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WHERE RECOMMENDATION FOR CAREER-LADDER PROMOTION WAS WITHDRAWN BY SUPERVISOR WITHOUT HAVING BEEN APPROVED BY AUTHORIZED OFFICIAL. EMPLOYEE WAS LATER PROMOTED. RETROACTIVE PROMOTION WITH BACK PAY IS NOT PERMITTED. THE CAREER-LADDER PROMOTION WAS DISCRETIONARY WITH THE OFFICIAL HAVING APPROVAL AUTHORITY IN THE ABSENCE OF REGULATION. THERE WAS NO ADMINISTRATIVE ERROR JUSTIFYING RETROACTIVE PROMOTION WITH BACK PAY UNDER 5 U.S.C. 5596 BECAUSE OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. GILLOOLY - RETROACTIVE PROMOTION AND BACK PAY: THIS ACTION IS IN RESPONSE TO A LETTER DATED AUGUST 23. IS ENTITLED TO A RETROACTIVE PROMOTION WITH BACK PAY. GILLOOLY CONTENDS HE IS ENTITLED TO A RETROACTIVE PROMOTION BECAUSE OF ADMINISTRATIVE ERROR.

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B-191392, APR 20, 1978

WHERE RECOMMENDATION FOR CAREER-LADDER PROMOTION WAS WITHDRAWN BY SUPERVISOR WITHOUT HAVING BEEN APPROVED BY AUTHORIZED OFFICIAL, BUT EMPLOYEE WAS LATER PROMOTED, RETROACTIVE PROMOTION WITH BACK PAY IS NOT PERMITTED. THE CAREER-LADDER PROMOTION WAS DISCRETIONARY WITH THE OFFICIAL HAVING APPROVAL AUTHORITY IN THE ABSENCE OF REGULATION, INSTRUCTION, OR POLICY LIMITING DISCRETION. THERE WAS NO ADMINISTRATIVE ERROR JUSTIFYING RETROACTIVE PROMOTION WITH BACK PAY UNDER 5 U.S.C. 5596 BECAUSE OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION.

JERRY M. GILLOOLY - RETROACTIVE PROMOTION AND BACK PAY:

THIS ACTION IS IN RESPONSE TO A LETTER DATED AUGUST 23, 1977, FROM ALFRED M. ZUCK, ASSISTANT SECRETARY FOR ADMINISTRATION AND MANAGEMENT, DEPARTMENT OF LABOR, FOR AN ADVANCE DECISION WHETHER MR. JERRY M. GILLOOLY AN EMPLOYEE OF THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA), IS ENTITLED TO A RETROACTIVE PROMOTION WITH BACK PAY. MR. GILLOOLY CONTENDS HE IS ENTITLED TO A RETROACTIVE PROMOTION BECAUSE OF ADMINISTRATIVE ERROR.

ON JUNE 11, 1976, MR. GILLOOLY'S SUPERVISOR AT THE OSHA DISTRICT OFFICE IN BELLEVILLE, ILLINOIS, RECOMMENDED A CAREER-LADDER PROMOTION FOR MR. GILLOOLY FROM GRADE GS-9 TO GRADE GS-11, TO BE EFFECTIVE AS SOON AS POSSIBLE. HOWEVER, THE SUPERVISOR AS A SUPERVISORY SAFETY SPECIALIST, WAS ONLY AUTHORIZED TO RECOMMEND A PROMOTION OF THE EMPLOYEES UNDER HIS SUPERVISION. THE OSHA REGIONAL ADMINISTRATOR IN CHICAGO HAD THE AUTHORITY TO APPROVE IT. ON JULY 1, 1976, BEFORE THE REGIONAL ADMINISTRATOR HAD ACTED ON THE RECOMMENDED PROMOTION, THE SUPERVISOR WITHDREW HIS RECOMMENDATION FOR PROMOTION. ON JULY 9, 1976, THE SUPERVISOR AGAIN RECOMMENDED MR. GILLOOLY'S CAREER-LADDER PROMOTION TO GRADE GS-11, WHICH THE REGIONAL ADMINISTRATOR APPROVED EFFECTIVE JULY 18, 1976. MR. GILLOOLY ASKS THAT HIS PROMOTION BE MADE RETROACTIVE WITH BACK PAY TO JUNE 6, 1976, WHEN HE MET THE SERVICE-IN GRADE REQUIREMENT FOR A CAREER-LADDER PROMOTION TO GRADE GS-11.

THE FACTS ON RECORD DO NOT SUPPORT MR. GILLOOLY'S CLAIM THAT THERE WAS AN ADMINISTRATIVE ERROR JUSTIFYING A RETROACTIVE PROMOTION WITH BACK PAY. UNLESS AN ADMINISTRATIVE REGULATION, INSTRUCTION, OR POLICY STATES OTHERWISE, A CAREER-LADDER PROMOTION IS NOT MANDATORY AND WITHHOLDING IT IS WITHIN THE DISCRETIONARY AUTHORITY OF THE OFFICIAL AUTHORIZED TO APPROVE THE PROMOTION. SEE 56 COMP.GEN. 1003 (1977), AND B-190408, DECEMBER 21, 1977. IN THIS CASE, THE APPROVAL AUTHORITY, HELD BY THE OSHA REGIONAL ADMINISTRATOR, HAD NOT BEEN EXERCISED BEFORE THE FIRST RECOMMENDATION FOR PROMOTION WAS WITHDRAWN ON JULY 9, 1976. APPARENTLY THERE WAS NO REGULATION, INSTRUCTION, OR POLICY LIMITING THE ADMINISTRATOR'S DISCRETION TO WITHHOLD THE PROMOTION.

ADMINISTRATIVE ERROR IS INCLUDED AMONG THOSE GROUNDS REQUIRING A RETROACTIVE PROMOTION AND BACK PAY UNDER THE BACK PAY STATUTE, 5 U.S.C. 5596, WHERE A PERSONNEL ACTION WAS UNJUSTIFIED OR UNWARRANTED. 55 COMP. GEN. 42 (1975). HOWEVER, THE RECORD DOES NOT INDICATE ANY UNJUSTIFIED OR UNWARRANTED ACTION WAS TAKEN IN FAILING TO INITIALLY APPROVE THE PROMOTION.

ON THE RECORD BEFORE US WE FIND NO ADMINISTRATIVE ERROR PERMITTING RETROACTIVE PROMOTION. THE QUESTION POSED IS ANSWERED IN THE NEGATIVE.

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