B-124475, AUG. 30, 1955

B-124475: Aug 30, 1955

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WALLACE'S SERVICES ARE REPORTED AS FOLLOWS: TABLE SERVICE ORGANIZATION "NATURE OF EFFECTIVE POSITION CLASS HEADQUARTERS ACTION DATE TITLE AND AND LOCATION GRADE SALARY . GS-810-9 6060 R7-D AND C-DES.-CD AND E HEADQUARTERS DENVER" THE PERTINENT COMMENTS CONTAINED IN THE LETTER REGARDING THE LONGEVITY INCREASE ARE AS FOLLOWS: "THE PERSONNEL ACTION OF NOVEMBER 1. WAS. THERE IS NO POSITION DESCRIPTION OF RECORD FOR THE P-3 POSITION WHICH SHOWS THE ACTUAL DUTIES THEREOF. WE HAVE BEEN ADVISED THAT IN SIMILAR CASES THERE WAS NO MATERIAL CHANGE IN DUTIES OF THE INCUMBENTS. "IT IS RECOGNIZED THAT CREDIT WAS INCORRECTLY GIVEN MR. SINCE THE THREE YEARS' CONTINUOUS SERVICE AT THE TOP OF HIS GRADE COULD NOT HAVE BEGUN TO RUN UNTIL HIS REDUCTION IN GRADE ON THE LATTER DATE WHEN FOR THE FIRST TIME HE SERVED AT THE MAXIMUM RATE FOR A P-3.

B-124475, AUG. 30, 1955

TO SECRETARY OF THE INTERIOR:

ON JUNE 22, 1955, YOUR ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION UPON THREE QUESTIONS HEREINAFTER SET OUT REGARDING AN APPARENT OVERPAYMENT OF COMPENSATION TO MR. PAUL W. WALLACE.

THE PERSONNEL ACTION CONCERNING MR. WALLACE'S SERVICES ARE REPORTED AS FOLLOWS:

TABLE

SERVICE ORGANIZATION "NATURE OF EFFECTIVE POSITION CLASS HEADQUARTERS

ACTION DATE TITLE AND AND LOCATION

GRADE SALARY ----------- --- ----- -------- ------ ------ ------------ PROMOTION 9-16 3 ASSOC. ENGR. FCS-12-P $2900 INT-REC;

DENVER PROMOTION 10-1-41

ASSOC. ENGR. FCS-12 3000 DO PROMOTION 4-1-43 ASSOC. ENGR. FCS-12 3100 DO FURL. MIL. 5-3-43 ASSOC. ENGR. FCS-12 3100 DO CHG. STATUS

10-1-43 ENGR. FCS-12 3100 DO D AND

(RECORD C

PURPOSES) RET. MIL. FURL. 5-15-44 ENGINEER FCS-12 3100 DO PER PAY INC. 10-1-44 ENGINEER FCS-12 3200 DO PROMOTION

11-1-44 ENGINEER P-3 3200 DO PAY ACT. 1945 7-1-45 ENGINEER P-3 3640 DO PAY PAY INC. 10-7 45 ENGINEER P-3 3750 DO PAY ACT, 1946 7-1 46 ENGINEER P- 3 4275 DO PROMOTION AND 10-7 46 ENGR. P-4 4902DO

REASSIGNMENT (CIVIL) INTRA TRANS. AND 1-31-48 CIVIL ENGR. P-830-3 4902

INT-REC:

SPRD:

CHG. LOWER CR. DENVER PAY ADJ. 7-11-48

CIVIL ENGR. P-830-3 5232 DO REV-CLASS ACT. 10-30-49 CIVIL ENGR. GS-810 -9 5350 DO 49 LONG. STEP INCR. 10-30-49 CIVIL ENGR. GS-810-9 5475 DO

PLANNING REASSIGNMENT 11-12-50 GEN. ENGR. GS-810-9 5475 DO PAY ADJ. 7-8 -51 CIVIL ENGR. GS-801-9 5935 DO LONG. STEP INCR. 10-26-52 CIVIL ENGR. GS-801-9 6060DO REASSIGN AND CORR.6-21-53 CIVIL ENGR. GS-810-9 6060 DO REASSIGN AND CHG.12-19-54 CIVIL ENGR. GS-810-9 6060 R7-D AND

C-DES.-CD

AND E

HEADQUARTERS DENVER"

THE PERTINENT COMMENTS CONTAINED IN THE LETTER REGARDING THE LONGEVITY INCREASE ARE AS FOLLOWS:

"THE PERSONNEL ACTION OF NOVEMBER 1, 1944, SHOWN ABOVE AS A PROMOTION FROM FCS-12 TO P-3, WAS, IN ALL PROBABILITY AND EFFECT, A CONVERSION AND ADJUSTMENT TO A CLASSIFICATION ACT GRADE. THERE IS NO POSITION DESCRIPTION OF RECORD FOR THE P-3 POSITION WHICH SHOWS THE ACTUAL DUTIES THEREOF. HOWEVER, WE HAVE BEEN ADVISED THAT IN SIMILAR CASES THERE WAS NO MATERIAL CHANGE IN DUTIES OF THE INCUMBENTS. IN ANY EVENT, MR. WALLACE DID NOT RECEIVE A FULL PROFESSIONAL GRADE PROMOTION NOR AN INCREASE IN SALARY AS THE RESULT OF SUCH ACTION.

"IT IS RECOGNIZED THAT CREDIT WAS INCORRECTLY GIVEN MR. WALLACE FOR HIS SERVICES AS A P-4 FROM OCTOBER 7, 1946 TO JANUARY 31, 1948, TOWARD HIS REQUIRED THREE YEARS' CONTINUOUS SERVICE AT THE TOP OF GRADE GS-9. SINCE THE THREE YEARS' CONTINUOUS SERVICE AT THE TOP OF HIS GRADE COULD NOT HAVE BEGUN TO RUN UNTIL HIS REDUCTION IN GRADE ON THE LATTER DATE WHEN FOR THE FIRST TIME HE SERVED AT THE MAXIMUM RATE FOR A P-3, IT APPEARS THAT HE COULD NOT HAVE BEEN ENTITLED TO HIS FIRST LONGEVITY STEP INCREASE UNTIL JANUARY 31, 1951, EVEN IF CREDIT WAS PROPERLY GIVEN FOR HIS SERVICE IN FCS -12. ACCORDINGLY, IT IS CLEAR THAT THE PAYMENT OF THE FIRST LONGEVITY STEP INCREASE TO MR. WALLACE BETWEEN OCTOBER 30, 1949, AND JANUARY 31, 1951, WAS UNAUTHORIZED. THE SAME CONCLUSION INEVITABLY FOLLOWS WITH RESPECT TO HIS SECOND LONGEVITY STEP INCREASE BETWEEN OCTOBER 26, 1952, AND JANUARY 31, 1954.'

BASED UPON THE FOREGOING CASE HISTORY AND COMMENTS OUR DECISION IS REQUESTED UPON THE QUESTION STATED IN THE LETTER, AS FOLLOWS:

"/A) MUST MR. WALLACE'S CHANGE IN STATUS FROM FCS-12, $3200 P.A. TO F-3, $3200 P.A. ON NOVEMBER 1, 1944, BE CONSIDERED A PROMOTION, THUS MAKING IT IMPOSSIBLE TO COUNT SERVICE IN THE PCS-12 LEVEL TOWARD MEETING THE 10-YEAR AGGREGATE REQUIREMENT FOR A LONGEVITY INCREASE?

"/B) IN THE EVENT THAT THE ANSWER TO QUESTION (A) IS IN THE NEGATIVE, IS IT MANDATORY THAT MR. WALLACE BE REQUIRED TO REFUND THE EXCESS SALARY RECEIVED BY HIM BETWEEN OCTOBER 30, 1949, AND JANUARY 31, 1951, AND BETWEEN OCTOBER 26, 1952, AND JANUARY 31, 1954, RESPECTIVELY?

"/C) IN THE EVENT THAT THE ANSWER TO QUESTION (A) IS IN THE AFFIRMATIVE, IS IT MANDATORY THAT MR. WALLCE BE REQUIRED TO REFUND ALL OF THE EXCESS SALARY RECEIVED BY HIM?

SECTION 703 (B) (6) OF THE CLASSIFICATION ACT OF 1949, PROVIDES AS FOLLOWS:

"/6) THE OFFICER OR EMPLOYEE SHALL HAVE HAD, IN THE AGGREGATE, NOT LESS THAN TEN YEARS OF SERVICE IN THE POSITION WHICH HE THEN OCCUPIES, OR IN POSITIONS OF EQUIVALENT OR HIGHER CLASS OR GRADE.'

THE CONVERSION OF MR. WALLACE'S POSITION FROM FCS-12 TO P-3, ON NOVEMBER 1, 1944, WITHOUT A MATERIAL CHANGE OF DUTIES OR A CHANGE IN RATE OF PAY DOES NOT CONSTITUTE A PROMOTION IN RESPECT OF APPLYING THE TEN-YEAR PERIOD PROVISION OF THE ABOVE-QUOTED STATUTE. HENCE, QUESTION (A) IS ANSWERED IN THE NEGATIVE.

AS MR. WALLACE HAS RECEIVED COMPENSATION IN EXCESS OF THE RATES TO WHICH HE WAS LAWFULLY ENTITLED UNDER THE CLASSIFICATION ACT AS AMENDED, IT IS MANDATORY THAT HE REFUND SO MUCH OF THE SALARY PAYMENTS MADE TO HIM AS EXCEEDED THE SALARY RATES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD THE LONGEVITY INCREASES BEEN MADE AT THE PROPER DATES. COMPARE 31 COMP. GEN. 177. QUESTIONS (B) AND (C) ARE ANSWERED ACCORDINGLY.