B-170098, MAY 5, 1971

B-170098, MAY 5, 1971

MILITARY PERSONNEL - MILITARY RETIRED PAY - REEMPLOYMENT IN THE CIVIL SERVICE ADVISING WITH RESPECT TO HIS ENTITLEMENT TO MILITARY RETIRED PAY UPON REEMPLOYMENT IN A CIVIL SERVICE POSITION, THAT COL. JOHN P. SHEFFEY MAY BE ENTITLED TO FULL PAY. ON THE ASSUMPTION THAT THE TERMINATION OF COL. SHEFFEY'S CIVILIAN EMPLOYMENT DID NOT INVOLVE AN AUTOMATIC SEPARATION, IF HE SHOULD BECOME EMPLOYED IN A POSITION SUBJECT TO THE CIVIL SERVICE RETIREMENT SYSTEM, HE WOULD CEASE TO BE A CIVIL SERVICE ANNUITANT AND WOULD RESUME THE STATUS OF A CIVIL SERVICE EMPLOYEE HE HAD IMMEDIATELY PRIOR TO HIS INVOLUNTARY RETIREMENT. THE WAIVER OF HIS RETIRED PAY WOULD NO LONGER BE EFFECTIVE. THUS, HE WOULD BE ENTITLED TO THE FULL PAY OF THE POSITION AND TO HIS MILITARY RETIRED PAY REDUCED IN ACCORDANCE WITH THE PROVISION OF 5 U.S.C. 5532.

TO HONORABLE ROBERT B. ANDERSON:

THIS REFERS TO YOUR LETTER DATED APRIL 12, 1971, ENCLOSING A COPY OF LETTER DATED APRIL 5, 1971, FROM COLONEL JOHN P. SHEFFEY, III, USA, RETIRED, TO THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, INVOLVING HIS ENTITLEMENT TO MILITARY RETIRED PAY UPON REEMPLOYMENT IN A CIVIL SERVICE POSITION.

WE UNDERSTAND THAT COLONEL SHEFFEY SERVED MORE THAN 5 YEARS AS EXECUTIVE DIRECTOR, ATLANTIC-PACIFIC INTEROCEANIC CANAL STUDY COMMISSION, UNTIL ITS TERMINATION ON DECEMBER 1, 1970; THAT HE THEN WAIVED HIS ARMY RETIRED PAY IN ORDER TO QUALIFY FOR A CIVIL SERVICE ANNUITY BASED ON AN INVOLUNTARY SEPARATION; THAT HE HAS BEEN REEMPLOYED ON A CONSULTANT BASIS; AND THAT HE IS CONTEMPLATING ACCEPTING REEMPLOYMENT IN A CIVIL SERVICE POSITION. SINCE THE COUNTING OF HIS MILITARY SERVICE WAS NECESSARY TO ESTABLISH HIS ELIGIBILITY FOR A CIVIL SERVICE ANNUITY, THE QUESTION HAS ARISEN AS TO WHETHER HE MAY WITHDRAW HIS WAIVER OF MILITARY RETIRED PAY AND HAVE SUCH PAY REINSTATED IN VIEW OF OUR HOLDING IN OUR DECISION B-170098, AUGUST 11, 1970, 50 COMP. GEN. , COPY HEREWITH.

IN OUR DECISION B-147639, JANUARY 16, 1962, 41 COMP. GEN. 460, COPY HEREWITH, WE HELD THAT A FORMER MEMBER OF CONGRESS IS NOT ENTITLED TO RECEIVE MILITARY RETIRED PAY IN ADDITION TO A CIVIL SERVICE ANNUITY WHERE HIS MILITARY SERVICE WAS USED TO ESTABLISH HIS ELIGIBILITY FOR THE ANNUITY. IN LINE WITH THAT RULING, WE HELD IN OUR DECISION B 168650, MARCH 11, 1970, 49 COMP. GEN. 581, COPY HEREWITH, THAT A REEMPLOYED ANNUITANT WHOSE MILITARY SERVICE HAD BEEN USED TO QUALIFY HIM FOR A CIVIL SERVICE RETIREMENT COULD NOT REVOKE HIS WAIVER OF MILITARY RETIRED PAY AND AGAIN BECOME ENTITLED TO MILITARY RETIRED PAY. THAT DECISION WAS PREDICATED ON THE FACT THAT THE ANNUITANT INVOLVED WAS SUBJECT TO THE PROVISIONS OF 5 U.S.C. 8344(A) WHICH REQUIRED - WITH CERTAIN EXCEPTIONS NOT APPLICABLE IN THAT CASE - THAT IF HE SHOULD BE REEMPLOYED IN THE CIVIL SERVICE, HIS ANNUITY BE CONTINUED AND THAT HE SHOULD BE PAID ADDITIONALLY ONLY THE DIFFERENCE BETWEEN SUCH ANNUITY AND HIS SALARY.

IN OUR DECISION B-170098, AUGUST 11, 1970, WE HELD THAT IF MILITARY SERVICE IS NOT USED TO ESTABLISH ELIGIBILITY FOR A CIVIL SERVICE ANNUITY BUT SUCH SERVICE IS USED ONLY IN THE COMPUTATION OF THE ANNUITY TO INCREASE THE AMOUNT THEREOF, WAIVER OF RETIRED PAY MAY BE WITHDRAWN, THE CIVIL SERVICE ANNUITY REDUCED, AND RETIRED PAY REINSTATED.

WHILE THE JURISDICTION TO FINALLY DETERMINE THE RIGHTS OF AN EMPLOYEE TO A CIVIL SERVICE ANNUITY IS VESTED IN THE UNITED STATES CIVIL SERVICE COMMISSION, WE POINT OUT THAT ONE OF THE EXCEPTIONS MENTIONED IN 5 U.S.C. 8344(A) - CONTAINED IN SUBSECTION (A)(2) - RELATES TO AN ANNUITANT WHOSE ANNUITY IS BASED ON AN "INVOLUNTARY SEPARATION FROM THE SERVICE OTHER THAN AN AUTOMATIC SEPARATION." IF, AS APPEARS, COLONEL SHEFFEY'S RETIREMENT WAS THE RESULT OF HIS BEING INVOLUNTARILY SEPARATED FROM HIS EMPLOYMENT WITH THE CANAL STUDY COMMISSION ON DECEMBER 1, 1970, AND SUCH SEPARATION WAS NOT AUTOMATIC, THE PROVISIONS OF 5 U.S.C. 8344(A) WOULD NOT APPEAR TO BE APPLICABLE IF HE SHOULD ACCEPT PERMANENT EMPLOYMENT IN A CIVIL SERVICE POSITION.

SECTION S15-6 OF SUBCHAPTER S15, FEDERAL PERSONNEL MANUAL SUPPLEMENT 831- 1, RELATING TO REEMPLOYMENT OF ANNUITANTS WHOSE RETIREMENT WAS BASED ON INVOLUNTARY SEPARATION, PROVIDES IN PERTINENT PART AS FOLLOWS:

"A. MEANING OF INVOLUNTARY SEPARATION. AN ANNUITANT IS CONSIDERED AS HAVING BEEN RETIRED BASED ON AN INVOLUNTARY SEPARATION IF THE SEPARATION MEETS THE DEFINITION OF THAT TERM CONTAINED IN SECTION S11 2, EXCEPT THAT A SEPARATION FOR AGE RETIREMENT IS NOT AN INVOLUNTARY SEPARATION FOR REEMPLOYMENT PURPOSES.

"B. IF REEMPLOYMENT IS SUBJECT TO THE RETIREMENT SYSTEM. REGARDLESS OF HIS AGE, IF THE ANNUITANT IS REEMPLOYED ON OR AFTER OCTOBER 1, 1956:

"(1) ANNUITY IS TERMINATED AT THE END OF THE DAY PRIOR TO THE REEMPLOYMENT;

"(2) THE EMPLOYING AGENCY WITHHOLDS THE REGULAR 7 PERCENT RETIREMENT DEDUCTIONS FROM HIS PAY; AND

"(3) FUTURE ANNUITY RIGHTS ARE DETERMINED UNDER THE LAW IN EFFECT AT THE TIME OF SEPARATION FROM REEMPLOYMENT."

ON THE ASSUMPTION THAT THE TERMINATION OF COLONEL SHEFFEY'S CIVILIAN EMPLOYMENT ON DECEMBER 1, 1970, DID NOT INVOLVE AN AUTOMATIC SEPARATION, IT IS OUR VIEW THAT IF HE SHOULD BECOME EMPLOYED IN A POSITION SUBJECT TO THE CIVIL SERVICE RETIREMENT SYSTEM, HE WOULD CEASE TO BE A CIVIL SERVICE ANNUITANT AND WOULD RESUME THE STATUS OF A CIVIL SERVICE EMPLOYEE HE HAD IMMEDIATELY PRIOR TO HIS INVOLUNTARY RETIREMENT. THE WAIVER OF HIS RETIRED PAY WOULD NO LONGER BE EFFECTIVE. THUS, HE WOULD BE ENTITLED TO THE FULL PAY OF THE POSITION AND TO HIS MILITARY RETIRED PAY REDUCED IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 5532.