B-123632, JUN. 15, 1955

B-123632, JUN. 15, 1955

TO THE HONORABLE SECRETARY OF THE NAVY:

BY LETTER DATED APRIL 13, 1955, THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES) REQUESTED A DECISION AS TO THE PROPRIETY OF A PROPOSED METHOD OF EFFECTING CORRECTIVE PAY ADJUSTMENT ACTIONS FOR FRANK B. MILLER, FOREMAN, PUBLIC WORKS, AND NICHOLAS J. GLENN, FOREMAN LABORER, NAVAL SUPPLY DEPOT, MECHANICSBURG, PENNSYLVANIA.

IT APPEARS THAT THE FIELD ACTIVITY MISINTERPRETED A DEPARTMENTAL CIRCULAR LETTER (CPL AND D 45-513, DECEMBER 13, 1945) AND ERRONEOUSLY INCREASED THE PAY OF THE EMPLOYEES REFERRED TO ABOVE FROM $4,520 TO $4,850 PER ANNUM, EFFECTIVE JANUARY 13, 1946. IT IS STATED THAT THROUGH FURTHER ERROR THE INCREASES WERE INCORRECTLY DESIGNATED "PROMOTIONS - ADMINISTRATIVE" AND THIS DESIGNATION WAS CHANGED IN 1948 TO "PAY ADJUSTMENT - ADMINISTRATIVE," WHICH WAS STILL ERRONEOUS SINCE NO SUCH INCREASE WAS AUTHORIZED FOR THESE EMPLOYEES BY THE DEPARTMENTAL INSTRUCTIONS. HOWEVER, AT THAT TIME, NO ACTION WAS TAKEN TO CORRECT THE ERRONEOUS RATE OF PAY OR TO COLLECT THE OVERPAYMENT, AS THE OVERPAYMENT WAS NOT THEN DISCOVERED.

THE LETTER OF THE ASSISTANT SECRETARY STATES, IN PART:

"THERE IS MUCH EVIDENCE TO INDICATE THAT THESE EMPLOYEES WOULD INDEED HAVE BEEN GRANTED ADMINISTRATIVE PAY INCREASES IF THE EARLIER ERRONEOUS ASSIGNMENTS HAD NOT BEEN MADE. THE SUPPLY OFFICER IN COMMAND AT THE DEPOT DURING THE PERIOD APRIL, 1945, TO MARCH, 1948, HAS STATED THAT THE EXCELLENCE OF THESE EMPLOYEE'S WORK WAS SUCH THAT, BUT FOR THE ERROR MADE IN THEIR CASES, THEY WOULD HAVE BEEN RECOMMENDED FOR ADMINISTRATIVE PAY INCREASES AT THE TIME THEY WERE DUE. THE PRESENT COMMANDING OFFICER OF THE DEPOT, WHO WAS THE DEPUTY SUPPLY OFFICER IN COMMAND DURING THE PERIOD IN QUESTION, UNEQUIVOCALLY STATES THAT BUT FOR THE MISINFORMATION IN THE PERSONNEL FOLDERS, THE EMPLOYEES WOULD HAVE BEEN RECOMMENDED FOR THE INCREASES. THE BUREAU OF SUPPLIES AND ACCOUNTS, THE COGNIZANT BUREAU, HAS STATED THAT, HAD THE RECOMMENDATIONS BEEN SUBMITTED, IN VIEW OF THE SUPERIOR PERFORMANCE OF THESE EMPLOYEES, THEY WOULD HAVE BEEN FORWARDED TO THE OFFICE OF INDUSTRIAL RELATIONS RECOMMENDING APPROVAL.'

IT IS PROPOSED TO COMPUTE PAY ADJUSTMENTS FOR THE TWO EMPLOYEES BY BEGINNING WITH THEIR CORRECT RATES OF PAY ON JANUARY 13, 1946, AND ADJUSTING THE RATES TO REFLECT THE PERIODIC AND ADMINISTRATIVE PAY INCREASES WHICH SHOULD AND WOULD HAVE BEEN GRANTED IF THE DEPARTMENTAL INSTRUCTIONS HAD BEEN PROPERLY APPLIED. IF THIS PROCEDURE IS FOLLOWED, IT IS STATED THAT THE OVERPAYMENT FOR MR. MILLER WOULD COVER THE PERIOD JANUARY 13, 1946, TO JANUARY 19, 1947, AND AMOUNT TO $336.18; AND IN THE CASE OF MR. GLENN THE OVERPAYMENT WOULD COVER THE PERIOD JANUARY 13 TO DECEMBER 2, 1946, AND AMOUNT TO $298.55.

IT IS UNDERSTOOD FROM INFORMAL INQUIRY MADE OF YOUR DEPARTMENT THAT IT WAS FELT THAT IF THE PROPOSED METHOD OF COMPUTATION OF THE PAY ADJUSTMENTS WERE EMPLOYED, SUCH ACTION MIGHT BE SUBJECT TO OBJECTION AS BEING TANTAMOUNT TO RETROACTIVE PROMOTION OF THE EMPLOYEES INVOLVED.

IN 30 COMP. GEN. 94, IT WAS HELD, QUOTING FROM THE SYLLABUS:

"AN EMPLOYEE WHO IS QUALIFIED FOR AND PERFORMS THE DUTIES OF A POSITION, BUT WHO, THROUGH ADMINISTRATIVE ERROR, IS NOT PAID THE LAWFUL SALARY ATTACHING TO THE POSITION, MAY HAVE HIS SALARY CORRECTED RETROACTIVELY BY APPROPRIATE ADMINISTRATIVE ACTION WITHOUT SUCH PAYMENT BEING REGARDED AS A RETROACTIVE PROMOTION SUCH AS ORDINARILY IS PROHIBITED BY LAW.'

IN THE CIRCUMSTANCES STATED IN THE LETTER OF THE ASSISTANT SECRETARY, IT APPEARS THAT THE ABOVE HOLDING IS FOR APPLICATION HERE. ACCORDINGLY, THE PROPOSED METHOD OF COMPUTING THE NECESSARY PAY ADJUSTMENTS APPEARS TO BE PROPER AND WE WILL RAISE NO OBJECTION TO SUCH ACTION IN THE INSTANT CASES.

THE INDICATED OVERPAYMENTS SHOULD BE COLLECTED FROM THE EMPLOYEES. THERE WOULD APPEAR TO BE NO OBJECTION, HOWEVER, TO EFFECTING COLLECTION BY PERIODIC SALARY DEDUCTIONS OVER A REASONABLE PERIOD OF TIME, IF THE EMPLOYEES SO DESIRE.