The effective date of a civilian personnel action is normally set to occur on or after the date the action is formally approved by an authorized approving official. A retroactive personnel action is one for which the effective date precedes (by days, months, or years) the date of formal approval of the action.
Within the Army, the approving official is the person who has delegated appointing authority that runs from the Secretary of the Army, through intervening commanders, to the installation or activity commander. Subordinate division, branch, and section chiefs recommend or request civilian personnel actions; activity commanders approve them.
Civilian personnel officers "act for" their commanders in approving personnel actions. For most civilian personnel actions affecting pay and allowances, the directors of the regional Civilian Personnel Operations Centers (CPOCs) are the "act for" approving officials for their serviced commanders. CPOC staff usually are delegated authority to carry out the CPOC directors' "act for" authority.
As a general rule, a salary increase may not be made retroactive. An exception, however, can be made if an increase such as a temporary promotion is delayed by some administrative oversight or a clerical error that occurs after approval by the authorized approving official. Unavoidable delays (e.g., to verify a condition of employment) and delays that result from the employee's own acts are not exceptions to the rule against retroactive effective dates (B-184817, 1975).
While backpay actions are often taken to carry out a settlement decision, they may also be processed simply to implement a necessary change. The purpose of this article is to help you decide, given a case in hand, whether a personnel action can be made retroactive so as to authorize payment of backpay. It does not purport to provide legal guidance that will be applicable in any given case. For that, you should consult with the Army attorney servicing your organization. It does, however, provide general guidelines based on past Comptroller General opinions. Many of these are cited throughout to provide support for or examples of the points being made in the article.
Exceptions to the Rule Against Retroactive Actions
The Back Pay Act (5 U.S.C. 5596 - Back pay due to unjustified personnel action) authorizes restoration of pay, allowances, and differentials to individuals who were denied them as a result of unjustified or unwarranted personnel actions, including the failure to take an action that provides a benefit. Note: The act excludes reclassification actions.
The Comptroller General of the United States has statutory authority to answer questions on the proper use of appropriated funds. The Comptroller General recognizes delays due to administrative or clerical errors as unjustified or unwarranted personnel actions under the Back Pay Act, and endorses retroactive dates in the following three situations (B-261592, 1995; B-192295, 1978):
- where the error prevented a personnel action from taking effect as approved, or
- resulted in a nondiscretionary administrative regulation or policy not being carried out, or
- deprived an employee of a right granted by statute or regulations.
In extremely unusual or exceptional circumstances, retroactive personnel actions may also be possible when there has been an abuse of discretion in taking a particular course of action. This is a very difficult standard to meet, and only the most arbitrary or capricious acts will be considered an abuse of discretion (B-183960, 1976).
Delays Before Versus After an Action Is Approved
In a legal sense, the Comptroller General draws an important distinction between delays that occur before versus after an approving official authenticates a personnel action.
Errors that occur after a SF 50 is signed.
By signing or authenticating a SF 50, an approving official establishes an agency's intent to carry an action out by a certain date, and only ministerial tasks remain to process the action. Back pay as a remedy for failing to complete those tasks is therefore possible.
A duly signed SF 50 is the customary record of approval. The Comptroller General, however, has accepted other comparable records such as a selection letter signed by the approving official (B-168683, 1970). Unless initiated by the approving official, the Request for Personnel Action (SF 52) is not an acceptable record of approval.
Errors that occur before a SF 50 is signed.
Without such documentation, an agency's intent is not known with certainty. A promotion, for example, is ordinarily within the discretionary authority of the appointing officer. It may be approved, or denied because it is improper, illegal, or untimely.
Generally, the Comptroller General will not allow clerical or administrative error as the cause of a delay, nor allow back pay, without evidence the agency intended to implement the personnel action earlier. In the absence of proof of intent to implement the action earlier, evidence must be provided of a preexisting, nondiscretionary policy, collective bargaining agreement, law or Executive Order requiring the action. Note: Provisions of collective bargaining agreements may not constitute nondiscretionary agency policy unless they are otherwise consistent with applicable laws and regulations, and contain language requiring specific agency action under stated conditions and criteria (B-192455, 1978).
A nondiscretionary policy is not always in writing. The Comptroller General has ruled that a pattern can be established that has the effect of a nondiscretionary policy. A clear precedent may be set, for example, when an agency fills a higher graded position by a series of temporary promotions routinely granted to all individuals occupying the position(B-216605, 1985).
This table is based on principles from the Back Pay Act and significant rulings of the Comptroller General regarding authorities to set retroactive effective dates for the payment of back pay. Use it in consultation with a Civilian Personnel Advisory Center (CPAC) specialist to determine if back pay is possible in a given case. The CPAC specialist will coordinate with the servicing legal office and the CPOC to be sure all are in agreement on the legality of a proposed retroactive action.
Assumption: It is crucial you are sure the action itself is proper, meaning it meets all legal and regulatory requirements. Retroactivity is irrelevant where a personnel action violates the law or is not in compliance with regulations.
Line of Authority
The CPOC is responsible for ensuring that all applicable laws, rules, and regulations are complied with before processing a personnel action. Further, the CPOC is obligated to bring any possible inconsistency to the attention of the activity commander (directly or through the servicing CPAC). The CPAC can then consult with legal counsel if needed, and provide the appropriate advice to an employee's supervisory chain.
As appointing officer for his or her activity, a commander may authenticate a personnel action for processing by the CPOC, in place of the CPOC director acting for him or her. Notwithstanding, any disagreement over the legal sufficiency of an action should be made known to the employee's parent major command.