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B-182565 1 (1975-05-29)

handle is hein.gao/gaobadcjm0001 and id is 1 raw text is: *1 DECISION FILE: B-182565 DATE: MAY 2 9 1975 MATTER OF: William Scott - Retroactive promotion DIGEST: Grievance examiner's recommendation that deputy marshal be awarded retroactive promotion may not be effected even though grievance examiner found improper evaluation of deputy marshal's abilities led to his not being promoted since promotion is a discretionary function of the agency and retroactive promotion is allowed only where there is a violation of a nondiscretionary function or duty and there was no such violation. The fact that other employees similarly situated were promoted does not serve as justification for retroactively promoting the deputy marshal since employees are not entitled to identical treatment in promotion actions. This action is in response to a request for an advance decision from Mr. Glen E. Pommerening, Assistant Attorney General for tratLon, Department of Justice, concening the propriety of granting retroactive pay to Deputy United States Marshal William Scott, United States Marshals Service, Southern District of New York, pursuant to a grievance examiner's recommendations. The record shows that on March 22, 1970, Mr. Scott began his employment with the Bureau of Prisons, Department of Justice, as' a Correctional Officer, CS-6, step 1. On November 16, 1970, Mr. Scott transferred to the United States Marshals Service at the same grade level. Mr. Scott received within grade increases on March 22, 1971, to CS-6, step 2, and on March 22, 1972, to GS-6, step 3. Mr. Scott was subsequently promoted to the GS-7 level on December 10, 1972. It appears that from July 1971 to May 1972, Mr. Scott was absent from work because of illness associated with a job related incident. On January 7, 1973, Mr. Scott filed a grievance with the Marshals Service concerning the failure of the United States Marshal for the Eastern District of New York,Mr. Benjamin F. Butler, to promote him in a timely manner. Mr. Scott based his complaint on the assertion that he had demonstrated his ability to perform satisfactorily on the GS-7 and GS-8 levels and on the assertion that he was denied the same promotional opportunity as other deputy marshals. THE COMPTROLLER GENERAL OF THE UNITED STATES WASHINGTON, D. C. 20548 gil 5 a 1

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