Office of the General Counsel

S013620

[XXX]

Dear [XXX]:

We refer to your request that we review your claim for backpay. We have completed our review of this claim and have determined that it may not be allowed.

The record shows that for the period September 26, 1993, through January 7, 1996, you performed the duties of your predecessor a GM-13. You submitted a waiver request to your agencys waiver board for an accretion of duties to the GS-13 level. Your waiver request was disapproved by the board. Subsequently, on August 24, 1995, you filed a grievance regarding the denial of your waiver to be accreted to the GS-13 level. For personal relief, you requested a promotion to the GS-13 level, effective September 26, 1993, with all associated back pay to include merit increases. A fact finder was appointed to investigate the merits of your grievance. As a result, of the investigation a decision was made to partially grant you personal relief with the effective date of January 7, 1996 rather than September 26, 1993, as you requested in your grievance. You are now requesting backpay from September 26, 1993, through January 7, 1996.

Ordinarily an administrative change in salary may not be made retroactively effective in the absence of a statute so providing. However, we have permitted a retroactive personnel action where clerical or administrative errors occurred that (1) prevented a personnel action from taking effect as originally intended, (2) deprived an employee of a right granted by statute or regulation, or (3) would result in failure to carry out a nondiscretionary

administrative regulation or policy if not adjusted retroactively. We have recognized that the above-stated exceptions to the general rule prohibiting retroactively effective personnel actions may constitute "unjustified or unwarranted personnel actions" under the Back Pay Act, 5 U.S.C. 5596 (1976).

As a general rule an employee is entitled only to the salary of the position to which he is actually appointed, regardless of the duties performed. When an employee performs the duties of a higher grade level, no entitlement to the salary of the higher grade exists until such time as the individual is actually promoted. Further, backpay is not available as a remedy for improper classifications. B-240239, October 29, 1990.

The file indicates that you were promoted to the GS-13 level, effective January 7, 1996. Not until that time would you be entitled to the salary commensurate with that position. Accordingly, your claimis denied.

Sincerely,

Joann Charleston
Adjudicator

cc: [agency]