B-195812.OM, MAY 7, 1980

B-195812.OM, MAY 7, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILES RELATIVE TO THE CLAIMS OF MR. RICHARD H. TAYLOR AND MR. JIMMIE R. BROWN FOR RETROACTIVE TEMPORARY PROMOTION BASED ON OVERLONG DETAILS TO HIGHER GRADED POSITIONS.

MR. TAYLOR WAS DETAILED TO THE POSITION OF CHIEF, FORCE DEVELOPMENT DIVISION, WHICH HE CLAIMS WAS A GS-13 POSITION AT THE TIME. TDA BONBAA INDICATES AUTHORIZATION OF A SPACE FOR THE POSITION, AND POSITION DESCRIPTION NO. 4890-S INDICATES THAT THE POSITION WAS CLASSIFIED AT THE GS-13 GRADE LEVEL ON OCTOBER 27, 1971. HOWEVER, CIVILIAN PERSONNEL REGULATION (CPR) 501(C4)501.6-1C, APRIL 16, 1975, STATES THAT THE ESTABLISHMENT OF A POSITION ALSO REQUIRES THE PROCESSING OF A PERSONNEL DOCUMENT (SF-52 OR DA FORM 279). SINCE HE WAS NOT FORMALLY DETAILED TO THE POSITION, NO SF-52 OR DA FORM 279 WAS PROCESSED. THE ARMY DISALLOWED MR. TAYLOR'S CLAIM FOR BACK PAY ON THE BASIS THAT THE POSITION HAD NOT BEEN OFFICIALLY ESTABLISHED IN ACCORDANCE WITH THE CITED REGULATION. THE FINDINGS OF THE ANNUAL GENERAL INSPECTION FOR FISCAL YEARS 1972 AND 1973 CONFIRM THAT THE POSITION WAS NOT CONSIDERED OFFICIALLY ESTABLISHED AND RECOMMENDED THAT ACTION BE TAKEN TO ESTABLISH AND FILL IT. WE NOTE THAT THE REGULATION ON WHICH THE AGENCY BASED ITS DISALLOWANCE OF MR. TAYLOR'S CLAIM WAS NOT PROMULGATED UNTIL AFTER THE PERIOD OF THE DETAIL.

MR. BROWN HAS ALREADY RECEIVED A RETROACTIVE TEMPORARY PROMOTION EFFECTIVE ON THE 121ST DAY AFTER THE POSITION HE WAS DETAILED TO WAS OFFICIALLY ESTABLISHED BY THE PROCESSING OF A DA FORM 279. HE BELIEVES THAT THE DATE THE POSITION WAS CLASSIFIED SHOULD BE USED INSTEAD OF THE DATE THE POSITION WAS ESTABLISHED IN ACCORDANCE WITH CPR 501.6-1C. HIS CLAIM DIFFERS FROM MR. TAYLOR'S IN THAT HIS DETAIL WAS AFTER THE CITED REGULATION HAD BEEN PROMULGATED AND THE POSITION WAS FORMALLY ESTABLISHED WHILE HE WAS DETAILED TO IT.

SINCE THE ONLY ADDITIONAL ACTION WHICH APPEARS TO HAVE BEEN NECESSARY TO ESTABLISH THE DETAIL POSITIONS IN QUESTION IS THE PROCESSING OF A PERSONNEL ACTION, AND SINCE THAT ACTION WOULD HAVE BEEN TAKEN HAD THE INDIVIDUALS BEEN FORMALLY DETAILED (BY SF-52) RATHER THAN INFORMALLY, WE QUESTION THE APPLICABILITY OF CPR 501.6-1C(3) TO CLAIMS UNDER DECISION B-183086, MARCH 23, 1977. (B-173783.140, MARCH 22, 1977; 5 U.S.C. 3101 NOTE, (D)(3); AND FPM CHAPTER 300, 58-4F(3) MAY ALSO HAVE SOME BEARING ON THE MATTER IN QUESTION.)

ACCORDINGLY, WE REFER THE MATTER FOR YOUR CONSIDERATION AND INSTRUCTIONS CONCERNING THE REQUIREMENT OF AN ESTABLISHED POSITION FOR PURPOSES OF APPLYING B-183086, MARCH 23, 1977.

THE ADJUDICATOR HANDLING THE CLAIMS IN THIS DIVISION IS SHELDON K. HAUSE, EXT. 52554.

INDORSEMENT

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858)

IN B-195572-O.M., APRIL 7, 1980, WE ADDRESSED THE QUESTION OF WHETHER A DEPARTMENT OF THE NAVY REQUIREMENT FOR RECERTIFICATION OF VACANT POSITIONS WAS A PART OF THE PROCEDURE FOR STANDARDIZING THE CLASSIFICATION OF POSITIONS. WE HELD THAT, LIKE THE REQUIREMENT FOR COMPETITION, THE RECERTIFICATION REQUIREMENT IMPOSED BY THE NAVY IS ONE WHICH ALMOST NEVER WOULD BE MET IN THE CASE OF AN IMPROPER DETAIL TO A HIGHER-GRADE POSITION. WE STATED, THEREFORE, THAT SINCE RECERTIFICATION IS A REQUIREMENT IMPOSED BY THE NAVY WHICH IS UNRELATED TO THE EMPLOYEE'S QUALIFICATIONS FOR PROMOTION, RECERTIFICATION SHOULD BE TREATED IN THE SAME MANNER AS THE REQUIREMENTS FOR COMPETITIVE SELECTION, THAT IS, LACK OF RECERTIFICATION IS NOT A BAR TO A RETROACTIVE TEMPORARY PROMOTION.

LIKEWISE, IN THIS CASE, THE ARMY'S REGULATION REQUIRING THE PROCESSING OF AN SF-52, REQUEST FOR PERSONNEL ACTION, IS ONE WHICH ALMOST NEVER WOULD BE MET IN THE CASE OF AN IMPROPER DETAIL TO A HIGHER LEVEL POSITION. THE ACTION REALLY DOES NOT RELATE TO THE CLASSIFICATION AND ESTABLISHMENT OF THE POSITION, THAT HAVING BEEN ACCOMPLISHED UNDER SUBCHAPTER 6-1C(1) AND (2) OF CPR 501, APRIL 16, 1975. RATHER, THE VERY FACT THAT EXTENDED DETAILS WITHOUT CIVIL SERVICE COMMISSION APPROVAL ARE IMPROPER OFTEN LEADS TO THEIR NEVER HAVING BEEN DOCUMENTED BY THE COMPLETION OF THE VARIOUS PERSONNEL ACTION FORMS.

ACCORDINGLY, IT IS OUR VIEW THAT THE MERE LACK OF SF-52S IN MR. TAYLOR'S AND MR. BROWN'S CASES DOES NOT NEGATE THE FACT THAT THE POSITIONS TO WHICH THE ARMY ADMITS THEY WERE DETAILED, WERE IN FACT ESTABLISHED. HENCE, THE ARMY'S FAILURE TO DOCUMENT THE PERSONNEL ACTION DOES NOT PRECLUDE OUR GRANTING RELIEF FOR DETAILS TO HIGHER LEVEL POSITIONS UNDER TURNER- CALDWELL, 56 COMP.GEN. 427 (1977).