A-41924, APRIL 30, 1932, 11 COMP. GEN. 409

A-41924: Apr 30, 1932

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EMPLOYEES WHO HAVE SUSTAINED PERMANENT AND TOTAL DISABILITY IN THE LINE OF DUTY HAVE AN ABSOLUTE RIGHT TO BE CREDITED WITH ALL PERIODS DURING WHICH THEY MAY BE IN RECEIPT OF COMPENSATION UNDER THE ACT OF SEPTEMBER 7. IS THIS RIGHT AFFECTED BY ADMINISTRATIVE ACTION IN DROPPING THEIR NAMES FROM THE ROLLS OF THE DEPARTMENT IN WHICH THEY WERE EMPLOYED? YOU HAVE CITED A NUMBER OF DECISIONS OF THE ACCOUNTING OFFICERS OF THE UNITED STATES. WHERE AN EMPLOYEE IS SICK OR DISABLED FOR A LONG-CONTINUED PERIOD. THE QUESTION WHETHER HE SHOULD BE CONTINUED ON THE ROLLS AS IN SERVICE OR BE DROPPED AS AN EMPLOYEE IS ONE PRIMARILY OF ADMINISTRATION. 27 COMP. THAT DECISION DEALT WITH THE LEAVE STATUS OF EMPLOYEES PARTIALLY OR TEMPORARILY DISABLED IN THE SERVICE WHO WERE RECEIVING THE BENEFITS OF THE EMPLOYEES' COMPENSATION ACT.

A-41924, APRIL 30, 1932, 11 COMP. GEN. 409

RETIREMENT OF CIVILIAN EMPLOYEES - SERVICE CREDITS IN COMPUTING LENGTH OF SERVICE UNDER THE CIVIL RETIREMENT ACT, THERE SHOULD BE EXCLUDED ALL PERIODS FROM AND AFTER THE DATE OF AN OFFICIAL RATING OF PERMANENT TOTAL DISABILITY SPECIFICALLY AUTHORIZED TO BE MADE UNDER ANY FEDERAL STATUTE, WHETHER THE NAME OF THE EMPLOYEE HAS OR HAS NOT BEEN DROPPED FROM THE ROLLS OF THE DEPARTMENT UNDER WHICH EMPLOYED.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, APRIL 30, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF APRIL 15, 1932, REQUESTING DECISION OF THE FOLLOWING QUESTION:

WHETHER IN COMPUTING LENGTH OF SERVICE FOR THE PURPOSE OF THE ACT OF MAY 29, 1930, EMPLOYEES WHO HAVE SUSTAINED PERMANENT AND TOTAL DISABILITY IN THE LINE OF DUTY HAVE AN ABSOLUTE RIGHT TO BE CREDITED WITH ALL PERIODS DURING WHICH THEY MAY BE IN RECEIPT OF COMPENSATION UNDER THE ACT OF SEPTEMBER 7, 1916. IS THIS RIGHT AFFECTED BY ADMINISTRATIVE ACTION IN DROPPING THEIR NAMES FROM THE ROLLS OF THE DEPARTMENT IN WHICH THEY WERE EMPLOYED?

SECTION 5 OF THE CIVIL RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 472, PROVIDES, IN PART, AS FOLLOWS:

IN COMPUTING LENGTH OF SERVICE FOR THE PURPOSES OF THIS ACT, ALL PERIODS OF SEPARATION FROM THE SERVICE, AND SO MUCH OF ANY LEAVES OF ABSENCE AS MAY EXCEED SIX MONTHS IN THE AGGREGATE IN ANY CALENDAR YEAR, SHALL BE EXCLUDED, EXCEPT SUCH LEAVES OF ABSENCE GRANTED EMPLOYEES WHILE RECEIVING BENEFITS UNDER THE UNITED STATES EMPLOYEES' COMPENSATION ACT, AND IN THE CASE OF SUBSTITUTES IN THE POSTAL SERVICE CREDIT SHALL BE GIVEN FROM DATE OF ORIGINAL APPOINTMENT AS A SUBSTITUTE.

YOU HAVE CITED A NUMBER OF DECISIONS OF THE ACCOUNTING OFFICERS OF THE UNITED STATES, AN OPINION OF THE ATTORNEY GENERAL, AND A COURT DECISION, WHEREIN HAS BEEN CONSIDERED THE RELATION BETWEEN THE GOVERNMENT AND A PERSON RECEIVING DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT. THE FOLLOWING HAS BEEN QUOTED FROM THE DECISION OF AUGUST 24, 1926, 6 COMP. GEN. 156, 157:

IT HAS BEEN HELD THAT AN ABSENCE ON ACCOUNT OF AN INJURY SUCH AS WOULD ENTITLE THE EMPLOYEE TO THE BENEFITS OF THE ACT OF SEPTEMBER 7, 1916, DOES NOT IPSO FACTO BREAK THE CONTINUITY OF SERVICE FOR LEAVE PURPOSES OF AN EMPLOYEE WHO THEREAFTER RETURNS TO DUTY. 26 COMP. DEC. 763. WHERE AN EMPLOYEE IS SICK OR DISABLED FOR A LONG-CONTINUED PERIOD, THE QUESTION WHETHER HE SHOULD BE CONTINUED ON THE ROLLS AS IN SERVICE OR BE DROPPED AS AN EMPLOYEE IS ONE PRIMARILY OF ADMINISTRATION. 27 COMP. DEC. 100. SEE ALSO 5 COMP. GEN. 404.

THAT DECISION DEALT WITH THE LEAVE STATUS OF EMPLOYEES PARTIALLY OR TEMPORARILY DISABLED IN THE SERVICE WHO WERE RECEIVING THE BENEFITS OF THE EMPLOYEES' COMPENSATION ACT. AS TO ALL SUCH EMPLOYEES, IT IS CLEAR THAT SERVICE CREDIT ACCRUES UNDER THE CIVIL RETIREMENT ACT FOR ANY PERIOD OF AUTHORIZED ABSENCE FROM ACTIVE DUTY DURING WHICH DISABILITY COMPENSATION IS PAID UNDER THE EMPLOYEES' COMPENSATION ACT. THE PURPOSE OF THE STATUTE IS TO SAVE THE LOSS OF SERVICE CREDIT TOWARD RETIREMENT FOR A PERIOD OF TEMPORARY ABSENCE ON ACCOUNT OF INJURY INCURRED IN THE SERVICE WHERE THERE IS AN EXPECTATION OF A RETURN TO ACTIVE DUTY. HOWEVER, THERE IS NO PURPOSE SHOWN TO SAVE TO EMPLOYEES PERMANENTLY AND TOTALLY DISABLED WITH NO EXPECTATION OF RETURNING TO ACTIVE DUTY, SERVICE CREDIT DURING THE PERIOD WHILE IN RECEIPT OF DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT, IN MANY CASES COVERING A NUMBER OF YEARS. AN OFFICIAL RATING OF PERMANENT TOTAL DISABILITY, UNDER ANY FEDERAL STATUTE AUTHORIZING SUCH RATING, IS WHOLLY INCONSISTENT WITH FURTHER ACTIVE DUTY, AND IPSO FACTO SEPARATES THE EMPLOYEE FROM THE PUBLIC SERVICE FROM AND AFTER ITS DATE, EVEN WHERE THERE IS A STATUTE PROHIBITING THE ADMINISTRATIVE OFFICE FROM SEPARATING THE EMPLOYEE FROM SERVICE BECAUSE OF ILLNESS DURING A FIXED PERIOD, SUCH AS THE ACT OF JULY 28, 1916, 39 STAT. 413, APPLICABLE TO THE POSTAL SERVICE.

THE VIEWS EXPRESSED IN THE OPINION OF THE ATTORNEY GENERAL, DATED FEBRUARY 25, 1921, 32 OP.ATTY.GEN. 424, AND THE COURT DECISION IN THE CASE OF UNITED STATES V. GRIFFITH, 2 FED.REP. (2D) 925, WHICH YOU CITE, ARE NOT INCONSISTENT WITH THE ABOVE. THE ATTORNEY GENERAL MERELY APPLIED THE WELL-KNOWN DISTINCTION BETWEEN LEAVE OF ABSENCE WITHOUT PAY AND ABSOLUTE SEPARATION FROM THE SERVICE, AND THE COURT WAS APPLYING A STATUTE FIXING QUALIFICATIONS FOR JURY DUTY. WHILE THE COURT HELD THAT A PERSON RECEIVING DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT IS "AN EMPLOYEE OF THE UNITED STATES," IT WAS CAREFUL TO LIMIT SUCH DESIGNATION TO THE POINT UNDER CONSIDERATION. THE HOLDING OF THE COURT WOULD APPLY EQUALLY TO A CASE WHERE THE ADMINISTRATIVE OFFICE HAD SEPARATED AN EMPLOYEE RECEIVING DISABILITY COMPENSATION BY DROPPING HIS NAME FROM THE ROLL, AS TO AN EMPLOYEE RECEIVING DISABILITY COMPENSATION WHO HAD BEEN GRANTED LEAVE OF ABSENCE WITHOUT PAY, AND, ACCORDINGLY, COULD NOT BE CONSIDERED AS CONTROLLING IN THE INSTANT MATTER.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT IN COMPUTING LENGTH OF SERVICE UNDER THE CIVIL RETIREMENT ACT, THERE SHOULD BE EXCLUDED ALL PERIODS FROM AND AFTER THE DATE OF AN OFFICIAL RATING OF PERMANENT TOTAL DISABILITY SPECIFICALLY AUTHORIZED TO BE MADE UNDER ANY FEDERAL STATUTE, WHETHER THE NAME OF THE EMPLOYEE HAS OR HAS NOT BEEN DROPPED FROM THE ROLLS OF THE DEPARTMENT UNDER WHICH EMPLOYED.