B-140724, OCT. 9, 1959

B-140724, OCT. 9, 1959

TO THE SECRETARY OF THE NAVY:

OUR DEFENSE ACCOUNTING AND AUDITING DIVISION HAS RAISED A QUESTION CONCERNING THE PROMOTION OF EVA MAE TRENT, AN EMPLOYEE OF THE NAVAL RESEARCH LABORATORY, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

THE RECORD SHOWS THAT MISS TRENT WAS APPOINTED TO A GRADE GS-5 POSITION EFFECTIVE SEPTEMBER 4, 1956. ON MARCH 24, 1957, APPROXIMATELY 6 1/2 MONTHS LATER, SHE WAS ADMINISTRATIVELY PROMOTED TO GRADE GS-7. OUR AUDITORS DIRECTED ATTENTION TO THE REQUIREMENTS OF THE WHITTEN AMENDMENT, SECTION 1310 (C), ACT OF NOVEMBER 1, 1951, 65 STAT. 758, QUOTED HEREINAFTER, AND WERE ADMINISTRATIVELY INFORMED THAT THE PROMOTION ERROR HAD BEEN DISCOVERED AND THAT THE ERRONEOUS PAYMENTS MADE, TOTALING $384.64, WERE BEING RECOVERED BY MEANS OF PAYROLL DEDUCTIONS AT THE RATE OF $16 EACH BIWEEKLY PAY PERIOD. A CORRECTED STANDARD FORM 50 WAS ISSUED ADMINISTRATIVELY ON JULY 21, 1958, SHOWING THE PROMOTION EFFECTIVE ONE YEAR FROM THE DATE OF EMPLOYMENT, SEPTEMBER 4, 1957. THE WHITTEN AMENDMENT, SECTION 1310 (C), 65 STAT. 758, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"* * * NO PERSON IN ANY EXECUTIVE DEPARTMENT OR AGENCY WHOSE POSITION IS SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, SHALL BE PROMOTED * * * TO A HIGHER GRADE SUBJECT TO SUCH ACT WITHOUT HAVING SERVED AT LEAST ONE YEAR IN THE NEXT LOWER GRADE * * * .'

SUBSEQUENTLY, THE COMPTOLLER OF THE NAVAL RESEARCH LABORATORY CORRESPONDED WITH THE EXECUTIVE SECRETARY, BOARD OF CIVIL SERVICE EXAMINERS, POTOMAC RIVER NAVAL COMMAND, WASHINGTON 25, D.C., TO ASCERTAIN WHETHER THE EMPLOYEE--- IF SHE HAD FILED AN APPLICATION FOR A GRADE GS-7 POSITION ON MARCH 4, 1957--- WOULD HAVE BEEN ELIGIBLE FOR SUCH A POSITION AND WHETHER SHE WOULD HAVE BEEN WITHIN REACH ON MARCH 24, 1957, FOR CERTIFICATION TO THE NAVAL RESEARCH LABORATORY AT THAT GRADE. THE REPLY OF THE EXECUTIVE SECRETARY RESPONSIVE TO THE CONDITIONAL NATURE OF THE INQUIRY WAS IN THE AFFIRMATIVE. OUR INFORMATION IS THAT STEPS THEN WERE TAKEN BY THE COMPTROLLER, IN THE FORM OF A MEMORANDUM DATED SEPTEMBER 30, 1958, TO REPROMOTE THE EMPLOYEE TO GRADE GS-7, RETROACTIVELY EFFECTIVE TO MARCH 24, 1957, AND TO REFUND TO HER THE OVERPAYMENTS RECOVERED. THE MEMORANDUM READS AS FOLLOWS:

"CODE 3350

CODE 3000

EVA MAE TRENT; CORRECTION OF PAYROLL RECORDS ENCL: (1) BOARD OF CIVIL SERVICE EXAMINERS LTR OF 25 SEPT 1958

1. ENCLOSURE (1) CORRECTS THE ERRONEOUS STANDARD FORM 50 ACTION OF THE PERSONNEL OFFICE DATED 7/21/58 AND PURPORTING TO CORRECT THE PROMOTION OF SUBJECT EMPLOYEE.

2. IT IS THE FINDING OF THE EXECUTIVE SECRETARY, BOARD OF CIVIL SERVICE EXAMINERS AS WELL AS THIS OFFICE, THAT SUBJECT EMPLOYEE WAS IN FACT ELIGIBLE FOR PROMOTION AND WAS PROPERLY PROMOTED TO GS-7 ON 3/24/57.

3. YOU ARE DIRECTED TO REMOVE THE PURPORTED CORRECTED SF 50 FROM THE RECORDS OF THE EMPLOYEE, RESTORE THE BACK PAY DEDUCTIONS IMPROPERLY MADE, AND FILE THE LETTER OF THE EXECUTIVE SECRETARY IN THE RECORDS.

(S)

E. H. BREED

COMPTROLLER"

WE HAVE BEEN INFORMED THAT THE ACTION PROPOSED IN THE FOREGOING MEMORANDUM WAS TAKEN WITHOUT KNOWLEDGE OF THE PERSONNEL DIVISION OF THE NAVAL RESEARCH LABORATORY.

THE RECORD DOES NOT SHOW THAT THE EMPLOYEE HERE INVOLVED FILED AN APPLICATION FOR APPOINTMENT TO A GRADE GS-7 POSITION ON MARCH 4, 1957, OR ANY OTHER DATE OR THAT HER NAME WAS EVER PLACED ON A GRADE GS-7 REGISTER OR WAS EVER CERTIFIED THEREFROM TO THE NAVAL RESEARCH LABORATORY. NEITHER DOES IT SHOW THAT THE NAVAL RESEARCH LABORATORY EVER REQUESTED SUCH CERTIFICATION. THE INFORMATION FURNISHED THE COMPTROLLER BY THE BOARD OF U.S. CIVIL SERVICE EXAMINERS CLEARLY IS TO THE EFFECT THAT IF THE EMPLOYEE HAD FILED AN APPLICATION WITH THE BOARD ON MARCH 4, 1957 FOR THE POSITION MATHEMATICIAN GS-7 SHE WOULD HAVE BEEN ASSIGNED AN ELIGIBLE RATING AND ON THE BASIS OF THAT RATING WOULD HAVE BEEN WITHIN REACH FOR CERTIFICATION TO THE NAVAL RESEARCH LABORATORY ON REQUISITION FOR A GRADE GS-7 MATHEMATICIAN. SINCE THERE IS NO EVIDENCE BEFORE US THAT THESE CONDITIONS WERE TIMELY MET WE FIND NO JUSTIFICATION FOR THE COMPTROLLER'S ACTION IN CAUSING THE RETROACTIVE REPROMOTION OF THE EMPLOYEE. THE COMPTROLLER'S ALLEGATION THAT THE REPROMOTION WAS FOUND TO BE PROPER BY THE BOARD IS NOT SUPPORTED BY THE RECORD BEFORE US AND, IN ANY EVENT, SUCH FINDING WOULD HAVE NO BEARING ON THE CASE IN VIEW OF OUR DECISION, 33 COMP. GEN. 140, TO THE CIVIL SERVICE COMMISSION.

THEREFORE, THE OVERPAYMENT RECEIVED BY THE EMPLOYEE FOR THE PERIOD MARCH 24 TO SEPTEMBER 3, 1957, UPON WHICH DATE SHE COMPLETED THE ONE YEAR REQUIREMENT OF THE WHITTEN AMENDMENT, MUST BE COLLECTED BACK FROM HER. COMP. GEN. 230.

OUR DEFENSE ACCOUNTING AND AUDITING DIVISION HAS BEEN INSTRUCTED TO TAKE ACTION IN ACCORDANCE WITH THE FOREGOING.