B-181788, NOV 11, 1974

B-181788, NOV 11, 1974

CLAIMANT'S CONTENTION THAT AIR FORCE WAS UNJUSTLY ENRICHED BECAUSE, FOR ALMOST THREE YEARS, HE ASSUMED DUTIES RESERVED FOR OFFICERS BUT RECEIVED COMPENSATION ONLY IN ENLISTED PAY GRADES IS REJECTED, SINCE MILITARY MEMBERS ARE ONLY ENTITLED TO PAY AND ALLOWANCES AUTHORIZED BY STATUTE FOR THEIR GRADE AND YEARS OF SERVICE, NOT ACCORDING TO THEIR DUTIES, UNDER 5 U.S.C. 5535(B)(1) AND 5536. ADDITIONALLY, THERE WERE NOT SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO WARRANT SUBMISSION OF THE CLAIM BY GAQ TO CONGRESS UNDER MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.

CLAIM FOR ARREARS OF PAY FOR PERFORMING DUTIES RESERVED FOR OFFICERS - STEVEN R. NOLD.:

THIS ACTION IS IN RESPONSE TO THE CLAIM OF MR. STEVEN R. NOLD PURSUANT TO THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236, IN WHICH HE ASSERTS THAT THE UNITED STATES AIR FORCE HAS BEEN UNJUSTLY ENRICHED IN THE AMOUNT OF $8,500 BY ITS USE OF HIS PROFESSIONAL TRAINING AND SERVICES AND ITS FAILURE TO COMPENSATE HIM IN OFFICER PAY GRADES 0-1 AND 0-2.

MR. NOLD STATES THAT, WILE BEING RECRUITED, HE WAS TOLD HIS ACADEMIC BACKGROUND, A B.S. DEGREE IN PSYCHOLOGY, WOULD BE UTILIZED BY THE AIR FORCE. MOREOVER, HE INDICATES THAT A RECRUITER LED HIM TO BELIEVE HE WOULD BE PLACED IN OFFICER CANDIDATE SCHOOL (OCS) APPROXIMATELY SIX MONTHS AFTER HIS ENTRY INTO ACTIVE MILITARY SERVICE.

DURING HIS BASIC TRAINING, IT APPEARS THAT MR. NOLD WAS GIVEN A "BY PASS SPECIALTY" AS A PSYCHIATRIC CLINIC TECHNICIAN AND A PRIMARY CLASSIFICATION OF MEDICAL CORPSMAN. HOWEVER, HE STATES THAT HE WAS TOLD NO OCS OPENINGS WERE ANTICIPATED FOR AT LEAST TWO YEARS. CONSEQUENTLY, HE REMAINED AN ENLISTED MAN WHILE WORIKING AS A CLINCIAL PSYCHOLOGIST FROM OCTOBER 2, 1970, TO SEPTEMBER 14, 1973, THE DATE OF HIS DISCHARGE FROM ACTIVE DUTY.

MR. NOLD CONTENDS THAT THE AIR FORCE WAS UNJUSTLY ENRICHED BECAUSE THE DUTIES HE ASSUMED IN HIS SPECIALTY AS A PSYCHIATRIC CLINIC TECHNICIAN WERE REQUIRED TO BE PERFORMED BY COMMISSIONED OFFICERS, AND YET HE WAS COMPENSATED FOR HIS SERVICES ONLY IN ENLISTED PAY GRADES.

IN THE CASE OF WARD V. UNITED STATES, 65 F. SUPP. 9 (E.D. ARK. 1946); AFFIRMED, 158 F.2D 499 (8TH CIR. 1947); CERT. DENIED, 331 U.S. 844 (1947), WHICH INVOLVED AN ALMOST IDENTICAL FACTUAL SITUATION, RELIANCE WAS PLACED UPON THE PROVISIONS OF 5 U.S.C. 69 AND 70 (NOW 5 U.S.C. 5535(B)(1) AND 5536), IN DENYING A YEOMAN EXCESS COMPENSATION OVER THAT AUTHORIZED FOR HIS RANK. THE PRESENT STATUTORY PROVISIONS ARE AS FOLLOWS:

"SEC. 5535. EXTRA PAY FOR DETAILS PROHIBITED

"(B) AN EMPLOYEE MAY NOT RECEIVE -

"(1) ADDITIONAL PAY OR ALLOWANCES FOR PERFORMING THE DUTIES OF ANOTHER EMPLOYEE ***

"SEC. 5536. EXTRA PAY FOR EXTRA SERVICES PROHIBITED

"AN EMPLOYEE OR A MEMBER OF A UNIFORMED SERVICE WHOSE PAY OR ALLOWANCE IS FIXED BY STATUTE OR REGULATION MAY NOT RECEIVE ADDITIONAL PAY OR ALLOWANCE FOR THE DISBURSEMENT OF PUBLIC MONEY OR FOR ANY OTHER SERVICE OR DUTY, UNLESS SPECIFICALLY AUTHORIZED BY LAW AND THE APPROPRIATION THEREFOR SPECIFICALLY STATES THAT IT IS FOR THE ADDITIONAL PAY OR ALLOWANCE."

THE LOWER COURT AND COURT OF APPEALS IN THE WARD CASE MADE IT CLEAR THAT COMPENSATION OF GOVERNMENT EMPLOYEES IS TO BE BASED UPON GRADE, NOT DUTIES PERFORMED, BY SAYING:

"'OBVIOUSLY, THE PURPOSE OF CONGRESS, AS DISCLOSED BY THESE SECTIONS, WAS THAT EVERY OFFICER OR REGULAR EMPLOYEE OF THE GOVERNMENT SHOULD BE LIMITED IN HIS COMPENSATION TO SUCH SALARY OR FEES AS WERE BY LAW SPECIFICALLY ATTACHED TO HIS OFFICE OR EMPLOYMENT. ***' 65 F. SUPP. AT 11-12.

"*** HIS RATING FIXED HIS STATUS AND HIS PAY. *** HE WAS A YEOMAN DOING THE WORK OF A TITLE ATTORNEY BECAUSE HE WAS ORDERED TO DO SO. *** WHILE WARD INSISTS THAT THE LEGAL SERVICES WHICH HE RENDERED HAD NO RELATION TO THE DUTIES OF A YEOMAN, IT IS OUR OPINION THAT, UNDER THE FACTS, THESE SERVICES ARE TO BE REGARDED AS HAVING BEEN ADDED, BY SUPERIOR AUTHORITY, TO HIS REGULAR DUTIES." 158 F.2D AT 502.

THE RULE THAT A GOVERNMENT EMPLOYEE IS ENTITLED ONLY TO THE COMPENSATION OF THE POSITION TO WHICH WHICH HE HAS BEEN DULY APPOINTED, NOTWITHSTANDING THE FACT THAT HE MAY BE ASSIGNED THE DUTIES OF A HIGHER PAY GRADE, HAS BECOME WELL ESTABLISHED SINCE THE WARD DECISION WAS HANDED DOWN. SEE GANSE V. UNITED STATES, 180 CT. CL. 183 (1967); PRICE V. UNITED STATES, 112 CT. CL. 198 (1948). SEE ALSO 41 COMP. GEN. 497 (1962).

THEREFORE, BASED ON THE ABOVE, IT IS OUR VIEW THERE IS NO LEGAL LIABILITY ON THE PART OF THE GOVERNMENT TO PAY MR. NOLD COMPENSATION IN THE FORM OF MILITARY PAY AND ALLOWANCES IN EXCESS OF THAT WHICH HE WAS ENTITLED TO RECEIVE BY VIRTUE OF HIS ENLISTED GRADE AND YEARS OF SERVICE IN THE AIR FORCE DURING THE PERIOD IN QUESTION.

REGARDING MR. NOLD'S CLAIM UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF 1928, THAT ACT PROVIDES THAT WHEN A CLAIM IS FILED WITH THIS OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED BY USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH, IN OUR JUDGMENT, CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF CONGRESS, IT SHOULD BE SUBMITTED TO CONGRESS WITH OUR RECOMMENDATIONS. THE REMEDY IS AN EXTRAORDINARY ONE, AND ITS USE IS LIMITED TO UNUSUAL AND COMPELLING CIRCUMSTANCES.

THE CASES THIS OFFICE HAS REPORTED FOR THE CONSIDERATION OF CONGRESS HAVE INVOLVED EQUITABLE CIRCUMSTANCES OF AN EXCEPTIONAL NATURE WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM, SINCE TO REPORT TO CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL TREATMENT.

CLEARLY, THE AIR FORCE IS NOT UNJUSTLY ENRICHED WHEN IT MAKES EFFICIENT USE OF ITS MEMBERS' ABILITIES AS IT CONTRACTS ONLY TO PAY TO THEM WAGES COMMENSURATE WITH THEIR RANK AND YEARS OF SERVICE AS SPECIFICALLY AUTHORIZED BY LAW. NUMEROUS INDIVIDUALS HAVE SIMILARILY SERVED IN THE ARMED FORCES AND HAVE BEEN COMPENSATED FOR THE RANK THEY HELD RATHER THAN THE SERVICES THEY RENDERED.

IN THE CIRCUMSTANCES, WE DO NOT CONSIDER THIS CASE AS ONE WHICH INVOLVES SUCH UNUSUAL ELEMENTS OF EQUITY AS WOULD WARRANT ITS SUBMISSION TO CONGRESS UNDER THE MERITORIOUS CLAIMS ACT.