A-16316, NOVEMBER 27, 1926, 6 COMP. GEN. 366

A-16316: Nov 27, 1926

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CIVILIAN - RETENTION BEYOND AGE LIMIT WHERE IT IS DESIRED TO RETAIN A CIVILIAN EMPLOYEE OF THE GOVERNMENT IN THE SERVICE AFTER HE HAS REACHED THE AGE OF RETIREMENT AS FIXED BY THE ACT OF JULY 3. WHO HAS NOT RENDERED 15 YEARS OF SERVICE IS NOT AUTOMATICALLY SEPARATED FROM THE SERVICE BUT MAY BE PAID FOR ANY SERVICE RENDERED THEREAFTER UNTIL SEPARATED THEREFROM BY ADMINISTRATIVE ACTION. FOR DECISION WHETHER PAYMENT IS AUTHORIZED TO MARTIN P. IT APPEARS THAT THE EMPLOYEE IN QUESTION WAS BORN NOVEMBER 1. THAT THE DUTIES OF HIS POSITION BRING IT WITHIN THE CLASS FOR WHICH THE AGE OF RETIREMENT IS FIXED AT 65 YEARS UNDER THE PROVISIONS OF THE ACT OF MAY 22. THE FORM OF RECOMMENDATION WAS INCORRECTLY PREPARED AND WAS FORWARDED TO THE CIVIL SERVICE COMMISSION LACKING THE APPROVAL OR OTHER ACTION BY THE SECRETARY OF THE NAVY.

A-16316, NOVEMBER 27, 1926, 6 COMP. GEN. 366

RETIREMENT, CIVILIAN - RETENTION BEYOND AGE LIMIT WHERE IT IS DESIRED TO RETAIN A CIVILIAN EMPLOYEE OF THE GOVERNMENT IN THE SERVICE AFTER HE HAS REACHED THE AGE OF RETIREMENT AS FIXED BY THE ACT OF JULY 3, 1926, 44 STAT. 904, THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT UNDER WHICH THE EMPLOYEE SERVES SHOULD ISSUE A CERTIFICATE IN STRICT CONFORMITY WITH THE REQUIREMENTS OF SAID ACT. A CIVILIAN EMPLOYEE OF THE GOVERNMENT WHO HAS ARRIVED AT THE AGE OF RETIREMENT AS FIXED BY THE ACT OF JULY 3, 1926, 44 STAT. 904, BUT WHO HAS NOT RENDERED 15 YEARS OF SERVICE IS NOT AUTOMATICALLY SEPARATED FROM THE SERVICE BUT MAY BE PAID FOR ANY SERVICE RENDERED THEREAFTER UNTIL SEPARATED THEREFROM BY ADMINISTRATIVE ACTION, OPERATION OF LAW, OR OTHERWISE.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 27, 1926:

C. E. SWITHENBANK, LIEUTENANT, SUPPLY CORPS, UNITED STATES NAVY, APPLIED NOVEMBER 15, 1926, FOR DECISION WHETHER PAYMENT IS AUTHORIZED TO MARTIN P. JONES FOR SERVICES RENDERED ON NOVEMBER 6 AND 8, 1926, AS A GENERAL HELPER, NAVAL AIR STATION, PENSACOLA, FLA.

IT APPEARS THAT THE EMPLOYEE IN QUESTION WAS BORN NOVEMBER 1, 1861, AND THAT THE DUTIES OF HIS POSITION BRING IT WITHIN THE CLASS FOR WHICH THE AGE OF RETIREMENT IS FIXED AT 65 YEARS UNDER THE PROVISIONS OF THE ACT OF MAY 22, 1920, 41 STAT. 614, AS AMENDED BY THE ACT OF JULY 3, 1926, 44 STAT. 904.

ON OCTOBER 1, 1926, THE COMMANDANT OF THE UNITED STATES NAVAL AIR STATION AT PENSACOLA, FLA., FORWARDED A RECOMMENDATION FOR THE RETENTION IN THE SERVICE OF MARTIN P. JONES FOR A PERIOD OF TWO YEARS. THE FORM OF RECOMMENDATION WAS INCORRECTLY PREPARED AND WAS FORWARDED TO THE CIVIL SERVICE COMMISSION LACKING THE APPROVAL OR OTHER ACTION BY THE SECRETARY OF THE NAVY. ACCORDINGLY, THE REQUEST WAS RETURNED TO THE NAVY DEPARTMENT, WHERE IT WAS RESTATED, APPROVED BY THE ACTING SECRETARY OF THE NAVY, AND RESUBMITTED TO THE CIVIL SERVICE COMMISSION ON OCTOBER 30, 1926. THE COMMISSION'S CERTIFICATE AND APPROVAL WERE ISSUED NOVEMBER 3, 1926, AFTER THE EMPLOYEE HAD REACHED THE AGE OF 65 YEARS.

THE REQUEST FOR CERTIFICATE OF RETENTION WAS FILLED OUT AND EXECUTED ON CIVIL SERVICE FORM NO. 2318. SAID FORM MERELY PROVIDES FOR A STATEMENT AS TO THE EMPLOYEE'S SERVICE, A RECOMMENDATION BY A SUBORDINATE OFFICER OF THE DEPARTMENT OR ESTABLISHMENT, AND AN APPROVAL BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT, FOLLOWED BY AN APPROVAL AND CERTIFICATION BY THE CIVIL SERVICE COMMISSION. THEREFORE, THE FORM EVEN WHEN FILLED OUT AND SIGNED IN DUE TIME DOES NOT CONSTITUTE A COMPLIANCE WITH THE REQUIREMENT OF THE LAW THAT THE HEAD OF THE DEPARTMENT IN WHICH THE EMPLOYEE IS EMPLOYED CERTIFY TO THE CIVIL SERVICE COMMISSION THAT BY REASON OF THE EMPLOYEE'S EFFICIENCY AND WILLINGNESS TO REMAIN IN THE CIVIL SERVICE OF THE UNITED STATES THE CONTINUANCE OF SUCH EMPLOYEE THEREIN WOULD BE ADVANTAGEOUS TO THE PUBLIC SERVICE. A MERE STATEMENT OF FACTS OR OPINION AS TO THE EMPLOYEE'S EFFICIENCY, ETC., AND A RECOMMENDATION THAT THE EMPLOYEE BE RETAINED IN THE SERVICE, EVEN WHEN FOLLOWED BY THE APPROVAL OF THE HEAD OF THE DEPARTMENT CAN NOT BE REGARDED AS A CERTIFICATE SUCH AS THE LAW REQUIRES AS A PREREQUISITE TO THE EMPLOYEE'S CONTINUANCE IN THE SERVICE AFTER ARRIVAL AT THE AGE OF RETIREMENT. SEE IN THIS CONNECTION 6 COMP. GEN. 71.

IT HAS BEEN HELD THAT WHEN A CIVILIAN EMPLOYEE OF THE GOVERNMENT REACHES THE AGE OF RETIREMENT, AS PROVIDED IN THE ACT OF MAY 22, 1920, SUPRA, WITHOUT HAVING BEEN CERTIFIED FOR RETENTION AS PROVIDED IN SECTION 6 OF SAID ACT, THERE IS AN AUTOMATIC SEPARATION FROM THE SERVICE AND THERE IS NO AUTHORITY WHEREBY THE EMPLOYEE MAY THEREAFTER BE RESTORED TO A DUTY STATUS AND RETAINED IN THE SERVICE. SEE DECISIONS OF JULY 23, 1926, 6 COMP. GEN. 71; OCTOBER 16, 1926, 6 COMP. GEN. 263; NOVEMBER 3, 1926, A- 16146.

IN THE INSTANT CASE, THE EMPLOYEE REACHED THE AGE OF RETIREMENT FIXED FOR EMPLOYEES OF THE CLASS TO WHICH HE BELONGED WITHOUT HAVING BEEN CERTIFIED FOR RETENTION. HE WAS, THEREFORE, AUTOMATICALLY SEPARATED FROM THE SERVICE UNLESS THERE APPEARS SOME OTHER REASON WHY THE AUTOMATIC SEPARATION PROVISION WAS NOT APPLICABLE TO HIM.

SECTION 2 OF THE ACT OF JULY 3, 1926, PROVIDES:

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

SECTION 5 OF THE ACT OF JULY 3, 1926, PROVIDES:

SUBJECT TO THE PROVISIONS OF SECTION 9 HEREOF, THE AGGREGATE PERIOD OF SERVICE WHICH FORMS THE BASIS FOR CALCULATING THE AMOUNT OF ANY BENEFIT PROVIDED IN THIS ACT SHALL BE COMPUTED FROM THE DATE OF ORIGINAL EMPLOYMENT, WHETHER AS A CLASSIFIED OR AN UNCLASSIFIED EMPLOYEE IN THE CIVIL SERVICE OF THE UNITED STATES, INCLUDING PERIODS OF SERVICE AT DIFFERENT TIMES AND IN ONE OR MORE DEPARTMENTS, BRANCHES OR INDEPENDENT OFFICES OF THE GOVERNMENT, AND ALSO PERIODS OF SERVICE PERFORMED OVERSEAS UNDER AUTHORITY OF THE UNITED STATES, AND PERIODS OF HONORABLE SERVICE IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES; IN THE CASE OF AN EMPLOYEE, HOWEVER, WHO IS ELIGIBLE FOR AND ELECTS TO RECEIVE A PENSION UNDER ANY LAW, OR RETIRED PAY ON ACCOUNT OF MILITARY OR NAVAL SERVICE, OR COMPENSATION UNDER THE WAR RISK INSURANCE ACT, THE THE PERIOD OF HIS MILITARY OR NAVAL SERVICE UPON WHICH SUCH PENSION,RETIRED PAY, OR COMPENSATION IS BASED SHALL NOT BE INCLUDED, BUT NOTHING IN THIS ACT SHALL BE SO CONSTRUED AS TO AFFECT IN ANY MANNER HIS OR HER RIGHT TO A PENSION, OR TO RETIRED PAY, OR TO COMPENSATION UNDER THE WAR RISK INSURANCE ACT IN ADDITION TO THE ANNUITY HEREIN PROVIDED. HOWEVER, WHO IS ELIGIBLE FOR AND ELECTS TO RECEIVE A PENSION UNDER ANY LAW, OR RETIRED PAY ON ACCOUNT OF MILITARY OR NAVAL SERVICE, OR COMPENSATION UNDER THE WAR RISK INSURANCE ACT, THE PERIOD OF HIS MILITARY OR NAVAL SERVICE UPON WHICH SUCH PENSION, RETIRED PAY, OR COMPENSATION IS BASED SHALL NOT BE INCLUDED, BUT NOTHING IN THIS ACT SHALL BE SO CONSTRUED AS TO AFFECT IN ANY MANNER HIS OR HER RIGHT TO A PENSION, OR TO RETIRED PAY, OR TO COMPENSATION UNDER THE WAR RISK INSURANCE ACT IN ADDITION TO THE ANNUITY HEREIN PROVIDED.

FROM THE REQUEST FOR CERTIFICATE OF RETENTION, IT APPEARS THAT THE EMPLOYEE HEREIN CONSIDERED HAD RENDERED 6 YEARS 10 MONTHS AND 17 DAYS OF SERVICE AS A CIVILIAN EMPLOYEE WHEN HE REACHED THE AGE OF RETIREMENT.

IT ALSO APPEARS FROM THE REQUEST FOR CERTIFICATE OF RETENTION THAT THE EMPLOYEE IN QUESTION WAS RETIRED FROM SERVICE AS AN ENLISTED MAN IN THE NAVY MARCH 7, 1909, AFTER 30 YEARS OF CONTINUOUS SERVICE, AND THAT HE WAS RECALLED TO ACTIVE SERVICE APRIL 9, 1917, AND DISCHARGED THEREFROM APRIL 15, 1919. IT HAS BEEN ASCERTAINED FROM THE PAY ROLLS THAT HE IS IN RECEIPT OF RETIRED PAY, TO WHICH HE BECAME ENTITLED TO THE BASIS OF HIS SERVICE PRIOR TO MARCH 7, 1909.

UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 3, 1926, SUPRA, THE SERVICE RENDERED AS AN ENLISTED MAN IN THE NAVY PRIOR TO MARCH 7, 1909, ON WHICH HIS RETIRED PAY IS BASED CAN NOT BE COUNTED AS SERVICE WITHIN THE MEANING OF THAT TERM AS USED IN THE ACT OF JULY 3, 1926, BUT THE ACTIVE ENLISTED SERVICE RENDERED THEREAFTER--- TWO YEARS, AND SEVEN DAYS--- CAN BE SO COUNTED, AS IT APPEARS HE IS NOT IN RECEIPT OF OR ENTITLED TO ANY RETIREMENT PAY, PENSION, OR DISABILITY COMPENSATION BASED ON SAID SERVICE. ADDING THE TWO YEARS AND 7 DAYS ENLISTED SERVICE TO THE 6 YEARS, 10 MONTHS AND 17 DAYS CIVILIAN SERVICE MAKES 8 YEARS 10 MONTHS AND 24 DAYS WHICH CAN BE COUNTED FOR CIVILIAN RETIREMENT, BUT WHICH IS LESS THAN 15 YEARS.

UNDER THE ORIGINAL RETIREMENT ACT AN EMPLOYEE TO WHOM IT APPLIED WAS AUTOMATICALLY SEPARATED FROM THE SERVICE UPON ARRIVAL AT THE AGE OF RETIREMENT, UNLESS CERTIFIED FOR RETENTION IN THE MANNER PRESCRIBED BY SAID ACT, REGARDLESS OF LENGTH OF SERVICE. THE PRESENT RETIREMENT ACT, HOWEVER, PRESCRIBES AS A FURTHER CONDITION NECESSARY TO EFFECT THE AUTOMATIC SEPARATION FROM THE SERVICE UPON ARRIVAL AT RETIREMENT AGE THAT THE EMPLOYEE SHALL HAVE "RENDERED FIFTEEN YEARS OF SERVICE.' IN CASE AN EMPLOYEE ARRIVING AT THE AGE OF RETIREMENT HAS NOT HAD 15 YEARS OF SERVICE, HE IS NOT AUTOMATICALLY SEPARATED THEREFROM BUT AFFIRMATIVE ADMINISTRATIVE ACTION WOULD BE NECESSARY TO ACCOMPLISH SUCH SEPARATION.

ACCORDINGLY, IF THE FACTS AS TO THIS EMPLOYEE'S SERVICE ARE AS HEREIN ASSUMED FROM THE PAPERS ACCOMPANYING THE SUBMISSION, CERTIFICATION WAS NOT NECESSARY TO HIS CONTINUANCE IN THE SERVICE AFTER OCTOBER 31, 1926, HENCE PAYMENT IS AUTHORIZED OF THE WAGES OTHERWISE DUE HIM FOR THE PERIOD NOVEMBER 1 TO 8, 1926, AND FOR SUCH ADDITIONAL PERIOD DURING WHICH HE MAY RENDER SERVICE UNTIL THEREAFTER SEPARATED THEREFROM BY ADMINISTRATIVE ACTION, OPERATION OF LAW, OR OTHERWISE.