B-157753, DEC. 28, 1966

B-157753, DEC. 28, 1966

TO UNITED STATES CIVIL SERVICE COMMISSION:

WE REFER TO YOUR LETTER OF DECEMBER 9, 1966, CONCERNING A PROPOSED AMENDMENT TO SECTION 550.704 (B) (1) OF THE CIVIL SERVICE REGULATIONS PERTAINING TO THE COMPUTATION OF SEVERANCE PAY FOR EMPLOYEES ENTITLED TO THAT BENEFIT UNDER SECTION 9 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, APPROVED OCTOBER 29, 1965, PUB.L. 89-301, 79 STAT. 1118.

THE REGULATION IN QUESTION DEALS WITH THE COUNTING OF AN EMPLOYEE'S "CIVILIAN SERVICE" ON WHICH SEVERANCE PAY MAY BE BASED. IT AUTHORIZES COUNTING AS CIVILIAN SERVICE MILITARY SERVICE WHICH INTERRUPTS OTHERWISE CREDITABLE CIVILIAN SERVICE. THE PROPOSED AMENDMENT WOULD CLARIFY WHAT IS MEANT BY INTERRUPTION OF CIVILIAN SERVICE BY ADDING THE FOLLOWING:

"* * * FOR THE PURPOSE OF THIS SUBPARAGRAPH, MILITARY SERVICE IS CONSIDERED TO INTERRUPT CREDITABLE CIVILIAN SERVICE WHEN AN EMPLOYEE ENTERS MILITARY SERVICE FROM CIVILIAN SERVICE THAT IS CREDITABLE FOR LEAVE ACCRUAL RATE PURPOSES, WITH STATUTORY OR REGULATORY RESTORATION RIGHTS, AND RETURNS TO CIVILIAN SERVICE THAT IS CREDITABLE FOR LEAVE ACCRUAL RATE PURPOSES WITHIN THE TIME LIMIT PRESCRIBED FOR THE EXERCISE OF HIS RESTORATION RIGHTS.'

YOU SAY THAT:

"THE INTENTION IN THIS REGULATION WAS TO INCLUDE IN THE COMPUTATION OF CIVILIAN SERVICE A PERIOD OF ABSENCE BECAUSE OF MILITARY SERVICE IF THE EMPLOYEE HAD LEFT A CIVILIAN GOVERNMENT POSITION WITH REEMPLOYMENT RIGHTS AND RETURNED TO ANY CIVILIAN GOVERNMENT POSITION WITHIN THE PERIOD IN WHICH HE COULD EXERCISE HIS REEMPLOYMENT RIGHTS WHETHER IT WAS WITH HIS FORMER AGENCY OR NOT.'

IN VIEW OF THE COMMISSION'S AUTHORITY TO ISSUE REGULATIONS IMPLEMENTING THE SEVERANCE PAY PROVISIONS AS DELEGATED BY THE PRESIDENT IN EXECUTIVE ORDER NO. 11257, NOVEMBER 13, 1965, AND IN VIEW OF THE COMMISSION'S AUTHORITY TO ISSUE REGULATIONS IMPLEMENTING THE RESTORATION RIGHTS GIVEN EMPLOYEES BY SECTION 9 OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, APPROVED JUNE 24, 1948, CH. 625, 62 STAT. 614, AS AMENDED, 50 U.S.C. APP. 459, INCLUDING REGULATIONS WITH REGARD TO THE EMPLOYEE'S STATUS IN HIS CIVILIAN POSITION WHILE HE IS ON ACTIVE MILITARY DUTY, WE SEE NO OBJECTION TO AMENDING THE REGULATIONS IN THE MANNER PROPOSED.

HOWEVER, WE INVITE YOUR ATTENTION TO OUR RECENT DECISION OF DECEMBER 19, 1966, B-160447, TO YOU, HOLDING THAT AN EMPLOYEE WHOSE SOLE RIGHT TO RESTORATION TO A CIVILIAN POSITION AFTER MILITARY SERVICE IS UNDER 5 U.S.C. 3551, IS NOT ENTITLED TO CREDIT FOR MILITARY SERVICE IN DETERMINING THE ANNUAL LEAVE CATEGORY IN WHICH HE SHOULD BE PLACED UPON REEMPLOYMENT IN A CIVILIAN POSITION. IN ORDER TO AVOID MISINTERPRETATION OF THE SCOPE OF THE PROPOSED REGULATION AS AMENDED YOU MAY WISH TO INCLUDE LANGUAGE THEREIN--- OR IN THE FEDERAL PERSONNEL MANUAL LETTER TRANSMITTING THE AMENDMENT TO THE DEPARTMENTS AND AGENCIES--- CONCERNING THE LIMITATION SET FORTH IN THAT DECISION.

WE APPRECIATE THE OPPORTUNITY OF COMMENTING UPON THE PROPOSED AMENDMENT TO THE REGULATIONS.