B-189384, SEPTEMBER 22, 1977

B-189384, SEPTEMBER 22, 1977

NATIONAL GUARD EMPLOYEE FILED CLAIM WITH GENERAL ACCOUNTING OFFICE ON FEBRUARY 28, 1977, FOR BACK PAY. EMPLOYEE HAD BEEN PROMOTED ON FEBRUARY 6, 1966, TO NGC GRADE 5, STEP 3, RATHER THAN HGC GRADE 5, STEP 4, AS REQUIRED BY REGULATIONS. UNDER 31 U.S.C. 71A (SUPP. IV, 1974), CLAIM AGAINST THE UNITED STATES IS BARRED UNLESS PRESENTED TO THIS OFFICE WITHIN 6 YEARS FROM DATE CLAIM ACCRUES. THEREFORE, WE MAY NOT CONSIDER ANY ELEMENT OF CLAIM ACCRUING BEFORE FEBRUARY 28, 1971.

BEULAH A. WALKER - RETROACTIVE PROMOTION AND BACK PAY:

THIS ACTION IS IN RESPONSE TO A LETTER RECEIVED IN OUR OFFICE ON JUNE 13, 1977, FROM MS. BEULAH A. WALKER, APPEALING THE APRIL 22, 1977, SETTLEMENT ISSUED BY OUR CLAIMS DIVISION WHICH DISALLOWED HER CLAIM FOR BACK PAY ALLEGEDLY EARNED AS AN EMPLOYEE OF THE ARMY NATIONAL GUARD.

MS. WALKER CONTENDS THAT ON FEBRUARY 6, 1966, SHE WAS ERRONEOUSLY PROMOTED FROM NGC GRADE 3, STEP 10, TO NGC GRADE 5, STEP 3, IN VIOLATION OF REGULATIONS WHICH REQUIRE THAT AN EMPLOYEE PROMOTED TO A HIGHER GRADE BE PLACED AT A STEP IN THE NEW GRADE WHICH EXCEEDS HIS EXISTING RATE OF BASIC PAY BY NOT LESS THAN TWO STEP INCREASES OF THE GRADE FROM WHICH PROMOTED. IN ITS ADMINISTRATIVE REPORT, THE NATIONAL GUARD ACKNOWLEDGES THAT AN ADMINISTRATIVE ERROR HAD OCCURRED AND THAT, IF MS. WALKER HAD BEEN PROPERLY PROMOTED, SHE WOULD HAVE BEEN PLACED IN THE NGC GRADE 5, STEP 4, LEVEL, RATHER THAN AT THE NGC GRADE 5, STEP 3, LEVEL. MS. WALKER ORIGINALLY CLAIMED ENTITLEMENT TO A RETROACTIVE PROMOTION AND BACK PAY DATING FROM FEBRUARY 6, 1966, THE EFFECTIVE DATE OF HER ERRONEOUS PROMOTION. THIS CLAIM WAS DENIED BY OUR CLAIMS DIVISION ON APRIL 22, 1977, ON THE BASIS THAT THE CLAIM WAS BARRED BY THE 6-YEAR STATUTE OF LIMITATIONS.

MS. WALKER REQUESTS CONSIDERATION ON THE BASIS THAT, ALTHOUGH THE ORIGINAL ADMINISTRATIVE ERROR OCCURRED ON FEBRUARY 6, 1966, ITS EFFECTS WERE CONTINUOUS IN NATURE BECAUSE SHE REMAINED AT A LOWER STEP IN GRADE THAN THE LEVEL TO WHICH SHE WAS ENTITLED UNTIL JANUARY 31, 1971, WHICH WAS THE DATE SHE WAS PLACED IN THE GRADE AND LEVEL TO WHICH SHE WOULD HAVE BEEN ENTITLED HAD THE ADMINISTRATIVE ERROR NOT OCCURRED. IN ADDITION, MS. WALKER CONTENDS THAT ALTHOUGH SHE WAS FINALLY PLACED IN THE APPROPRIATE GS -5, STEP 6, LEVEL ON JANUARY 31, 1971, SHE WOULD HAVE BEEN PLACED AT GS-5, STEP 6, ON FEBRUARY 1, 1970, BUT FOR THE ADMINISTRATIVE ERROR. SHE ARGUES THAT SHE IS NOW ENTITLED TO THAT PERIOD OF TIME IN GRADE FOR THE PURPOSE OF WITHIN-GRADE STEP INCREASES. SHE BELIEVES THAT THESE PORTIONS OF HER CLAIM ARE NOT BARRED SINCE THEY FALL WITHIN THE 6-YEAR PERIOD ALLOWED BY 31 U.S.C. 71A (SUPP. IV, 1974).

IN ITS ADMINISTRATIVE REPORT, THE NATIONAL GUARD BUREAU RECONSTRUCTED THE PAYROLL HISTORY REGARDING MS. WALKER'S CLAIM. THIS RECONSTRUCTED HISTORY REFLECTS THE DATES OF STEP INCREASES MS. WALKER WOULD HAVE RECEIVED IF THE ADMINISTRATIVE ERROR IN SETTING HER PAY AT NGC GRADE 5, STEP 3, RATHER THAN NGC GRADE 5, STEP 4, HAD NOT OCCURRED. THIS RECONSTRUCTED PAYROLL HISTORY IS SET FORTH IN ITS ENTIRETY AS FOLLOWS:

PERS ACTIONS AS PERS ACTIONS AS THEY

THEY OCCURRED SHOULD HAVE OCCURRED

ASSN

NOA (ASSIGNED) AUTH . CORRECTED . CORRE

(NATURE OF ACTION) EFF DATE GRADE/STEP SALARY GRADE/STEP SALARY

10/31/65 . NGC 3/10 . $5409

PROM . 2/06/66 . NGC 5/3 . $5523 . NGC 5/4 . $5694 GS SAL INC . 7/24/66 . NGC 5/3 . $5683 . NGC 5/4 W/I GRD INC . 2/05/67 . NGC 5/4 . $5859 . WOULD NOT HAVE OCCURRED GS SAL INC . 10/01/67 . NGC 5/4 . $6123 . NGC 5/4 . $6123 W/I GRD INC . 2/04/68 NGC 5/5 . $6309 GS SAL INC . 7/07/68 . NGC 5/4 . $6307 . NGC 5/5 . $6498 APPT . 1/01/69 . GS 5/4 . $6307 . GS 5/5 . $6498 W/I GRD INC . 2/02/69 . GS 5/5 . $6498 . WOULD NOT HAVE OCCURRED GS SAL INC . 7/06/69 . GS 5/5 . $7000 . GS 5/5 . $7000

PROM - TEMP

NTE 2/9/70 . 10/12/69 . GS 6/4 . $7569 . GS 6/4 . $7569 CHG TO LOWER GRD . 2/10/70 . GS 5/5 . $7000 . GS 5/6 /1/ . $7638 GS SAL INC . 4/15/70 . GS 5/5 . $7420 . GS 5/6 . $7638 RETRO TO 01-04-70 GS SAL INC . 1/03/71 . GS 5/5 . $7862 . GS 5/6 . $8093 W/I GRD INC . 1/31/71 . GS 5/6 . $8093 . WOULD NOT HAVE OCCURRED PROM . 8/29/71 . GS 6/5 . $8759 . GS 6/5 . $8759 GS SAL INC . 1/02/72 . GS 6/5 . $9241 . GS 6/5 . $9241 GS SAL INC . 1/14/73 . GS 6/5 . $9716 . GS 6/5 . $9716 W/I GRD INC . 8/26/73 . GS 6/6 . $10002 . GS 6/6 . $10002 GS SAL INC . 10/07/73 . GS 6/6 . $10472 . GS 6/6 . $10472 QSI . 12/16/73 . GS 6/7 . $10771 . GS 6/7 . $10771 GS SAL INC . 10/06/74 . GS 6/7 . $11369 . GS 6/7 . $11369 GS SAL INC . 10/05/75 . GS 6/7 . $11938 . GS 6/7 . $11938 W/I GRD INC . 8/22/76 . GS 6/8 . $12270 . GS 6/8 . $12270 GS SAL INC . 10/03/76 . GS 6/8 . $12792 . GS 6/8 . $12792

/1/ WOULD HAVE BEEN ENTITLED TO WITHIN-GRADE INCREASE, STEP 6, WHEN DEMOTED BACK TO PREVIOUS GRADE FROM A TEMPORARY PROMOTION. WITHIN GRADE INCREASE WAS DUE FEBRUARY 1, 1970 BUT WOULD HAVE BEEN HELD IN ABEYANCE DUE TO TEMPORARY PROMOTION.

PURSUANT TO 31 U.S.C. 71A, ANY CLAIM OR DEMAND AGAINST THE UNITED STATES IS BARRED UNLESS IT IS PRESENTED TO THE GENERAL ACCOUNTING OFFICE WITHIN 6 YEARS FROM THE DATE SUCH CLAIM ACCRUES. SINCE MS. WALKER'S CLAIM WAS NOT RECEIVED BY THIS OFFICE UNTIL FEBRUARY 28, 1977, ANY ELEMENT OF THE CLAIM ACCRUING BEFORE FEBRUARY 28, 1971, IS BARRED. SEE MATTER OF EDWARD ROTHENBERG, B-187234, DECEMBER 8, 1976. ACCORDINGLY, WE ARE PRECLUDED UNDER THE PROVISIONS OF 31 U.S.C. 71A FROM MAKING A RETROACTIVE CORRECTION OF THE ERRONEOUS PROMOTION WHICH TOOK PLACE ON FEBRUARY 6, 1966, AND FROM CONSIDERING THE CLAIM FOR BACK PAY FOR THE PERIOD FROM FEBRUARY 6, 1966, UNTIL FEBRUARY 27, 1971.

IN EXAMINING THE RECONSTRUCTED PAYROLL HISTORY, WE NOTE THAT ON FEBRUARY 28, 1971, THE BEGINNING OF THE PERIOD WHICH MAY BE CONSIDERED UNDER 31 U.S.C. 71A, MS. WALKER WAS PROPERLY ENTITLED TO A GS-5, STEP 6, RATE OF PAY, I.E., HAD THE ADMINISTRATIVE ERROR NOT OCCURRED. ON THAT DATE SHE WAS IN FACT A GS-5, STEP 6, SINCE HER ACTUAL GRADE/STEP CAME INTO ALIGNMENT WITH SUCH GRADE/STEP ON JANUARY 31, 1971. IN EFFECT, THE ADMINISTRATIVE ERROR WAS RECTIFIED ON JANUARY 31, 1971, WHEN MS. WALKER WAS PLACED IN THE GRADE AND STEP TO WHICH SHE WOULD HAVE BEEN ENTITLED ABSENT THE ORIGINAL ERROR. SINCE JANUARY 31, 1971, SHE HAS BEEN IN THE GRADE AND STEP SHE WOULD HAVE BEEN IN HAD NO ADMINISTRATIVE ERROR OCCURRED, AND THEREFORE, THERE IS NO ENTITLEMENT TO RETROACTIVE ADJUSTMENT OF PAY.

MS. WALKER'S CONTENTION THAT HAD SHE BEEN A GS-5, STEP 6, ON FEBRUARY 1, 1970, RATHER THAN ON JANUARY 31, 1971, SHE WOULD GET HER NEXT WITHIN-GRADE STEP A YEAR SOONER, IS WITHOUT MERIT. WE HAVE IN THE PAST ALLOWED RECONSTRUCTION OF PAYROLL RECORDS WHERE AN EMPLOYEE WAS UNDERPAID AS A RESULT OF HAVING RECEIVED STEP INCREASES AT A LATER TIME THAN THEY SHOULD PROPERLY HAVE BEEN RECEIVED DUE TO AN ADMINISTRATIVE ERROR. SEE B-177739, JUNE 5, 1973. THE RECORD HERE, HOWEVER, SHOWS THAT ON AUGUST 29, 1971, MS. WALKER WAS PROMOTED TO A GS-6, STEP 5, LEVEL. SUCH A PROMOTION IS AN "EQUIVALENT INCREASE" UNDER 5 U.S.C. 5335(A) (1970), AND, THEREFORE, THE WAITING PERIOD FOR WITHIN-GRADE STEP INCREASES BEGAN ANEW ON THAT DATE. ACCORDINGLY, THE EXTRA YEAR SHE WOULD HAVE SPENT AS A GS-5, STEP 6, COULD NOT BE PART OF THE TIME SPENT AS A GS-6, STEP 5, FOR PURPOSES OF WITHIN- GRADE INCREASES. SEE 43 COMP.GEN. 507 (1964).

ACCORDINGLY, THE CLAIM OF MS. BEULAH A. WALKER FOR BACK PAY IS DENIED, AND THE ACTION OF OUR CLAIMS DIVISION ON APRIL 22, 1977, IS AFFIRMED.