B-146540, SEP. 5, 1961

B-146540, SEP. 5, 1961

TO THE SECRETARY OF THE AIR FORCE:

ON JULY 25, 1961, THE SPECIAL ASSISTANT FOR MANPOWER, PERSONNEL AND RESERVE FORCES, DEPARTMENT OF THE AIR FORCE, SUBMITTED FOR OUR CONSIDERATION AND DECISION THE PROPRIETY OF THE RETROACTIVE INCREASE OF COMPENSATION UNDER THE FACTS AND CIRCUMSTANCES RELATED BELOW.

EFFECTIVE JANUARY 12, 1958, THE SALARY OF DR. FRANK L. WATTENDORF, THE DIRECTOR OF THE SECRETARIAT, ADVISORY GROUP FOR AERONAUTICAL RESEARCH AND DEVELOPMENT, NORTH ATLANTIC TREATY ORGANIZATION, WAS INCREASED FROM $16,000 TO $17,500 PER ANNUM. THE POSITION OCCUPIED BY DR. WATTENDORF IS ONE WHICH FALLS UNDER THE PROVISIONS OF THE LAW CODIFIED AT 10 U.S.C. 1581 AND IS UNDER THE ADMINISTRATION OF THE DEPARTMENT OF THE AIR FORCE. SUCH, THE RATE OF COMPENSATION PAID TO DR. WATTENDORF IS ADMINISTRATIVELY FIXED BY THE SECRETARY OF THE AIR FORCE WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION.

THE INCREASE IN SALARY WAS EFFECTED BY THE SERVICING CIVILIAN PERSONNEL OFFICE, U.S. AIR FORCES IN EUROPE, ON THE BASIS OF THE SALARY INCREASES PROVIDED FOR BY PUBLIC LAW 85-462.

SUBSECTION 7 (A) OF THAT ACT PROVIDES AUTHORITY FOR INCREASING ADMINISTRATIVELY FIXED SALARIES, EFFECTIVE ON OR AFTER THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN ON OR AFTER JANUARY 1, 1958, BY AMOUNTS NOT TO EXCEED THE INCREASES PROVIDED FOR CORRESPONDING RATES OF COMPENSATION IN THE APPROPRIATE SCHEDULE OR SCALE OF PAY IN PUBLIC LAW 85- 462.

ON JUNE 20, 1958, THE DEPARTMENT OF THE AIR FORCE RECEIVED APPROVAL FROM THE CIVIL SERVICE COMMISSION TO INCREASE THE SALARIES OF A NUMBER OF POSITIONS COMING UNDER 10 U.S.C. 1581. THESE INCREASES WERE REQUESTED TO ASSURE THAT SIMILAR TREATMENT WAS AFFORDED THESE EMPLOYEES IN TERMS OF SALARY ADJUSTMENTS AS WAS AFFORDED OTHER EMPLOYEES UNDER PUBLIC LAW 85- 462. SUBSEQUENTLY, THOSE INCREASES WERE MADE RETROACTIVE TO THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN ON OR AFTER JANUARY 1, 1958, CONSISTENT WITH SUBSECTION 7 (A) OF PUBLIC LAW 85-462. THE POSITION OCCUPIED BY DR. WATTENDORF WAS NOT INCLUDED AMONG THOSE BECAUSE THE DEPARTMENT OF THE AIR FORCE HAD NOT RECEIVED A REQUISITE RECOMMENDATION FROM HEADQUARTERS U.S. AIR FORCES IN EUROPE. HOWEVER, THE DEPARTMENT REPORTS THAT IT WOULD HAVE CONCURRED IN THE INCREASE IN SALARY FOR DR. WATTENDORF HAD SUCH RECOMMENDATION BEEN SUBMITTED. THE CIVIL SERVICE COMMISSION HAS SINCE DETERMINED THAT IF A REQUEST HAD BEEN SUBMITTED AS OF JANUARY 1, 1958, THE COMMISSION WOULD HAVE APPROVED THE $17,500 RATE AND THE QUALIFICATION OF DR. WATTENDORF FOR SUCH RATE.

THERE IS NO QUESTION BUT THAT THE SERVICING CIVILIAN PERSONNEL OFFICE EXCEEDED ITS AUTHORITY IN GRANTING THE INCREASE. HOWEVER, OUR OFFICE HAS HELD THAT THE LANGUAGE OF PUBLIC LAW 85-462, AS IT APPLIES TO POSITIONS SUBJECT TO 10 U.S.C. 1581, CONSTITUTES AUTHORITY FOR THE PAYMENT OF RETROACTIVE COMPENSATION. SEE 38 COMP. GEN. 117. SEE ALSO 35 COMP. GEN. 374, WHICH CONSIDERED LANGUAGE IDENTICAL WITH THAT OF SECTION 7 (A) OF PUBLIC LAW 85-462.

NOTWITHSTANDING THE FACT THAT THE SERVICING PERSONNEL OFFICE DID NOT HAVE AUTHORITY TO AUTHORIZE THE SUBJECT INCREASE, THE REQUISITE DETERMINATIONS HAVE NOW BEEN MADE BY THE PROPER OFFICIALS OF THE DEPARTMENT OF THE AIR FORCE AND THE CIVIL SERVICE COMMISSION. THEREFORE, OUR OFFICE WILL NOT INSIST UPON THE COLLECTION OF THE AMOUNTS PAID PURSUANT TO THE RETROACTIVE