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IN WHICH IT WAS HELD THAT YOU WERE NOT ENTITLED TO ADDITIONAL COMPENSATION FOR THE PERIOD JANUARY 2. WHILE YOU WERE EMPLOYED BY THE CORPS OF ENGINEERS. SINCE THE FACTS INVOLVED ARE SET FORTH IN THE DECISION OF JANUARY 14. THEY WILL NOT BE REPEATED HERE EXCEPT AS PERTINENT TO OUR COMMENTS. YOU WERE APPOINTED TO A POSITION WHICH HAD BEEN EVALUATED AS A GRADE GS-13 POSITION. THAT YOU WERE APPOINTED TO GRADE GS-12. SINCE THE SPECIFIC POSITION TO WHICH YOU WERE APPOINTED HAD NOT BEEN ASSIGNED TO GRADE GS-13. IT CANNOT BE SAID THAT YOU WERE DULY APPOINTED TO A POSITION IN THAT GRADE. WAS PROVIDED FOR IN PART 36 OF THE CIVIL SERVICE REGULATIONS IN FORCE AT THE TIME. CURRENT REGULATIONS IN THAT MATTER ARE CONTAINED IN SUBPART F.

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B-158271, FEB. 11, 1969

TO MR. PATRICK F. X. MCGUCKEN:

WE REFER TO YOUR LETTER OF JANUARY 16, 1969, BY WHICH YOU REQUEST THAT WE REVIEW OUR DECISION OF JANUARY 14, 1969, B-158271, IN WHICH IT WAS HELD THAT YOU WERE NOT ENTITLED TO ADDITIONAL COMPENSATION FOR THE PERIOD JANUARY 2, 1961, TO APRIL 14, 1962, WHILE YOU WERE EMPLOYED BY THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY.

SINCE THE FACTS INVOLVED ARE SET FORTH IN THE DECISION OF JANUARY 14, THEY WILL NOT BE REPEATED HERE EXCEPT AS PERTINENT TO OUR COMMENTS.

YOU SAY THAT ON JANUARY 2, 1961, YOU WERE APPOINTED TO A POSITION WHICH HAD BEEN EVALUATED AS A GRADE GS-13 POSITION, BUT THAT YOU WERE APPOINTED TO GRADE GS-12. SINCE THE SPECIFIC POSITION TO WHICH YOU WERE APPOINTED HAD NOT BEEN ASSIGNED TO GRADE GS-13, IT CANNOT BE SAID THAT YOU WERE DULY APPOINTED TO A POSITION IN THAT GRADE. APPEAL TO THE CIVIL SERVICE COMMISSION WITH REGARD TO THE CLASSIFICATION OF YOUR POSITION IN GRADE GS- 12, RATHER THAN GRADE GS-13, WAS PROVIDED FOR IN PART 36 OF THE CIVIL SERVICE REGULATIONS IN FORCE AT THE TIME. CURRENT REGULATIONS IN THAT MATTER ARE CONTAINED IN SUBPART F, PART 511, OF THE CIVIL SERVICE REGULATIONS. 5 CFR 511.601 ET SEQ. ANY ADMINISTRATIVE APPEAL OF THE ACTION TAKEN ON JANUARY 2, 1961, SHOULD HAVE BEEN IN ACCORDANCE WITH THOSE REGULATIONS.

REGARDING YOUR STATEMENT THAT YOU WERE ELIGIBLE FOR DIRECT APPOINTMENT TO GRADE GS-13 ON JANUARY 2, 1961, AND, THUS WERE EXCEPTED FROM THE RESTRICTIONS OF THE "WHITTEN AMENDMENT," THE RULE THAT YOU WERE ENTITLED ONLY TO THE COMPENSATION OF THE POSITION TO WHICH YOU WERE DULY APPOINTED -- ATTORNEY-ADVISER, GRADE GS-12 -- WOULD PREVENT PAYMENT OF RETROACTIVE COMPENSATION TO YOU FOR THE PERIOD IN QUESTION EVEN THOUGH YOU MAY HAVE BEEN ELIGIBLE FOR APPOINTMENT IN GRADE GS-13. THEREFORE, WE HAVE NOT INVESTIGATED YOUR STATEMENT AND MAKE NO COMMENT THEREON.

WE UNDERSTAND THE COURT OF CLAIMS DOES NOT CONSIDER THE PRESENTATION OF A CLAIM TO OUR OFFICE AS NECESSARY TO THE EXHAUSTION OF AN INDIVIDUAL'S ADMINISTRATIVE REMEDY. AS NOTED ABOVE, HOWEVER, YOU FAILED TO PURSUE YOUR ADMINISTRATIVE REMEDY THROUGH THE CIVIL SERVICE COMMISSION IN 1961 AT THE TIME YOU WERE APPOINTED TO GRADE GS-12.

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