60163800

Office of the General Counsel

OPM Ref. # 1996-01638

[Agency]

Dear Ms. [xxx]:

This replies to your December 2, 1996 request for a decision concerning the legality of a retroactive correction to an employees rate of basic pay upon promotion. We conclude the retroactive correction is not authorized.

You state that the approving official for an employees personnel actions authorized a promotion for the employee and set the rate of pay at "[t]he minimum rate under normal pay setting rules." As a result, the employees pay was set at the GS-11, step 5 rate effective January 22, 1995. However, you state that the approving official believed the minimum rate in this case to be step 6 and intended to approve that rate, rather than step 5 for the employee. You ask whether the approving officials error constitutes the type of administrative error that would permit a retroactive correction of the personnel action in order to place the employee at the step 6 rate effective January 22, 1995. The answer is no.

A clerical error or administrative error may be corrected retroactively, among other reasons, if the error prevented a personnel action from taking effect as originally intended. Michael Kostishak, B-248460, Nov. 10, 1992. However, the word "intended" does not refer to the state of mind of the approving official, but rather, refers to the personnel action that actually was approved. Thomas L. Wild, B-240781, Feb. 5, 1991. In this case, the rate of pay authorized by the approving official was step 5. If a subsequent error caused the employee to be paid at a lower step, for example, then that action could fairly be described as having prevented the personnel action from taking effect as intended. That, of course, is not the case here. Therefore, the employees rate of pay may not be corrected retroactively.

Very truly yours,

Paul Britner
Senior Attorney