B-133451, NOV. 4, 1957

B-133451, NOV. 4, 1957

TO THE SECRETARY OF THE ARMY:

WE HAVE BEFORE US FOR CONSIDERATION A REQUEST FROM DR. HARRY K. HEIGES TO DIRECT A RETROACTIVE CORRECTION OF HIS REAPPOINTMENT WITH THE DEPENDENTS' EDUCATION GROUP IN EUROPE IN GERMANY. SPECIFICALLY, DR. HEIGES REQUESTS THAT HIS APPOINTMENT TO GRADE 12, EFFECTIVE SEPTEMBER 3, 1956, BE MADE RETROACTIVE TO AUGUST 16, 1956, IN ORDER THAT HE MAY RECEIVE CREDIT FOR PRIOR SERVICE RENDERED IN GRADE 12 BETWEEN OCTOBER 4, 1952 AND SEPTEMBER 5, 1955.

IT APPEARS THAT DR. HEIGES RESIGNED FROM A GRADE 12 POSITION ON SEPTEMBER 5, 1955, TO FURTHER PURSUE HIS EDUCATION. IN APRIL OF 1956A REQUISITION WAS ADDRESSED TO THE DEPUTY CHIEF OF STAFF FOR PERSONNEL, WASHINGTON, D.C., BY THE COMMANDER IN CHIEF OF THE UNITED STATES ARMY IN EUROPE, REQUESTING DR. HEIGES' REAPPOINTMENT AS AN ELEMENTARY EDUCATION SPECIALIST, GRADE 11, TO REPORT FOR DUTY BY 1 SEPTEMBER 1956. THE APPOINTMENT WAS PROCESSED IN AUGUST 1956 BY THE DEPARTMENT IN WASHINGTON TO THE POSITION OF ELEMENTARY EDUCATION SPECIALIST AND CALLED FOR A SALARY RATE IN GRADE GS 11. IN THE MEANTIME, THE ACTIVITY IN GERMANY HAD, ON JUNE 28, 1956, REALLOCATED THE POSITION OF ELEMENTARY EDUCATION SPECIALIST, FROM GS 11, TO GRADE GS 12. IT IS INDICATED IN A MESSAGE FROM THE COMMANDER IN CHIEF, UNITED STATES ARMY IN EUROPE, THAT BECAUSE OF AN ADMINISTRATIVE ERROR NO ACTION WAS TAKEN TO ADVISE THE DEPARTMENT IN WASHINGTON OF THE CHANGE IN GRADE AND, THEREFORE, DR. HEIGES' APPOINTMENT OF AUGUST 16, 1956, WAS MADE TO A NON-EXISTENT POSITION. EVIDENCE HAS BEEN FURNISHED BY DR. HEIGES WHICH REFLECTS THAT A MESSAGE AMENDING THE ORIGINAL REQUISITION TO REQUEST HIS APPOINTMENT IN GRADE 12 WAS PROCESSED IN GERMANY ON JUNE 29, 1956, BUT SUCH MESSAGE APPARENTLY NEVER REACHED THE DEPARTMENT IN WASHINGTON.

ALTHOUGH DR. HEIGES INDICATES THAT HE WAS PLACED IN GRADE 12 EFFECTIVE SEPTEMBER 3, 1956, THE REQUEST FOR AUTHORITY TO MAKE SUCH APPOINTMENT RETROACTIVE TO AUGUST 16, 1956, WAS DENIED BY THE DEPARTMENT ON THE BASIS THAT SUCH ACTION WOULD BE TANTAMOUNT TO A RETROACTIVE PROMOTION WHICH IS PRECLUDED UNDER DECISIONS OF OUR OFFICE. AS A CONSEQUENCE, THE ACTION OF SEPTEMBER 3, 1956, HAS BEEN VIEWED BY THE DEPARTMENT AS A PROMOTION FROM GRADE 11 TO GRADE 12 AND THE EMPLOYEE DENIED CREDIT FOR HIS PRIOR SERVICE IN GRADE 12 FOR STEP INCREASE PURPOSES.

THE CHIEF, PROCEDURES AND REGULATIONS DIVISION OF THE OFFICE OF THE DEPUTY CHIEF OF STAFF FOR PERSONNEL, IN A LETTER DATED AUGUST 29, 1957, WRITTEN IN RESPONSE TO A REQUEST FROM OUR OFFICE FOR REPORT IN THE MATTER, SAYS THAT HAD IT BEEN KNOWN PRIOR TO THE EFFECTIVE DATE OF DR. HEIGES' APPOINTMENT ON AUGUST 16, 1956, THAT THE GRADE OF THE POSITION FOR WHICH SELECTED HAD BEEN CHANGED FROM GRADE 11 TO GRADE 12, HE WOULD HAVE BEEN APPOINTED AT THE HIGHER GRADE.

IN VIEW OF THE ABOVE STATEMENT AND THE OTHER CIRCUMSTANCES INVOLVED, OUR VIEW IN THIS CASE IS THAT THE DESCRIPTION IN THE APPOINTMENT INDICATING THE GRADE OF THE POSITION AS BEING GS 11, WAS AN ADMINISTRATIVE ERROR AND THUS THE CORRECTION THEREOF CONSTITUTES AN EXCEPTION TO THE GENERAL RULE AGAINST RETROACTIVE INCREASES IN COMPENSATION. 30 COMP. GEN. 94; 34 ID. 380. ACCORDINGLY, WE SEE NO OBJECTION TO A CORRECTION OF DR. HEIGES' APPOINTMENT TO SHOW APPOINTMENT TO A GRADE 12 SALARY RATE AS OF AUGUST 16, 1956, THE DATE OF HIS PURPORTED APPOINTMENT TO A POSITION CALLING FOR A GRADE 11 SALARY RATE.

WE UNDERSTAND THERE IS ONE OTHER CASE WHEREIN THE FACTS ARE SUBSTANTIALLY SIMILAR TO THAT OF DR. HEIGES, NAMELY, THAT OF MILDRED E. BARLOW. IF SUCH UNDERSTANDING BE CORRECT WE LIKEWISE WOULD NOT OBJECT TO THE CORRECTION OF HER APPOINTMENT TO THE SAME EXTENT AS THAT OF DR. HEIGES. WE SHOULD APPRECIATE YOUR ADVISING US OF THE CORRECTIVE ACTION, IF ANY, TAKEN IN THESE TWO CASES.