B-150685, JUN. 12, 1963

B-150685, JUN. 12, 1963

TO THE SECRETARY OF THE ARMY:

BY LETTER OF MAY 20, 1963, THE UNDER SECRETARY OF THE ARMY REQUESTS THAT WE REVIEW THE CONCLUSION REACHED IN OUR LETTER OF APRIL 15, 1963, TO YOU, CONCERNING THE CASE OF MRS. CORINE B. GROCE, AN EMPLOYEE OF THEU.S. ARMY HOSPITAL, FORT MCCLELLAN, ALABAMA.

IN OUR LETTER OF APRIL 15TH WE CONCLUDED THAT MRS. GROCE HAD NOT BEEN OVERPAID AS ADMINISTRATIVELY DETERMINED; THAT AMOUNTS ADMINISTRATIVELY WITHHELD OR COLLECTED IN LIQUIDATION OF HER PURPORTED INDEBTEDNESS SHOULD BE REFUNDED TO HER, AND THAT THE ENACTMENT OF PRIVATE RELIEF LEGISLATION IN HER BEHALF WOULD SERVE NO USEFUL PURPOSE.

THE LETTER OF MAY 20 FROM THE UNDER SECRETARY REITERATES THE PERTINENT FACTS IN THE CASE OF MRS. GROCE AS FOLLOWS:

"A. ON 16 MARCH 1958 MRS. GROCE WAS PROMOTED FROM GRADE GS-3, STEP 6, AT $3600 PER ANNUM ($1.74 HOURLY EQUIVALENT) TO GRADE WB-3, STEP 4, AT $1.78 PER HOUR. STEP 4 WAS THE TOP STEP OF GRADE WB-3, AND $1.78 PER HOUR WAS THE MAXIMUM PAYABLE RATE FOR STEP 4 AT THAT TIME.

"B. ON 22 JUNE 1958 PAY ADJUSTMENT ACTION WAS EFFECTED INCREASING MRS. GROCE'S RATE TO $1.84 PER HOUR BASED ON A REVISED LOCALITY WAGE SCHEDULE.

"C. ON 20 JUNE 1958 THE FEDERAL EMPLOYEES' SALARY INCREASE ACT OF 1958 WAS ENACTED RETROACTIVELY EFFECTIVE TO THE BEGINNING OF THE FIRST PAY PERIOD FOLLOWING 1 JANUARY 1958.

"/2) IN IMPLEMENTING SECTION 2 (B) (9) OF THE CITED ACT, THE DEPARTMENT'S REGULATIONS PROVIDED THAT ANY EMPLOYEE COMING WITHIN THE PURVIEW OF THE CITED SECTION WOULD "BE PAID BASIC COMPENSATION AT A RATE EQUAL TO THE RATE HE WOULD HAVE BEEN RECEIVING (INCLUDING COMPENSATION FOR EACH WITHIN- GRADE AND LONGEVITY INCREASE HE WOULD HAVE EARNED) IF REASSIGNMENT HAD NOT OCCURRED UNTIL THE DATE IMMEDIATELY FOLLOWING ENACTMENT.'

"D. INITIALLY ON 1 JULY 1958 THE INSTALLATION ADJUSTED MRS. GROCE'S RATE OF PAY PURSUANT TO SECTION 2 (B) (9) OF THE CITED ACT TO $1.91 PER HOUR (EQUIVALENT HOURLY RATE FOR GRADE GS-3, STEP 6, AT $3970 PER ANNUM) RETROACTIVELY EFFECTIVE TO 16 MARCH 1958. CONCURRENTLY THE PAY ADJUSTMENT ACTION EFFECTIVE 22 JUNE 1958 (PARAGRAPH B ABOVE) WAS CANCELLED.

"E. SUBSEQUENTLY IT WAS DETERMINED THAT THE MAXIMUM PAYABLE RATE UNDER THE DEPARTMENT'S REGULATIONS DURING THE PERIOD 16 MARCH 1958 THROUGH 21 JUNE 1958 WAS $1.78 PER HOUR; I.E., THE RATE MRS. GROCE WOULD HAVE BEEN RECEIVING IF REASSIGNMENT HAD NOT OCCURRED UNTIL THE DATE IMMEDIATELY FOLLOWING ENACTMENT OF THE CITED ACT. ACCORDINGLY, ON 13 MARCH 1960 CORRECTIVE ACTION WAS EFFECTED ADJUSTING HER RATE OF PAY TO $1.78 PER HOUR FOR THE PERIOD 16 MARCH 1958 THROUGH 21 JUNE 1958 AND TO $1.84 PER HOUR BEGINNING 22 JUNE 1958.

"F. THE AMOUNT OF THE OVERPAYMENT RESULTING FROM THE ERRONEOUS ADJUSTMENT IN PARAGRAPH D ABOVE WAS $329. COLLECTION OF THIS AMOUNT WAS EFFECTED ON A PAY PERIOD BASIS, WITH THE FINAL INSTALLMENT COLLECTED DURING THE PAY PERIOD ENDING 15 DECEMBER 1962.'

SECTION 2 (B) (9) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, 72 STAT. 206, IS, IN PART AS FOLLOWS:

"EACH OFFICER OR EMPLOYEE---

"/A) (II) WHO, AT ANY TIME DURING SUCH PERIOD (THE PERIOD BETWEEN THE EFFECTIVE DATE OF THIS SECTION AND DATE OF ENACTMENT), TRANSFERRED FROM A POSITION SUBJECT TO THE CLASSIFICATION ACT OF 1949 TO A POSITION SUBJECT TO A PREVAILING RATE SCHEDULE,

"/D) WHOSE RATE OF BASIC COMPENSATION ON SUCH DATE OF ENACTMENT IS LESS THAN THE RATE TO WHICH HE WOULD HAVE BEEN ENTITLED ON SUCH DATE IF SUCH TRANSFER HAD NOT OCCURRED (UNLESS HE IS RECEIVING SUCH LESSER RATE BY REASON OF AN ADVERSE PERSONNEL ACTION RESULTING FROM HIS OWN FAULT),

SHALL BE PAID BASIC COMPENSATION AT A RATE EQUAL TO THE RATE WHICH HE WOULD HAVE BEEN RECEIVING ON SUCH DATE OF ENACTMENT (INCLUDING COMPENSATION FOR EACH WITHIN-GRADE AND LONGEVITY STEP-INCREASE WHICH HE WOULD HAVE EARNED) IF SUCH TRANSFER HAD NOT OCCURRED UNTIL THE DAY IMMEDIATELY FOLLOWING SUCH DATE OF ENACTMENT, FOR ALL TIME IN A PAY STATUS ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION IN A POSITION SUBJECT TO A PREVAILING RATE SCHEDULE UNDER THE CIRCUMSTANCES PRESCRIBED IN THIS SUBSECTION, UNTIL---

(A) HE LEAVES THE POSITION WHICH HE HOLDS ON SUCH DATE OF ENACTMENT, OR

(B) HE IS ENTITLED TO RECEIVE BASIC COMPENSATION AT A HIGHER RATE UNDER A PREVAILING RATE SCHEDULE * * *"

IN SUPPORT OF THE POSITION THAT THE CONCLUSION IN OUR APRIL 15, 1963, LETTER SHOULD BE REVISED, THE UNDER SECRETARY SAYS THAT:

"AS INDICATED IN PARAGRAPH C (2) ABOVE, THE DEPARTMENT'S REGULATIONS IMPLEMENTING SECTION 2 (B) (9) OF THE SALARY INCREASE ACT OF 1958 PROVIDED FOR ADJUSTING THE EMPLOYEE'S PAY TO THE RATE HE WOULD HAVE RECEIVED IF REASSIGNMENT HAD NOT OCCURRED UNTIL THE DATE IMMEDIATELY FOLLOWING ENACTMENT. ON THIS BASIS IF THE ACTION CHANGING MRS. GROCE FROM GRADE GS- 3, STEP 6, AT $3600 PER ANNUM TO GRADE WB-3 HAD NOT OCCURRED UNTIL AFTER 20 JUNE 1958 (DATE OF ENACTMENT), THE MAXIMUM PAYABLE AMOUNT IN GRADE WB-3 WOULD HAVE BEEN $1.78 PER HOUR (THE TOP STEP OF WB-3). PAYMENT AT ANY HIGHER RATE WOULD HAVE PLACED HER IN A MORE FAVORABLE SITUATION THAN WOULD HAVE PREVAILED IN IDENTICAL CIRCUMSTANCES AFTER THE DATE OF ENACTMENT.

"ALL PAY ADJUSTMENTS UNDER SECTION 2 (B) (9) OF THE SALARY INCREASE ACT OF 1958 FOR EMPLOYEES OF THE DEPARTMENT OF THE ARMY WERE EFFECTED IN THE MANNER SET FORTH IN PRECEDING PARAGRAPH. IF YOUR RULING IN THE CASE OF MRS. GROCE IS PERMITTED TO STAND, IT WOULD NECESSITATE REEXAMINATION OF THOUSANDS OF RECORDS IN ORDER TO IDENTIFY OTHER EMPLOYEES WHO WOULD BE ENTITLED TO COMPARABLE TREATMENT.'

THE DEPARTMENT'S INTERPRETATION OF SECTION 2 (B) (9) IS THAT IT ENTITLES AN EMPLOYEE COVERED THEREBY TO THE PREVAILING WAGE RATE TO WHICH HE OTHERWISE WOULD HAVE BEEN ENTITLED HAD HIS TRANSFER FROM THE CLASSIFICATION ACT POSITION TO THE PREVAILING RATE POSITION NOT OCCURRED UNTIL IMMEDIATELY AFTER THE DATE OF ENACTMENT OF THE SECTION. WE DO NOT CONCUR IN SUCH INTERPRETATION BECAUSE THE COMPENSATION SAVED UNDER SECTION 2 (B) (9) TO AN EMPLOYEE IN THE CATEGORY TYPIFIED BY THE CASE OF MRS. GROCE IS THE RATE OF COMPENSATION HE WOULD HAVE RECEIVED IN HIS CLASSIFIED POSITION ON THE DATE OF ENACTMENT OF PUB.L. 85-462 IF HE HAD NOT TRANSFERRED TO THE PREVAILING RATE POSITION UNTIL THE DAY FOLLOWING SUCH DATE OF ENACTMENT. SEE 35 COMP. GEN. 263. THAT IS SO REGARDLESS OF THE FACT THAT SUCH "SAVED" RATE MAY EXCEED THE HIGHEST STEP IN THE WAGE BOARD GRADE.

SUBSEQUENT TO THE SIMS CASE REFERRED TO IN YOUR LETTER, WE HAVE CONSIDERED THAT THE PRINCIPLE EXPRESSED IN THE DECISION IN 35 COMP. GEN. 263, IS APPLICABLE IN THE CASES OF MRS. GROCE AND MR. SIMS EVEN THOUGH THE SPECIFIC CIRCUMSTANCES INVOLVED IN THAT DECISION WERE NOT IDENTICAL IN ALL RESPECTS TO THE CIRCUMSTANCES INVOLVED IN THEIR CASES. SEE ALSO 36 COMP. GEN. 40. THEREFORE, WE MUST ADHERE TO OUR VIEW THAT THE ENACTMENT OF PRIVATE RELIEF LEGISLATION IS NOT CONSIDERED NECESSARY IN THE GROCE CASE AND IN OTHER SIMILAR CASES.