B-153945, MAR. 19, 1965

B-153945, MAR. 19, 1965

TO MR. EUGENE J. BENNETT:

WE REFER TO YOUR LETTER OF FEBRUARY 25, 1965, CONCERNING YOUR DEBT TO THE UNITED STATES WHICH AROSE AS A RESULT OF YOUR PROMOTION FROM GRADE GS-10 TO GRADE GS-12 EFFECTIVE MAY 12, 1957.

OUR UNDERSTANDING OF THE FACTS INVOLVED IN YOUR PROMOTION AND THE REASONS FOR OUR DETERMINATION THAT THE PROMOTION WAS ILLEGAL ARE AS FOLLOWS: ON FEBRUARY 5, 1957, YOU WERE SERVING IN THE POSITION OF SUPERVISORY AMMUNITION INSPECTOR (LOADING) GS-10 (GS-1876-10), DETAILED TO THE SAME TYPE OF POSITION IN GRADE GS-12 (GS-1876-12). AFTER THAT DATE YOU COULD HAVE BEEN PROMOTED TO GRADE GS-12 THERE BEING NO GRADE GS-11 POSITION IN THE "NORMAL LINE OF PROMOTION" EXCEPT FOR THE FACT THAT SUCH PROMOTION WAS PRECLUDED BY A QUALIFICATION REQUIREMENT PROMULGATED BY THE CIVIL SERVICE COMMISSION UNDER CHAPTER X-1, SECTIONS 7 AND 10 OF THE FEDERAL PERSONNEL MANUAL THEN IN FORCE TO THE EFFECT THAT EMPLOYEES WERE NOT QUALIFIED FOR PROMOTION TO GS 1876-12 UNLESS THEY HAD AT LEAST ONE YEAR OF EXPERIENCE IN THE NEXT LOWER GRADE--- GS-1876-11. THAT EXPERIENCE REQUIREMENT COULD HAVE BEEN WAIVED BY THE CIVIL SERVICE COMMISSION BUT NO REQUEST FOR SUCH WAIVER WAS INITIATED AT THAT TIME.

BEFORE YOU WERE PROMOTED A CLASSIFICATION SURVEY DATED APRIL 4, 1957, RECOMMENDED CHANGES IN THE ORGANIZATIONAL STRUCTURE OF THE OFFICE IN WHICH YOU WORKED. UNDER THE RECOMMENDED STRUCTURE THE GS 1876-12 POSITION WAS CHANGED TO GS-1901-12, SUPERVISORY INSPECTOR (ORDNANCE EQUIPMENT AND AMMUNITION) AND THE TWO GS-1876-10 POSITIONS WERE CHANGED TO GS-1901-11. ON MAY 3, 1957, EFFECTIVE MAY 12, YOU WERE PROMOTED FROM THE GS-1876-10 POSITION OF THE OLD ORGANIZATIONAL STRUCTURE TO THE GS-1901-12 POSITION OF THE NEW ORGANIZATIONAL STRUCTURE.

THE PROVISIONS OF THE "WHITTEN AMENDMENT," 5 U.S.C. 43 NOTE, PROHIBIT THE PROMOTION OF AN EMPLOYEE SUBJECT TO THE CLASSIFICATION ACT OF 1949, TO A HIGHER GRADE WITHOUT HIS HAVING SERVED ONE YEAR IN THE NEXT LOWER GRADE. AN EXCEPTION TO THAT RULE IS AUTHORIZED TO PERMIT PROMOTIONS OF TWO GRADES IN ONE YEAR "WHEN THERE IS NO POSITION IN THE NORMAL LINE OF PROMOTION IN THE GRADE IMMEDIATELY BELOW THAT OF THE POSITION TO BE FILLED.' HOWEVER, IN THE CASE OF CHARGES IN ORGANIZATIONAL STRUCTURE, REGULATIONS ISSUED PURSUANT TO THE "WHITTEN AMENDMENT" PROVIDE THAT THE ,NORMAL LINE OF PROMOTION" EXCEPTION MUST BE APPLIED WITHIN THE NEW ORGANIZATIONAL STRUCTURE--- NOT UNDER THE OLD STRUCTURE OR A COMBINATION OF THE OLD AND THE NEW. SEE PAGE X-1 32.04, FEDERAL PERSONNEL MANUAL THEN IN FORCE. SINCE THERE WAS A GS 11 POSITION IN THE ORGANIZATION AFTER THE NEW STRUCTURE WAS ESTABLISHED THE "WHITTEN AMENDMENT" EXCEPTION REGARDING THE NORMAL LINE OF PROMOTION WAS NOT FOR APPLICATION IN YOUR CASE AND YOU SHOULD HAVE BEEN PROMOTED ONLY TO GRADE GS-11 ON MAY 12, 1957. THE EXCEPTION TAKEN BY THE DEPARTMENT OF THE ARMY, EASTERN AREA CIVILIAN PERSONNEL OFFICE IN 1960 TO YOUR PROMOTION AS IT WAS EFFECTED ON MAY 12, 1957, APPEARS TO HAVE BEEN PROPER.

YOUR ENTITLEMENT TO COMPENSATION WAS RECOMPUTED ON THE BASIS OF A PROMOTION EFFECTIVE MAY 12, 1957, TO GRADE GS-11 INSTEAD OF GRADE GS 12, AND UPON A FURTHER PROMOTION TO GRADE GS-12 ON MAY 12, 1958. SINCE YOUR COMPENSATION WAS REDUCED ON AUGUST 23, 1959, FOR OTHER REASONS NO OVERPAYMENTS WERE MADE AFTER THAT DATE.

WE COMPUTE THE OVERPAYMENT INVOLVED AS FOLLOWS:

TABLE

MAY 12, 1957, TO MAY 12, 1958, PAID $291.15 BIWEEKLY.

SHOULD HAVE BEEN PAID $245.77 BIWEEKLY. RESULTING

OVERPAYMENT OF $45.38 FOR 26 PAY PERIODS $1,179.88

RETROACTIVE COMPENSATION ADJUSTMENT UNDER "FEDERAL

EMPLOYEES SALARY INCREASE ACT OF 1958" FOR

PERIOD JANUARY 5 TO JUNE 21, 1958, PAID $29.23

PER PAY PERIOD. SHOULD HAVE BEEN PAID $24.61 PER

PAY PERIOD FROM JANUARY 5 TO MAY 12, 1958.

RESULTING OVERPAYMENT OF $4.62 FOR 9 PAY PERIODS. 41.58

MAY 12 TO NOVEMBER 9, 1958, NO ADJUSTMENT.

NOVEMBER 9, 1958, TO AUGUST 23, 1959, PAID $330.40

BIWEEKLY. SHOULD HAVE BEEN PAID $320.80 BIWEEKLY.

RESULTING OVERPAYMENT OF $9.60 FOR 20 1/2 PAY PERIODS 196.80

$1,418.26

THE DEPARTMENT OF THE ARMY ARRIVED AT A DIFFERENT AMOUNT IN COMPUTING YOUR DEBT BECAUSE THEY ALLOWED A SETOFF OF AMOUNTS OTHERWISE DUE YOU FOR UNDERPAYMENTS OF COMPENSATION (APPROXIMATELY $28) AND BECAUSE THEY MADE CERTAIN ERRORS IN COMPUTATION PRIMARILY IN THAT THE PERIOD JANUARY 5 TO MAY 12, 1958, WAS COUNTED AS 8 PAY PERIODS INSTEAD OF 9.

WE HAVE NO AUTHORITY TO WAIVE COLLECTION OF AN OVERPAYMENT OF SALARY SUCH AS HERE INVOLVED REGARDLESS OF THE FACT THAT SUCH OVERPAYMENT MAY HAVE RESULTED FROM ADMINISTRATIVE ERROR. THEREFORE, YOU WILL BE REQUIRED TO REFUND THE OVERPAYMENT (LESS $28) UNLESS A BILL SIMILAR TO H.R. 5091, 88TH CONGRESS, IS INTRODUCED IN AND PASSED BY THE 89TH CONGRESS. WE ASSUME THAT IF RELIEF IS GRANTED BY LEGISLATION IN THE MANNER PROPOSED THE AMOUNT OF $28 WILL BE PAID TO YOU.

THE DEPARTMENT OF THE ARMY HAS PRIMARY RESPONSIBILITY FOR COLLECTING THE OVERPAYMENT AND THAT DEPARTMENT HAS THE PAY RECORDS NECESSARY TO PROVIDE YOU MORE PARTICULAR INFORMATION REGARDING THE EXCESS COMPENSATION YOU WERE PAID.