B-157785, OCT. 22, 1965

B-157785, OCT. 22, 1965

TO MR. EDWARD A. EVE:

THIS IS IN REPLY TO YOUR LETTER OF SEPTEMBER 9, 1965, APPEALING FROM OUR OFFICE SETTLEMENT OF SEPTEMBER 9, 1964.

IN YOUR EARLIER LETTER OF JANUARY 15, 1964, TO THIS OFFICE, YOU CLAIMED ENTITLEMENT TO A GS-510-9 ACCOUNTING POSITION AT MYRTLE BEACH AIR FORCE BASE, SOUTH CAROLINA, FROM AUGUST 28, 1961, TO OCTOBER 14, 1962, AND FROM THAT DATE TO A GS-510-11 ACCOUNTING POSITION. YOU ALSO CONTEND THAT THE INSTALLATION COULD NOT DEDUCT FROM YOUR CURRENT SALARY OR REDUCE YOUR SALARY.

THE RECORD SHOWS THAT YOU WERE REASSIGNED IN A LATERAL TRANSFER FROM SEYMOUR JOHNSON AIR FORCE BASE, SOUTH CAROLINA, ON AUGUST 28, 1961, TO POSITION NO. C-77R, SUPERVISORY OPERATING ACCOUNTANT, IN THE PAY AND TRAVEL SECTION, ACCOUNTING AND FINANCE COMPTROLLER DIVISION, MYRTLE BEACH AIR FORCE BASE, AT THE SAME PAY AND GRADE, GS-510-9, STEP 3, $6,765 PER ANNUM. THE POSITION INTO WHICH YOU TRANSFERRED HAD BEEN REVIEWED AND ALLOCATED IN MARCH 1961 BY THE POSITION CLASSIFIERS AT MYRTLE BEACH AIR FORCE BASE, AND THERE WAS NO CHANGE IN THE NATURE OF THE DUTIES OR THE CLASSIFICATION OF SUCH POSITION BETWEEN THAT DATE AND THE TIME OF YOUR TRANSFER ON AUGUST 28, 1961. YOU WERE ADVANCED TO STOP 4 OF GS-9 AT $6,930 PER ANNUM, IN OCTOBER 1961.

IN SEPTEMBER 1961 NEW POSITION CLASSIFICATION STANDARDS ISSUED BY THE CIVIL SERVICE COMMISSION WERE RECEIVED AT MYRTLE BEACH AIR FORCE BASE AND APPLIED DURING A POSITION SURVEY COMPLETED ON APRIL 4, 1962. AS A RESULT OF THIS SURVEY YOUR POSITION WAS CHANGED AS OF JUNE 10, 1962, TO A LOWER GRADE, GENERAL ACCOUNTING OFFICER, GS-501-7, POSITION NO. C-77B. YOU APPEALED THIS DECISION TO THE ATLANTA REGIONAL OFFICE OF THE CIVIL SERVICE COMMISSION WHO HELD THAT YOUR POSITION PROPERLY WAS FOR CLASSIFICATION AS GS-501-8, TITLE OPTIONAL WITH THE AGENCY. UPON FURTHER APPEAL BY YOU, THE BUREAU OF INSPECTION OF THE CIVIL SERVICE COMMISSION UPHELD THE REDUCTION AND DECISION OF ITS REGIONAL OFFICE.

UNDER THE PROVISIONS OF 5 U.S.C. 1107 RELATING TO RETAINED PAY YOUR SALARY REMAINED AT $6,930 FOLLOWING THE DOWNGRADING AND YOU CONTINUED TO BE PAID AT THE FOURTH STEP OF GRADE GS-9. THIS RATE OF COMPENSATION WAS HIGHER THAN THE HIGHEST SCHEDULED RATE, STEP 7, OF GRADE GS-8 UNDER THE GENERAL SCHEDULE THEN IN EFFECT. FOLLOWING ENACTMENT OF THE FEDERAL EMPLOYEES SALARY REFORM ACT OF 1962, PUB.L. 87-793, APPROVED OCTOBER 11, 1962, 76 STAT. 832, YOUR RETAINED RATE WAS ADJUSTED TO THE EIGHTH STEP OF GS-8, $7,525 PER ANNUM. HOWEVER, THAT ACTION WAS ERRONEOUS BECAUSE UNDER THE PROVISIONS OF 5 U.S.C. 1107 YOUR RETAINED RATE (GRADE GS-9, STEP 4), INCLUDING ANY INCREASES THEREIN, WAS TO CONTINUE FOR TWO YEARS UNLESS OTHERWISE ENTITLED TO RECEIVE A HIGHER RATE BY OPERATION OF THE CLASSIFICATION ACT. SINCE THE SAVED RATE, GRADE GS-9, STEP 4, WAS INCREASED TO $7,350 PER ANNUM, WHEREAS STEP 7 OF GRADS GS-8 WAS ONLY INCREASED TO $7,320 PER ANNUM, THE FORMER ($7,350) BECAME YOUR LEGAL SALARY RATE UNTIL EXPIRATION OF THE TWO-YEAR PERIOD. 42 COMP. GEN. 380. THE OVERPAYMENT RESULTING FROM ADJUSTING YOUR SALARY TO STEP 8 OF GRADE GS 8 WAS PROPERLY FOR COLLECTION. SECTION 1 OF THE ACT OF JULY 15, 1964, 68 STAT. 482 (5 U.S.C. 46D), SPECIFICALLY AUTHORIZES AN AGENCY TO MAKE DEDUCTIONS FROM AN EMPLOYEE'S SALARY TO LIQUIDATE AN INDEBTEDNESS RESULTING FROM ERRONEOUS PAYMENTS.

UNDER THE PROVISIONS OF SECTION 502 OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 958, 5 U.S.C. 1102, A DEPARTMENT IS GIVEN THE INITIAL AUTHORITY TO CHANGE POSITIONS TO CONFORM TO CLASSIFICATION STANDARDS ISSUED BY THE CIVIL SERVICE COMMISSION. THE COMMISSION ACTING UNDER SECTION 501 OF THE CLASSIFICATION ACT, 63 STAT. 958, 5 U.S.C. 1101, HAS FINAL AUTHORITY TO CHANGE POSITIONS FROM ONE CLASS OR GRADE TO ANOTHER CLASS OR GRADE WHENEVER THE FACTS WARRANT, AND SUCH DETERMINATIONS ARE BINDING ON THIS OFFICE. THEREFORE, THE ACTION TAKEN BY THE COMMISSION RESPECTING THE CLASSIFICATION OF YOUR POSITION IS NOT SUBJECT TO REVIEW IN THIS OFFICE.

DURING YOUR ASSIGNMENT AT MYRTLE BEACH AIR FORCE BASE COMMENCING IN AUGUST 1961 YOU WERE SERVING UNDER AN APPOINTMENT TO A POSITION INITIALLY NUMBERED C-77R AND CLASSIFIED AS GS-510-9, AND LATTER RECLASSIFIED TO GS- 501-8 AND RENUMBERED C-77B. YOU HAVE BEEN PAID THE SALARY AUTHORIZED FOR THAT POSITION IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1949, AS AMENDED. YOU MAY NOT BE REGARDED AS ENTITLED TO A GRADE GS-9 POSITION ON AND AFTER JUNE 10, 1962, EVEN THOUGH YOU WERE TO RECEIVE THE SALARY OF THAT GRADE FOR TWO YEARS, NOR MAY YOU BE REGARDED AS ENTITLED TO A POSITION AT THE GS-11 LEVEL TO WHICH YOU WERE NEVER APPOINTED.

UPON THE RECORD THERE IS NO BASIS FOR PAYING YOUR CLAIM AND, THEREFORE, OUR SETTLEMENT OF SEPTEMBER 9, 1964, IS, AND MUST BE, SUSTAINED.