B-195576.OM, (C), JUL 16, 1979

B-195576.OM, (C), JUL 16, 1979

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILES RELATIVE TO THE CLAIM OF MS. JEWELL FORD, MR. RUFUS WILLIAMS, MS. MABEL MARLOWE, MR. BRUCE PYLES, MS. MARLENE RICE, AND MS. PHYLLIS SCOOPMIRE FOR RETROACTIVE TEMPORARY PROMOTIONS WITH BACK PAY BASED ON OVERLONG DETAILS TO HIGHER GRADED POSITIONS.

ALL OF THESE CLAIMS INVOLVE DETAILS TO POSITIONS CLASSIFIED AT MORE THAN ONE GRADE ABOVE THE GRADE OF THE CLAIMANTS' APPOINTED POSITIONS. ADDITIONALLY, THESE DETAILS WERE TO POSITIONS IN DIFFERENT JOB SERIES THAN THE INDIVIDUALS' APPOINTED POSITIONS. THE FACTUAL SITUATIONS INVOLVED IN THE INDIVIDUAL CASES ARE AS FOLLOWS.

MS. FORD, A GS-301-4, MEDICAL APPOINTMENT CLERK, WAS ASSIGNED THE DUTIES OF A GS-1410-7, MEDICAL LIBRARIAN POSITION DURING JULY 1973, DUE TO THE ABSENCE OF THE INCUMBENT PENDING DISABILITY RETIREMENT. HER DETAIL CONTINUED THROUGH JANUARY 4, 1974, WITH THE PERIOD OCTOBER 15 TO DECEMBER 14, 1973 BEING OFFICIALLY RECOGNIZED AT THE TIME. UNDER ARTICLE 20.13 OF THE APPLICABLE NEGOTIATED AGREEMENT SHE WOULD BE ENTITLED TO PROMOTION ON THE 61ST DAY OF HER DETAIL IF SHE WAS QUALIFIED FOR SUCH A PROMOTION. SEE B-180311, OCTOBER 4, 1974, AND B-183937, JUNE 23, 1977. HER AGENCY STATES THAT SHE HAD NOT PREVIOUSLY HELD A HIGHER GRADE THAN GS-4 AND THAT SHE DID NOT MEET THE QUALIFICATION REQUIREMENTS FOR A GS-1410-7 MEDICAL LIBRARIAN POSITION.

MR. WILLIAMS, A GS-856-11, ELECTRONIC TECHNICIAN (RADIO), CLAIMS TO HAVE BEEN DETAILED TO A GS-855-13, SUPERVISORY ELECTRONIC ENGINEER (ELECTROMAGNETIC) POSITION FROM MARCH 1, 1971 TO OCTOBER 1974. HIS AGENCY STATES THAT HE DID NOT MEET THE EDUCATIONAL OR PROFESSIONAL REQUIREMENTS FOR PLACEMENT IN THE ENGINEERING JOB SERIES. THE PERIOD OF HIS CLAIM PRIOR TO JANUARY 2, 1973 IS BARRED FROM CONSIDERATION FOR PAYMENT BY 31 U.S.C. 71A.

MS. MARLOWE, WHO WAS APPOINTED AS A GS-301-4, PRODUCTION CONTROL CLERK THROUGH DECEMBER 9, 1972, AND A GS-1152-4, PRODUCTION CONTROL AID THROUGH FEBRUARY 28, 1973, HAS PROVIDED SF-172'S, CERTIFIED BY MANAGEMENT OFFICIALS, STATING THAT SHE SERVED AS A GS-1152-9, PRODUCTION CONTROLLER (AIRCRAFT) FOR THE PERIOD DECEMBER 11, 1971 TO FEBRUARY 28, 1973. THESE STATEMENTS REFER TO ATTACHED LISTS OF DUTIES. HER AGENCY DISALLOWED HER CLAIM ON THE BASIS THAT IT CONSIDERED FULL PERFORMANCE OF THE GS-9 DUTIES BY A CLERK TO BE IMPOSSIBLE IN THIS SITUATION. IT ALSO STATED THAT CLASSIFICATION ANALYSIS OF THE DUTIES COVERED BY THE ATTACHMENTS TO THE SF -172'S RESULTED IN ALLOCATION AS PRODUCTION CONTROLLER, GS-1152-5.

MR. PYLES, WHO WAS A GS-462-9, FORESTRY TECHNICIAN, CLAIMS TO HAVE BEEN DETAILED TO A GS-460-11 FORESTER POSITION DURING THE PERIODS JULY 12, 1971 TO OCTOBER 20, 1972, AND MAY 27, 1973 TO NOVEMBER 18, 1974, AND TO A GS- 462-11, SUPERVISORY FORESTRY TECHNICIAN POSITION FROM NOVEMBER 18, 1974, THE DATE THAT POSITION WAS CLASSIFIED, TO APRIL 27, 1975. THE PERIOD OF HIS CLAIM PRIOR TO NOVEMBER 30, 1971 IS BARRED FROM CONSIDERATION FOR PAYMENT BY 31 U.S.C. 71A. MR. PYLES HAS BEEN GRANTED A RETROACTIVE TEMPORARY PROMOTION BY HIS AGENCY, TO THE GS-462 11 POSITION FROM MARCH 17, 1975, THE 121ST DAY AFTER THE POSITION WAS CLASSIFIED, TO APRIL 27, 1975, THE DATE HIS DETAIL ENDED. HIS AGENCY STATES THAT HE DOES NOT MEET THE QUALIFICATION REQUIREMENTS FOR THE GS 460 JOB SERIES.

MS. RICE WAS DETAILED FROM HER GS-322-2, CLERK-TYPIST POSITION TO A GS- 990-5 CLAIMS EXAMINER (TYPING) POSITION FROM OCTOBER 25, 1974 TO MARCH 25, 1975. HER AGENCY STATES THAT THE DETAIL POSITION WAS A MIXED SERIES JOB, COMBINING THE GS-990 GENERAL CLAIMS EXAMINING SERIES AND THE GS-963 LEGAL INSTRUMENTS EXAMINING SERIES. THE AGENCY QUESTIONS THE PROPRIETY OF RECONSTITUTING THE DETAIL POSITION TO THE GS-3 GRADE LEVEL BECAUSE IT BELIEVES THAT A POSITION AT THAT LEVEL COULD NOT BE PROPERLY CLASSIFIED AS BELONGING TO EITHER JOB SERIES.

MS. SCOOPMIRE WAS ASSIGNED AND PERFORMED THE DUTIES OF DIRECTOR, COMMUNITY HEALTH SERVICES FROM DECEMBER 6, 1976 TO AUGUST 13, 1977 AND FROM JANUARY 4, 1978 TO JUNE 7, 1978. THE POSITION HAD BEEN CLASSIFIED AS GS-601-13, COMMUNITY HEALTH SERVICES ADMINISTRATOR UNTIL DECEMBER 3, 1976, WHEN THE INCUMBENT OF THE POSITION RETIRED. ON THAT DATE THE PREVIOUS POSITION DESCRIPTION WAS REPLACED BY ONE CLASSIFIED AS GS-602 15, MEDICAL OFFICER (ADMINISTRATOR). MS. SCOOPMIRE DOES NOT HAVE A DEGREE IN MEDICINE AND THEREFORE DOES NOT MEET THE QUALIFICATIONS REQUIREMENTS FOR THE MEDICAL OFFICER POSITION.

B-189690, FEBRUARY 16, 1978, AS MODIFIED BY B-190174, APRIL 21, 1978, PROVIDES INSTRUCTIONS CONCERNING RETROACTIVE TEMPORARY PROMOTIONS IN INSTANCES WHERE EMPLOYEES HAVE BEEN DETAILED TO POSITIONS MORE THAN ONE GRADE ABOVE THE GRADE OF THEIR APPOINTED POSITIONS, BUT THESE DECISIONS CONSIDERED DETAILS TO POSITIONS IN THE SAME JOB SERIES AS THE EMPLOYEES' APPOINTED POSITIONS. SEE ALSO B-191768, OCTOBER 2, 1978, AND B-189367- O.M., NOVEMBER 28, 1978. IT WAS HELD IN B-189690, FEBRUARY 16, 1978, THAT "AN EMPLOYEE, WHO IS DETAILED TWO OR MORE GRADES ABOVE HIS REGULAR GRADE, IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION TO THE HIGHEST GRADE TO WHICH HE COULD HAVE BEEN PROMOTED UNDER THE WHITTEN AMENDMENT AND OTHER APPLICABLE REQUIREMENTS." HOWEVER, NONE OF THE CITED DECISIONS HAS CONSIDERED WHAT POSITION THE EMPLOYEE SHOULD BE PROMOTED TO OR WHAT PERSONNEL ACTIONS) ARE NECESSARY TO EFFECT THE PROMOTION.

ADDITIONAL INSTRUCTIONS FOR THE SETTLEMENT OF CLAIMS BASED ON OVERLONG DETAILS ARE CONTAINED IN CSC BULLETIN NO. 300-40, WHICH STATES AT PARAGRAPH 8C:

"WHEN AN EMPLOYEE IS DETAILED TO WORK OUTSIDE HIS OR HER REGULAR POSITION, HE OR SHE DOES NOT HAVE TO MEET PLACEMENT REQUIREMENTS FOR THAT POSITION. WHEN THE EMPLOYEE IS PROMOTED, WHETHER TEMPORARILY, OR PERMANENTLY, STATUTORY AND COMMISSION REQUIREMENTS WHICH GOVERN PROMOTIONS ARE TO BE APPLIED."

SINCE THE REQUIREMENTS FOR PLACEMENT IN THE POSITION TO WHICH PROMOTED MUST BE APPLIED, IT IS NECESSARY TO DETERMINE NOT ONLY THE GRADE LEVEL TO WHICH THE INDIVIDUAL IS TO BE PROMOTED, AS WAS THE CASE IN THE CITED DECISIONS, BUT ALSO THE JOB SERIES OF THAT POSITION.

IF THE POSITION TO WHICH THE DETAILED EMPLOYEE IS TO BE RETROACTIVELY PROMOTED IS IN THE SAME JOB SERIES AS THE POSITION TO WHICH DETAILED, IT WOULD SEEM THAT SUCH ACTIONS COULD GENERALLY BE PROCESSED BY PREPARING A STATEMENT OF DIFFERENCES "RECONSTITUTING" THE DETAIL POSITION AT A LOWER GRADE (FILLING THE POSITION AT A GRADE LEVEL BELOW THE LEVEL WHICH THE POSITION WAS CLASSIFIED AT THE TIME OF THE DETAIL). THIS, HOWEVER, CREATES AN ADDITIONAL PROBLEM IN CERTAIN INSTANCES, AS THE DEPARTMENT OF THE ARMY POINTS OUT IN THE MATTER OF MS. RICE. SINCE THE EMPLOYING AGENCY IS RESPONSIBLE FOR THE PROPER CLASSIFICATION OF ITS POSITIONS AND HAS JURISDICTION IN CLASSIFICATION MATTERS (WHICH THIS OFFICE DOES NOT HAVE), IT REMAINS QUESTIONABLE FOR AGENCY CONTENDS? WE NOTE THAT MS. RICE MIGHT BE ELIGIBLE FOR PROMOTION THIS OFFICE TO DIRECT THE AGENCY TO RECONSTITUTE A POSITION IN SUCH A WAY THAT THE POSITION WOULD NOT BE PROPERLY CLASSIFIED. WOULD SUCH A SITUATION PROHIBIT THE RETROACTIVE PROMOTION OF THE EMPLOYEE AS THE TO GS-4 IN ACCORDANCE WITH THE GUIDANCE FOUND AT PARAGRAPH S6-2C(1) OF CHAPTER 300 OF THE FEDERAL PERSONNEL MANUAL.

IF, ON THE OTHER HAND, THE POSITION TO WHICH THE DETAILED EMPLOYEE IS TO BE RETROACTIVELY PROMOTED IS IN THE SAME JOB SERIES AS THE EMPLOYEE'S REGULAR POSITION, OTHER PROBLEMS WOULD ARISE. IN THE INSTANCES OF MR. WILLIAMS AND MR. PYLES, THE EMPLOYEES WERE IN TECHNICAL POSITIONS AND DID NOT MEET THE EDUCATIONAL REQUIREMENTS FOR PROMOTION TO ANY POSITION IN THE DETAIL JOB SERIES; THEREFORE, PROMOTING THEM IN THEIR REGULAR JOB SERIES WOULD CONSTITUTE DIFFERENT TREATMENT THAN HAS BEEN GIVEN TO EMPLOYEES WHO WERE DETAILED TO POSITIONS IN DIFFERENT JOB SERIES THAT WERE ONLY ONE GRADE ABOVE THE GRADE OF THE REGULAR POSITIONS AND WHOSE CLAIMS HAVE BEEN DISALLOWED ON THE BASIS THAT THEY DID NOT MEET THE EDUCATIONAL REQUIREMENTS FOR PROMOTION TO THE POSITIONS TO WHICH THEY WERE DETAILED. ADDITIONALLY, MR. PYLE'S CLAIM PRESENTS THE PROBLEM THAT THERE WAS NO POSITION, IN HIS APPOINTED JOB SERIES AND IN HIS ORGANIZATIONAL UNIT TO WHICH HE COULD HAVE BEEN PROMOTED, UNTIL APPROXIMATELY SIX MONTHS AFTER HIS SECOND DETAIL BEGAN. THEREFORE IT IS DOUBTFUL THAT HE COULD BE RETROACTIVELY PROMOTED TO A POSITION IN EITHER JOB SERIES AT AN EARLIER DATE THAN THE ONE ON WHICH HIS AGENCY HAS ALREADY MADE HIS RETROACTIVE PROMOTION EFFECTIVE.

IN ADDITION TO THE QUESTIONS OF WHAT JOB SERIES THESE PROMOTIONS, IF APPROPRIATE, ARE TO BE MADE TO, AND BY WHAT MECHANISM THEY SHOULD BE MADE, THE MATTER OF MS. SCOOPMIRE RAISES THE QUESTION OF WHAT IS CONSIDERED NECESSARY TO ESTABLISH A POSITION. WHILE IT APPEARS THAT THE CIVIL SERVICE COMMISSION DID NOT ISSUE GENERAL GUIDELINES CONCERNING THE ACTIONS NECESSARY TO ESTABLISH A POSITION, WHEN DEALING WITH THE NORMAL LINE OF PROMOTION FOR THE PURPOSE OF MAKING TWO GRADE PROMOTIONS, IT DID STATE, AT CHAPTER 300 OF THE FEDERAL PERSONNEL MANUAL, S6-2E(1)(B):

"WHETHER A POSITION EXISTS IS SOMETIMES A QUESTION IN THESE CASES. FOR THIS REASON AGENCY INSTRUCTIONS SHOULD SPECIFY THE ACTION NECESSARY TO ESTABLISH AND TO ELIMINATE A POSITION. IF AN AGENCY'S INSTRUCTIONS DO NOT SPECIFY THE ACTION NECESSARY TO ESTABLISH A POSITION, THE COMMISSION WILL CONSIDER THAT THE APPROVAL BY THE APPROPRIATE OFFICER OF A REQUEST FOR ESTABLISHMENT OF THE POSITION (GENERALLY ON SF-52), WILL CONSTITUTE EVIDENCE THAT THE POSITION HAS BEEN CREATED."

INFORMAL CONTACT WITH THE DEPUTY PERSONNEL OFFICER OF THE HEALTH SERVICES ADMINISTRATION INDICATES THAT NEITHER THE PUBLIC HEALTH SERVICE NOR THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE HAS WRITTEN REGULATIONS FOR DETERMINING WHEN A POSITION MAY BE CONSIDERED ESTABLISHED. HOWEVER, FOR THE PURPOSE OF SETTLEMENTS UNDER THE TURNER CALDWELL LINE OF DECISIONS, THEY HAVE BEEN USING THE DATE THAT A POSITION WAS CLASSIFIED AS THE DATE IT WAS ESTABLISHED. THEREFORE WE REQUEST INSTRUCTION CONCERNING WHETHER OR NOT THE ESTABLISHMENT OF A POSITION REQUIRES THE PROCESSING OF AN ADDITIONAL ACTION, BEYOND THE CLASSIFICATION OF A POSITION DESCRIPTION, FOR THE PURPOSE OF GRANTING RELIEF UNDER THE TURNER-CALDWELL LINE OF DECISIONS, WHERE THE AGENCY INVOLVED DOES NOT HAVE REGULATIONS GOVERNING THIS POINT. IT SHOULD BE NOTED THAT THE REQUIREMENTS FOR ESTABLISHING A POSITION IN CASES WHERE AN AGENCY DOES HAVE WRITTEN REGULATIONS IS THE TOPIC OF A SEPARATE REFERRAL IN THE MATTER OF RICHARD H. TAYLOR AND JIMMIE R. BROWN (CLAIM NUMBERS Z-2714314 & Z-2809199).

MS. MARLOWE'S CLAIM ALSO INVOLVES MORE THAN THE MERE MECHANICS OF HOW A PROMOTION COULD BE PROCESSED. ALTHOUGH SHE HAS SUBMITTED CERTIFICATION SIGNED BY HER SUPERVISORS THAT SHE PERFORMED GS-1152-9 WORK, THE CLASSIFICATION UNIT IN HER AGENCY CONTENDS THAT IT WOULD HAVE BEEN IMPOSSIBLE FOR HER TO HAVE PERFORMED DUTIES AT THAT LEVEL AND THAT THE DUTIES SHE PERFORMED WOULD BE PROPERLY CLASSIFIED AS GS-1152-5. DUE TO THE DIFFERENCES IN THE STATEMENTS OF HER SUPERVISORS AND HER PERSONNEL OFFICE, MS. MARLOWE'S ENTITLEMENT TO PROMOTION REMAINS UNCERTAIN.

BECAUSE OF THE DOUBTFUL ISSUES INVOLVED, WE REFER THESE CLAIMS FOR YOUR CONSIDERATION AND ADVICE.

INDORSEMENT

EVEN THOUGH AN EMPLOYEE MAY HAVE SATISFACTORILY PERFORMED THE DUTIES OF A POSITION TO WHICH HE WAS DETAILED, HE MAY NOT RECEIVE A RETROACTIVE TEMPORARY PROMOTION TO THAT POSITION BECAUSE OF IMPROPER DETAIL IF HE DOES NOT HAVE THE REQUISITE EDUCATIONAL, PROFESSIONAL, OR EXPERIENCE REQUIREMENTS FOR THAT POSITION. SEE EVELYN M. TAYLOR, B-195296, JANUARY 9, 1980; HERBERT T. FENTON, B-194896, DECEMBER 11, 1979; PATRICK L. PETERS, B-189663, NOVEMBER 23, 1977; CHARLES E. REARDON, JR., B-194694, NOVEMBER 23, 1979; AND MARK A. SCHAAF, B-195648, DECEMBER 13, 1979. EMPLOYEE PLACED ON AN IMPROPER DETAIL MAY, HOWEVER, RECEIVE A PROMOTION TO AN INTERVENING GRADE LEVEL BELOW THE GRADE LEVEL OF THE POSITION TO WHICH HE WAS DETAILED IF HE MEETS THE NECESSARY QUALIFICATION REQUIREMENTS OF THE INTERVENING POSITION. FRIEDMAN, BAKER, AND HOLMES, B-189690, FEBRUARY 16, 1978; MARY LEE GROOVER, B-190174, APRIL 21, 1978; ROBERT RANN, B-191768, OCTOBER 2, 1978; AND MARIE L. LEBER, B-194258, DECEMBER 27, 1979. IMPLICIT IN THESE ABOVE DECISIONS, HOWEVER, IS THAT THE INTERVENING GRADE MUST BE IN THE SAME POSITION SERIES AS THE POSITION TO WHICH THE EMPLOYEE WAS DETAILED. CLASSIFICATION PRINCIPLES WOULD REQUIRE THAT AN EMPLOYEE WHO IS PROMOTED TO AN INTERVENING GRADE LEVEL BECAUSE HE DOES NOT MEET ALL THE REQUIREMENTS OF THE HIGHER GRADE TO WHICH HE WAS DETAILED, MUST BE PROMOTED WITHIN THE SAME POSITION SERIES AS THE POSITION TO WHICH HE WAS DETAILED. TO DO OTHERWISE WOULD BE TO CREATE A POSITION TOTALLY UNRELATED TO THAT IN WHICH THE EMPLOYEE PERFORMED.

HOWEVER, FOR THE LIMITED PURPOSE OF PROVIDING TURNER-CALDWELL (55 COMP. GEN. 539 (1975)) RELIEF FOR IMPROPER DETAILS TO ESTABLISHED AND CLASSIFIED HIGHER-LEVEL POSITIONS, THERE NEED NOT BE AN ESTABLISHED AND CLASSIFIED POSITION AT THE INTERVENING LEVEL TO WHICH THE EMPLOYEE IS TO BE PROMOTED. SEE FRIEDMAN, BAKER, AND HOLMES AND RANN ABOVE. IN RANN, ALTHOUGH IT IS NOT EVIDENT FROM THE DECISION, THE SUBMISSION SHOWED THERE WAS NO CLASSIFIED POSITION AT THE INTERVENING LEVEL FOR THE PERIOD OF IMPROPER DETAIL. ACCORDINGLY, WHERE THERE IS NO ESTABLISHED AND CLASSIFIED POSITION AT THE INTERVENING LEVEL IN THE RELEVANT POSITION SERIES FOR WHICH AN EMPLOYEE IS OTHERWISE QUALIFIED, THE AGENCY RESPONSIBLE FOR THE IMPROPER DETAIL MUST RECONSTITUTE THE POSITION TO WHICH THE EMPLOYEE WAS DETAILED AT THAT INTERVENING LEVEL. THIS RESULT IS NOT TO BE TAKEN AS A MODIFICATION OF THE GENERAL RULE THAT POSITIONS MAY NOT BE RETROACTIVELY CLASSIFIED SINCE THE AGENCY SHOULD HAVE RECONSTITUTED THE POSITION AT THE TIME OF DETAIL AND ITS PRESENT CORRECTION OF THE RECORD MERELY REFLECTS WHAT IT SHOULD HAVE DONE AT THE TIME OF DETAIL. SEE FRIEDMAN, BAKER, AND HOLMES, ABOVE.

SINCE MS. FORD ACKNOWLEDGES THAT SHE DID NOT MEET THE EDUCATION AND/OR EXPERIENCE REQUIREMENTS IN THE CIVIL SERVICE COMMISSION'S (CSC) STANDARDS FOR A GS-1410-7 MEDICAL LIBRARIAN POSITION, SHE IS NOT ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION TO THAT POSITION. SEE TAYLOR AND FENTON ABOVE. WE NOTE, HOWEVER, THAT THERE IS A LIBRARIAN TRAINEE, GS-5, POSITION IN THE SAME SERIES, 1410, AS THE MEDICAL LIBRARIAN, GS-7, POSITION TO WHICH MS. FORD WAS DETAILED. THE RECORD DOES NOT SHOW CONCLUSIVELY WHETHER MS. FORD ALSO LACKED THE QUALIFICATIONS FOR THIS POSITION. THEREFORE, THE ARMY SHOULD BE REQUESTED TO DETERMINE WHETHER MS. FORD MET THE CSC QUALIFICATIONS FOR A GS-5 LIBRARIAN TRAINEE POSITION REGARDLESS OF WHETHER SUCH POSITION WAS IN FACT IN EXISTENCE. IF SHE DID, SHE MAY RECEIVE A RETROACTIVE TEMPORARY PROMOTION TO THAT POSITION FOR THE APPLICABLE PERIOD. IF THE GS-5 LIBRARIAN TRAINEE POSITION DID NOT EXIST AT THE TIME, THE GS-7 MEDICAL LIBRARIAN POSITION SHOULD BE RECONSTITUTED DOWNWARDS TO THE GS 5 TRAINEE POSITION UNDER THE AUTHORITY GIVEN ABOVE.

SINCE THE ARMY REPORTS THAT MR. WILLIAMS DID NOT MEET THE EDUCATIONAL OR PROFESSIONAL REQUIREMENTS FOR AN ELECTRONIC ENGINEER, HE MAY NOT BE PROMOTED TO ANY GRADE LEVEL IN THIS POSITION SERIES AND HE, THEREFORE, IS NOT ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION AND HIS CLAIM SHOULD BE DISALLOWED. SEE PETERS AND REARDON ABOVE.

IN MS. MARLOWE'S CASE WE HAVE BEEN INFORMED BY THE DEPARTMENT OF THE AIR FORCE THAT THERE WAS INDEED A GS-1152-9, PRODUCTION CONTROLLER POSITION ESTABLISHED AT THE TIME OF HER DETAIL BUT MS. MARLOWE DID NOT HAVE THE QUALIFICATIONS FOR THAT POSITION. THE AIR FORCE ALSO SAYS A GS-1152-05 POSITION DID NOT EXIST AT THE TIME OF MS. MARLOWE'S DETAIL BUT MS. MARLOWE DID HAVE THE NECESSARY QUALIFICATIONS FOR SUCH A GS 1152-05 POSITION HAD IT EXISTED. SINCE THERE NEED NOT BE AN ESTABLISHED AND CLASSIFIED POSITION AT THE INTERVENING LEVEL TO WHICH THE EMPLOYEE IS TO BE PROMOTED, MS. MARLOWE IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION TO THE GS- 1152-05 POSITION. FRIEDMAN, BAKER, AND HOLMES AND RANN ABOVE. HER CLAIM SHOULD BE ALLOWED FROM APRIL 9, 1972, TO FEBRUARY 28, 1973, IF OTHERWISE PROPER.

THE RECORD SHOWS THAT MR. PYLES LACKS THE QUALIFICATIONS TO BE PROMOTED TO A GS-460-11, FORESTER POSITION, AND THERE IS NOTHING TO INDICATE THAT THERE WAS AN INTERVENING GRADE IN THAT SERIES FOR WHICH MR. PYLES COULD QUALIFY. THEREFORE, HE IS NOT ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION AND HIS CLAIM SHOULD BE DISALLOWED. SEE PETERS AND REARDON ABOVE.

WITH REGARD TO MS. RICE'S CLAIM, SINCE THE WHITTEN RESTRICTION ONLY PROHIBITS HER FROM BEING PROMOTED MORE THAN TWO GRADE LEVELS, SHE IS ELIGIBLE FOR A GS-4 POSITION. SEE 5 C.F.R. SEC. 300.602(C). SINCE THE ARMY INDICATES THE GS-5 POSITION TO WHICH SHE WAS DETAILED MAY BE RECONSTITUTED AT THE GS-4 LEVEL, SHE IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION TO THAT LEVEL. HER CLAIM IS FOR ALLOWANCE TO THE EXTENT STATED HEREIN IF OTHERWISE PROPER.

FINALLY, MS. SCOOPMIRE'S CLAIM IS SIMILAR TO THAT MADE IN SCHAAF, ABOVE, IN WHICH WE HELD THAT THE REQUIREMENT THAT THE EMPLOYEE HAVE A MEDICAL DEGREE, WHICH HE LACKED, DISQUALIFIED HIM FROM RECEIVING A RETROACTIVE TEMPORARY PROMOTION TO A HIGHER-LEVEL POSITION TO WHICH HE HAD BEEN DETAILED. SINCE MS. SCOOPMIRE IS NOT A MEDICAL DOCTOR SHE IS NOT ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION TO THE GS-602-15, MEDICAL OFFICER POSITION OR TO ANY OTHER GRADE LEVEL IN THAT SERIES. THEREFORE, HER CLAIM IS FOR DISALLOWANCE.