A-82335, FEBRUARY 3, 1937, 16 COMP. GEN. 720

A-82335, FEBRUARY 3, 1937, 16 COMP. GEN. 720

ADMINISTRATIVE FURLOUGHS - DISCHARGES UNDER SUBSEQUENT APPOINTMENTS, TEMPORARY AND PERMANENT - EFFECT ON TONTINE REFUNDS THE INVOLUNTARY SEPARATION FROM THE SERVICE OF AN EMPLOYEE AT THE END OF AN ADMINISTRATIVE FURLOUGH PERIOD BEING WITHOUT EFFECT WHERE A PERMANENT APPOINTMENT WAS MADE IN ANOTHER DEPARTMENT DURING THE FURLOUGH PERIOD--- THE APPOINTMENT OF ITSELF HAVING TERMINATED THE FURLOUGH STATUS--- THE EMPLOYEE CONCERNED, WHO WAS SUBSEQUENTLY DISCHARGED WITH PREJUDICE, IS NOT ENTITLED TO THE TONTINE PORTION OF RETIREMENT DEDUCTIONS NOT PREVIOUSLY RETURNED TO HIM, HIS ACCREDITED SERVICE BEING FOR CONSIDERATION AS AN ENTIRETY FOR THIS PURPOSE AND THE CHARACTER OF THE LAST SEPARATION BEING SUCH AS TO BAR SUCH PAYMENT. AS A TEMPORARY APPOINTMENT MAY, BUT DOES NOT NECESSARILY, TERMINATE AN ADMINISTRATIVE FURLOUGH STATUS, THE QUESTION WHETHER SUCH APPOINTMENT TERMINATES SUCH STATUS FOR RETIREMENT DEDUCTION TONTINE REFUNDS MAY NOT BE MADE THE MATTER OF A GENERAL RULE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, FEBRUARY 3, 1937:

YOUR LETTER OF DECEMBER 8, 1936, IS AS FOLLOWS:

THE COMMISSION HAS BEFORE IT A QUESTION INVOLVING AN INTERPRETATION OF CERTAIN DECISIONS OF YOUR OFFICE RELATIVE TO THE REEMPLOYMENT OF PERSONS OCCUPYING A FURLOUGH STATUS.

THE CASE INVOLVED IS THAT OF A SURVEYMAN IN THE ENGINEER DEPARTMENT AT LARGE, WAR DEPARTMENT, WHO WAS ON JULY 31, 1935, UNDER REGULATIONS OF THE WAR DEPARTMENT, LAID OFF FOR ONE YEAR BECAUSE OF LACK OF WORK. HEWAS INVOLUNTARILY SEPARATED FROM THE SERVICE EFFECTIVE JULY 31, 1936, ON ACCOUNT OF TERMINATION OF THIS LAY OFF PERIOD. HE WAS, HOWEVER, PROBATIONALLY APPOINTED ENGINEERING DRAFTSMAN IN THE BIOLOGICAL SURVEY, DEPARTMENT OF AGRICULTURE, ON DECEMBER 4, 1935, FROM WHICH POSITION HE WAS DISCHARGED WITH PREJUDICE, EFFECTIVE FEBRUARY 29, 1936, DUE TO INTOXICATION.

IN ORDER THAT THE COMMISSION MAY DETERMINE WHICH SEPARATION SHOULD GOVERN THE RETURN OF THE TONTINE OF $1.00 PER MONTH, IT IS REQUESTED THAT YOU ADVISE WHETHER THE DECISIONS OF YOUR OFFICE REQUIRE THE TERMINATION OF THE FURLOUGH STATUS IN THIS CASE AT THE TIME OF THE PERMANENT APPOINTMENT IN THE OTHER DEPARTMENT. SHOULD THE ANSWER TO THIS QUESTION BE IN THE AFFIRMATIVE, YOUR DECISION IS ALSO REQUESTED AS TO WHETHER A TEMPORARY APPOINTMENT UNDER THE SAME CONDITIONS WOULD HAVE A SIMILAR EFFECT.

IN DECISION OF JANUARY 19, 1933 (12 COMP. GEN. 501), IT WAS HELD THAT THE APPOINTMENT TO A PERMANENT POSITION OF AN EMPLOYEE ON ADMINISTRATIVE FURLOUGH TERMINATES THE FURLOUGH. A PROBATIONAL APPOINTMENT FOLLOWED BY A PERMANENT APPOINTMENT WHEN THE EMPLOYEE QUALIFIES, IS TO BE REGARDED AS TERMINATING AN ADMINISTRATIVE FURLOUGH. IN THE CASE PRESENTED, THE FURLOUGH FROM THE POSITION UNDER THE WAR DEPARTMENT TERMINATED WITH THE PROBATIONAL APPOINTMENT TO A POSITION UNDER THE DEPARTMENT OF AGRICULTURE DECEMBER 4, 1935. CONSEQUENTLY THE ADMINISTRATIVE ACTION PURPORTING TO INVOLUNTARILY SEPARATE THE EMPLOYEE FROM THE POSITION UNDER THE WAR DEPARTMENT ON JULY 31, 1936, WAS WITHOUT FORCE AND EFFECT AND SHOULD BE DISREGARDED.

IT IS UNDERSTOOD THERE HAS BEEN NO REFUND OF RETIREMENT DEDUCTIONS IN THIS CASE. ACCORDINGLY, UNDER THE RULE STATED IN DECISIONS 11 COMP. GEN. 481, AND 16 COMP. GEN. 245, THE ACCREDITED SERVICE OF THIS EMPLOYEE IS TO BE CONSIDERED AS AN ENTIRETY FOR THE PURPOSE OF ADJUDICATING HIS CLAIMS FOR REFUND OF RETIREMENT DEDUCTIONS AND THE CHARACTER OF THE LAST DISCHARGE ON FEBRUARY 29, 1936, CONTROLS THE DISPOSITION OF TONTINE. THE EMPLOYEE WAS REMOVED FOR CAUSE ON THAT DATE FROM HIS POSITION UNDER THE DEPARTMENT OF AGRICULTURE, THE TONTINE IS NOT AUTHORIZED TO BE REFUNDED. SECTION 12 (B) OF THE RETIREMENT ACT AS AMENDED MAY 29, 1930, 46 STAT. 476.

REFERRING TO YOUR LAST SENTENCE, A TEMPORARY APPOINTMENT MAY, BUT DOES NOT NECESSARILY, TERMINATE AN ADMINISTRATIVE FURLOUGH. CF. 12 COMP. GEN. 403. IN THE ABSENCE OF FACTS AND FURTHER INFORMATION REGARDING THE AUTHORITY FOR MAKING TEMPORARY APPOINTMENTS OF EMPLOYEES ON ADMINISTRATIVE FURLOUGH IN THE SAME OR DIFFERENT OFFICES, THIS OFFICE MAY NOT RENDER AN AUTHORITATIVE DECISION WITH RESPECT TO THE FIXING OF A RULE FOR DETERMINING DISPOSITION OF THE TONTINE IN CASES INVOLVING TEMPORARY APPOINTMENTS OF EMPLOYEES ON ADMINISTRATIVE FURLOUGHS.