B-141799, FEB. 15, 1960

B-141799, FEB. 15, 1960

TO MR. JACK W. ALLIN:

ON DECEMBER 18, 1959, YOU REQUESTED REVIEW OF OUR SETTLEMENT CERTIFICATE Z-1511302, DATED APRIL 6, 1955, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF AN AMOUNT DEDUCTED UPON YOUR SEPARATION AS AN EMPLOYEE OF THE UNITED STATES NAVAL AIR STATION, ALAMEDA, CALIFORNIA, BECAUSE OF ERRONEOUS COMPENSATION PAYMENTS MADE TO YOU BY THE NAVAL AIR STATION.

THE RECORD SHOWS THAT ON MARCH 18, 1951, YOU WERE CHANGED FROM METALSMITH (AVIATION), 3RD STEP, $15.76 PER DIEM TO AIRCRAFT INSPECTOR (MECHANICAL), GS-1876-6, $4200 PER ANNUM, POSITION DESCRIPTION 881. ON JULY 8, 1951, YOUR SALARY WAS INCREASED TO $4545 PER ANNUM IN ACCORDANCE WITH THE SALARY INCREASE ACT OF OCTOBER 24, 1951, EFFECTIVE AS OF THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN AFTER JUNE 30, 1951. A POST AUDIT CLASSIFICATION SURVEY BY THE TWELFTH UNITED STATES CIVIL SERVICE REGIONAL OFFICE DETERMINED THAT THE POSITION HELD BY YOU (POSITION DESCRIPTION NO. 881) SHOULD PROPERLY BE CLASSIFIED AT AGS-5 LEVEL. BASED UPON THIS DETERMINATION BY THE CIVIL SERVICE REGIONAL OFFICE, THE NAVAL AIR STATION WAS REQUIRED TO CHANGE YOUR ASSIGNMENT TO THE LOWER GRADE GS-5 LEVEL AND FIX YOUR SALARY ACCORDINGLY. HOWEVER, THE NAVAL AIR STATION DECIDED TO ASSIGN YOU TO AN INTERIM GS-6 POSITION (POSITION DESCRIPTION NO. 934A) AND ACTING UPON THIS DECISION YOUR NOTICE OF PROPOSED CHANGE TO LOWER GRADE GS -5 WAS CANCELED. ON MARCH 30, 1952, YOU WERE REASSIGNED TO THE INTERIM POSITION (POSITION DESCRIPTION NO. 934A) AT THE GS-6 LEVEL; HOWEVER, THE U.S. NAVAL AIR STATION SAYS IN ITS REPORT TO OUR OFFICE THAT BECAUSE OF A REORGANIZATION IN THE INSPECTION DIVISION YOU WERE NOT REQUIRED TO REPORT TO THE REASSIGNED INTERIM POSITION UNTIL SEPTEMBER 28, 1952. THE NAVAL AIR STATION ALSO REPORTS THAT DURING THE PERIOD MARCH 30 TO SEPTEMBER 28, 1952, YOU CONTINUED TO PERFORM THE WORK OF THE GS-5 POSITION ALTHOUGH YOU HAD BEEN REASSIGNED TO THE GS-6 POSITION, AND YOU RECEIVED THE SALARY OF THE GS-6 POSITION. ON SEPTEMBER 28, 1952, YOU WERE PROMOTED TO AIRCRAFT INSPECTOR (GENERAL), POSITION DESCRIPTION NO. 4212, GS-7, A PROPERLY CLASSIFIED POSITION, AND YOUR SALARY FIXED AT $4705 PER ANNUM UPON THE BASIS OF THE SALARY YOU HAD BEEN PAID IN THE GS-6 INTERIM POSITION.

A LATER POST AUDIT BY THE TWELFTH UNITED STATES CIVIL SERVICE REGIONAL OFFICE DETERMINED THAT YOUR REASSIGNMENT ON MARCH 30, 1952, TO POSITION DESCRIPTION NO. 934A, GS-6, WAS ILLEGAL UPON THE BASIS THAT YOU DID NOT REPORT TO THAT POSITION OR PERFORM THE DUTIES OF THE POSITION. INDICATED ABOVE, THE NAVAL AIR STATION REPORTS YOU CONTINUED TO PERFORM THE DUTIES OF YOUR OLD POSITION (POSITION DESCRIPTION NO. 881) WHICH HAD BEEN DETERMINED BY THE CIVIL SERVICE REGIONAL OFFICE AS PROPERLY CLASSIFIED AS A GS-5 POSITION, UNTIL YOU REPORTED ON SEPTEMBER 28, 1952, TO THE NEW POSITION AT WHICH TIME YOU WERE PROMOTED TO THE GS-7 POSITION. IN CONFORMANCE WITH THE DETERMINATION OF THE CIVIL SERVICE REGIONAL OFFICE, THE FOLLOWING RETROACTIVE CORRECTIVE ACTION WAS TAKEN BY THE NAVAL AIR STATION IN YOUR CASE: (1) YOUR REASSIGNMENT TO POSITION DESCRIPTION NO. 934A WAS CANCELED EFFECTIVE MARCH 30, 1952, AND YOU WERE CHANGED EFFECTIVE MARCH 30, 1952, FROM AIRCRAFT INSPECTOR (MECHANICAL), GS-6, $4545 PER ANNUM, TO AIRCRAFT INSPECTOR (MECHANICAL), GS-5, $4160 PER ANNUM (TOP STEP OF THE GS-5 GRADE); (2) YOUR PROMOTION PROCESSED EFFECTIVE SEPTEMBER 28, 1952, WAS CORRECTED TO INDICATE PROMOTION FROM AIRCRAFT INSPECTOR, GS-5, $4160 PER ANNUM TO AIRCRAFT INSPECTOR, GS-7, $4330 PER ANNUM, BASED UPON THE SALARY YOU HAD RECEIVED IN THE GS-5 POSITION AS CORRECTED. THE NAVAL AIR STATION HAS REPORTED THAT YOUR CLAIM REPRESENTS THE AMOUNT DETERMINED TO HAVE BEEN PAID ERRONEOUSLY TO YOU AS A RESULT OF THE DECISION BY THE TWELFTH UNITED STATES CIVIL SERVICE REGIONAL OFFICE THAT YOUR REASSIGNMENT ON MARCH 30, 1952, TO POSITION DESCRIPTION NO. 934A, GS-6, WAS ILLEGAL.

IT IS THE RESPONSIBILITY OF THE UNITED STATES CIVIL SERVICE COMMISSION UNDER THE CLASSIFICATION ACT TO DETERMINE THE PROPER GRADES IN WHICH POSITIONS SHOULD BE CLASSIFIED, AND THE COMMISSION HAS THE AUTHORITY TO ORDER A GOVERNMENT AGENCY TO CHANGE A POSITION TO A LOWER GRADE THEREBY CAUSING THE EMPLOYEE'S SALARY TO BE ADJUSTED TO THE RATE FOR THE LOWER GRADE. IN YOUR CASE THE COMMISSION ORDERED THE NAVAL AIR STATION TO CHANGE YOUR GS-6 POSITION TO A GS-5 POSITION. HOWEVER, THE NAVAL AIR STATION REASSIGNED YOU TO A DIFFERENT POSITION, BUT, AS STATED ABOVE, THE AGENCY SAYS YOU CONTINUED TO PERFORM THE SAME GS-5 DUTIES WHILE RECEIVING THE GS-6 SALARY IN VIOLATION OF THE CIVIL SERVICE COMMISSION'S ORDER. WHILE WE UNDERSTAND THIS WAS NOT YOUR FAULT AND THAT YOU PERFORMED THE DUTIES ASSIGNED TO YOU, NEVERTHELESS, YOU RECEIVED THE GS-6 SALARY AS THE RESULT OF ADMINISTRATIVE ACTION WHICH WAS ILLEGAL. HENCE, THE NAVAL AIR STATION WAS REQUIRED TO COLLECT FROM YOU EXCESS SALARY WHICH HAD BEEN PAID YOU UPON THE BASIS OF ITS ILLEGAL ACTIONS.

MOREOVER, YOU ARE ADVISED THAT IT IS THE ESTABLISHED RULE OF OUR OFFICE TO ACCEPT THE REPORT OF THE ADMINISTRATIVE OFFICE ON DISPUTED QUESTIONS OF FACT, IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF.

THEREFORE, UPON THE BASIS OF THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM BY OUR OFFICE ..END :