A-45724, DECEMBER 20, 1932, 12 COMP. GEN. 472

A-45724: Dec 20, 1932

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RETIREMENT - INVOLUNTARY SEPARATION FROM THE SERVICE - PAYMENT OF TONTINE AN EMPLOYEE WHO IS DROPPED FORM THE ROLLS WITHOUT HIS CONSENT BECAUSE OF CONTINUED ABSENCE ON ACCOUNT OF PERSONAL ILLNESS. IS "INVOLUNTARILY SEPARATED FROM THE SERVICE" WITHIN THE MEANING OF SECTION 7 OF THE CIVIL RETIREMENT ACT AS AMENDED. FOLLOWING HIS SEPARATION FROM THE SERVICE THE AMOUNT CREDITED TO HIS INDIVIDUAL ACCOUNT WAS RETURNED TO HIM TOGETHER WITH INTEREST AS PROVIDED FOR BY THE STATUTE. IT WILL BE UNDERSTOOD THAT THE CLAIM UNDER PRESENT CONSIDERATION DEALS ONLY WITH THE AMOUNT REPRESENTING THE SO-CALLED "TONTINE" WHICH HAD BEEN RETAINED IN THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND WHEN PAYMENT WAS MADE TO THE CLAIMANT OF THE AMOUNT OF HIS INDIVIDUAL CREDIT IN THAT FUND.

A-45724, DECEMBER 20, 1932, 12 COMP. GEN. 472

RETIREMENT - INVOLUNTARY SEPARATION FROM THE SERVICE - PAYMENT OF TONTINE AN EMPLOYEE WHO IS DROPPED FORM THE ROLLS WITHOUT HIS CONSENT BECAUSE OF CONTINUED ABSENCE ON ACCOUNT OF PERSONAL ILLNESS, IS "INVOLUNTARILY SEPARATED FROM THE SERVICE" WITHIN THE MEANING OF SECTION 7 OF THE CIVIL RETIREMENT ACT AS AMENDED, AUTHORIZING RETIREMENT UNDER CERTAIN CONDITIONS, AND ALSO SECTION 12 (B) OF THE SAME STATUTE, AUTHORIZING REFUND OF THE TONTINE OR $1 PER MONTH.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, DECEMBER 20, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF NOVEMBER 9, 1932, AS FOLLOWS:

SECTION 12 (B) OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, PROVIDES, IN PART:

"PROVIDED: THAT WHEN ANY EMPLOYEE BECOMES INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT OR DELINQUENCY, THE TOTAL AMOUNT OF HIS DEDUCTIONS WITH INTEREST THEREON SHALL BE PAID TO SUCH EMPLOYEE.'

THE PROVISO OF THE STATUTE AS QUOTED ABOVE APPEARS TO BE CONTROLLING IN THE ADJUDICATION OF A CLAIM PRESENTED BY JACOB LEVENSON, CLERK, GENERAL ACCOUNTING OFFICE, FOR REFUND OF "THE TOTAL AMOUNT OF HIS DEDUCTIONS WITH INTEREST THEREON * * *.' FOLLOWING HIS SEPARATION FROM THE SERVICE THE AMOUNT CREDITED TO HIS INDIVIDUAL ACCOUNT WAS RETURNED TO HIM TOGETHER WITH INTEREST AS PROVIDED FOR BY THE STATUTE. IT WILL BE UNDERSTOOD THAT THE CLAIM UNDER PRESENT CONSIDERATION DEALS ONLY WITH THE AMOUNT REPRESENTING THE SO-CALLED "TONTINE" WHICH HAD BEEN RETAINED IN THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND WHEN PAYMENT WAS MADE TO THE CLAIMANT OF THE AMOUNT OF HIS INDIVIDUAL CREDIT IN THAT FUND. HE SEEKS RETURN OF THE AMOUNT OF THE SO-CALLED "TONTINE" UNDER THE PROVISO OF THE STATUTE HEREINABOVE QUOTED, ALLEGING IN SUBSTANCE THAT HE HAD BECOME ,INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT OR DELINQUENCY" WITHIN THE MEANING OF THAT LANGUAGE AS USED IN THE STATUTE.

IN A LETTER BY THE CHIEF OF PERSONNEL, GENERAL ACCOUNTING OFFICE, DATED JUNE 28, 1932, IT WAS STATED THAT MR. LEVENSON WAS SEPARATED FROM THE SERVICE AFTER SEVERAL MONTHS' ABSENCE ON ACCOUNT OF ILLNESS AND AS THERE WAS NO IMMEDIATE PROSPECT OF HIS RETURN TO DUTY HE WAS DROPPED FROM THE ROLLS BECAUSE OF HIS ILLNESS. RECOMMENDATION WAS MADE THAT THE CLAIM BE ALLOWED INASMUCH AS IT WAS CONSIDERED THAT LEVENSON'S SEPARATION FROM THE SERVICE ON ACCOUNT OF ILLNESS WAS INVOLUNTARY AND NOT FOR CAUSE OR CHARGES OF MISCONDUCT OR DELINQUENCY.

ON MAY 27, 1932, THE DIRECTOR OF FINANCE OF THIS ADMINISTRATION CALLED TO THE ATTENTION OF THE DIRECTOR OF INSURANCE THE FACT THAT A NUMBER OF SUSPENSIONS IN THE ACCOUNTS OF THE DISBURSING CLERK HAD BEEN MADE BY THE COMPTROLLER GENERAL IN CASES WHEREIN THE REFUND OF "TONTINE" DEDUCTIONS HAD BEEN MADE, CONTRARY TO THE INTERPRETATION PLACED ON SECTION 12 (B) OF THE RETIREMENT ACT, AS AMENDED. IN THAT MEMORANDUM A DIFFERENCE OF OPINION AMONG ADMINISTRATIVE OFFICERS AS TO THE EFFECTIVE MEANING OF THE SECTION OF THE STATUTE REFERRED TO WAS POINTED OUT AND, TO PROTECT THE DISBURSING CLERK FROM FURTHER SUSPENSIONS A RULE WAS LAID DOWN CONFINING FUTURE PAYMENTS INVOLVING THE "TONTINE" DEDUCTIONS TO CASES WHEREIN IT COULD BE SHOWN THAT THE EMPLOYEE WAS FORCED OUT OF THE SERVICE WITHOUT CAUSE OR THAT THE SEPARATION WAS CAUSED BY BEING DROPPED ON ACCOUNT OF REDUCTION IN FORCE, LACK OF FUNDS, OR DURING THE PROBATIONARY PERIOD.

IN THE ADJUDICATION OF THE LEVENSON CLAIM IT APPEARS THAT THE DISBURSING CLERK CONSIDERS THAT THE ABSENCE OF LEVENSON AS A RESULT OF HIS SICKNESS AND HIS SEPARATION FROM THE ROLL DUE TO THAT CAUSE DOES NOT ENTITLE HIM TO THE BENEFITS OF THE INVOLUNTARY SEPARATION PROVISO OF SECTION 12 (B). THE VIEWPOINT IS PRESENTED THAT THE STATUS OF AN EMPLOYEE DROPPED FROM THE ROLLS ON ACCOUNT OF CONTINUOUS ABSENCE AS THE RESULT OF SICKNESS IS NOT DIFFERENT FROM THE STATUS OF AN EMPLOYEE WHO RESIGNS FOR THE SAME REASON.

WITH A VIEW TO UNIFORMITY AND STABILITY IN THE ADJUDICATION OF CLAIMS CONTROLLED BY THE PROVISO OF THE STATUTE WITHIN SECTION 12 (B) OF THE RETIREMENT ACT HEREINABOVE QUOTED IT IS DESIRED THAT THE SCOPE AND EXTENT OF THAT PROVISION BE CONSIDERED BY YOUR OFFICE AND THAT THIS ADMINISTRATION BE ADVISED IF CLAIMS CONSIDERED WITHIN THE PROVISO SHOULD BE CONFINED TO THOSE CASES EVIDENCING SEPARATION FROM SERVICE FOR ADMINISTRATIVE REASONS, SUCH AS LACK OF WORK OR FUNDS, REDUCTION OF FORCE, ETC., OR IF THE PROVISO MAY BE CONSTRUED IN A BROADER SENSE TO INCLUDE THE EXTENSION OF BENEFITS GRANTED BY THE PROVISO TO CASES WHEREIN THE FACTS EVIDENCE A FORCED SEPARATION FROM THE SERVICE ON ACCOUNT OF AN EMPLOYEE'S ILLNESS SUCH AS WE FIND IN THE CLAIM OF JACOB LEVENSON.

THE PHRASE "INVOLUNTARILY SEPARATED FROM THE SERVICE" APPEARS TWICE IN THE RETIREMENT ACT, FIRST IN SECTION 7 SETTING FORTH RETIREMENT BENEFITS UNDER CERTAIN CONDITIONS FOR THOSE WHO ,BECOME INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT OR DELINQUENCY," AND SECOND, IN THE PROVISO TO SECTION 12 (B), QUOTED IN YOUR LETTER, AUTHORIZING REFUND OF THE FULL AMOUNT TO THE CREDIT OF THE INDIVIDUAL ACCOUNT OF THE EMPLOYEE, INCLUDING THE TONTINE OR $1 PER MONTH. THE SAME MEANING SHOULD BE GIVEN TO THE PHRASE IN BOTH CONNECTIONS.

OF COURSE,"INVOLUNTARILY SEPARATED FROM THE SERVICE" WAS PRIMARILY INTENDED TO REFER TO SEPARATIONS FROM THE SERVICE FOR ADMINISTRATIVE REASONS OVER WHICH THE EMPLOYEE HAS NOT CONTROL, SUCH AS LACK OF WORK OR FUNDS, REDUCTION IN FORCE, ETC., BUT THE EXPRESS EXCEPTION FROM INVOLUNTARY SEPARATIONS WITHIN THE MEANING OF THE ACT OF "REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT OR DELINQUENCY" WOULD INDICATE, PURSUANT TO THE LEGAL MAXIM "EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS," THAT ALL SEPARATIONS FROM THE SERVICE AGAINST THE WILL OR WITHOUT THE CONSENT OF THE EMPLOYEE, OTHER THAN THOSE FOR CAUSE BASED ON CHARGES OF MISCONDUCT OR DELINQUENCY, ARE TO BE CLASSED AS "INVOLUNTARY.'

THE RECORDS OF THIS OFFICE DISCLOSE THAT THE SEPARATION IN THE INSTANT CASE WAS DUE SOLELY TO THE CONTINUED ABSENCE OF THE EMPLOYEE FROM DUTY BECAUSE OF PERSONAL ILLNESS. SINCE PERSONAL ILLNESS MAY NOT BE CLASSED AS "MISCONDUCT OR DELINQUENCY"--- WHICH TERMS ARE USED SYNONYMOUSLY (WORDS AND PHRASES, FIRST SERIES, VOL. 1, P. 1278/--- THE SEPARATION OF THIS EMPLOYEE SHOULD BE REGARDED AS HAVING BEEN INVOLUNTARY, ON THE BASIS OF WHICH HE IS ENTITLED TO RETURN OF THE FULL AMOUNT OF THE DEDUCTIONS WITH INTEREST THEREON, INCLUDING THE TONTINE OR $1 PER MONTH. PAYMENT IS AUTHORIZED ACCORDINGLY.