Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
U.S. Forces Korea Engineers
Camp Humphreys, South Korea
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
08/01/2022
Date
The claimant is a Federal civilian employee with the U.S. Forces Korea (USFK) Engineers, Department of the Army at Camp Humphreys, Korea. He requests “back pay for nearly 42 months of preforming [sic] the GS-15 additional duties that took nearly 4 years to get updated in [his] PD.” The U.S. Office of Personnel Management (OPM) received the claim request on January 25, 2022. For the reasons discussed herein, the claim is denied.
The claimant is employed as a Supervisory General Engineer (Senior Advisor), GS-0801-15. He previously held the position of Supervisory Architect, GS-0808-14. He asserts that while in his GS-14 position he was given and performed GS-15 grade level duties. He states that in August 2018 his supervisor determined that he was performing major duties not described in his PD and requested that his PD be updated based on accretion of duties. Similarly, in August 2020, his new supervisor requested that his position be upgraded to the GS-15 grade level due to the position’s scope and level of responsibility in addition to the accreted GS-15 duties he performed. In May 2021, a classification review of his PD was conducted which resulted in the reclassification of his position to Supervisory General Engineer (Senior Advisor), GS-0801-15. On September 9, 2021, the claimant filed an informal administrative grievance requesting a retroactive promotion to January 2018 and back pay. By memorandum dated October 12, 2021, he was notified by HQ, USFK that failure to receive a noncompetitive promotion was not covered by the agency’s grievance process. On or about October 24, 2021, the claimant was promoted to his current position. He believes he should have received back pay for the time he performed GS-15 level duties prior to his promotion.
Back pay for periods of misclassification is statutorily barred (5 U.S.C. 5596(b)(3)). As stated in United States v. Testan, 424, U.S. 392 (1976): “The established rule is that one is not entitled to the benefit of a position until he has been duly appointed to it.” See also B-19065, July 7, 1978, and B-191360, May 10, 1978. Therefore, 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. Accordingly, the claimant’s request for back pay for 42 months of performing higher graded duties prior to the reclassification of and promotion to his position is denied.
This settlement is final. No further administrative review is available within the OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.