A-36653, JULY 1, 1931, 11 COMP. GEN. 1

A-36653: Jul 1, 1931

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CIVILIAN - DISABILITY - EFFECTIVE DATE WHEN THERE IS PENDING AN APPLICATION FOR DISABILITY RETIREMENT UNDER SECTION 6 OF THE CIVIL RETIREMENT ACT OF MAY 29. UNTIL THE FINAL DECISION OF THE BUREAU OF PENSIONS AND/OR THE ADMINISTRATOR OF VETERANS' AFFAIRS IS RENDERED. WHICH DECISION WILL FIX THE EFFECTIVE DATE OF THE RETIREMENT. WHO IS CLAIMING COMPENSATION AS AN EMPLOYEE OF THE VETERANS' BUREAU FOR THE PERIOD FROM DECEMBER 1. SHE WAS NOTIFIED BY THE VETERANS' BUREAU AS FOLLOWS: THIS HAS REFERENCE TO PREVIOUS CORRESPONDENCE IN YOUR CASE. WHEREIN YOU WERE ADVISED THAT ACTION WAS BEING TAKEN LOOKING TOWARD YOUR RETIREMENT IN ACCORDANCE WITH SECTION 6 OF THE AMENDED RETIREMENT ACT OF MAY 29.

A-36653, JULY 1, 1931, 11 COMP. GEN. 1

RETIREMENT, CIVILIAN - DISABILITY - EFFECTIVE DATE WHEN THERE IS PENDING AN APPLICATION FOR DISABILITY RETIREMENT UNDER SECTION 6 OF THE CIVIL RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 472, NO ADMINISTRATIVE ACTION SHOULD BE TAKEN TO SEPARATE THE EMPLOYEE FROM THE SERVICE SOLELY BECAUSE OF DISABILITY OR TO PREVENT THE EMPLOYEE FROM RENDERING SERVICE, UNTIL THE FINAL DECISION OF THE BUREAU OF PENSIONS AND/OR THE ADMINISTRATOR OF VETERANS' AFFAIRS IS RENDERED, WHICH DECISION WILL FIX THE EFFECTIVE DATE OF THE RETIREMENT, THE CHANGE FROM ACTIVE STATUS TO RETIREMENT STATUS FOR PAY PURPOSES TO BE CONTINUOUS IN SO FAR AS POSSIBLE AND IN ACCORDANCE WITH THE ACT OF APRIL 23, 1930, 46 STAT. 253, ESTABLISHING THE FIRST OF A MONTH AS A UNIFORM RETIREMENT DATE.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JULY 1, 1931:

IN REPLY TO MY LETTER OF MAY 27, 1931, THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 23, 1931, REPORTING THE FACTS AND FURNISHING CERTIFIED COPIES OF THE ADMINISTRATIVE ORDERS, IN THE CASE OF MARY E. WADE, WHO IS CLAIMING COMPENSATION AS AN EMPLOYEE OF THE VETERANS' BUREAU FOR THE PERIOD FROM DECEMBER 1, 1930, TO MARCH 7, 1931.

FROM THE RECORD AS SUBMITTED BY YOU THE ESSENTIAL FACTS APPEAR TO BE AS FOLLOWS:

ON AUGUST 8, 1930, THE VETERANS' BUREAU MAILED TO THE BUREAU OF PENSIONS AN APPLICATION FOR THE RETIREMENT OF MISS WADE FOR TOTAL DISABILITY, UNDER THE PROVISIONS OF SECTION 6 OF THE CIVIL RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 472, TO WHICH MISS WADE OBJECTED. ON NOVEMBER 5, 1930, SHE WAS NOTIFIED BY THE VETERANS' BUREAU AS FOLLOWS:

THIS HAS REFERENCE TO PREVIOUS CORRESPONDENCE IN YOUR CASE, WHEREIN YOU WERE ADVISED THAT ACTION WAS BEING TAKEN LOOKING TOWARD YOUR RETIREMENT IN ACCORDANCE WITH SECTION 6 OF THE AMENDED RETIREMENT ACT OF MAY 29, 1930. THE BUREAU OF PENSIONS, AFTER CONSIDERING THE APPLICATION, HAS TAKEN FAVORABLE ACTION.

IN ORDER TO FIX THE DATE OF COMMENCEMENT OF ANNUITY, THE BUREAU OF PENSIONS HAS REQUESTED INFORMATION AS TO THE DATE YOUR PAY WILL TERMINATE IN THE BUREAU. YOU ARE, THEREFORE, ADVISED THAT ACTION IS BEING TAKEN TO TERMINATE YOUR SERVICES WITH THIS BUREAU EFFECTIVE AT THE CLOSE OF BUSINESS NOVEMBER 30, 1930. YOU WILL THEN BE PLACED IN A RETIREMENT STATUS BY THE BUREAU OF PENSIONS EFFECTIVE DECEMBER 1, 1930.

IN THE FINAL RETIREMENT DECISION IN THIS MATTER, DATED MARCH 4, 1931, THERE IS A STATEMENT THAT RETIREMENT WAS GRANTED DECEMBER 3, 1930, BY THE ACTING COMMISSIONER OF PENSIONS, ALTHOUGH NO ADMINISTRATIVE ORDER TO THAT EFFECT HAS BEEN FURNISHED WITH YOUR REPORT, AND THAT MISS WADE APPEALED FROM SUCH ACTION DECEMBER 13, 1930, TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, THE APPEAL BEING IN THE NATURE OF A REQUEST FOR AN EXAMINATION "BY A DISINTERESTED BRANCH OF GOVERNMENT, WITH MY PERSONAL PHYSICIAN PRESENT.' APPARENTLY THE ADMINISTRATOR DID NOT THEN CONSIDER THE CASE AS ON APPEAL FROM A FINAL ACTION OF THE BUREAU OF PENSIONS BUT ON DECEMBER 20 ASKED THAT THE BUREAU GRANT HER REQUEST FOR A FURTHER EXAMINATION. THE EXAMINATION REQUESTED WAS HELD JANUARY 6 AND 8, 1931, BY THREE PHYSICIANS OF THE PUBLIC HEALTH SERVICE, AND, AS A RESULT THEREOF, ON JANUARY 28, 1931, THE VETERANS' BUREAU WAS ADVISED BY THE ACTING COMMISSIONER OF PENSIONS AS FOLLOWS:

FOR THE INFORMATION OF YOUR OFFICE AND FOR THE PURPOSE OF COMPLETING YOUR RECORD, YOU ARE ADVISED THAT CLAIM NO. R-30371, UNDER SECTION SIX OF THE ACT OF MAY 29, 1930, OF MARY E. WADE, A FORMER EMPLOYEE OF THE U.S. VETERANS' BUREAU (CLERK), HAS BEEN REJECTED ON THE GROUND THAT TOTAL DISABILITY FOR USEFUL AND EFFICIENT SERVICE IS NOT SHOWN.

FEBRUARY 6, 1931, APPEAL WAS TAKEN BY THE VETERANS' BUREAU FROM THIS DECISION TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, WHO AFFIRMED THE SAME MARCH 4, 1931. UNDER DATE OF MARCH 6, 1931, THE CIVIL SERVICE COMMISSION WAS ADVISED BY THE VETERANS' BUREAU AS FOLLOWS:

THERE IS ATTACHED HERETO REQUEST FOR REINSTATEMENT IN THE CASE OF MISS MARY E. WADE, WHOSE SERVICES WERE TERMINATED EFFECTIVE AT THE CLOSE OF BUSINESS NOVEMBER 30, 1930, FOR TOTAL DISABILITY IN ACCORDANCE WITH SECTION 6 OF THE AMENDED RETIREMENT ACT OF MAY 29, 1930.

MISS WADE APPEALED TO THE ADMINISTRATOR ON THIS ACTION AND AFTER A REVIEW OF THE CASE HE HAS HELD THAT SHE IS NOT TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE, AND IT IS DESIRED TO RESTORE HER TO HER FORMER POSITION.

IT WILL THEREFORE BE APPRECIATED IF THE COMMISSION WILL AUTHORIZE HER REINSTATEMENT AS A GRADE CAF-1 CLERK, AT $1,500 PER ANNUM.

ON MARCH 7, 1931, MISS WADE WAS ADVISED BY THE VETERAN'S BUREAU AS FOLLOWS:

YOU ARE HEREBY PERMANENTLY APPOINTED, SUBJECT TO TAKING THE OATH OF OFFICE, AS A CLERK, AT A SALARY AT THE RATE OF $1,500 PER ANNUM, C.A. AND F. SERVICE, GRADE ONE, S. AND E. 1931 (C.S. REINSTATEMENT CERTIFICATE NO. 34319), EFFECTIVE MARCH 7, 1931.

BY LETTER DATED MARCH 28, 1931, SHE WAS ADVISED BY THE ADMINISTRATOR OF VETERANS' AFFAIRS AS FOLLOWS:

THIS HAS FURTHER REFERENCE TO YOUR COMMUNICATION OF MARCH 17TH REGARDING THE RECENT DECISION RENDERED ON THE QUESTION OF YOUR RETIREMENT UNDER THE CIVIL SERVICE RETIREMENT LAWS.

UPON GOING INTO YOUR CASE I FIND YOU WERE SEPARATED FROM THE SERVICE AT THE CLOSE OF BUSINESS NOVEMBER 30, 1930, AND DID NOT REENTER AND TAKE THE OATH OF OFFICE UNTIL MARCH 7, 1931. AT THE TIME OF YOUR DISCONTINUANCE YOU HAD BEEN GRANTED ALL THE ANNUAL AND SICK LEAVE DUE YOU FOR THE CALENDAR YEAR 1930.

INASMUCH AS YOU RENDERED NO SERVICE TO THE BUREAU BETWEEN YOUR SEPARATION AND THE DATE OF YOUR REAPPOINTMENT, YOU ARE ADVISED I AM NOT AWARE OF ANY AUTHORITY WHEREBY YOU MAY RECEIVE COMPENSATION FOR THE ABOVE PERIOD.

YOU REPORT THAT "THE AMOUNT OF LEAVE GRANTED PRIOR TO NOVEMBER 30, 1930, DATE OF DISCONTINUANCE, WAS 30 DAYS SICK, 30 DAYS ANNUAL, AND 61 DAYS 3 HOURS AND 15 MINUTES LEAVE WITHOUT PAY.'

THERE IS NOT DISCLOSED IN THIS CASE ANY ADMINISTRATIVE ORDER ACTUALLY SEPARATING MISS WADE FROM THE SERVICE. THE LETTER OF NOVEMBER 5, 1930, TO HER WAS MERELY A NOTICE THAT "ACTION IS BEING TAKEN TO TERMINATE YOUR SERVICE WITH THIS BUREAU EFFECTIVE AT THE CLOSE OF BUSINESS NOVEMBER 30, 1930.' FURTHERMORE, SUCH ACTION WOULD HAVE BEEN PREMATURE, AS IT WAS STATED TO BE BASED ON HER RETIREMENT, AND ON NOVEMBER 30, 1930, THE DATE TERMINATION OF SERVICES WAS PROPOSED, THE RETIREMENT PROCEEDINGS WERE YET PENDING, AND NEITHER THE INITIAL, NOR THE FINAL, DECISION OF THE COMMISSIONER OF PENSIONS AND/OR THE ADMINISTRATOR OF VETERANS' AFFAIRS HAD BEEN MADE. AN EMPLOYEE WHOSE SEPARATION FROM THE ACTIVE SERVICE IS SOLELY FOR THE PURPOSE OF GRANTING THE BENEFITS OF DISABILITY RETIREMENT MAY NOT, BY ADMINISTRATIVE ACTION, BE PLACED IN SUCH A POSITION AS TO LOSE THE BENEFITS OF BOTH AN ACTIVE DUTY AND A RETIRED STATUS. CHANGE FROM ACTIVE DUTY TO RETIRED STATUS IS NOT TO BE CONTROLLED BY THE SAME PRINCIPLES APPLICABLE TO DISMISSAL OR OTHER SEPARATIONS FROM THE SERVICE. SEE 10 COMP. GEN. 478.

WHEN THERE IS PENDING AN APPLICATION FOR DISABILITY RETIREMENT UNDER SECTION 6 OF THE CIVIL RETIREMENT ACT NO ADMINISTRATIVE ACTION SHOULD BE TAKEN TO SEPARATE THE EMPLOYEE FROM THE SERVICE SOLELY BECAUSE OF DISABILITY OR TO PREVENT THE EMPLOYEE FROM RENDERING SERVICE UNTIL THE FINAL DECISION OF THE BUREAU OF PENSIONS AND/OR THE ADMINISTRATOR OF VETERANS' AFFAIRS IS RENDERED, WHICH SAID DECISION WILL FIX THE EFFECTIVE DATE OF THE RETIREMENT, THE CHANGE FROM ACTIVE STATUS TO RETIREMENT STATUS FOR PAY PURPOSES TO BE IN ACCORDANCE WITH THE ACT OF APRIL 23, 1930, 46 STAT. 253. IN OTHER WORDS, THE ACTIVE DUTY AND RETIRED STATUS OF AN EMPLOYEE SHOULD BE CONTINUOUS IN SO FAR AS POSSIBLE. NO PAYMENT SHOULD BE MADE IN ANY CASE PENDING RETIREMENT PROCEEDINGS INSTITUTED BY THE ADMINISTRATIVE OFFICE UNTIL THE TIME ALLOWED FOR APPEAL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS SHALL HAVE EXPIRED.

THERE HAS NOT BEEN OVERLOOKED THE FOLLOWING PROVISION IN SECTION 6 OF THE CIVIL RETIREMENT ACT CONTROLLING DISABILITY RETIREMENT:

* * * NO CLAIM SHALL BE ALLOWED UNDER THE PROVISIONS OF THIS SECTION UNLESS THE APPLICATION FOR RETIREMENT SHALL HAVE BEEN EXECUTED PRIOR TO THE APPLICANT'S SEPARATION FROM THE SERVICE OR WITHIN SIX MONTHS THEREAFTER: * * *

THERE IS NOTHING IN THIS PROVISION WHICH WOULD PERMIT AN ADMINISTRATIVE OFFICE TO SEPARATE AN EMPLOYEE FROM THE SERVICE ON ITS OWN MOTION SOLELY FOR THE PURPOSE OF REQUIRING THE EMPLOYEE TO ACCEPT DISABILITY RETIREMENT BENEFITS PRIOR TO THE FINAL DECISION AS TO THE RETIREMENT STATUS OF THE EMPLOYEE. THE QUESTION AS TO WHETHER AN EMPLOYEE SHALL BE SEPARATED FROM THE SERVICE BY ADMINISTRATIVE ACTION SHOULD BE DETERMINED WITHOUT REGARD TO WHETHER THE EMPLOYEE IS OR IS NOT ENTITLED TO RETIREMENT. THE PERIOD OF SIX MONTHS AFTER SEPARATION FROM THE SERVICE WITHIN WHICH TO MAKE APPLICATIONS FOR RETIREMENT REFERS TO APPLICATIONS BY EMPLOYEES WHO HAVE RESIGNED OR WHO HAVE BEEN SEPARATED FROM THE SERVICE FOR OTHER CAUSES WHICH WOULD NOT PRECLUDE AN APPLICATION FOR RETIREMENT.

ACCORDINGLY, AS MISS WADE HAD NOT SEPARATED FROM THE SERVICE, HER STATUS DURING THE PERIOD FROM DECEMBER 1, 1930 TO MARCH 6, 1931, BOTH DATES INCLUSIVE, SHOULD BE REGARDED AS THAT OF AN EMPLOYEE ON LEAVE OF ABSENCE WHILE HOLDING AN ACTIVE DUTY POSITION.

AS SHE RENDERED NO SERVICE DURING DECEMBER, 1930, AND HAD NO SICK OR ANNUAL LEAVE TO HER CREDIT FOR THE CALENDAR YEAR 1930, SHE IS NOT ENTITLED TO ANY PAY FOR DECEMBER, 1930.

IN DECISION OF AUGUST 29, 1930, 10 COMP. GEN. 102, 104, IT WAS STATED:

HEREAFTER EMPLOYEES UNDER ANY DEPARTMENT OR OFFICE SUBJECT TO THE PROVISIONS OF THE LEAVE STATUTES ABOVE QUOTED AND CITED MAY NOT BE GRANTED ANNUAL OR SICK LEAVE OF ABSENCE WITH PAY AT THE BEGINNING OF A CALENDAR, OR OTHER LEAVE YEAR, IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NON- PAY STATUS IN THE PRECEDING YEAR, UNLESS AND UNTIL THERE HAS BEEN RETURN TO DUTY.

IF CLAIMANT RETURNED TO DUTY MARCH 7, 1931, SHE MAY BE PAID COMPENSATION FOR SUCH PART, IF ANY, OF THE PERIOD FROM JANUARY 1 TO MARCH 6, 1931, INCLUSIVE, AS MAY BE COVERED BY ANY ANNUAL LEAVE OR SICK LEAVE THAT MAY BE GRANTED THEREAFTER PURSUANT TO THE LEAVE REGULATIONS OF THE VETERANS' ADMINISTRATION.