B-202862, FEB 1, 1982

B-202862, FEB 1, 1982

DIGEST: EMPLOYEE IS NOT ENTITLED TO A RETROACTIVE PROMOTION WITH BACKPAY BASED UPON A RECOMMENDATION BY HIS LOCAL EMPLOYING OFFICE THAT HIS POSITION BE UPGRADED FROM GRADE GS-13 TO GS-14 SINCE A HIGHER ECHELON HAD AUTHORITY TO REJECT THE RECOMMENDATION AND DID SO. PRELIMINARY ACTION TO CLASSIFY AND ESTABLISH A POSITION AT A HIGHER GRADE, WHICH AS IN THIS CASE WAS NEVER COMPLETED, DOES NOT PROVIDE A BASIS FOR A RETROACTIVE PROMOTION. RECLASSIFICATION DECISIONS MAY BE IMPLEMENTED ONLY ON A PROSPECTIVE BASIS.

FRED N. FORSBERG - RETROACTIVE PROMOTION:

MR. FRED N. FORSBERG, A FORMER CIVILIAN EMPLOYEE OF THE NAVY'S AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, APPEALS OUR CLAIMS GROUP'S DENIAL OF HIS CLAIM FOR A RETROACTIVE PROMOTION WITH BACKPAY.

MR. FORSBERG ARGUES THAT HIS POSITION WAS RECLASSIFIED FROM GRADE LEVEL GS-13 AND ESTABLISHED AS ASSISTANT PERSONNEL OFFICER AT GRADE LEVEL GS-14 ON SEPTEMBER 17, 1974, WHEN THE COMMANDING OFFICER OF THE AVIATION SUPPLY OFFICE SIGNED A POSITION DESCRIPTION FORM AUTHORIZING ESTABLISHMENT OF MR. FORSBERG'S POSITION AT THE HIGHER GRADE. TO THE CONTRARY, HOWEVER, WE AGREE WITH THE AVIATION SUPPLY OFFICE THAT SUCH ACTION TO UPGRADE HIS POSITION FROM GRADE LEVEL GS-13 WAS NEVER COMPLETED SO AS TO ENTITLE HIM TO A RETROACTIVE PROMOTION.

THE AVIATION SUPPLY OFFICE WAS REQUIRED TO SUBMIT FOR REVIEW AND APPROVAL BY THE NAVAL SUPPLY SYSTEMS COMMAND, ITS PARENT ORGANIZATION, THE "ESTABLISHMENT OF NEW, OR ORGANIZATIONAL TRANSFER OF EXISTING, HIGH GRADE POSITIONS, AS WELL AS A CHANGE IN DUTIES." NAVAL SUPPLY SYSTEMS COMMAND INSTRUCTION 5310.5B, FEBRUARY 1973, PARAGRAPHS 1, 4C, AND 5F. THIS INSTRUCTION IN PARAGRAPH 1 DEFINED "HIGH GRADE POSITIONS" AS THOSE AT GRADE LEVEL 13 AND ABOVE. ON SEPTEMBER 17, 1974, THE COMMANDING OFFICER OF THE AVIATION SUPPLY OFFICE DID SIGN THE FORM FOR RECLASSIFYING MR. FORSBERG'S POSITION. HOWEVER, UNDER THE REGULATIONS THAT ACTION COULD BE ONLY A RECOMMENDATION FOR RECLASSIFICATION SINCE FINAL APPROVAL WAS RESERVED TO THE NAVAL SUPPLY SYSTEMS COMMAND, WHICH REJECTED IT ON FEBRUARY 3, 1975.

MR. FORSBERG CONTENDS THAT POSITION CLASSIFICATION AUTHORITY WAS DELEGATED TO ALL ECHELONS OF COMMAND IN THE NAVY UNDER SECRETARY OF THE NAVY INSTRUCTION 12510.5A, JUNE 24, 1969. HOWEVER, PARAGRAPH 4 OF THIS INSTRUCTION PROVIDED THAT THE HEAD OF EACH ECHELON RETAINED RESPONSIBILITY FOR CLASSIFICATION ACTIONS IN THE CHAIN OF COMMAND DIRECTLY BELOW, INCLUDING "AUTHORITY TO ASSUME JURISDICTION AND TAKE CLASSIFICATION ACTION ON ANY POSITION WITHIN THE SUBORDINATE CHAIN WHEN DEEMED NECESSARY." THE NAVAL SUPPLY SYSTEMS COMMAND RETAINED CLASSIFICATION AUTHORITY BY LIMITING POSITION CLASSIFIERS AT FIELD ACTIVITIES TO A "PRELIMINARY EVALUATION INDICATING THAT THE POSITION CONTAINS DUTIES MERITING CONSIDERATION AT THE REQUESTED GRADE LEVEL." ATTACHMENT TO NAVAL SUPPLY SYSTEMS COMMAND INSTRUCTION 5310.5B, FEBRUARY 1973. CONSEQUENTLY, THE AVIATION SUPPLY OFFICE'S PROPOSAL FOR UPWARD CLASSIFICATION OF MR. FORSBERG'S POSITION WAS ONLY A PRELIMINARY EVALUATION.

WE HAVE HELD THAT PRELIMINARY STEPS TO CLASSIFY AND ESTABLISH A HIGHER LEVEL POSITION ARE INSUFFICIENT TO WARRANT A RETROACTIVE PROMOTION AND BACKPAY. ROGER F. DIERKING, B-195656, DECEMBER 10, 1979. MR. FORSBERG REFERS TO 53 COMP.GEN. 216 (1973) AND HAROLD P. SIPPERLY, B-185312, JULY 21, 1976, ALLOWING RETROACTIVE PROMOTIONS FOR PERIODS FOLLOWING FINAL CLASSIFICATION ACTION. THESE DECISIONS ARE INAPPLICABLE TO HIS CASE SINCE RECLASSIFICATION OF HIS POSITION WAS NEVER COMPLETED.

EVEN IF MR. FORSBERG'S POSITION WERE ERRONEOUSLY CLASSIFIED, ANY REMEDY WOULD HAVE BEEN PROSPECTIVE ONLY, AFTER HE FORMALLY APPEALED THE CLASSIFICATION AND THE NAVY OR THE CIVIL SERVICE COMMISSION DECIDED IN HIS FAVOR. UNITED STATES V. TESTAN, 424 U.S. 392 (1976).

ACCORDINGLY OUR CLAIMS GROUP'S DENIAL OF THE CLAIM IS SUSTAINED.