B-164102, JUN. 12, 1968

B-164102, JUN. 12, 1968

TO MR. EDD M. SWING:

THIS IS IN REPLY TO YOUR LETTER OF MARCH 20, 1968, REGARDING AN OVERPAYMENT OF COMPENSATION RECEIVED BY YOU AS AN EMPLOYEE OF THE CLINTON- SHERMAN AIR FORCE BASE, OKLAHOMA.

THE REPORT OF THE AGENCY SHOWS THAT YOU WERE CHANGED FROM THE WAGE BOARD POSITION OF COMMISSARY STOCK HANDLER, W-7652-04, STEP 3, $2.18 PER HOUR ($4,534 PER ANNUM), TO A CLASSIFICATION ACT POSITION AS SUPPLY CLERK, GS- 2, STEP 7, AT $4,430 PER ANNUM. THIS DEMOTION WAS CARRIED OUT ON SEPTEMBER 13, 1964, PURSUANT TO YOUR SIGNED REQUEST DATED SEPTEMBER 11, 1964.

PRIOR TO THE POSITION CHANGE YOU HAD RECEIVED WAGE BOARD SCHEDULE INCREASES WHILE SERVING AS W-4, STEP 3, DURING THE THREE-YEAR PERIOD BEFORE YOUR CHANGE TO GS-2, STEP 7, ON SEPTEMBER 13, 1964, AS FOLLOWS:

15 OCTOBER 1961 - $2.03 TO $2.10 PER HOUR (AN INCREASE OF $145.60 PER ANNUM).

11 NOVEMBER 1962 - $2.10 TO $2.14 PER HOUR (AN INCREASE OF $83.20PER ANNUM).

27 OCTOBER 1963 - $2.14 TO $2.18 PER HOUR (AN INCREASE OF $83.20 PER ANNUM).

ON SEPTEMBER 11, 1964, EFFECTIVE SEPTEMBER 13, 1964, YOU WERE ADVANCED FROM GS-2, STEP 7, AT $4,430 PER ANNUM TO GS-2, STEP 8, $4,555 PER ANNUM ON THE BASIS THAT YOUR LAST EQUIVALENT INCREASE WAS ON JULY 23, 1961, MORE THAN THREE YEARS EARLIER. ON SEPTEMBER 15, 1967, IT WAS DETERMINED THAT THE WITHIN-GRADE INCREASE TO STEP 8 GIVEN TO YOU ON SEPTEMBER 11, 1964, WAS IN ERROR AND THAT SUBSEQUENT INCREASES BY OPERATION OF LAW BASED ON THAT INCREASE WERE ALSO IN ERROR. ACCORDINGLY, CORRECTIVE ACTION TO COLLECT THE OVERPAYMENT OF $243 WAS INITIATED AND YOUR PER ANNUM RATE WAS REDUCED ACCORDINGLY FROM $4,856 TO $4,723.

IT IS YOUR VIEW THAT YOUR RATE UPON CHANGE TO A CLASSIFICATION ACT POSITION ON SEPTEMBER 11, 1964, SHOULD HAVE BEEN SET AT A RATE WHICH WAS AT LEAST EQUAL TO YOUR EXISTING RATE ($4,534) AS PROVIDED IN AFR 40-521, PARAGRAPH 4B (1), EFFECTIVE NOVEMBER 2, 1965. YOU ALSO CONSIDER THAT YOU WERE ENTITLED TO THE SIMULTANEOUS WITHIN-GRADE INCREASE TO GS-2, STEP 8, PROVIDED ON SEPTEMBER 11, 1964, ON THE GROUND THAT YOU HAD SERVED FROM JULY 23, 1961, IN A LOWER STEP.

WITH RESPECT TO SETTING RATES OF PAY FOR CLASSIFICATION ACT POSITIONS INVOLVING DEMOTIONS PARAGRAPH 3D OF SECTION AF 5211, AFM 40 1, IN EFFECT AT THE TIME OF YOUR DEMOTION PROVIDED:

"IF AN EMPLOYEE IS CHANGED TO LOWER GRADE SALARY BECAUSE HE REQUESTED THE CHANGE FOR HIS OWN PERSONAL CONVENIENCE, HIS RATE OF PAY IS ESTABLISHED AT A RATE THAT DOES NOT EXCEED HIS EXISTING RATE.'

YOUR EXISTING ANNUAL RATE PRIOR TO THE DEMOTION WAS $4,534. THE NEAREST GS-2 STEP WHICH DID NOT EXCEED THE ANNUAL RATE WAS STEP 7 AT $4,430 PER ANNUM. GS-2, STEP 8, AT $4,555 PER ANNUM WOULD HAVE EXCEEDED YOUR PREVIOUS ANNUAL RATE AND WOULD NOT HAVE BEEN AUTHORIZED UNDER THE ABOVE REGULATION. THE REGULATIONS APPLICABLE TO DEMOTIONS OF UNGRADED EMPLOYEES AT THAT TIME CONTAINED A SIMILAR RULE:

"IF AN EMPLOYEE IS DEMOTED AT HIS OWN REQUEST FOR HIS OWN PERSONAL BENEFIT OR CONVENIENCE, HIS RATE OF PAY IS ESTABLISHED AT A RATE OF PAY NOT EXCEEDING HIS EXISTING RATE.' PARAGRAPH 4B (5), AF 5212, AFM 40-1, NOVEMBER 1, 1963.

INSOFAR AS YOUR STEP INCREASE TO STEP 8 IS CONCERNED, PARAGRAPH 5, AFR 40 -527, DATED MARCH 21, 1963, IN EFFECT AT THE TIME OF YOUR POSITION CHANGE PROVIDED AS FOLLOWS:

"5. CONDITIONS REQUIRING THE BEGINNING OF A NEW WAITING PERIOD. THE WAITING PERIOD FOR A WITHIN-GRADE INCREASE BEGINS WITH THE EMPLOYEE'S INITIAL APPOINTMENT IN THE FEDERAL SERVICE. THEREAFTER A NEW WAITING PERIOD BEGINS WHENEVER:

"A. THE EMPLOYEE RECEIVES AN EQUIVALENT INCREASE. AN EQUIVALENT INCREASE IS AN INCREASE IN BASIC COMPENSATION EQUAL TO OR GREATER THAN THE AMOUNT OF THE DIFFERENCE BETWEEN THE STEP RATE IN WHICH THE EMPLOYEE IS SERVING, OR HAS SERVED DURING THE WAITING PERIOD, AND THE NEXT HIGHER STEP RATE OF THAT GRADE. WHEN AN EMPLOYEE RECEIVES ONE OR MORE INCREASES DURING HIS CURRENT WAITING PERIOD, NO ONE OF WHICH IS AN EQUIVALENT INCREASE, THE INCREASES ARE ADDED TOGETHER AND WHEN THE TOTAL EQUALS OR EXCEEDS THE DIFFERENCE BETWEEN THE STEP RATES OF THE EMPLOYEE'S GRADE, IT CONSTITUTES AN EQUIVALENT INCREASE. THE DATE OF THE LAST INCREASE ADDED IS THE DATE OF THE EQUIVALENT INCREASE. * * *"

IN NOVEMBER 1962 YOU HAD RECEIVED AN ANNUAL INCREASE OF $83.20 AND THE SAME INCREASE ON OCTOBER 27, 1963. THE STEP INCREMENTS IN GS-2 AT THE TIME OF THE CHANGE WERE $125. UNDER THE RULE SET FORTH ABOVE, THESE INCREASES WHEN ADDED TOGETHER RESULTED IN AN EQUIVALENT INCREASE IN PAY AS OF OCTOBER 27, 1963, AND THE WAITING PERIOD FOR ADVANCEMENT TO STEP 8 WAS 156 WEEKS FROM THAT TIME. ACCORDINGLY, YOUR ADVANCEMENT FROM STEP 7 TO STEP 8 AT THE TIME OF YOUR POSITION CHANGE IN 1964 WAS IMPROPER.

FOR THE REASONS SET FORTH ABOVE, THE ACTION OF THE AGENCY IN COLLECTING THE OVERPAYMENT STEMMING FROM THIS ERRONEOUS ACTION WAS IN ACCORDANCE WITH EXISTING LAW AND REGULATIONS.