A-10399, JULY 29, 1925, 5 COMP. GEN. 70

A-10399: Jul 29, 1925

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AS SUCH THE EMPLOYEE IS ENTITLED TO RETAIN COMPENSATION ALREADY PAID FOR THAT PERIOD. NO FURTHER PAYMENTS OF COMPENSATION ARE AUTHORIZED. 1925: I HAVE YOUR LETTER OF JULY 6. AS FOLLOWS: I HAVE THE HONOR TO REQUEST A DECISION UPON THE QUESTIONS HEREINAFTER PRESENTED. THORNE WAS EMPLOYED AT THE WASHINGTON NAVY YARD AS A HELPER. THAT HE WAS BORN JULY 28. THIS RECORD WAS ACCEPTED BY THE LABOR BOARD OF THE YARD AS THE BASIS FOR HIS RETIREMENT UNDER THE CIVIL SERVICE RETIREMENT ACT OF MAY 22. ACCORDINGLY HE WOULD NOT HAVE BEEN SUBJECT TO RETIREMENT UNTIL JULY 27. IT WAS ASCERTAINED THAT MR. UNDER THE TERMS OF THE CIVIL SERVICE RETIREMENT ACT WAS "AUTOMATICALLY SEPARATED FROM THE SERVICE. AS SOON AS THIS FACT WAS ASCERTAINED HE WAS SEPARATED FROM THE SERVICE.

A-10399, JULY 29, 1925, 5 COMP. GEN. 70

RETIREMENT, CIVILIAN - RETENTION BEYOND RETIREMENT AGE THE SERVICE OF A CIVILIAN EMPLOYEE BEYOND THE AGE OF RETIREMENT AS THE RESULT OF A MISTAKE, INTENTIONAL OR UNINTENTIONAL, BY THE EMPLOYEE IN STATING THE DATE OF HIS BIRTH, MUST BE REGARDED AS IN A DE FACTO STATUS ONLY, AND AS SUCH THE EMPLOYEE IS ENTITLED TO RETAIN COMPENSATION ALREADY PAID FOR THAT PERIOD, BUT NO FURTHER PAYMENTS OF COMPENSATION ARE AUTHORIZED; NEITHER MAY THE PERCENTAGE DEDUCTIONS MADE FOR THE RETIREMENT FUND FROM THE COMPENSATION PAID WHILE A DE FACTO EMPLOYEE BE REFUNDED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JULY 29, 1925:

I HAVE YOUR LETTER OF JULY 6, 1925, AS FOLLOWS:

I HAVE THE HONOR TO REQUEST A DECISION UPON THE QUESTIONS HEREINAFTER PRESENTED.

MR. BENJAMIN F. THORNE WAS EMPLOYED AT THE WASHINGTON NAVY YARD AS A HELPER, GENERAL, AT $4.32 PER DIEM APRIL 11, 1918. IN AN APPLICATION FILED BY HIM ON APRIL 8, 1918, AND UPON WHICH HE OBTAINED THIS EMPLOYMENT, HE STATED, UNDER OATH, THAT HE WAS BORN JULY 28, 1860. THIS RECORD WAS ACCEPTED BY THE LABOR BOARD OF THE YARD AS THE BASIS FOR HIS RETIREMENT UNDER THE CIVIL SERVICE RETIREMENT ACT OF MAY 22, 1920, AND ACCORDINGLY HE WOULD NOT HAVE BEEN SUBJECT TO RETIREMENT UNTIL JULY 27, 1925.

RECENTLY, HOWEVER, IT WAS ASCERTAINED THAT MR. THORNE HAD GIVEN THE YEAR OF HIS BIRTH AS JULY 28, 1858, IN AN APPLICATION FILED FEBRUARY 15, 1901, WHICH DATE HAS BEEN PROVEN BY DOCUMENTARY EVIDENCE TO BE CORRECT. MR. THORNE, THEREFORE, REACHED THE AGE OF RETIREMENT JULY 27, 1923, AND UNDER THE TERMS OF THE CIVIL SERVICE RETIREMENT ACT WAS "AUTOMATICALLY SEPARATED FROM THE SERVICE, AND ALL SALARY, PAY, OR COMPENSATION SHALL CEASE FROM THAT DATE.' AS SOON AS THIS FACT WAS ASCERTAINED HE WAS SEPARATED FROM THE SERVICE, EFFECTIVE MAY 20, 1925.

AFTER INVESTIGATION IT DOES NOT APPEAR THAT THE MISSTATEMENT OF THE DATE OF HIS BIRTH WAS A WILLFUL MISREPRESENTATION ON THE PART OF MR. THORNE FOR THE PURPOSE OF SECURING ANY BENEFIT TO WHICH HE WOULD NOT HAVE BEEN ENTITLED HAD HE GIVEN HIS CORRECT DATE OF BIRTH. THE DEPARTMENT, THEREFORE, APPROVED AND FORWARDED TO THE CIVIL SERVICE COMMISSION THE RECOMMENDATION OF THE COMMANDANT OF THE NAVY YARD FOR A CERTIFICATE AUTHORIZING HIS CONTINUANCE IN THE SERVICE UNDER SECTION 6 OF THE CIVIL SERVICE RETIREMENT ACT COVERING THE PERIOD OF HIS EMPLOYMENT IN A DE FACTO STATUS. A NUNC PRO TUNC CERTIFICATE AUTHORIZING HIS CONTINUANCE IN EMPLOYMENT FOR A PERIOD OF TWO YEARS FROM JULY 28, 1923, WAS ISSUED BY THE CIVIL SERVICE COMMISSION UNDER DATE OF JUNE 18, 1925.

HAVING IN MIND THAT THE CIVIL SERVICE RETIREMENT ACT REQUIRES CERTIFICATION FOR THE CONTINUANCE OF AN EMPLOYEE THIRTY DAYS PRIOR TO REACHING THE RETIREMENT AGE, AND SINCE THE DECISION OF THE COMPTROLLER GENERAL OF MAY 2, 1924 (3 COMP. GEN. 823) STATES THAT ANY PAYMENTS RECEIVED BY AN EMPLOYEE WHILE IN A DE FACTO STATUS THOUGH ILLEGALLY EMPLOYED AFTER REACHING THE RETIREMENT AGE MAY BE RETAINED BY THAT EMPLOYEE, BUT WHICH ALSO STATES THAT "NO FURTHER PAYMENTS CAN BE MADE FOR ANY PART OF THE PERIOD DURING WHICH THE EMPLOYEE WAS IN FACT EMPLOYED BEYOND THE RETIREMENT AGE," DECISION IS REQUESTED AS TO WHETHER THE FOLLOWING PAYMENTS MAY BE MADE: (A) PAY EARNED WHILE ACTUALLY WORKING BUT NOT AS YET PAID, LESS

RETIREMENT FUND DEDUCTIONS, FOR THE PERIOD MAY 9 TO MIDDAY

MAY 18 ----------------------------------------------------- $31.59 (B) PAY WHILE ON AUTHORIZED LEAVE FROM MIDDAY MAY 18 TO MAY 20,

LESS RETIREMENT FUND DEDUCTIONS ---------------------------- 8.42 (C) RETIREMENT FUND DEDUCTIONS FROM PAY EARNED IN DE FACTO STATUS

FROM JULY 28, 1923, TO MAY 20, 1925 ------------------------ 61.86

IN CONNECTION WITH THE ABOVE, MR. THORNE HAS BEEN PAID TO AND INCLUDING MAY 8, 1925, AND HAS EARNED PAY IN HIS DE FACTO STATUS TO MAY 20, 1925. MR. THORNE HAS SUFFICIENT SERVICE IN THE GOVERNMENT TO ENTITLE HIM TO AN ANNUITY WHETHER THE LEGAL DATE OF HIS RETIREMENT BE 1923 OR 1925. IF 1923 BE THE EFFECTIVE DATE, CLAIM WOULD BE MADE FOR RETIREMENT FUND DEDUCTIONS SINCE THAT DATE, AND THE QUESTION ARISES WHETHER THIS SUM MAY BE PAID HIM NOW IN VIEW OF THE ABOVE-MENTIONED DECISION.

SECTION 1 OF THE CIVIL RETIREMENT ACT OF MAY 22, 1920, 41 STAT. 614, FIXED THE AGE FOR RETIREMENT. SECTION 6 OF THE ACT PROVIDES:

THAT ALL EMPLOYEES TO WHOM THIS ACT APPLIES SHALL, * * * ON ARRIVING AT RETIREMENT AGE AS DEFINED IN SECTION 1 HEREOF, BE AUTOMATICALLY SEPARATED FROM THE SERVICE, AND ALL SALARY, PAY, OR COMPENSATION SHALL CEASE FROM THAT DATE * * *.

THE ESTABLISHMENT OF THE EXACT DATE OF THE BIRTH OF AN EMPLOYEE IS A QUESTION OF FACT, AND A MISTAKE, INTENTIONAL OR UNINTENTIONAL, CAN NOT ALTER THAT FACT. EMPLOYMENT OF A PERSON AFTER HE HAS REACHED THE AGE OF RETIREMENT COMPUTED FROM THE CORRECT DATE OF BIRTH, AS A RESULT OF A MISTAKE IN STATING DATE OF BIRTH MUST BE REGARDED ONLY AS IN A DE FACTO STATUS, IN THE ABSENCE OF A CERTIFICATE OF RETENTION ISSUED BY THE HEAD OF THE DEPARTMENT CONCERNED PREVIOUS TO THE DATE ON WHICH RETIREMENT AGE IS ACTUALLY ATTAINED, IN ACCORDANCE WITH THE PROVISIONS OF THE RETIREMENT ACT. A DE FACTO EMPLOYEE MAY---

* * * KEEP ANY COMPENSATION THAT HAS BEEN PAID TO HIM IF NOT IN EXCESS OF THE FAIR VALUE OF THE SERVICES RENDERED. THE COMPENSATION THUS PAID CAN NOT BE RECOVERED OR DEDUCTED FROM ANY ANNUITY PAYMENTS OTHERWISE DUE, AND THE ACCOUNTS OF THE DISBURSING OFFICER MAKING THE PAYMENT WILL NOT BE DISTURBED. NO FURTHER PAYMENTS CAN BE MADE FOR ANY PART OF THE PERIOD DURING WHICH THE EMPLOYEE WAS IN FACT EMPLOYED BEYOND THE RETIREMENT AGE. (3 COMP. GEN. 823. SEE ALSO 4 COMP. GEN. 43.)

MR. BENJAMIN F. THORNE IS NOT ENTITLED TO THE AMOUNT UNDER ANY OF THE ITEMS (A), (B), OR (C) OF YOUR SUBMISSION.