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B-160178 JANUARY 27, 1969

B-160178 Jan 27, 1969
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The claim is for relief from liability to the United States and for repayment of the amount remitted by the claimant or withheld from amounts otherwise due him toward liquidation of the amount for which he is liable as an employee of the Department of the Army. Cochran tentatively was selected for the position pending receipt of a security clearance and report of his medical fitness and on that date was orally so advised. He was informed that the clearance would take about 4 to 6 weeks. This appointment was his initial employment by the Government. The claimant was notified by the Department of the Army of his selection as Claims Investigator ans was asked to report for duty on April 29. 1964 was appointed to the position of Claims Investigator.

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B-160178 JANUARY 27, 1969

To the Congress of the United States:

Prusuant to the act of April 10, 1928, 45 Stat. 413, 31 U.S.C. 236, we submit the following report and recommendation on a claim by Mr. Corbie F. Cochran, 6148 Barberry Hollow, Columbus, Ohio 43213.

The claim is for relief from liability to the United States and for repayment of the amount remitted by the claimant or withheld from amounts otherwise due him toward liquidation of the amount for which he is liable as an employee of the Department of the Army. The indebtedness of the claiment stemmed from an advancement in grade and salary in contravention of section 1310 of the Supplemental Appropriation Act of 1952, 65 Stat. 736, as amended, otherwise known as the Whitten Amendment, 5 U.S.C. 3101, footnote.

The claimant on December 21, 1963, applied for appointment to the position of Claims Investigator, grade GS-9, then vacant, with the Department of the Army, United States Army Transportation Center, Fort Eustis, Virginia. On March 4,1964, Mr. Cochran tentatively was selected for the position pending receipt of a security clearance and report of his medical fitness and on that date was orally so advised. Also, he was informed that the clearance would take about 4 to 6 weeks.

Pending confirmation of his appointment to the Department of the Army, Mr. Cochran on April 13, 1964 accepted a carreer-conditional appointment to a grade GS-6, $5,235 per annum, position with the Department of Justice, Bureau of Prisons. This appointment was his initial employment by the Government.

On April 21, 1964, the claimant was notified by the Department of the Army of his selection as Claims Investigator ans was asked to report for duty on April 29,1964. Mr. Cochran, therefore, resigned from his employment with the Department of Justice, effective April 24, 1964, after 12 days employment, and on April 29, 1964 was appointed to the position of Claims Investigator, grad GS-9, $7,030 per annum, with the Department of the Army. On May 9, 1965, he received a within-grade increase to GS-9, step 2, $7,465 per annum.

Section 1310 of the Supplemental Appropriation Act of 1952, above, in pertinent part reads as follows:

"(c) The Civil Service Commission shall make full use of ints authority to prevent excessively rapid promotions in the competitive civil service ***. No person in any executive department or agency whose position is subject to the Classification Act of 1949, as amended, shall be promoted or transferred to a higher grade subject to such Act without having served at least one year in the next lower grade. ***" (Emphasis supplied.)

Section 300.601(a), FRM Supp. 990-1, of the regulations of the United States Civil Service Commission implementing the time in grade restrictions of the Whitten Amendment provides:

"This subpart applies to any advancement form a competitive or excepted position that is subject to the Classification Act of 1949, as amended, to a competitive position tht is subject to that act, by:

"(3) Any type of appointment under this chapter (including reemployment and reinstatement) made within 1 year after separation from a nontemporary appointment." (Emphasis supplied.)

Therefore, the advancement of Mr. Cochran to grade GS-9 form grade GS-6 upon his reemployment with the Department of the Army was in contravention of both the statute and applicable regulations.

The Commanding Officer, Fort Eustis, reports that the claimant made known at the time of his reemployment by the Army his brief employment with the Department of Justice, but that this information was overlooked in fixing Mr. Cochran's grade and rate of compensation as a result of administrative error.

The error was not discovered until sometime in May 1965. On June 1, 1965, the Deputy Chief of Staff for Personnel, Department of the Army, directed that Mr. Cochran's appointment be corrected effective April 29, 1964 to show his entrance grade at GS-6, step 1, $5,235 per annum, with statutory salary increase, effective July 5, 1964, to $5,505 and step increase to grade GS-6, step 2, $5,690 per annum, on May 9,1965. The Deputy Chief of Staff also directed that the resulting overpayment of $2,035.52 be collected from the claimant. On June 20,1965, Mr. Cochran, having met the year in grade requirement of the Whitten Amendment, was promoted to grade GS-7, step 2, $6,250. Both actions were accomplished by personnel journals dated July, 30, 1965.

On August 3, 1965, the Secretary of the Army requested the United States Civil Service Commission to grant relief under that proviso of the Whitten Amendment which reads:

"***Provided further, That, notwithstanding the provisions hereof, and in order to avoid undue hardship or inequity, the Civil Service Commission, when requested by the head of the agency involved, may authorize promotion in individual cases of meritorious nature."

Pursuant to that authority the Civil Service Commission authorized Mr. Cochran's promotion to the grade GS-9, step 1, position, $7,220 per annum, effective August 9, 1965. The Commission's authority under the above- quoted provision does not cover retroactive relief and thus the claimant, notwithstanding that he performed the duties of the grade GS-9 position for over 1 year, remains indebted to the Government in the sum of $2,05.52 less repayments made by him or withheld from other amounts due him.

Regarding the claimant's performance of the duties of the Claim Investigator position the Commanding Officer at Fort Eustis commented, in part, as follows:

"***Because of Mr. Cochran's investigative ability, the Post Claim Officer, this installation, has been able to effect an overall savings and collection by the Government in the amount of $18,677.47, which could not have been accomplished had the services of Mr. Cochran not been available to this office."

"3. To reduce Mr. Cochran from his present grade of GS-9, because of an administrative error, to a grade of GS-6/1, after he has performed his present duties in this grade in an outstatnding, conscientious, and efficient manner and to require him jto repay the difference between the salary of a GS-9 and a GS-6 would result in an undue hardship and an inequity to Mr. Cochran in that it would penalize him for something over which he had no control and which was not due to any fault of his own."

It has not been our practice to report to the Congress under the act of April 10, 1928, claims which cannot be paid because of a prohibitory statute and heretofore we have not so reported on claims arising under the Whitten Amendment.

In this case, however, there are several factors which we believe warrant making an exception. First, the employment accepted by the claimant during the period April 13 to24, 1964--some 12 days--with the Department of Justice, pending completion of his security clearance by the Department of the Army, was his first employment with the United States and undoubtedly was accepted by the claimant without actual knowledge of provisions of the Whitten Amendment and the adverse effect such statute would have upon his contemplated employment with the Department of the Army. Second, Mr. Cochran actually and successfully performed the duties of the grade GS-9 position for over a year as evidenced by the report of his commanding officer. Third, the United States Civil Service Commission, after review of the claimant's case, accorded him that prospective equitable relief which is provided by the Whitten Amendment as an exception to its time in grade requirements and authorized his promotion to grade GS-9, effective August 9, 1965.

The relief which we propose is intended to validate the GS-9 appointment effective April 29,1964. Thus, the employee would be held and considered as holding the GS-9 position during the entire period April 29, 1964, to August 8, 1965. The in-grade advancement to GS-9, step 2, of May 9, 1965, would, therefore, be valid and a new waiting period in GS-9 for a step increase would run from that date.

If the Congress should concur in our recommendation in this case, our opinion is that enactment of a statute in substantially the following language will accomplish the relief recommended:

"Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That notwithstanding section 1310 of the Supplemental Appropriation Act, 1952, as amended, 5 U.S.C. 3101, footnote, the advancement in grade of Corbie F. Cochran, Jr., an employee of the Department of the Army, Fort Eustis, Virginia, from GS- 6 to GS-9, effective April 29, 11964, shall be deemed to have been in conformity with law, such advancement in contravention of said section1310, having been made as a result of administrative error without fault or knowledge of its illegality on the employee's part."

"Section 2(a). That the said Corbie F. Cochran, Jr., is relieved of any liability to the United States arising out of the advancement described in section 1 of this Act. In the audit and settlement of the accounts of any certifying or disbursing officer of the United States, credit shall be given for the amount for which liability is relieved by this subsection."

"(b) The Secretary of the Treasury is authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to the said Corbie F. Cochran, Jr., an amount equal to the aggregate of the amounts paid by him or withheld from amounts otherwise due him in partial liquidation of his liability to the United States referred toin subsection (a) of this section. No part of the amount appropriated in this Act shall be paid or delivered to or received by any agent or attorney on account of services rendered in connection with this claim, and the same shall be unlawful, any contract to the contrary notwithstanding. Any person violating the provisions of this Act shall be deemed guilty of a misdameanor and upon conviction thereof shall be fined in any sum not exceeding $1,000."

We are aware of lthe fact that the matter could be handled under Public Law 90-616, approved October 21, 1968, which provides that the Comptroller General may waive overpayments of pay aggregating more than $500 where there is no indication of fraud, misrepresentation, fault or lack of good faith on the part of the employee or any other person having an interest in the waiver of the claim. However, if the matter were handled under Public Law 90-616 the relief for consideration would only be the indebtedness of $2,035.52. It would not result in the retroactive restoration of the employee to his previous status as a GS-9 and would result in a continuous loss of salary because the waiting period for a within-grade increase in the GS-9 position would begin as of August 9, 1965, rather than April 29, 1964.

R. F. Keller Acting Comptroller of the United States

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