B-114017, APRIL 20, 1953, 32 COMP. GEN. 465

B-114017: Apr 20, 1953

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COMPENSATION - RATES - ERRONEOUS PROMOTIONS - REFUND REQUIREMENTS - EFFECTIVE DATE AN EMPLOYEE WHO WAS DEMOTED TWO GRADES AFTER AN ERRONEOUS FOUR GRADE PROMOTION. WHICH WAS PROHIBITED BY THE PROMOTION RESTRICTION OF SECTION 1310 (C) OF THE ACT OF NOVEMBER 1. 1953: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 27. - WHICH SECTION IS REFERRED TO AS THE WHITTEN AMENDMENT. IT IS REPORTED THAT. ACTION WAS TAKEN BY YOUR ADMINISTRATION TO APPOINT AND PROMOTE AN EMPLOYEE FROM A GRADE GS 3 POSITION IN THE DEPARTMENT OF THE ARMY TO A GRADE GS-7 POSITION. IT WAS DETERMINED THAT. SINCE THE PROMOTION OF FOUR GRADES WAS PROHIBITED UNDER THE RESTRICTION ON PROMOTIONS CONTAINED IN THE ABOVE ACT AND THE COMMISSION'S REGULATIONS ISSUED PURSUANT THERETO.

B-114017, APRIL 20, 1953, 32 COMP. GEN. 465

COMPENSATION - RATES - ERRONEOUS PROMOTIONS - REFUND REQUIREMENTS - EFFECTIVE DATE AN EMPLOYEE WHO WAS DEMOTED TWO GRADES AFTER AN ERRONEOUS FOUR GRADE PROMOTION, WHICH WAS PROHIBITED BY THE PROMOTION RESTRICTION OF SECTION 1310 (C) OF THE ACT OF NOVEMBER 1, 1941, AS AMENDED ( WHITTEN AMENDMENT), MAY NOT BE PAID AT A RATE IN THE DEMOTED POSITION ABOVE THE MINIMUM OF THAT GRADE ON THE BASIS OF A HIGHER SALARY WHILE IN THE HIGHER GRADE POSITION, ALSO THE EMPLOYEE SHOULD REFUND THE DIFFERENCE BETWEEN THE AMOUNT ACTUALLY RECEIVED IN THE HIGHER GRADE AND THE PROPER SALARY RATE OF THE LOWER GRADE.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATION OF VETERANS AFFAIRS, APRIL 20, 1953:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 27, 1953, REQUESTING CONSIDERATION AND DECISION ON CERTAIN QUESTIONS INVOLVING THE APPLICATION OF SECTION 1310 (C) OF THE ACT OF NOVEMBER 1, 1951, 65 STAT. 758, AS AMENDED BY THE ACT OF JUNE 5, 1952, 66 STAT. 122--- WHICH SECTION IS REFERRED TO AS THE WHITTEN AMENDMENT.

IT IS REPORTED THAT, THROUGH A MISUNDERSTANDING, ACTION WAS TAKEN BY YOUR ADMINISTRATION TO APPOINT AND PROMOTE AN EMPLOYEE FROM A GRADE GS 3 POSITION IN THE DEPARTMENT OF THE ARMY TO A GRADE GS-7 POSITION, $4,205 PER ANNUM, IN THE VETERANS ADMINISTRATION BUT THAT, UPON REVIEW THEREOF BY THE CIVIL SERVICE COMMISSION, IT WAS DETERMINED THAT, SINCE THE PROMOTION OF FOUR GRADES WAS PROHIBITED UNDER THE RESTRICTION ON PROMOTIONS CONTAINED IN THE ABOVE ACT AND THE COMMISSION'S REGULATIONS ISSUED PURSUANT THERETO, THE EMPLOYEE SHOULD BE SEPARATED OR PLACED IN A POSITION NOT HIGHER THAN GS-5. IN VIEW THEREOF, THE EMPLOYEE WAS DEMOTED TO A GS-5 POSITION AT THE TOP OF THE GRADE, OR $4,160 PER ANNUM, EFFECTIVE JANUARY 18, 1953.

YOUR LETTER REFERS TO THE PROVISION ADDED BY THE AMENDMENT OF JUNE 5, 1952, TO SECTION 1310 (C) OF THE ACT OF NOVEMBER 1, 1951, SUPRA, WHICH STATES THAT THE CIVIL SERVICE COMMISSION MAY AUTHORIZE PROMOTIONS (WITHOUT REGARD TO NUMBER) IN ORDER TO AVOID UNDUE HARDSHIP OR INEQUITY IN INDIVIDUAL CASES OF MERITORIOUS NATURE. BY REASON OF THAT PROVISION YOU DESIRE ANSWERS TO CERTAIN QUESTIONS WHICH DEPEND ON WHETHER THE CIVIL SERVICE COMMISSION MAY OR MAY NOT APPROVE A PROMOTION TO GS-7 FOR THE EMPLOYEE HERE INVOLVED--- SUCH AS THE DATE THE COMMISSION WOULD BE AUTHORIZED TO MAKE THE PROMOTION RETROACTIVE, THE AMOUNT TO BE REFUNDED BY THE EMPLOYEE IN THE EVENT THE PROMOTION COULD NOT BE RETROACTIVE, ETC.

YOU MAY BE ADVISED THAT THE PORTION OF THE QUESTIONS REGARDING THE AUTHORITY OF THE CIVIL SERVICE COMMISSION TO MAKE THE PROMOTION RETROACTIVE UNDER THE RELATED CIRCUMSTANCES WOULD APPEAR TO BE A MATTER FOR SUBMISSION TO THAT AGENCY IN THE FIRST INSTANCE RATHER THAN TO THIS OFFICE. IN OTHER WORDS UNTIL THE CIVIL SERVICE COMMISSION DECIDES THAT IT HAS AUTHORITY TO ACT FAVORABLY RESPECTING THE RETROACTIVE PROMOTION OF THE EMPLOYEE, THERE PROPERLY IS NO QUESTION FOR DECISION BY THE GENERAL ACCOUNTING OFFICE. THE ONLY MATTERS CONTAINED IN YOUR LETTER WHICH MAY BE CONSIDERED AT THIS TIME RELATE TO THE PROPER SALARY RATE OF THE EMPLOYEE UPON BEING PLACED IN GRADE GS-5 TOGETHER WITH THE EFFECTIVE DATE THEREOF, AND THE AMOUNT PROPER FOR REFUND ASSUMING THAT THE CIVIL SERVICE COMMISSION WILL REFUSE TO TAKE COGNIZANCE OF THE SITUATION AS A "HARDSHIP CASE" UNDER SECTION 1310 (C), SUPRA. IN THE ABSENCE OF THE EMPLOYEE HAVING ATTAINED A SALARY RATE OF $4,160 OR HIGHER IN SOME OTHER POSITION AS DEFINED IN SECTION 25.101 OF THE COMMISSION'S REGULATIONS, THERE WOULD BE NO AUTHORITY FOR USING THE SALARY RATE PAID TO THE EMPLOYEE IN THE GS-7 POSITION--- A POSITION TO WHICH HE WAS NOT LEGALLY ENTITLED--- IN FIXING HIS SALARY RATE IN GRADE GS-5 ABOVE THE MINIMUM OF THAT GRADE. WITH RESPECT TO THE EFFECTIVE DATE OF THE APPOINTMENT TO GS-5 IT MAY BE STATED THAT THIS OFFICE WOULD NOT OBJECT TO MAKING SUCH APPOINTMENT OR DEMOTION EFFECTIVE AS OF THE DATE THE EMPLOYEE OTHERWISE IS DETERMINED TO HAVE BECOME ELIGIBLE FOR PROMOTION FROM GS-3 TO A GS-5 UNDER THE COMMISSION'S REGULATIONS (SECTION 8.109). THE BASIS FOR THAT VIEW IS THAT IT MAY BE ASSUMED THAT THE EMPLOYEE WOULD HAVE BEEN APPOINTED TO GS-5 ON THE DATE OF TRANSFER TO YOUR ADMINISTRATION OR AS SOON THEREAFTER AS HE BECAME ELIGIBLE FOR A TWO-GRADE ADVANCE. THE DIFFERENCE BETWEEN THE AMOUNTS ACTUALLY PAID TO THE EMPLOYEE IN GS-7 AS WELL AS GS-5, AND THE PROPER SALARY RATE OF GS-5 FROM THE EFFECTIVE DATE THEREOF, AS FIXED AND DETERMINED IN ACCORDANCE WITH THE FOREGOING IS REQUIRED TO BE REFUNDED.