B-153742 July 8, 1964

B-153742: Jul 8, 1964

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Nelson was given a temporary (Special Need) appointment not to exceed one month as Management Analyst. The appointment was extended for one additional month on July 10. Prior to the expiration of the second month the employee was informed that efforts were being made to obtain a second extension and on or prior to August 18 he was informed by the Chief of Industrial Engineering Branch that such second extension had been approved. The Civilian Personnel Division at the installation was not contacted concerning the proposed second extension. Nelson continued to render service until the error was discovered and he was separated on September 5. If payment were otherwise proper there would be for deduction from this amount a Federal withholding tax of $34.99.

B-153742 July 8, 1964

The Congress:

Pursuant to the act of April 10, 1928, 45 Stat. 413, 31. U.S.C. 236, we make the following report and recommendation on a claim of Lewis H. Nelson III, temporary address 1501 Benehan Street, Raleigh, North Carolina, home address 48 Anderegg Drive, Rome, New York, for payment for services rendered the United States Air Force from August 19 through September 5, 1963 following the termination of his appointment.

On June 18, 1963, Mr. Nelson was given a temporary (Special Need) appointment not to exceed one month as Management Analyst, grade GS-5, $4,656 per annum, at the Griffies Air Force Base, Rome, New York. The appointment was extended for one additional month on July 10, 1963. The notice of the extension carried the notation "NTE (Not to exceed) 08-17- 63." Prior to the expiration of the second month the employee was informed that efforts were being made to obtain a second extension and on or prior to August 18 he was informed by the Chief of Industrial Engineering Branch that such second extension had been approved.

Chapter X-1 (page X-1-24) of the Federal Personnel Manual (United States Civil Service Commission), in effect during the period here needs may not be made to exceed one month and may not be extended for more than one additional month. Unfortunately, the Civilian Personnel Division at the installation was not contacted concerning the proposed second extension, and, in addition, through clerical error that Division had not taken adequate follow up action to insure the employee's separation at the termination of his second month of service. Thus, as the result of the erroneous information given him by the Chief of Industrial Engineering Branch, and the clerical error made in the Civilian Personnel Division, Mr. Nelson continued to render service until the error was discovered and he was separated on September 5. During this period he earned the gross amount of $246.40. If payment were otherwise proper there would be for deduction from this amount a Federal withholding tax of $34.99, F.I.C.A. (Social Security) tax of $8.93, and state tax of $2.90, leaving a net payment to him of $199.58. In addition there would be for depositing in the F.I.C.A. fund the Government contribution thereto of $8.93.

At the time Mr. Nelson rendered the service his status must be considered as that of a de facto employee. The term of his appointment, as extended, had terminated. It was not further extended and under the cited regulation it properly could not have been.

Although the agency has recommended payment of the claim we know of no existing authority under which we may not authorize allowance. However, Mr. Nelson rendered the service in good faith and only after being definitely advised by an official, whose good faith likewise is not questioned, that the second extension had been granted. Under such circumstances we believe that the claim contains such elements of equity as to be deserving of the consideration of the Congress and recommend that payment be authorized by the enactment of a bill substantially as follows:

Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled. That the Comptroller General of the United States be, and he hereby is, authorized and directed to settle the claim of Lewis H. Nelson III, 48 Anderegg Drive, Rome, New York, for compensation for services rendered the Department of the Air Force, Griffise Air Force Base, subsequent to the termination of his term of appointment on August 17, 1963, after having been extended. There is hereby appropriated the sum of $255.33 in full and final settlement of said claim from which there shall be deducted and properly deposited Federal withholding tax $34.99, Federal Insurance Contributions Act $17.86, and state tax $2.90, leaving a balance of $199.58 to be paid to the claimant.

Joseph Campbell Comptroller General of the United States