B-167061, JULY 9, 1969, 49 COMP. GEN. 18

B-167061: Jul 9, 1969

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THE PAYMENT IS DEEMED VALIDATED PURSUANT TO PUBLIC LAW 90-616 (5 U.S.C. 5584 (E)). THE ERRONEOUS PERSONNEL ACTION THAT GAVE RISE TO THE OVERPAYMENT IS NOT VALIDATED. 1968 FROM A GS-7 TO A GS-9 POSITION IS CORRECTED JANUARY 26. HE IS PROPERLY PROMOTED TO GS-9 ON MARCH 23. VIOLATION WHEN AN EMPLOYEE IS ERRONEOUSLY PROMOTED FROM GRADE GS-7 TO GRADE GS 9 DUE TO A WHITTEN AMENDMENT VIOLATION AND THE OVERPAYMENT IS NOT DISCOVERED UNTIL AFTER THE TIME THE EMPLOYEE FULLY MET THE TIME-IN GRADE REQUIREMENT FOR PROMOTION. NO OVERPAYMENT IS CONSIDERED TO HAVE OCCURRED BETWEEN THE DATE THE EMPLOYEE WOULD HAVE BEEN PROMOTED UNDER AGENCY POLICY OR REGULATION AND THE DATE THE ERROR WAS DISCOVERED AND.

B-167061, JULY 9, 1969, 49 COMP. GEN. 18

COMPENSATION -- PERIODIC STEP-INCREASES -- SERVICE CREDITS -- DEMOTIONS, PROMOTIONS, REEMPLOYMENT, ETC. -- OVERPAYMENT ALTHOUGH UPON WAIVER OF THE COLLECTION OF AN ERRONEOUS PAYMENT RESULTING FROM A PROMOTION IN VIOLATION OF THE WHITTEN AMENDMENT, THE PAYMENT IS DEEMED VALIDATED PURSUANT TO PUBLIC LAW 90-616 (5 U.S.C. 5584 (E)), THE ERRONEOUS PERSONNEL ACTION THAT GAVE RISE TO THE OVERPAYMENT IS NOT VALIDATED. THEREFORE, AN EMPLOYEE WHOSE ERRONEOUS PROMOTION ON JUNE 2, 1968 FROM A GS-7 TO A GS-9 POSITION IS CORRECTED JANUARY 26, 1969, AND HE IS PROPERLY PROMOTED TO GS-9 ON MARCH 23, 1969, MAY ONLY COUNT THE PERIOD OF SERVICE FROM JUNE 2, 1968, TO JANUARY 26, 1969, FOR WITHIN GRADE INCREASE PURPOSES IN THE SAME MANNER AND TO THE SAME EXTENT AS IF THE PREMATURE PROMOTION HAD NEVER BEEN PROCESSED, AND THE SERVICE FOR THE PERIOD OF THE ERRONEOUS PROMOTION MAY BE COUNTED AS GS-7 SERVICE AND NOT GS-9 SERVICE FOR STEP INCREASE PURPOSES. COMPENSATION -- PROMOTIONS -- WHITTEN RIDER RESTRICTION -- VIOLATION WHEN AN EMPLOYEE IS ERRONEOUSLY PROMOTED FROM GRADE GS-7 TO GRADE GS 9 DUE TO A WHITTEN AMENDMENT VIOLATION AND THE OVERPAYMENT IS NOT DISCOVERED UNTIL AFTER THE TIME THE EMPLOYEE FULLY MET THE TIME-IN GRADE REQUIREMENT FOR PROMOTION, NO OVERPAYMENT IS CONSIDERED TO HAVE OCCURRED BETWEEN THE DATE THE EMPLOYEE WOULD HAVE BEEN PROMOTED UNDER AGENCY POLICY OR REGULATION AND THE DATE THE ERROR WAS DISCOVERED AND, THEREFORE, WAIVER ACTION UNDER PUBLIC LAW 90-616 (5 U.S.C. 5584(E)) IS NOT REQUIRED FOR THE PERIOD ON AND AFTER THE EFFECTIVE DATE OF THE PROMOTION. IF UNDER AGENCY POLICY OR REGULATION, THE PROMOTION WOULD NOT HAVE BEEN MADE EFFECTIVE UNTIL THE BEGINNING OF THE FIRST PAY PERIOD AFTER THE PERIOD OF ELIGIBILITY UNDER THE WHITTEN AMENDMENT, THE PRIOR BETWEEN DATE OF ELIGIBILITY AND THE EFFECTIVE DATE OF THE PROMOTION IS SUBJECT TO WAIVER ACTION.

TO THE DIRECTOR, SELECTIVE SERVICE SYSTEM, JULY 9, 1969:

WE REFER TO YOUR LETTER OF MAY 23, 1969, TRANSMITTING FOR OUR CONSIDERATION THE MATTER OF WAIVING THE CLAIM OF THE GOVERNMENT AGAINST MRS. DORIS S. SPARROW WHICH AROSE BY REASON OF HER HAVING BEEN PROMOTED ERRONEOUSLY BEFORE HAVING COMPLETED THE TIME-IN-GRADE REQUIREMENTS CONTAINED IN SECTION 1310 OF THE ACT OF NOVEMBER 1, 1951, AS AMENDED, 5 U.S.C.A. 3101 NOTE, COMMONLY KNOWN AS THE WHITTEN AMENDMENT.

THE PERTINENT FACTS GIVING RISE TO THE ERRONEOUS PAYMENTS ARE AS FOLLOWS:

ON MARCH 10, 1968, THE EMPLOYEE WAS CHANGED FROM A POSITION NOT SUBJECT TO THE GENERAL SCHEDULE TO STEP 1 OF A GRADE GS-7 POSITION. ON JUNE 2 SHE WAS PROMOTED TO STEP 1 OF A GS-9 POSITION IN VIOLATION OF THE WHITTEN AMENDMENT. THEREAFTER ON JANUARY 26, 1969, A CORRECTIVE ACTION WAS TAKEN TO ADJUST HER SALARY RATE TO STEP 1, GS-7, AND EFFECTIVE MARCH 23, 1969, SHE WAS PROMOTED TO GS-9, STEP 1.

YOU REQUEST THAT CONSIDERATION BE GIVEN TO WAIVING THE ERRONEOUS PAYMENTS RESULTING FROM THE IMPROPER PROMOTION AND, IN ADDITION, REQUEST A DECISION UPON THE FOLLOWING QUESTIONS:

(1) SHOULD THE WAIVER FOR THE COLLECTION OF THE OVERPAYMENT MADE DURING THE PERIOD JUNE 2, 1968, AND JANUARY 25, 1969, INCLUSIVE, BE APPROVED, MAY THIS PERIOD OF TIME COUNT TOWARDS THE PERIOD OF TIME REQUIRED FOR RECEIVING THE NEXT WITHIN GRADE INCREASE?

(2) WHEN AN OVERPAYMENT OF THIS TYPE IS NOT DISCOVERED UNTIL AFTER THE TIME AN EMPLOYEE HAD FULLY MET ALL REQUIREMENTS FOR PROMOTION (IN MRS. SPARROW'S CASE, AFTER MARCH 10, 1969), WOULD THE PERIOD OF TIME BETWEEN THE DATE OF SUCH ELIGIBILITY AND THE DATE OF DISCOVERY BE COVERED UNDER PUBLIC LAW 90-616?

5 U.S.C. 5584(E), AS ADDED BY PUBLIC LAW 90-616, IS AS FOLLOWS:

AN ERRONEOUS PAYMENT, THE COLLECTION OF WHICH IS WAIVED UNDER THIS SECTION, IS DEEMED A VALID PAYMENT FOR ALL PURPOSES.

THE QUOTED SECTION DOES NOTHING MORE THAN VALIDATE THE ERRONEOUS PAYMENTS WHICH ARE WAIVED UNDER THE ACT. IT DOES NOT, HOWEVER, VALIDATE THE ERRONEOUS PERSONNEL ACTIONS GIVING RISE TO SUCH PAYMENTS. IN CASES SUCH AS HERE INVOLVED THE PERIOD OF TIME SHOULD BE COUNTED FOR WITHIN GRADE INCREASE PURPOSES IN THE SAME MANNER AND TO THE SAME EXTENT AS IF THE PREMATURE PROMOTION HAD NEVER BEEN PROCESSED. THEREFORE, WHILE THE PERIOD OF SERVICE JUNE 2, 1968, TO JANUARY 26, 1969, MAY BE COUNTED AS GS-7 SERVICE FOR STEP INCREASE PURPOSES IT MAY NOT BE COUNTED FOR STEP INCREASE PURPOSES IN GS-9, YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

WHEN AN EMPLOYEE IS PROMOTED TO A HIGHER GRADE AND THEREAFTER, BEFORE THE ERROR IS DISCOVERED, MEETS THE TIME-IN-GRADE REQUIREMENT FOR PROMOTION TO SUCH GRADE, NO OVERPAYMENT NEED BE CONSIDERED AS HAVING OCCURRED IN THE HIGHER GRADE BETWEEN THE DATE THE EMPLOYEE OTHERWISE WOULD HAVE BEEN PROMOTED UNDER THE AGENCY POLICY OR REGULATION UPON HIS HAVING COMPLETED THE TIME-IN-GRADE REQUIREMENTS AND THE DATE THE ERROR WAS DISCOVERED. NECESSARY CORRECTIVE PERSONNEL ACTIONS SHOULD BE ISSUED ACCORDINGLY. THEREFORE, WAIVER ACTION UNDER PUBLIC LAW 90-616 FOR THE PERIOD ON AND AFTER THE EFFECTIVE DATE OF THE PROMOTION UNDER THAT RULE IS NEITHER NECESSARY NOR APPROPRIATE. THUS, IF THE PROMOTION WOULD NOT HAVE BEEN MADE EFFECTIVE UNDER THE AGENCY'S POLICY OR REGULATION UNTIL THE BEGINNING OF THE FIRST PAY PERIOD AFTER THE PERIOD OF ELIGIBILITY UNDER THE WHITTEN AMENDMENT THE PAYMENT FOR THE PERIOD BETWEEN THOSE PERIODS WOULD BE SUBJECT TO WAIVER ACTION UNDER PUBLIC LAW 90-616.

YOUR REQUEST FOR WAIVER OF THE ERRONEOUS PAYMENTS MADE TO MRS. SPARROW HAS BEEN TRANSMITTED TO OUR CLAIMS DIVISION FOR CONSIDERATION AND APPROPRIATE DISPOSITION. YOU WILL BE ADVISED OF THE ACTION FINALLY TAKEN BY SUCH DIVISION UPON YOUR REQUEST FOR WAIVER IN HER CASE.