BNUMBER:  B-261592
DATE:  November 13, 1995
TITLE:  Marianna Mehutcs

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Matter of:Marianna Mehutcs

File:     B-261592

Date:     November 13, 1995

DIGEST

Promotion of an employee in a trainee position was delayed because of 
a computer crash before the promotion request reached the authorized 
official.  Where delay precedes the authorized official's approval, no 
administrative intent to promote can be established so as to support a 
claim for retroactive promotion.  The cause of the delay is less 
important than the timing of the delay.

DECISION

The Director, Human Resources Directorate, Defense Contract Management 
District South (DCMDS), Defense Logistics Agency, Marietta, Georgia, 
requests approval to retroactively promote Ms. Marianna Mehutcs, a 
contract specialist trainee, in Norfolk, Virginia.

BACKGROUND

Ms. Mehutcs was competitively selected as a contract specialist 
trainee, GS-1102-05, with a target position of GS-1102-11.  Her 
reassignment was effective on December 5, 1993.  In order to be 
eligible for a noncompetitive promotion as a trainee, she was required 
to complete specific training, have 1 year of specialized experience 
at the next lower grade, and be recommended for promotion.  On October 
28, 1994, Major Howard the head of the Norfolk office, certified that 
Ms. Mehutcs had met these requirements.  He submitted the Personnel 
Action Request System Form (PARS 52) to promote Ms. Mehutcs to the 
GS-7 level effective December 4, 1994.  Mr. O'Connell, the Deputy for 
DCMAO Baltimore, approved the PARS 52.  In November 1994, the 
automated system at DCMDS crashed and all the PARS 52 were lost.  The 
staffing specialist in Atlanta authorized to approve promotions never 
received the PARS 52 for Ms. Mehutcs.

Major Howard's supervisor was notified of the crash and the need to 
resubmit requests that might have been lost in the crash.  This 
message, however, was not forwarded to the Norfolk office.  Major 
Howard was not aware of the loss until early January 1995 when Ms. 
Mehutcs informed him that her salary did not change to reflect her 
promotion.  Upon checking, Major Howard was told to submit a new PARS 
52, which he promptly did.  Ms. Mehutcs was promoted to the GS-7 level 
effective February 12, 1995.

Under the unique circumstances of this situation, the Director, DCMDS, 
argues:

 "In this situation in our highly computerized world, we believe that 
 when a manager submits the paperwork five weeks in advance, 
 certifying that all conditions are met, and the computerized PARS 52 
 is lost due to a system problem, the employee should not pay the 
 penalty for the remainder of her career.  Therefore, we request that 
 you strongly consider the unique circumstances of this situation and 
 approve a retroactive promotion from 12/14/94, to the GS-1102-07 for 
 Ms. Mehutcs."

ANALYSIS AND CONCLUSIONS

Employees have no vested right to be promoted at any specific time.  
The effective date of salary changes resulting from administrative 
action exclusively is the date the action is taken by the 
administrative officer vested with the proper authority, or a 
subsequent date specifically fixed.  21 Comp. Gen. 95 (1941).  See 
also 5 C.F.R.  511.701(a) (1995).  As a general rule, a promotion 
action may not be made retroactive so as to increase an employee's 
right to compensation.  Exceptions to this rule, and the cases where 
backpay may be awarded, are instances in which an administrative or 
clerical error:  (1) prevented a personnel action from being affected 
as originally intended, (2) resulted in a nondiscretionary 
administrative regulation or policy not being carried out, or (3) 
deprived the employee of a right granted by statute or regulations.  
58 Comp. Gen. 51 (1978).  The second and third exceptions are not 
applicable to this case.  The agency argues that the first exception 
be expanded to include the instance when computer failure results in 
the delay.

In cases involving approval of retroactive promotions on the ground of 
administrative or clerical error, the authorizing official must 
approve the promotion.  Thus, a distinction is drawn between those 
errors that occur prior to approval of the promotion by the properly 
authorized official and those that occur after such approval but 
before the acts necessary to effectuate the promotion have been fully 
carried out.  The rationale for drawing this distinction is that the 
individual with authority to approve promotion requests also has the 
authority not to approve any such request, unless his exercise of 
disapproval authority is constrained by statute, administrative 
policy, or regulation.  Where the error or omission occurs before he 
exercises that discretion, administrative intent to promote at any 
particular time cannot be established.  After the authorizing official 
has exercised his authority by approving the promotion, all that 
remains to effectuate that promotion is a series of ministerial acts.  
In that case, since administrative intent to promote is established, 
retroactive promotion as a remedy for failure to accomplish those 
ministerial acts is appropriate.  58 Comp. Gen. 59, 61 (1978); Janice 
Levy, B-190408, Dec. 21, 1977.

In determining if an exception can be made and a retroactive promotion 
granted, the cause of the delay is less important than when the delay 
occurs.  In Janice Levy, supra, we ruled that where an employee's 
career-ladder promotion was delayed because the original promotion 
request was lost in the mails, the agency could not award a 
retroactive promotion with backpay.  Since the original promotion 
request was lost prior to its approval by the properly authorized 
official, the delay in processing the promotion did not constitute 
administrative error of a nature that would support retroactive 
promotion.

In the present case, the appropriate supervisors approved the PARS 52 
before the computer crash; however, the staffing specialist in Atlanta 
is the authorizing official.  This person did not approve the 
promotion before the crash.  Since the delay occurred before the 
authorized official approved Ms. Mehutcs's promotion, no authority 
exists to permit a retroactive promotion.  Further delay after the 
computer crash resulted from the Baltimore office not notifying Ms. 
Mehutcs's office in a timely manner of the need to resubmit the PARS 
52.  This delay does not constitute administrative error such as would 
warrant a retroactive promotion.

/s/Seymour Efros
for Robert P. Murphy
General Counsel