B-155053, SEP. 14, 1964

B-155053, SEP. 14, 1964

TO THE HONORABLE SECRETARY OF THE AIR FORCE:

ON AUGUST 25, 1964, YOUR ASSISTANT SECRETARY REQUESTED OUR DECISION CONCERNING THE NECESSITY FOR COLLECTION OF OVERPAYMENTS (TOTALING $24,908.40) PAID TO SOME 123 EMPLOYEES OF THE EASTERN CONTRACT MANAGEMENT REGION, AIR FORCE SYSTEMS COMMAND, NEW YORK, NEW YORK. THE OVERPAYMENTS RESULTED FROM AN ADMINISTRATIVE MISINTERPRETATION OF THE CONTROLLING FEDERAL EMPLOYEES PAY REGULATIONS (SECTIONS 25.152 AND 25.155) RELATING TO EQUIVALENT INCREASES AND WAITING PERIOD COMMENCEMENT DETERMINATIONS FOR WITHIN GRADE STEP INCREASE PURPOSES. EACH OF THE EMPLOYEES INVOLVED HAD BEEN TRANSFERRED FROM A WAGE BOARD POSITION TO A CLASSIFIED POSITION. THE FOLLOWING EXAMPLE IS SAID TO BE REPRESENTATIVE OF THE CASES INVOLVED:

"* * * AN EMPLOYEE WAS CHANGED FROM A WAGE BOARD POSITION W-12, $3.40 PER HOUR ($7072 PER ANNUM) TO GS-9, STEP 5, $7095 PER ANNUM AN INCREASE OF $23.00, ON APRIL 8, 1962. PRIOR TO THIS CHANGE HE HAD RECEIVED A WAGE SCHEDULE INCREASE OF $ .07 PER HOUR ($145.60 PER ANNUM) ON MARCH 25, 1962. SINCE THESE INCREASES TOTALLED MORE THAN THE STEP INCREMENTS IN THE GS-9 POSITION ON THE COMPENSATION SCHEDULE IN EFFECT ON THE DATE OF HIS CHANGE TO THE CLASSIFICATION ACT POSITION, IT WAS DETERMINED THAT HE HAD RECEIVED AN EQUIVALENT INCREASE ON MARCH 25, 1962 AND STARTED A NEW WAITING PERIOD ON THAT DATE. WHEN THE FEDERAL SALARY REFORM ACT OF 1962 BECAME EFFECTIVE ON OCTOBER 21, 1962, THE STEP INCREMENTS FOR GRADE GS-9 WERE INCREASED FROM $165.00 TO $225.00. SINCE THE INCREASES RECEIVED ON APRIL 8 AND MARCH 25 TOTALLED LESS THAN $225.00, IT WAS DETERMINED THAT THEY NO LONGER CONSTITUTED AN EQUIVALENT INCREASE. THEREFORE, OTHER INCREASES DURING THE 2-YEAR WAITING PERIOD REQUIRED FOR A WITHIN GRADE INCREASE FOR ADVANCEMENT FROM STEP 5 TO STEP 6 WERE REVIEWED. IT WAS FOUND THAT HE HAD RECEIVED A WAGE SCHEDULE INCREASE OF $ .09 PER HOUR ON APRIL 2, 1961. THIS, ADDED TO THE INCREASES RECEIVED ON APRIL 8 AND MARCH 25, 1962, EXCEEDED $225.00. BECAUSE OF THIS FACT, IT WAS DETERMINED THAT HE BEGAN HIS CURRENT WAITING PERIOD ON APRIL 2, 1961 AND WAS ELIGIBLE FOR A WITHIN GRADE INCREASE ON MARCH 31, 1963.'

YOUR DEPARTMENT'S LETTER SAYS ALSO THAT FOLLOWING OUR UNPUBLISHED DECISIONS DATED NOVEMBER 5, 1963, B-152458 AND B-152480, AIR FORCE CIVILIAN PERSONNEL LETTER 3-64, DATED APRIL 13, 1964, WAS ISSUED. THAT LETTER IS QUOTED IN PART IN YOUR SUBMISSION AS FOLLOWS:

" "WHEN AN EMPLOYEE WHO IS CHANGED FROM A WAGE BOARD TO A CLASSIFICATION ACT POSITION RECEIVES LESS THAN AN EQUIVALENT INCREASE AT THE TIME OF THE CHANGE, ALL PRIOR INCREASES DURING THE PRESCRIBED WAITING PERIOD (I.E., THE PAST 52, 104, OR 156 WEEKS, DEPENDING ON THE STEP OF THE GRADE TO WHICH CHANGED) ARE REVIEWED TO DETERMINE WHEN THE EMPLOYEE RECEIVED HIS LAST EQUIVALENT INCREASE AND STARTED HIS CURRENT WAITING PERIOD. IF THE EMPLOYEE RECEIVED ONE OR MORE INCREASES DURING THE WAITING PERIOD, THESE INCREASES ARE ADDED TOGETHER. WHENEVER ANY INCREASE ADDED CAUSES THE TOTAL TO EQUAL OR EXCEED THE AMOUNT OF THE INCREASE FOR THE CLASSIFICATION ACT POSITION IN WHICH THE EMPLOYEE IS CURRENTLY SERVING, THE EMPLOYEE IS CONSIDERED TO HAVE RECEIVED AN EQUIVALENT INCREASE ON THE DATE OF THE LAST INCREASE ADDED.'"

THE ERRONEOUS ACTIONS TAKEN IN THE CASES OF THE EMPLOYEES INVOLVED HAVE BEEN CORRECTED BUT YOUR DEPARTMENT IS NOT CERTAIN WHETHER COLLECTION ACTION SHOULD BE TAKEN TO RECOVER THE OVERPAYMENTS MADE TO EACH EMPLOYEE. IN THIS CONNECTION YOUR DEPARTMENT'S LETTER SAYS:

"THE WORDING OF SECTION 25.155 OF THE CIVIL SERVICE REGULATIONS IN EFFECT PRIOR TO AND IMMEDIATELY FOLLOWING THE FEDERAL SALARY REFORM ACT OF 1962 WAS NOT ENTIRELY CLEAR. THUS IT WAS SUBJECT TO VARYING INTERPRETATIONS WITH RESPECT TO THE DETERMINATION OF EQUIVALENT INCREASES AND COMPUTATION OF WAITING PERIODS FOR WITHIN GRADE INCREASES FOR EMPLOYEES CHANGED FROM NON-CLASSIFICATION ACT TO CLASSIFICATION ACT POSITIONS. FOR THIS REASON, YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

"A. IS COLLECTION OF OVERPAYMENTS MADE PRIOR TO THE CORRECTIVE ACTION REQUIRED?

"B. IF THE ANSWER TO THE ABOVE IS IN THE AFFIRMATIVE, IS COLLECTION OF THE OVERPAYMENTS REQUIRED FOR THE PERIOD PRIOR TO THE DATE OF YOUR DECISIONS B-152458 AND B-152480?

THERE IS NO QUESTION BUT THAT TIME SERVED IN A WAGE BOARD POSITION PRIOR TO AN EMPLOYEE'S TRANSFER TO A POSITION UNDER THE CLASSIFICATION ACT MAY BE COUNTED FOR WITHIN GRADE PAY PURPOSES IN THE CLASSIFIED POSITION (SEE 39 COMP. GEN. 270). MOREOVER, THE SAME RULE CONTINUED TO PREVAIL AFTER ENACTMENT OF THE CLASSIFICATION ACT AMENDMENTS OF 1962, TITLE II OF PUB.L. 87-793. SEE 42 COMP. GEN. 249.

THE ERRONEOUS PAYMENTS IN EACH OF THE PRESENT CASES AROSE SOLELY BECAUSE OF THE ACTION OF THE FIELD INSTALLATION IN ESTABLISHING THE DATE OF THE EQUIVALENT INCREASE AS THE DATE OF THE EARLIEST INCREASE WHICH, WHEN ADDED TO SUBSEQUENT INCREASES, CAUSED THE AGGREGATE OF SUCH INCREASES TO EQUAL OR EXCEED THE STEP INCREMENT APPLICABLE TO THE GRADE IN WHICH THE EMPLOYEE WAS SERVING. AS A MATTER OF FACT, AN EQUIVALENT INCREASE COULD NOT AND DOES NOT OCCUR PRIOR TO THE DATE OF THE LATEST INCREASE WHICH, WHEN ADDED TO PREVIOUS INCREASES CAUSES THE AGGREGATE OF SUCH INCREASES TO EXCEED THE APPLICABLE STEP INCREMENT OF THE EMPLOYEE'S GRADE. WE DO NOT SEE ANY REASONABLE BASIS UNDER THE REGULATIONS OF THE CIVIL SERVICE COMMISSION QUOTED IN YOUR LETTER, DECISIONS OF OUR OFFICE, OR OTHERWISE, FOR SELECTING THE DATE OF THE EARLIEST SUCH INCREASE--- AS DISTINGUISHED FROM THE DATE OF THE LATEST INCREASE--- AS THE DATE THE EQUIVALENT INCREASE OCCURS. IN SUCH CONNECTION THE HOLDING IN OUR DECISIONS OF NOVEMBER 5, 1963, CITED IN YOUR LETTER, TO THE EFFECT THAT AN EMPLOYEE IS CONSIDERED TO HAVE RECEIVED AN EQUIVALENT INCREASE ON THE DATE OF HIS LATEST INCREASE IN COMPENSATION WHICH WHEN ADDED TO PRIOR INCREASES EQUALS OR EXCEEDS THE STEP INCREMENT FOR HIS GRADE IS NOT A NEW INTERPRETATION. SEE THE EXAMPLE CITED IN THE NOTE FOLLOWING SECTION 25.155 OF THE CIVIL SERVICE REGULATIONS, FPM P-1-19, INSTRUCTION 47, NOVEMBER 9, 1961, AND 21 COMP. GEN. 1067. ACCORDINGLY, WE KNOW OF NO LEGAL BASIS FOR NOT COLLECTING THE OVERPAYMENTS MADE TO THE EMPLOYEES INVOLVED FROM THE DATE SUCH ERRORS OCCURRED.

THE QUESTIONS PRESENTED IN YOUR DEPARTMENT'S LETTER ARE ANSWERED IN THE AFFIRMATIVE.