A-43854, SEPTEMBER 12, 1932, 12 COMP. GEN. 341

A-43854: Sep 12, 1932

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NO ADMINISTRATIVE ACTION WAS NECESSARY TO EFFECT SUCH AUTOMATIC SEPARATION FROM THE SERVICE AND SUCH CESSATION OF ALL SALARY. NO PERSON RENDERING CIVILIAN SERVICE IN ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHO SHALL HAVE REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE. OF EMPLOYEES WHO HAVE REACHED RETIREMENT AGE AND HAVE RENDERED 15 YEARS OF CIVILIAN SERVICE. AUTOMATIC SEPARATION NOT APPLYING TO THOSE EMPLOYEES WHO REACHED RETIREMENT AGE AND WHO HAVE RENDERED AN AGGREGATE OF 15 YEARS OF CIVILIAN AND MILITARY SERVICE. FOR WHICH MILITARY SERVICE HE WAS NOT RECEIVING A PENSION. BROOK WAS PAID FOR THE PERIOD JULY 1 TO 15.

A-43854, SEPTEMBER 12, 1932, 12 COMP. GEN. 341

ECONOMY ACT - RETIREMENT OF CIVILIAN PERSONNEL THE MINIMUM PERIOD OF "FIFTEEN YEARS OF SERVICE" REQUIRED TO ENTITLE A CIVILIAN EMPLOYEE TO THE BENEFITS OF RETIREMENT UNDER SECTION 2 OF THE CIVIL RETIREMENT ACT, AS AMENDED BY THE ACT OF MAY 29, 1930, 45 STAT. 469, MEANS ACCREDITED SERVICE AND INCLUDES ANY PERIOD OF CIVIL OR MILITARY SERVICE AUTHORIZED BY SECTION 5 OF THE ACT TO BE COUNTED TOWARD RETIREMENT. UNDER SECTION 204 OF THE ECONOMY ACT ALL CIVILIAN EMPLOYEES SUBJECT TO THE RETIREMENT ACT WHO HAD REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE BECAME AUTOMATICALLY SEPARATED FROM THE SERVICE ON JULY 1, 1932, AND ALL SALARY, PAY, OR COMPENSATION AUTOMATICALLY CEASED FROM THAT DATE, EXCEPT AS OTHERWISE PROVIDED IN THE FIRST AND THIRD PROVISIONS OF SAID SECTION, AND NO ADMINISTRATIVE ACTION WAS NECESSARY TO EFFECT SUCH AUTOMATIC SEPARATION FROM THE SERVICE AND SUCH CESSATION OF ALL SALARY, PAY, OR COMPENSATION.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL, SEPTEMBER 12, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF AUGUST 4, 1932, AS FOLLOWS:

SECTION 204 OF THE ECONOMY ACT PROVIDES THAT "ON AND AFTER JULY 1, 1932, NO PERSON RENDERING CIVILIAN SERVICE IN ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHO SHALL HAVE REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE, APPLICABLE TO SUCH PERSON, SHALL BE CONTINUED IN SUCH SERVICE, NOTWITHSTANDING ANY PROVISION OF LAW OR REGULATION TO THE CONTRARY * * *.'

SINCE APPROVAL OF THE ACT OF MAY 29, 1930 (46 STAT. 472), THIS OFFICE HAS INTERPRETED SECTION 2 THEREOF TO REQUIRE AUTOMATIC SEPARATION EXCEPT AS OTHERWISE PROVIDED, OF EMPLOYEES WHO HAVE REACHED RETIREMENT AGE AND HAVE RENDERED 15 YEARS OF CIVILIAN SERVICE, AUTOMATIC SEPARATION NOT APPLYING TO THOSE EMPLOYEES WHO REACHED RETIREMENT AGE AND WHO HAVE RENDERED AN AGGREGATE OF 15 YEARS OF CIVILIAN AND MILITARY SERVICE.

FRANK BROOK, EMPLOYED BY THIS OFFICE AS GUARD, CU-3, AT A SALARY OF $1,260 PER ANNUM, REACHED THE RETIREMENT AGE FOR HIS RESPECTIVE POSITION ON AUGUST 7, 1926, AND ON JULY 19, 1932, COMPLETED FOURTEEN YEARS, FIVE MONTHS, AND NINETEEN DAYS CIVILIAN SERVICE, AND ONE YEAR,NINE MONTHS, AND TWENTY-SEVEN DAYS MILITARY SERVICE, AND FOR WHICH MILITARY SERVICE HE WAS NOT RECEIVING A PENSION. MR. BROOK WAS PAID FOR THE PERIOD JULY 1 TO 15, 1932, BUT WAS SUSPENDED ON JULY 19, 1932, BECAUSE OF THE DOUBT AS TO WHETHER HE WAS SUBJECT TO COMPULSORY RETIREMENT ON JUNE 30, 1932.

DECISION IS REQUESTED AS TO WHETHER AN EMPLOYEE WHO HAS REACHED THE RETIREMENT AGE FOR HIS RESPECTIVE POSITION AND WHO HAS AN AGGREGATE PERIOD OF ANNUITABLE SERVICE OF FIFTEEN YEARS, CIVILIAN AND MILITARY COMBINED, IS SUBJECT TO COMPULSORY RETIREMENT UNDER SECTION 204 OF THE LEGISLATIVE APPROPRIATION ACT OF JUNE 30, 1932. IF THE ANSWER IS IN THE AFFIRMATIVE, DOES THE SAME SECTION OF THAT ACT NULLIFY THE PROVISIONS OF THE ACT OF FEBRUARY 20, 1929, PUB. 779, 70TH CONGRESS? IF THE ANSWER TO THIS QUESTION IS IN THE AFFIRMATIVE, MAY MR. BROOK RETAIN THE PAY RECEIVED FOR THE PERIOD JULY 1 TO 16, 1932?

SECTIONS 2 AND 5 OF THE CIVIL RETIREMENT ACT, AS AMENDED BY THE ACT OF MAY 29, 1930, 46 STAT. 469, 472, PROVIDE IN PART AS FOLLOWS:

SEC. 2. 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, 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 SIXTY DAYS IN ADVANCE THEREOF * * *

SEC. 5. 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, OR IN THE SERVICE OF THE DISTRICT OF COLUMBIA, INCLUDING PERIODS OF SERVICE AT DIFFERENT TIMES AND IN ONE OR MORE DEPARTMENTS, BRANCHES, OR INDEPENDENT OFFICES, OR THE LEGISLATIVE BRANCH 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 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.

THE MINIMUM PERIOD OF "15 YEARS OF SERVICE" REQUIRED TO ENTITLE TO BENEFITS OF RETIREMENT, MEANS ACCREDITED SERVICE AND INCLUDES ANY PERIOD OF CIVILIAN OR MILITARY SERVICE AUTHORIZED BY SECTION 5 OF THE ACT TO BE COUNTED TOWARD RETIREMENT. ACCORDINGLY, FRANK BROOK HAD MORE THAN 15 YEARS OF ACCREDITED SERVICE AND WAS ELIGIBLE FOR AUTOMATIC RETIREMENT ON AND PRIOR TO JULY 1, 1932.

SECTION 204 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 404, PROVIDES AS FOLLOWS:

ON AND AFTER JULY 1, 1932, NO PERSON RENDERING CIVILIAN SERVICE IN ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHO SHALL HAVE REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE, APPLICABLE TO SUCH PERSON, SHALL BE CONTINUED IN SUCH SERVICE, NOTWITHSTANDING ANY PROVISION OF LAW OR REGULATION TO THE CONTRARY: PROVIDED, THAT THE PRESIDENT MAY, BY EXECUTIVE ORDER, EXEMPT FROM THE PROVISIONS OF THIS SECTION ANY PERSON WHEN, IN HIS JUDGMENT, THE PUBLIC INTEREST SO REQUIRES: PROVIDED FURTHER, THAT NO SUCH PERSON HERETOFORE OR HEREAFTER SEPARATED FROM THE SERVICE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA UNDER ANY PROVISION OF LAW OR REGULATION PROVIDING FOR SUCH RETIREMENT ON ACCOUNT OF AGE SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA: PROVIDED FURTHER, THAT THIS SECTION SHALL NOT APPLY TO ANY PERSON NAMED IN ANY ACT OF CONGRESS PROVIDING FOR THE CONTINUANCE OF SUCH PERSON IN THE SERVICE.

THE ACT OF FEBRUARY 20, 1929, 45 STAT. 1248, TO WHICH YOU REFER, PROVIDES AS FOLLOWS:

THAT THE ACT ENTITLED "AN ACT FOR THE RETIREMENT OF EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE, AND FOR OTHER PURPOSES," APPROVED JULY 3, 1926, IS HEREBY AMENDED BY ADDING A FOURTH PARAGRAPH TO SECTION 2 OF SAID ACT, AS FOLLOWS:

"IN ALL CASES WHERE AN EMPLOYEE OTHERWISE ELIGIBLE FOR CONTINUANCE HAS BEEN RETAINED BEYOND RETIREMENT AGE WITHOUT PRIOR AUTHORITY THE CIVIL SERVICE COMMISSION MAY ISSUE CERTIFICATE OF CONTINUANCE LEGALIZING THE SERVICE OF SUCH EMPLOYEE AND AUTHORIZING HIS FURTHER CONTINUANCE AS PROVIDED IN PARAGRAPH 1 OF THIS SECTION, UPON BEING SATISFIED THAT THE RETENTION WAS DUE TO ERRONEOUS OR INCOMPLETE RECORDS OF AGE OR SERVICE OR TO FAULTY ADMINISTRATION ON THE PART OF THE DEPARTMENT OR OFFICE CONCERNED AND NOT TO ANY ATTEMPT OR DESIRE BY THE EMPLOYEE TO DECEIVE FOR THE PURPOSE OF DEFEATING ANY PROVISION OF THIS ACT.'

AS THIS AMENDMENT DOES NOT APPEAR IN THE CIVIL RETIREMENT ACT, AS AMENDED AND REENACTED MAY 29, 1930, SUPRA, IT WOULD SEEM THAT IT CEASED TO BE OPERATIVE OR IN EFFECT AFTER JUNE 30, 1930, BUT, IN ANY EVENT, ALL PROVISIONS OF LAW EXISTING PRIOR TO JULY 1, 1932, FOR THE RETENTION OR CONTINUANCE IN THE SERVICE, AFTER REACHING THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE, OF PERSONS RENDERING CIVILIAN SERVICE IN ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT WERE REPEALED OR RENDERED INOPERATIVE BY THE FIRST SENTENCE OF SECTION 204 OF THE ECONOMY ACT OF JUNE 30, 1932. UNDER SAID SECTION, ALL SUCH PERSONS WHO HAD REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE BECAME AUTOMATICALLY SEPARATED FROM THE SERVICE ON JULY 1, 1932, AND ALL SALARY, PAY, OR COMPENSATION AUTOMATICALLY CEASED FROM THAT DATE, EXCEPT AS OTHERWISE PROVIDED IN THE FIRST AND THIRD PROVISOS OF SAID SECTION, AND NO ADMINISTRATIVE ACTION WAS NECESSARY TO EFFECT SUCH AUTOMATIC SEPARATION FROM THE SERVICE AND SUCH CESSATION OF ALL SALARY, PAY, OR COMPENSATION. SEE 26 COMP. DEC. 1079; 27 ID. 858; 5 COMP. GEN. 70; 6 ID. 71, 263. ACCORDINGLY, I HAVE TO ADVISE THAT PAYMENT OF COMPENSATION TO THE EMPLOYEE MENTIONED IN YOUR SUBMISSION FOR ANY PERIOD AFTER JULY 15, 1932, THE DATE TO WHICH HE WAS LAST PAID, IS NOT AUTHORIZED.

WITH RESPECT TO HIS RIGHT TO RETAIN THE SALARY HERETOFORE PAID TO HIM FOR THE PERIOD FROM JULY 1 TO 15, 1932, IT MAY BE SAID THAT IF HE ACTUALLY RENDERED SERVICE DURING SAID PERIOD HE MAY, AS A DE FACTO EMPLOYEE, RETAIN SAID AMOUNT IF NOT IN EXCESS OF THE REASONABLE VALUE OF THE SERVICES RENDERED. 4 COMP. GEN. 43; 5 ID. 70; 6 ID. 71, 263.