B-132024, JUN. 19, 1957

B-132024: Jun 19, 1957

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APPLIED TO OTHERWISE ELIGIBLE EMPLOYEES WHO HAVE PERFORMED THE DUTIES AND RESPONSIBILITIES OF HIGHER GRADE POSITIONS FOR PERIODS OF TWO YEARS. WHO HAVE NOT RECEIVED THE PAY OF THE HIGHER GRADES FOR THE FULL TWO YEAR PERIOD. IN THE EVENT THAT QUESTION IS ANSWERED IN THE NEGATIVE. HE ASKS WHETHER THE EMPLOYEES CONCERNED ARE REQUIRED TO REFUND THE DIFFERENCE BETWEEN THE SALARIES OF THE HIGHER GRADES. RETAINED UNDER THE BELIEF THAT THE BENEFITS OF THE ACT WERE APPLICABLE. THE SALARIES OF THE LOWER GRADES TO WHICH THEIR POSITIONS WERE RECLASSIFIED. THE FACTS OF WHICH ARE STATED AS FOLLOWS: "A. MYERS WAS ASSIGNED HAD BEEN CLASSIFIED IN GRADE GS-13. HE WAS NOT ELIGIBLE FOR PROMOTION UNTIL JULY 22.

B-132024, JUN. 19, 1957

TO THE SECRETARY OF THE NAVY:

ON MAY 24, 1957, THE UNDER SECRETARY OF THE NAVY REQUESTED OUR DECISION WHETHER THE SALARY RETENTION BENEFITS AUTHORIZED BY THE ACT OF JUNE 18, 1956, 70 STAT. 291, PUBLIC LAW 594, APPLIED TO OTHERWISE ELIGIBLE EMPLOYEES WHO HAVE PERFORMED THE DUTIES AND RESPONSIBILITIES OF HIGHER GRADE POSITIONS FOR PERIODS OF TWO YEARS, SERVING A PART OF SUCH PERIODS UNDER FORMAL DETAILS FROM LOWER GRADES, BUT WHO HAVE NOT RECEIVED THE PAY OF THE HIGHER GRADES FOR THE FULL TWO YEAR PERIOD. IN THE EVENT THAT QUESTION IS ANSWERED IN THE NEGATIVE, HE ASKS WHETHER THE EMPLOYEES CONCERNED ARE REQUIRED TO REFUND THE DIFFERENCE BETWEEN THE SALARIES OF THE HIGHER GRADES, RETAINED UNDER THE BELIEF THAT THE BENEFITS OF THE ACT WERE APPLICABLE, AND THE SALARIES OF THE LOWER GRADES TO WHICH THEIR POSITIONS WERE RECLASSIFIED.

AS AN EXAMPLE, THE UNDER SECRETARY PRESENTS THE CASE OF MR. RUSSELL A. MYERS, THE FACTS OF WHICH ARE STATED AS FOLLOWS:

"A. REASSIGNED AND TRANSFERRED ON FEBRUARY 3, 1952, FROM EDUCATIONAL TRAINING SPECIALIST (GENERAL), GS-12 $7040 PER ANNUM, NAVAL AIR TECHNICAL TRAINING CENTER, JACKSONVILLE, FLA. TO EDUCATION AND TRAINING SPECIALIST (GENERAL), GS-12 $7040 PER ANNUM, NAVAL AIR TECHNICAL TRAINING CENTER, NORMAN, OKLA.

"B. THE POSITION TO WHICH MR. MYERS WAS ASSIGNED HAD BEEN CLASSIFIED IN GRADE GS-13. HOWEVER, HE WAS NOT ELIGIBLE FOR PROMOTION UNTIL JULY 22, 1952, AS HE HAD NOT SERVED FOR ONE YEAR AT THE GS-12 LEVEL.

"C. UNDER DATE OF MARCH 7, 1952, THE NINTH CIVIL SERVICE REGIONAL OFFICE APPROVED MR. MYERS' DETAIL TO THE GS-13 POSITION AND SUCH ACTION WAS TAKEN ON MARCH 12, 1952.

"D. ON AUGUST 3, 1952, AS HE HAD MET THE NECESSARY REQUIREMENTS, HE WAS PROMOTED TO GS-13, $8360 PER ANNUM.

"E. ON JANUARY 31, 1954, GIVEN A PERIODIC STEP INCREASE TO $8560 PER ANNUM.

"F.ON MARCH 28, 1954, GIVEN A SUPERIOR ACCOMPLISHMENT STEP INCREASE TO $8760 PER ANNUM.

"G. ON JULY 4, 1954, HIS POSITION WAS RECLASSIFIED TO GS-12 AND HIS PAY WAS SET AT $8040 PER ANNUM.

"H. ON JULY 1, 1956, HIS PAY WAS CHANGED TO $9420 PER ANNUM (FORMERLY $8760 PER ANNUM), IN ACCORDANCE WITH SECTION 507 (B) OF THE CLASSIFICATION ACT, AS AMENDED BY PUBLIC LAW 594--- 84TH CONGRESS.'

THE ABOVE-QUOTED EMPLOYMENT HISTORY SHOWS THAT MR. MYERS HELD A GRADE GS- 13 POSITION AND RECEIVED THE SALARY OF THAT GRADE FOR A PERIOD OF 23 MONTHS PRIOR TO THE RECLASSIFICATION OF HIS POSITION TO GRADE GS-12. HOWEVER, HE ACTUALLY PERFORMED THE DUTIES AND RESPONSIBILITIES OF THE GRADE GS-13 POSITION FOR A PERIOD OF APPROXIMATELY 28 MONTHS, DURING FIVE MONTHS OF WHICH HE WAS ON DETAIL FROM A GRADE GS-12 POSITION. THE UNDER SECRETARY'S LETTER POINTS OUT THAT MR. MYERS MADE A LONG TIME FINANCIAL COMMITMENT BY MOVING FROM JACKSONVILLE, FLORIDA, TO NORMAN, OKLAHOMA, TO PERFORM THE DUTIES OF THE GRADE GS-13 POSITION ON THE PROMISE OF A GRADE GS-13 SALARY.

SUBSECTION (B) (3) OF PUBLIC LAW 594 COVERING RECLASSIFICATIONS WHICH OCCURRED BETWEEN JULY 1, 1954, AND THE DATE OF THE ACT, REQUIRES THAT THE EMPLOYEE SHALL HAVE "HELD SUCH POSITION FOR A CONTINUOUS PERIOD OF NOT LESS THAN TWO YEARS ENDING IMMEDIATELY PRIOR TO THE DATE OF ENACTMENT OF THIS SECTION.' THE RULE IS WELL ESTABLISHED THAT THE POSITION TO WHICH AN EMPLOYEE IS DETAILED IS NOT HIS OFFICIAL POSITION. FEDERAL PERSONNEL MANUAL, R-3-16; ID., X-1-38, 33 COMP. GEN. 96, AND DECISIONS CITED THEREIN.

ACCORDINGLY, WE MUST CONCLUDE THAT MR. MYERS DID NOT HOLD THE POSITION OF EDUCATION AND TRAINING SPECIALIST (GENERAL), GRADE GS-13, FOR THE TWO YEAR PERIOD REQUIRED BY SUBSECTION (B) 3); THEREFORE, HE IS NOT ENTITLED TO HAVE HIS HIGHER SALARY RATE RETAINED.

CONCERNING THE SECOND QUESTION, THE OVERPAYMENTS SEEM TO HAVE BEEN MADE UNDER WHAT THEN APPEARED TO BE A NOT UNREASONABLE CONSTRUCTION OF PUBLIC LAW 594. ACCORDINGLY, IN VIEW OF THE ADMINISTRATIVE PROBLEMS FLOWING FROM PUBLIC LAW 594, THE ABSENCE OF INTERPRETIVE DECISIONS AND GUIDING REGULATIONS, AND ESPECIALLY SINCE IT APPEARS THAT CORRECTIVE ACTION WILL BE TAKEN, PROSPECTIVELY, TO ADJUST THE EMPLOYEES' SALARIES TO THE PROPER RATE WE DO NOT BELIEVE THAT WE ARE REQUIRED TO INSIST UPON REFUNDS OF THE OVERPAYMENTS IN THIS AND THE OTHER CASES REFERRED TO IN THE UNDER SECRETARY'S LETTER.