B-149718, OCT. 19, 1962

B-149718, OCT. 19, 1962

TO MR. WILLIAM H. COBB, JR:

YOUR LETTER OF JUNE 20, 1962, REQUESTS REFUND OF $384 COLLECTED FROM YOU AS OVERPAYMENT OF SALARY AS A WAGE-BOARD EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE.

ON DECEMBER 28, 1958, YOU WERE DEMOTED, INCIDENT TO A REDUCTION IN FORCE, FROM GRADE WF-9, STEP 4, TO EF-8, STEP 4. ON JULY 26, 1959, YOU WERE PROMOTED TO GRADE F-10, STEP 4, $3.92 PER HOUR. AN INFORMAL INQUIRY, DATED JULY 15, 1960, BY OUR DEFENSE ACCOUNTING AND AUDITING DIVISION QUESTIONED THE LEGALITY OF YOUR PROMOTION FROM F-8, STEP 4, $3.56 PER HOUR, TO F-10, STEP 4, $3.92 PER HOUR (WHICH WERE THE CURRENT RATES AT THE TIME OF YOUR PROMOTION). THE AIR FORCE ACCOUNTING AND FINANCE CENTER DETERMINED, UPON REVIEW, THAT YOUR PROMOTION TO F-10, STEP 4, $3.92 PER HOUR, WAS IMPROPER AND THAT UNDER GOVERNING AIR FORCE REGULATIONS, YOU WERE ENTITLED ONLY TO PROMOTION TO GRADE F-10, STEP 3, $3.74 PER HOUR.

AS YOU KNOW, WAGE BOARD EMPLOYEES ARE NOT COMPENSATED BY PAY RATES ESTABLISHED BY STATUTE BUT, GENERALLY, ARE COMPENSATED AT A RATE COMMENSURATE WITH PREVAILING RATES FOR PRIVATE INDUSTRY FOR THE SAME TYPE OF WORK IN THE LOCALITY WHERE EMPLOYED. ALTHOUGH THE PAY RATES ARE NOT ESTABLISHED BY STATUTE BUT BY REGULATION, SUCH REGULATIONS, ISSUED PURSUANT TO AUTHORITY GRANTED BY STATUTE, HAVE THE FORCE AND EFFECT OF LAW. THE AIR FORCE REGULATIONS IN EFFECT AT THE TIME OF YOUR PROMOTION, AIR FORCE MANUAL 40-1, P9.7, PARAGRAPH 12, TS 120, DECEMBER 16, 1957, PROVIDED IN PERTINENT PART THAT:

"12. PROMOTION WITHIN THE SAME WAGE AREA. THE RATE OF PAY OF AN EMPLOYEE WHO IS PROMOTED, OR PROMOTED AND TRANSFERRED WITHIN THE SAME WAGE AREA, WILL BE ADJUSTED TO THE NEAREST STEP RATE OF THE GRADE OF HIS NEW POSITION FOR WHICH THE RATE OF PAY IS HIGHER THAN HIS EXISTING RATE OF PAY, EXCEPT IN THE FOLLOWING INSTANCES:

"A. IN ACTIONS INVOLVING PROMOTION FROM A NONSUPERVISORY TO A SUPERVISORY POSITION, OR FROM ONE SUPERVISORY POSITION TO ANOTHER, IF THE NEW RATE DOES NOT YIELD AN INCREASE EQUAL TO THE LEAST STEP RATE INCREASE IN THE GRADE FROM WHICH PROMOTED, AN INCREASE OF ONE ADDITIONAL STEP RATE MAY BE AUTHORIZED BY THE INSTALLATION, PROVIDED THAT THE MAXIMUM STEP RATE FOR THE NEW GRADE IS NOT EXCEEDED.

"C. IF AN EMPLOYEE WHO HAS CHANGED TO LOWER GRADE IN LIEU OF SEPARATION FOR REDUCTION IN FORCE OR DISPLACEMENT, OR WHO WAS REEMPLOYED IN A LOWER GRADE WITHIN ONE YEAR FOLLOWING SEPARATION FROM THE AIR FORCE FOR REDUCTION IN FORCE OR DISPLACEMENT, IS REPROMOTED TO HIS FORMER GRADE OR TO ANY GRADE HIGHER THAN HIS CURRENT GRADE, HIS RATE OF PAY WILL BE ESTABLISHED AT A STEP RATE EQUIVALENT TO THAT FROM WHICH HE WAS REDUCED, WITHIN THE LIMITS OF THE GRADE TO WHICH PROMOTED.'

THE STEP INCREASES PROVIDED IN GRADE F-8 AT THE TIME OF YOUR PROMOTION AMOUNTED TO 16 CENTS PER HOUR. SINCE A PROMOTION FROM F-8, STEP 4, $3.56 PER HOUR, TO F-10, STEP 3, $3.74 PER HOUR, RESULTED IN AN INCREASE OF COMPENSATION OF 18 CENTS AN HOUR, WHICH INCREASE EXCEEDED THE AMOUNT OF THE STEP INCREASES PROVIDED IN THE GRADE FROM WHICH YOU WERE PROMOTED, F- 8, YOU WERE NOT ENTITLED UNDER THE PROVISIONS OF PARAGRAPH 12A TO STEP 4 OF F-10 UPON YOUR PROMOTION TO THAT GRADE.

IN RESPONSE TO OUR REQUEST TO THE DIRECTOR OF CIVILIAN PERSONNEL, HEADQUARTERS, U.S. AIR FORCE, FOR A REPORT REGARDING YOUR CLAIM, WE HAVE BEEN ADVISED THAT YOUR "RATE OF PAY UPON PROMOTION TO THE F-10 POSITION ON 26 JULY 1959 SHOULD HAVE BEEN ESTABLISHED AT THE FIRST STEP RATE OF THAT GRADE WHICH EITHER EQUALED OR EXCEEDED THE CURRENT RATE FOR GRADE F-9, STEP (THE GRADE EQUIVALENT TO THE WF-9, STEP 4, FROM WHICH HE WAS DEMOTED AS A RESULT OF REDUCTION IN FORCE ON 28 DECEMBER 1958).' SINCE THE SALARY RATE FOR GRADE F-9, STEP 4, WAS $3.70 AT THE TIME OF YOUR PROMOTION, THE FIRST STEP RATE OF GRADE F-10 WHICH EQUALED OR EXCEEDED THE SALARY RATE OF GRADE F-9, STEP 4, WAS STEP 3 OF GRADE F-10, WHICH THEN HAD A SALARY RATE OF $3.74 PER HOUR. IN VIEW THEREOF, AND THE FACT THAT PROMOTION TO GRADE F-10, STEP 3, FROM GRADE F-8, STEP 4, YIELDED AN INCREASE IN COMPENSATION GREATER THAN THE AMOUNT OF THE STEP INCREASES IN THE GRADE FROM WHICH YOU WERE PROMOTED, WE MUST CONCLUDE THAT UNDER APPLICABLE AIR FORCE REGULATIONS NO AUTHORITY EXISTED FOR SETTING YOUR SALARY RATE AT F-10, STEP 4, UPON PROMOTION.

WHILE THE SETTING OF THE SALARY RATE AT F-10, STEP 4, RATHER THAN AT STEP 3 WAS THE RESULT OF AN ADMINISTRATIVE ERROR, AND THE POSITION WAS ACCEPTED BY YOU ONLY ON THE ASSURANCE THAT YOU PROPERLY COULD AND WOULD BE PAID AT GRADE F-10, STEP 4, THESE CONDITIONS AFFORD NO GROUND FOR ENTITLEMENT IN THE POSITION TO A SALARY RATE UNAUTHORIZED UNDER THE GOVERNING REGULATIONS. IT IS WELL ESTABLISHED THAT ALL MONIES PAID FOR SALARY IN EXCESS OF THE LAWFUL AMOUNT MUST BE REFUNDED TO THE GOVERNMENT EVEN THOUGH AN EMPLOYEE IS NOT AT FAULT IN ACCEPTING THE ERRONEOUS PAYMENTS. 31 COMP. GEN. 177. CONSEQUENTLY, YOUR CLAIM FOR REFUND OF THE AMOUNTS COLLECTED FROM YOU AS ..END :