A-32688, JULY 30, 1930, 10 COMP. GEN. 43

A-32688: Jul 30, 1930

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IS NOT ELIGIBLE FOR RETIREMENT ON ACCOUNT OF AGE. - THAT IS. EMPLOYEES WHO ARE ALSO INMATES. - IS OTHERWISE DETERMINED BY COMPETENT AUTHORITY AS NOT COMING WITHIN THE TERMS OF THE CIVIL RETIREMENT ACT OF MAY 29. * * * WHOSE TENURE OF EMPLOYMENT IS NOT INTERMITTENT NOR OF UNCERTAIN DURATION.'. THE FIRST QUESTION IS STATED IN PARAGRAPH 3 OF THE SUBMISSION AS FOLLOWS: 3. THERE ARE SOME EMPLOYEES WHO ARE MORE THAN 70 YEARS OF AGE. WHO HAVE NOT HAD 15 YEARS' SERVICE. THERE IS A CHAPLAIN WHO WAS APPOINTED AS SUCH TO DATE FROM DECEMBER 1. WHO WILL NOT HAVE COMPLETED 15 YEARS' SERVICE UNTIL NOVEMBER 30. HIS AGE IS 85 YEARS. HE IS A VETERAN OF THE CIVIL WAR. WHAT IS HIS STATUS UNDER THE RETIREMENT ACT?

A-32688, JULY 30, 1930, 10 COMP. GEN. 43

RETIREMENT, CIVILIAN - RETENTION BEYOND AGE LIMIT - NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS A CIVILIAN EMPLOYEE OF THE GOVERNMENT, REGARDLESS OF AGE, IS NOT ELIGIBLE FOR RETIREMENT ON ACCOUNT OF AGE, NOR REQUIRED TO BE AUTOMATICALLY SEPARATED FROM THE SERVICE, UNDER THE PROVISIONS OF THE CIVIL RETIREMENT ACT, AS AMENDED BY THE ACT OF MAY 29, 1930, 46 STAT. 468, UNTIL 15 YEARS OF SERVICE HAS BEEN COMPLETED. UNLESS AND UNTIL THE STATUS OF MEMBER EMPLOYEES OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS--- THAT IS, EMPLOYEES WHO ARE ALSO INMATES--- IS OTHERWISE DETERMINED BY COMPETENT AUTHORITY AS NOT COMING WITHIN THE TERMS OF THE CIVIL RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 468, WHICH SPECIFICALLY INCLUDES "EMPLOYEES * * * OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS," RETIREMENT DEDUCTIONS SHOULD BE MADE FROM THE COMPENSATION OF ALL EMPLOYEES OF THE HOME, BOTH MEMBER AND NONMEMBER EMPLOYEES.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JULY 30, 1930:

THERE HAS BEEN RECEIVED LETTER DATED JULY 17, 1930, FROM GEN. GEORGE H. WOOD, PRESIDENT OF THE BOARD OF MANAGERS OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, REQUESTING DECISION OF THREE QUESTIONS INVOLVING THE STATUS OF EMPLOYEES OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, UNDER THE PROVISIONS OF THE CIVIL RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 468.

SUBSECTION (B) OF SECTION 3 OF THE RETIREMENT ACT OF MAY 29, 1930, EFFECTIVE JULY 1, 1930, FOR THE FIRST TIME HAS EXTENDED THE BENEFITS AND OBLIGATIONS OF RETIREMENT TO "SUCH EMPLOYEES * * * OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, * * * WHOSE TENURE OF EMPLOYMENT IS NOT INTERMITTENT NOR OF UNCERTAIN DURATION.'

THE FIRST QUESTION IS STATED IN PARAGRAPH 3 OF THE SUBMISSION AS FOLLOWS:

3. THERE ARE SOME EMPLOYEES WHO ARE MORE THAN 70 YEARS OF AGE, BUT WHO HAVE NOT HAD 15 YEARS' SERVICE. FOR EXAMPLE, THERE IS A CHAPLAIN WHO WAS APPOINTED AS SUCH TO DATE FROM DECEMBER 1, 1915, AND WHO WILL NOT HAVE COMPLETED 15 YEARS' SERVICE UNTIL NOVEMBER 30, 1930. HIS AGE IS 85 YEARS. HE IS A VETERAN OF THE CIVIL WAR, ACTIVE, FULLY ABLE TO PERFORM HIS DUTIES, AND FOR NEARLY 15 YEARS HAS BEEN A FAITHFUL AND EFFICIENT OFFICER. WHAT IS HIS STATUS UNDER THE RETIREMENT ACT? IF HE WERE ELIGIBLE FOR RETIREMENT AND DESIRED TO CONTINUE FOR ANOTHER TWO YEARS HIS RETENTION WOULD BE RECOMMENDED WITHOUT HESITATION.

SECTION 1 OF THE RETIREMENT ACT OF MAY 29, 1930, SUPRA, PROVIDES IN PART AS FOLLOWS:

ALL EMPLOYEES TO WHOM THIS ACT APPLIES WHO, BEFORE ITS EFFECTIVE DATE, SHALL HAVE ATTAINED OR SHALL THEREAFTER ATTAIN THE AGE OF 70 YEARS AND RENDERED AT LEAST 15 YEARS OF SERVICE, COMPUTED AS PRESCRIBED IN SECTION 5 OF THIS ACT SHALL BE ELIGIBLE FOR RETIREMENT ON AN ANNUITY AS PROVIDED IN SECTION 4 HEREOF: * * *.

SECTION 2 OF THE SAME ACT UNDER THE HEADING "AUTOMATIC SEPARATION," PROVIDES IN PART AS OLLOWS:

ALL EMPLOYEES TO WHOM THIS ACT APPLIES SHALL, ON ARRIVING AT THE RETIREMENT AGE AS DEFINED IN THE PRECEDING SECTION, AND HAVING RENDERED 15 YEARS OF SERVICE, BE AUTOMATICALLY SEPARATED FROM THE SERVICE AND ALL SALARY, PAY, OR COMPENSATION SHALL CEASE FROM THAT DATE, AND IT SHALL BE THE DUTY OF THE HEAD OF EACH DEPARTMENT, BRANCH, OR INDEPENDENT OFFICE OF THE GOVERNMENT CONCERNED TO NOTIFY SUCH EMPLOYEES UNDER HIS DIRECTION OF THE DATE OF SUCH SEPARATION FROM THE SERVICE AT LEAST 60 DAYS IN ADVANCE THEREOF: * * *.

SIMILAR PROVISIONS APPEARED IN THE EARLIER RETIREMENT ACT OF JULY 3, 1926, 44 STAT. 904, WHICH WAS CONSTRUED AND APPLIED IN DECISION OF THIS OFFICE DATED NOVEMBER 27, 1926, 6 COMP. GEN. 366, WHEREIN IT WAS HELD AS FOLLOWS (QUOTING FROM SYLLABUS):

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.

THE SAME CONCLUSION MAY BE REACHED IN THE INSTANT CASE UNDER THE TERMS OF THE ACT OF MAY 29, 1930. THAT IS TO SAY, IN THIS CASE, THE CHAPLAIN, REGARDLESS OF HIS AGE, IS NOT ELIGIBLE FOR RETIREMENT ON ACCOUNT OF AGE NOR REQUIRED TO BE SEPARATED FROM THE SERVICE UNDER SAID ACT UNTIL HE SHALL HAVE COMPLETED 15 YEARS' SERVICE, WHICH WILL BE AT THE CLOSE OF BUSINESS NOVEMBER 30, 1930. HIS RETIREMENT ON ACCOUNT OF AGE, IF HIS STATUS IS THEN OTHERWISE WITHIN THE TERMS OF THE RETIREMENT ACT, AND HE HAS NOT PREVIOUSLY BEEN SEPARATED FROM THE SERVICE, OR RETAINED UNDER THE TERMS OF THE LAST PROVISO OF THE FIRST PARAGRAPH OF SECTION 2 OF THE RETIREMENT ACT, SHOULD BE MADE EFFECTIVE DECEMBER 1, 1930. SEE ACT OF APRIL 23, 1930, 46 STAT. 253.

THE SECOND QUESTION IS FOUND IN PARAGRAPH 4 OF THE SUBMISSION AS FOLLOWS:

4. THERE ARE OTHER EMPLOYEES--- PROBABLY A CONSIDERABLE NUMBER--- WHO HAVE NOT REACHED THE AGE OF 70, BUT WHO WHEN THEY DO REACH THAT AGE WILL NOT HAVE HAD 15 YEARS' SERVICE. MANY OF THEM ARE EFFICIENT EMPLOYEES AND IT IS DESIRED TO RETAIN THEM IN THE SERVICE. IN THE CASE OF SUCH EMPLOYEE SHOULD DEDUCTION ON ACCOUNT OF RETIREMENT BE MADE?

THE DECISION QUOTED IN ANSWER TO QUESTION 1 IS EQUALLY APPLICABLE IN ANSWERING THIS QUESTION. THE EMPLOYEES MENTIONED WILL BE ELIGIBLE FOR RETIREMENT ON ACCOUNT OF AGE ONLY UPON COMPLETION OF 15 YEARS' SERVICE. RETIREMENT DEDUCTIONS MUST BE MADE FROM THE COMPENSATION OF SUCH EMPLOYEES FOR PERIODS ON AND AFTER JULY 1, 1930.

THE THIRD QUESTION IS WHETHER EMPLOYEES WHO ARE, ALSO, MEMBERS OF THE HOME COME WITHIN THE TERMS OF THE CIVIL RETIREMENT ACT AS AMENDED MAY 29, 1930, NECESSITATING RETIREMENT DEDUCTIONS TO BE MADE FROM THEIR COMPENSATION.

THERE HAS BEEN RELATED IN THE SUBMISSION SOMETHING OF THE HISTORY OF THE POLICY PURSUANT TO WHICH MEMBERS OF THE HOME HAVE BEEN FURNISHED EMPLOYMENT, AND AS TO THEIR RATES OF COMPENSATION AND RECEIPT OF ALLOWANCES IN KIND, ETC. THERE HAS BEEN MENTIONED ALSO THE DISTINCTION MADE BETWEEN MEMBER AND NONMEMBER EMPLOYEES IN CERTAIN SALARY STATUTES AND IN THE ACT OF JULY 3, 1930, 46 STAT. 1016, PROVIDING IN SECTION 4 FOR THE TRANSFER OF THE PERSONNEL OF THE HOME TO THE VETERANS' ADMINISTRATION, SECTION (B) THEREOF PROVIDING:

SUCH OF THE PERSONNEL AS ARE NOT INMATES OF ANY OF THE BRANCHES OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS MAY BY EXECUTIVE ORDER, BE GIVEN A CIVIL-SERVICE STATUS IN ACCORDANCE WITH THE LAWS RELATING THERETO UPON SUCH TERMS AND CONDITIONS AS THE PRESIDENT MAY DIRECT. * * *

THE STATEMENTS IN THE SUBMISSION WOULD SEEM TO INDICATE, ALSO, THAT THE TENURE OF EMPLOYMENT OF ALL MEMBER EMPLOYEES IS NOT NECESSARILY INTERMITTENT, NOR OF UNCERTAIN DURATION. THAT IS TO SAY, THE FACT THAT EMPLOYEES ARE MEMBERS OR INMATES OF THE HOME DOES NOT OF ITSELF JUSTIFY CLASSIFYING SUCH EMPLOYMENT AS "INTERMITTENT NOR OF UNCERTAIN DURATION" WITHIN THE MEANING OF THE RETIREMENT ACT.

NO DISTINCTION HAS BEEN MADE IN THE CIVIL RETIREMENT ACT BETWEEN MEMBER AND NONMEMBER EMPLOYEES OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS. THE DISTINCTION MADE BETWEEN MEMBER AND NONMEMBER EMPLOYEES IN THE SALARY STATUTES AND IN THE ACT OF JULY 3, 1930, RELATIVE TO PROVIDING A CLASSIFIED CIVIL-SERVICE STATUS, MAY NOT BE ACCEPTED AS CONTROLLING THE STATUS OF THE EMPLOYEES UNDER THE CIVIL RETIREMENT ACT. THAT IS TO SAY, THE SALARY RATE IS NOT A CONTROLLING FACTOR IN DETERMINING RETIREMENT STATUS, AND THE RETIREMENT ACT SPECIFICALLY INCLUDES BOTH CLASSIFIED AND UNCLASSIFIED EMPLOYEES.

WHILE THE RIGHT TO RETIREMENT BENEFITS IS NOT FOR THE FINAL DECISION OF THIS OFFICE, UNLESS AND UNTIL THE STATUS OF THESE MEMBER EMPLOYEES OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS IS OTHERWISE DETERMINED BY COMPETENT AUTHORITY AS NOT COMING WITHIN THE TERMS OF THE RETIREMENT ACT, RETIREMENT DEDUCTIONS SHOULD BE MADE FROM THE COMPENSATION OF ALL EMPLOYEES OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, BOTH MEMBER AND NONMEMBER EMPLOYEES.