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WHILE YOU WERE APPOINTED TO GRADE GS-12 BUT OCCUPIED A POSITION WHICH YOU SAY WAS CLASSIFIED SO FAR AS DUTIES WERE CONCERNED IN GRADE GS-13. YOU INDICATE THAT YOU WERE PROMOTED FROM GRADE GS-11 TO GRADE GS-12 ON JANUARY 2. THAT YOU WERE NOT PROMOTED TO GRADE GS-13 BECAUSE OF THE "WHITTEN AMENDMENT.'. THE PROVISION OF LAW REFERRED TO IS SECTION 1310 OF THE ACT OF NOVEMBER 1. WHICH IS SET OUT AS AMENDED IN A NOTE FOLLOWING 5 U.S.C. 3101 (5 U.S.C. 43 (1964 ED.) ). ON THE BASIS OF THE FACTS YOU HAVE PRESENTED. IT DOES NOT APPEAR THAT ANY OF THE ENUMERATED SITUATIONS WERE APPLICABLE TO YOUR PROMOTION. YOU COULD NOT LEGALLY HAVE BEEN PROMOTED TO GRADE GS-13 ON JANUARY 2. ITIS A WELL- SETTLED PRINCIPLE OF LAW THAT A FEDERAL EMPLOYEE IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE HAS BEEN DULY APPOINTED REGARDLESS OF THE DUTIES HE ACTUALLY PERFORMS.

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B-158271, JAN. 14, 1969

TO MR. PATRICK F. X. MCGUCKEN:

WE REFER TO YOUR LETTER OF NOVEMBER 7, 1968, BY WHICH YOU CLAIM ADDITIONAL COMPENSATION FOR THE PERIOD JANUARY 2, 1961, TO APRIL 14, 1962, WHILE YOU WERE APPOINTED TO GRADE GS-12 BUT OCCUPIED A POSITION WHICH YOU SAY WAS CLASSIFIED SO FAR AS DUTIES WERE CONCERNED IN GRADE GS-13.

YOU INDICATE THAT YOU WERE PROMOTED FROM GRADE GS-11 TO GRADE GS-12 ON JANUARY 2, 1961, BUT THAT YOU WERE NOT PROMOTED TO GRADE GS-13 BECAUSE OF THE "WHITTEN AMENDMENT.' THE PROVISION OF LAW REFERRED TO IS SECTION 1310 OF THE ACT OF NOVEMBER 1, 1951, CH. 664, 65 STAT. 757, WHICH IS SET OUT AS AMENDED IN A NOTE FOLLOWING 5 U.S.C. 3101 (5 U.S.C. 43 (1964 ED.) ). THAT STATUTE PROHIBITS THE PROMOTION OF EMPLOYEES MORE THAN ONE GRADE IN ANY YEAR EXCEPT IN CERTAIN ENUMERATED SITUATIONS. ON THE BASIS OF THE FACTS YOU HAVE PRESENTED, IT DOES NOT APPEAR THAT ANY OF THE ENUMERATED SITUATIONS WERE APPLICABLE TO YOUR PROMOTION. THEREFORE, YOU COULD NOT LEGALLY HAVE BEEN PROMOTED TO GRADE GS-13 ON JANUARY 2, 1961.

UNDER THE TERMS OF THE "WHITTEN AMENDMENT" YOU BECAME ELIGIBLE FOR PROMOTION TO GRADE GS-13 ON JANUARY 2, 1962, BUT YOU APPARENTLY DID NOT RECEIVE A PROMOTION TO THAT GRADE UNTIL APRIL 14, 1962. ITIS A WELL- SETTLED PRINCIPLE OF LAW THAT A FEDERAL EMPLOYEE IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE HAS BEEN DULY APPOINTED REGARDLESS OF THE DUTIES HE ACTUALLY PERFORMS. GANSE V UNITED STATES, 376 F.2D 900, 180 CT.CL. 183 (1967); PRICE V UNITED STATES, 80 F.SUPP. 542, 112 CT.CL. 198 (1948). THUS, EVEN THOUGH YOUR DISABILITY UNDER THE "WHITTEN AMENDMENT" EXPIRED ON JANUARY 2, 1962, YOU WERE NOT ENTITLED TO THE COMPENSATION OF GRADE GS-13 UNTIL YOU WERE PROPERLY APPOINTED TO THAT GRADE.

THEREFORE ON THE BASIS OF THE FACTS YOU HAVE PRESENTED, YOU ARE NOT ENTITLED TO ADDITIONAL COMPENSATION FOR THE PERIOD JANUARY 2, 1961, TO APRIL 14, 1962.

WE ALSO HAVE FOR CONSIDERATION YOUR LETTER OF DECEMBER 17, 1968, CONCERNING CERTAIN LEAVE WITHOUT PAY CHARGED YOU IN JANUARY 1966. SINCE YOUR AGENCY DETERMINED THAT YOU WERE NOT ENTITLED TO SICK LEAVE FOR THE DAYS IN QUESTION YOU COULD BE CHARGED ONLY ANNUAL LEAVE IN LIEU OF THE LEAVE WITHOUT PAY WHICH WAS CHARGED YOU. HOWEVER, IN VIEW OF YOUR SEPARATION ON FEBRUARY 7, 1966, AT WHICH TIME YOU PRESUMABLY WERE PAID A LUMP SUM FOR YOUR ANNUAL LEAVE, IT WOULD APPEAR THAT CHARGING YOU ANNUAL LEAVE IN LIEU OF LEAVE WITHOUT PAY FOR YOUR ABSENCE IN JANUARY 1966 WOULD ONLY SERVE TO REDUCE YOUR ENTITLEMENT TO LUMP SUM PAYMENT FOR ANNUAL LEAVE AT THE TIME OF YOUR SEPARATION. THEREFORE, IT IS NOT APPARENT FROM YOUR LETTER THAT YOU SUFFERED A LOSS OF COMPENSATION BY REASON OF THE LEAVE WITHOUT PAY CHARGED YOU IN JANUARY 1966.

FOR THE REASONS STATED WE FIND NO BASIS TO ALLOW YOU ADDITIONAL COMPENSATION UNDER THE CLAIMS PRESENTED IN YOUR LETTERS OF NOVEMBER 7 AND DECEMBER 17, 1968.

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