B-140613, SEP. 14, 1959

B-140613: Sep 14, 1959

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KLAUSMEIER WAS APPOINTED TO A POSITION UNDER THE CLASSIFICATION ACT OF 1923. WHICH RATE WAS THE THIRD STEP IN THE GRADE TO WHICH HE WAS APPOINTED. KLAUSMEIER IN THE THIRD STEP OF THE GRADE IN WHICH HIS POSITION WAS CLASSIFIED WAS CONTRARY TO LAW BECAUSE SECTION 801 OF THE CLASSIFICATION ACT OF 1949. KLAUSMEIER HAD PRIOR FEDERAL SERVICE SUCH AS WOULD JUSTIFY HIS APPOINTMENT AT A HIGHER RATE OR THAT HE WAS LISTED IN THE CRITICAL SHORTAGE CATEGORY TO WARRANT A RATE HIGHER THAN THE MINIMUM RATE. THAT BECAUSE OF RECRUITING DIFFICULTIES INVOLVED YOUR DEPARTMENT MAY HAVE FELT JUSTIFIED IN OFFERING THE HIGHER SALARY TO INDUCE DR. IS REQUIRED TO GIVE EFFECT TO THE STATUTES AND REGULATIONS FIXING THE SALARY RATES OF EMPLOYEES OF THE UNITED STATES.

B-140613, SEP. 14, 1959

TO CAPTAIN B. L. LUBELSKY, USN, U.S. NAVAL AMMUNITION DEPOT:

YOUR LETTER OF AUGUST 12, 1959, WITH ENCLOSURES, REFERENCE 211 CLK:MSL16- 1, CONCERNS THE COMPENSATION OVERPAYMENTS MADE TO DR. ROBERT KLAUSMEIER, WHILE EMPLOYED BY THE U.S. NAVAL AMMUNITION DEPOT, CRANE, INDIANA.

THE RECORD SHOWS THAT DR. KLAUSMEIER WAS APPOINTED TO A POSITION UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, AT AN ANNUAL SALARY RATE OF $7,510 PER ANNUM, WHICH RATE WAS THE THIRD STEP IN THE GRADE TO WHICH HE WAS APPOINTED. THE APPOINTMENT OF DR. KLAUSMEIER IN THE THIRD STEP OF THE GRADE IN WHICH HIS POSITION WAS CLASSIFIED WAS CONTRARY TO LAW BECAUSE SECTION 801 OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 969, PROVIDES THAT "ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE"--- IT NOT BEING ESTABLISHED THAT DR. KLAUSMEIER HAD PRIOR FEDERAL SERVICE SUCH AS WOULD JUSTIFY HIS APPOINTMENT AT A HIGHER RATE OR THAT HE WAS LISTED IN THE CRITICAL SHORTAGE CATEGORY TO WARRANT A RATE HIGHER THAN THE MINIMUM RATE. HENCE, BE BECAME INDEBTED TO THE UNITED STATES FOR $479.28 AS A RESULT OF THE PAYMENT TO HIM OF PER ANNUM SALARY RATE IN EXCESS OF THE MINIMUM BASE SALARY OF CS-803-11, NAMELY, $7,030 PER ANNUM, FOR THE PERIOD AUGUST 11, 1958, TO AUGUST 3, 1959.

NOTWITHSTANDING, AS CONTENDED BY YOUR DEPARTMENT, THAT BECAUSE OF RECRUITING DIFFICULTIES INVOLVED YOUR DEPARTMENT MAY HAVE FELT JUSTIFIED IN OFFERING THE HIGHER SALARY TO INDUCE DR. KLAUSMEIER TO ACCEPT THE POSITION, AND WHILE WE RECOGNIZE THAT RECOVERY OF THE OVERPAYMENT TO HIM RESULTING FROM THE ERRONEOUS ACTION BY AN ADMINISTRATIVE OFFICIAL OF YOUR DEPARTMENT COULD WORK A HARDSHIP UPON HIM, YET OUR OFFICE, IN THE PROPER DISCHARGE OF ITS FUNCTIONS, IS REQUIRED TO GIVE EFFECT TO THE STATUTES AND REGULATIONS FIXING THE SALARY RATES OF EMPLOYEES OF THE UNITED STATES. SINCE SUCH SALARY RATE WAS IN EXCESS OF THAT PROVIDED BY STATUTE AND SINCE HE ALONE RECEIVED THE BENEFIT OF THE EXCESS PAYMENTS, IT IS HIS RESPONSIBILITY TO REFUND THE OVERPAYMENT AND WE ARE WITHOUT AUTHORITY OF LAW TO WAIVE THE RECOVERY OF SUCH OVERPAYMENT. IT IS A WELL-ESTABLISHED RULE THAT MONEY ERRONEOUSLY PAID OUT BY THE UNITED STATES MAY BE RECOVERED BACK.

WE HAVE NO ALTERNATIVE BUT TO INFORM YOU THAT APPROPRIATE ADMINISTRATIVE ACTION SHOULD BE TAKEN TO AFFECT RECOVERY OF THE ERRONEOUS PAYMENT.