B-170184, JUL. 29, 1970

B-170184: Jul 29, 1970

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WAS APPOINTED ON 3 JUNE 1970. MAY BE COMPENSATED FOR THE 3 DAYS IN VIEW OF FACT THAT THE MINIMUM AGE REQUIREMENT IS AN ADMINISTRATIVE REGULATION AS DISTINGUISHED FROM A STATUTORY ONE AND SINCE EMPLOYEE WAS WITHOUT FAULT AND LACKED ONLY A FEW DAYS TO MEET THE AGE REQUIREMENT. IT IS STATED IN THE LETTER OF JUNE 23. WHALEY WAS SELECTED AND APPOINTED UNDER THE 1970 FEDERAL SUMMER EMPLOYMENT PROGRAM FOR YOUTH AS A SUMMER AID AT $1.60 PER HOUR ON JUNE 3. REFERENCE WAS MADE TO CIVIL SERVICE COMMISSION BULLETIN NO. 316-29. IT IS FURTHER STATED IN THE ABOVE LETTER THAT MR. WHALEY'S DATE OF BIRTH IS JUNE 6. THROUGH ADMINISTRATIVE ERROR HE WAS APPOINTED 3 DAYS PRIOR TO HIS 16TH BIRTHDAY. IT IS STATED.

B-170184, JUL. 29, 1970

CIVIL PAY -- SUMMER AID -- EMPLOYMENT PRIOR TO AGE QUALIFICATION DECISION TO COMMANDANT OF THE MARINE CORPS AUTHORIZING COMPENSATION TO AN EMPLOYEE HIRED AS A SUMMER AID UNDER THE FEDERAL SUMMER EMPLOYMENT PROGRAM FOR YOUTH, THREE (3) DAYS BEFORE HIS 16TH BIRTHDAY, DUE TO AN ADMINISTRATIVE ERROR. YOUTH WHO, WAS APPOINTED ON 3 JUNE 1970, TO A SUMMER JOB UNDER THE FEDERAL SUMMER PROGRAM FOR YOUTH, THREE (3) DAYS PRIOR TO HIS 16TH BIRTHDAY, DUE TO ADMINISTRATIVE ERROR, AND CONTRARY TO CIVIL SERVICE REGULATION WHICH PRESCRIBES 16 AS MINIMUM AGE, MAY BE COMPENSATED FOR THE 3 DAYS IN VIEW OF FACT THAT THE MINIMUM AGE REQUIREMENT IS AN ADMINISTRATIVE REGULATION AS DISTINGUISHED FROM A STATUTORY ONE AND SINCE EMPLOYEE WAS WITHOUT FAULT AND LACKED ONLY A FEW DAYS TO MEET THE AGE REQUIREMENT.

TO COMMANDANT OF THE MARINE CORPS:

BY LETTER DATED JUNE 23, 1970, FILE REFERENCE A401:DH:DH 12300, COPY ENCLOSED, THE COMMANDING GENERAL, MARINE CORPS SUPPLY CENTER, ALBANY, GEORGIA 31704, HAS REQUESTED US TO GRANT AUTHORITY FOR PAYMENT OF COMPENSATION TO MR. MARCUS L. WHALEY FOR 19 HOURS SERVICES PERFORMED ON JUNE 3, 4, AND 5, 1970.

IT IS STATED IN THE LETTER OF JUNE 23, 1970, THAT PURSUANT TO SECTION 213.3102(V), FEDERAL PERSONNEL MANUAL, MR. WHALEY WAS SELECTED AND APPOINTED UNDER THE 1970 FEDERAL SUMMER EMPLOYMENT PROGRAM FOR YOUTH AS A SUMMER AID AT $1.60 PER HOUR ON JUNE 3, 1970. REFERENCE WAS MADE TO CIVIL SERVICE COMMISSION BULLETIN NO. 316-29, DATED MARCH 24, 1970, WHICH LIKE SECTION 213.3102(V), SPECIFIES THE AGE LIMITS AS 16 THROUGH 21 FOR APPOINTMENTS UNDER THIS AUTHORITY.

IT IS FURTHER STATED IN THE ABOVE LETTER THAT MR. WHALEY'S DATE OF BIRTH IS JUNE 6, 1954, BUT THROUGH ADMINISTRATIVE ERROR HE WAS APPOINTED 3 DAYS PRIOR TO HIS 16TH BIRTHDAY. IT IS STATED, ADDITIONALLY, THAT HIS APPOINTMENT WAS TERMINATED ON JUNE 5, 1970, AND THAT HE WAS REAPPOINTED UNDER THE SAME AUTHORITY ON JUNE 8, 1970; HOWEVER, NO PAYMENT WAS MADE TO HIM FOR SERVICES PERFORMED ON JUNE 3, 4, AND 5, A TOTAL OF 19 HOURS. ATTACHED TO THE LETTER ARE COPIES OF PERTINENT FORMS 50 "NOTIFICATION OF PERSONNEL ACTION" AND A LETTER DATED JUNE 18, 1970, FROM MR. WHALEY IN WHICH HE REQUESTS US TO AUTHORIZE PAYMENT IN HIS CASE.

ORDINARILY, WE DO NOT RENDER AN AUTHORITATIVE DECISION UPON THE REQUEST OF THE COMMANDING GENERAL CONCERNED. SEE 31 U.S.C. 74; 26 COMP. GEN. 993; AND 1 G.A.O. 11.1. HOWEVER, SINCE THE INDIVIDUAL ACTUALLY HAS MADE CLAIM TO OUR OFFICE AND IN ORDER TO AVOID CIRCUITY AND DELAY WE HAVE DETERMINED TO RENDER A DECISION UPON THE MATTER PRESENTED.

IN THE CASE BEFORE US, IT DOES NOT APPEAR THAT MR. WHALEY'S APPOINTMENT WAS IN CONTRAVENTION OF A STATUTORY PROVISION BUT RATHER WAS CONTRARY TO A GOVERNING CIVIL SERVICE REGULATION WHICH PRESCRIBES A MINIMUM AGE REQUIREMENT FOR APPOINTMENTS UNDER THE 1970 FEDERAL SUMMER EMPLOYMENT PROGRAM FOR YOUTH. IN THIS CONNECTION, IT IS SHOWN THAT MR. WHALEY FAILED TO MEET THAT REQUIREMENT BY ONLY A FEW DAYS AND FURTHER THAT HE WAS WITHOUT FAULT IN THE MATTER. ACCORDINGLY, AND HAVING IN MIND THE PRIMARY PURPOSE OF THE PROGRAM UNDER WHICH THE INDIVIDUAL WAS APPOINTED, WE WOULD INTERPOSE NO LEGAL OBJECTION TO PAYMENT OF COMPENSATION TO HIM FOR JUNE 3, 4, AND 5, 1970. COMPARE 28 COMP. GEN. 514 AND 36 COMP. GEN. 73.

COPIES OF THE PAPERS WHICH ACCOMPANIED THE LETTER OF JUNE 23, 1970, ARE ENCLOSED.