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B-193894 1 (1980-04-02)

handle is hein.gao/gaobadidp0001 and id is 1 raw text is: THE COMPTROLLER GENERAL DECISION OF THE UNITED STATES WASH INGTON, D C. 20548 FILE: B-193894 DATE: April 2, 1980 MATTER OF: Frank Fucile, Jr. -Claim for Retroactive Promotion and Backpay DIGEST: Employee's claim for retroactive promotion and backpay is disallowed since employee was required to have security clearance before promotion. Although critical-sensitive security clearance for employee was not obtained prior to his selection for promotion as it should have been, the delay in obtaining clear- ance was made by security officer, not by appointing officer, and does not justify retroactive promotion. The issue in this case is whether an agency's failure to obtain a critical-sensitive security clearance for an employee prior to his selection for promotion is an administrative error which permits a retroactive promotion for the employee with backpay. Mr. Frank Fucile, Jr., a Consumer Safety Officer of the Food and Drug Administration (FDA), Chicago District Office, Department of Health, Education, and Welfare (HEW), appeals the disallowance by our Claims Division of his claim for a retroactive promotion and backpay. Mr. Fucile was selected for promotion from GS-11 to GS-12 on June 27, 1977. However, his promotion was delayed until September 25, 1977, because he did not have a critical-sensitive security clearance which was a requirement for promotion to GS-12. Mr. Fucile claims he is entitled to a retroactive promotion and backpay because the FDA had a policy of requesting clearances for all GS-11 employees, who did not have such clearances, in order to prevent delays in processing promotions to GS-12 positions. His claim is representative of seven similar claims. The record shows that the FDA determined in April 1974 that Consumer Safety Officer positions, GS-12 or higher, should be designated critical-sensitive. At the same time it was determined that GS-11 positions would not be critical-sensitive but that clearances would be obtained for the occupants of such positions to prevent delays in processing their promotions when they were selected for GS-12 positions. Initiation of clearances for GS-11 employees was to be made in July 1975 and at periodic times thereafter.

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