), $16,695 TO GS-16/5), $18,000 PER ANNUM EFFECTIVE JANUARY 19, 1964. HIS PER ANNUM RATE WHICH SHOULD HAVE BEEN INCREASED TO $18,935 RETROACTIVELY TO JULY 5, 1964 BY SEC. 102/B) (5) OF PUBLIC LAW 88-426 APPROVED AUGUST 14, 1964, WAS INCORRECTLY INCREASED TO $21,555 PER ANNUM.

"SECTION 102/B) (5) STATES: "IF THE OFFICER OR EMPLOYEE, IS IN A POSITION IN GRADE 16 OR 17 OF THE GENERAL SCHEDULE OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, TO WHICH HE WAS PROMOTED ON OR AFTER THE FIRST DAY OF HIS FIRST PAY PERIOD BEGINNING ON OR AFTER JANUARY 1, 1964, AND IF HE HELD SUCH POSITION OR ANOTHER POSITION IN THE SAME GRADE ON THE EFFECTIVE DATE OF THIS SECTION, HIS RATE OF BASIC COMPENSATION SHALL BE ADJUSTED, AS OF SUCH EFFECTIVE DATE, TO THAT RATE OF BASIC COMPENSATION TO WHICH HE WOULD HAVE BEEN ENTITLED IF THE COMPENSATION SCHEDULE IN SUBSECTION (A) OF THIS SECTION HAD BEEN IN EFFECT ON THE DATE OF HIS PROMOTION.'

"IF THE NEW COMPENSATION SCHEDULES HAD BEEN IN EFFECT ON THE EFFECTIVE DATE OF THE EMPLOYEE'S PROMOTION HE WOULD HAVE BEEN ENTITLED ONLY TO GS- 16/1), $18,935 PER ANNUM * * *"

YOU POINT OUT THAT THE POSITION OF DR. MOCKLER WAS RECLASSIFIED FROM GRADE GS-15 TO GRADE GS-16 ON DECEMBER 3, 1963. WE ALSO UNDERSTAND THAT DR. MOCKLER'S NAME WAS REFERRED TO THE CIVIL SERVICE COMMISSION FOR APPROVAL OF HIS QUALIFICATIONS FOR PROMOTION TO THE GRADE GS-16 POSITION AT THE SAME TIME. HOWEVER, THE CIVIL SERVICE COMMISSION DID NOT APPROVE DR. MOCKLER'S QUALIFICATIONS BEFORE JANUARY 10, 1964, AND THE PROMOTION OF DR. MOCKLER WAS NOT FORMALLY PROCESSED UNTIL JANUARY 19, 1964. THE REASON FOR THE DELAY IN APPROVAL OF DR. MOCKLER'S QUALIFICATIONS WAS THAT STANDARD FORM 57 SUBMITTED TO THE COMMISSION CONTAINED TWO INADVERTENT ERRORS WHICH HAD TO BE CORRECTED OR SATISFACTORILY EXPLAINED BEFORE THE COMMISSION COULD APPROVE DR. MOCKLER'S QUALIFICATIONS. YOU SAY THAT:

"SINCE THE ERRORS INVOLVED HAD NOTHING TO DO WITH THE SCIENTIFIC QUALIFICATIONS OF DR. MOCKLER FOR THE POSITION, AN INQUIRY WAS RECENTLY DIRECTED TO THE COMMISSION TO ASCERTAIN WHETHER OR NOT, BUT FOR SUCH ERRORS, THEY WOULD HAVE APPROVED THE QUALIFICATIONS OF DR. MOCKLER FOR THE POSITION CONCURRENTLY WITH ITS RECLASSIFICATION, THAT IS ON DECEMBER 3, 1963.'

THE BUREAU WAS ADVISED BY THE CIVIL SERVICE COMMISSION AS FOLLOWS:

"A REVIEW OF THE RECORD SHOWS THAT HAD WE RECEIVED DR. MOCKLER'S CASE COMPLETE AND READY FOR CONSIDERATION ON DECEMBER 3, 1963, THE DAY THE POSITION WAS ALLOCATED, WE WOULD HAVE RATED HIM ELIGIBLE FOR THE POSITION OF SUPERVISORY PHYSICIST (GENERAL), GS-1310-16 AT THAT TIME.'

YOUR LETTER SAYS ALSO THAT:

"A PERSONNEL ACTION WAS JOURNALIZED ON DECEMBER 22, 1963 FOR THE PROMOTION OF THE INCUMBENT OF THE COMPANION POSITION LISTED IN ATTACHMENT A, HENCE THERE IS NO DOUBT THAT A PERSONNEL ACTION WOULD HAVE BEEN JOURNALIZED ON DECEMBER 22, 1963 FOR THE PROMOTION OF DR. MOCKLER, BUT FOR THE CLERICAL ERRORS ON HIS SF-57 AND THE TIME REQUIRED FOR THEIR CORRECTION.'

SECTION 505 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1105 IS, IN PART, AS FOLLOWS:

"/A) NO POSITION SHALL BE PLACED IN GRADE 16, 17, OR 18 OF THE GENERAL SCHEDULE EXCEPT BY ACTION OF, OR AFTER PRIOR APPROVAL BY, A MAJORITY OF THE CIVIL SERVICE COMMISSIONERS.

"/I) APPOINTMENTS TO POSITIONS IN GRADES 16, 17, AND 18 OF THE GENERAL SCHEDULE SHALL BE MADE ONLY UPON APPROVAL BY THE CIVIL SERVICE COMMISSION OF THE QUALIFICATIONS OF THE PROPOSED APPOINTEES * * *"

WHILE IT APPEARS THAT DR. MOCKLER WAS QUALIFIED FOR THE GS-16 POSITION WHICH HE OCCUPIED FROM THE DATE OF HIS RECLASSIFICATION TO THAT GRADE AND THAT THE CIVIL SERVICE COMMISSION, BUT FOR THE ERRORS ON STANDARD FORM 57, WOULD HAVE APPROVED HIS QUALIFICATIONS CONCURRENTLY WITH THE RECLASSIFICATION OF THE POSITION, NEVERTHELESS, NO PROMOTION ACTION WAS TAKEN BY THE AGENCY UNTIL JANUARY 19, 1964. NEITHER THE CIVIL SERVICE COMMISSION NOR THE GENERAL ACCOUNTING OFFICE CAN DIRECT THAT SUCH PROMOTION DATE BE CHANGED TO A DATE IN DECEMBER 1963. MOREOVER, THERE IS NO AUTHORITY IN THE EMPLOYING AGENCY TO RETROACTIVELY CHANGE DR. MOCKLER'S PROMOTION DATE TO A DATE IN DECEMBER 1963 SINCE THERE WAS NO ADMINISTRATIVE ERROR INVOLVED IN THE PROMOTION OF DR. MOCKLER ON JANUARY 19, 1964. IT IS TRUE THAT THE DELAY IN THE PROMOTION RESULTED FROM INCORRECT INFORMATION APPEARING ON STANDARD FORM 57 SUBMITTED BY DR. MOCKLER BUT SUCH FACT CANNOT REASONABLY BE REGARDED AS AN ADMINISTRATIVE ERROR. THE ONLY ADMINISTRATIVE ERROR INVOLVED WAS THE PAYMENT TO DR. MOCKLER AT EXCESSIVE SALARY RATES.

ACCORDINGLY, THE INFORMAL INQUIRY MAY NOT BE REMOVED. APPROPRIATE ACTION SHOULD BE TAKEN FORTHWITH TO REDUCE THE RATE OF COMPENSATION OF DR. MOCKLER BASED UPON HIS PROMOTION TO GRADE GS-16 HAVING OCCURRED ON JANUARY 19, 1964. ALSO, THERE SHOULD BE RECOVERED FROM HIM THE COMPENSATION HE HAS RECEIVED IN EXCESS OF THAT TO WHICH HE LEGALLY WAS ENTITLED.