A-52320, JANUARY 31, 1935, 14 COMP. GEN. 585

A-52320: Jan 31, 1935

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AS LEAVE OF ABSENCE WITH PAY IS SYNONYMOUS WITH ACTIVE SERVICE. DISABILITY RETIREMENT MAY NOT BE MADE RETROACTIVELY EFFECTIVE FROM THE BEGINNING OF THE DISABILITY IF PRIOR TO A MONTH IN WHICH LEAVE OF ABSENCE WITH PAY WAS GRANTED. WAS INJURED IN THE PERFORMANCE OF HIS DUTY ON AUGUST 16. WAS AWARDED COMPENSATION UNDER THE U.S. HE WAS RETAINED ON THE ROLLS OF THE TREASURY DEPARTMENT AS AN EMPLOYEE THEREOF DURING THIS ENTIRE PERIOD. WAS FOUND TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE FROM AUGUST 16. 1923. INASMUCH AS THE ANNUITY PAYMENTS WERE GREATER THAN THE COMPENSATION. HE WAS ACCORDINGLY AWARDED ANNUITY AT THE RATE OF $720.00 PER ANNUM EFFECTIVE FROM JULY 1. WHICH RATE WAS INCREASED TO $999.96 EFFECTIVE FROM JULY 1.

A-52320, JANUARY 31, 1935, 14 COMP. GEN. 585

RETIREMENT - EFFECTIVE DATE - ADJUSTMENT AFTER DEATH OF ANNUITANT PAYMENT OF RETIREMENT ANNUITY UNDER THE CIVIL RETIREMENT ACT MAY NOT BEGIN UNTIL TERMINATION OF ACTIVE DUTY OR PAY STATUS, AND AS LEAVE OF ABSENCE WITH PAY IS SYNONYMOUS WITH ACTIVE SERVICE, DISABILITY RETIREMENT MAY NOT BE MADE RETROACTIVELY EFFECTIVE FROM THE BEGINNING OF THE DISABILITY IF PRIOR TO A MONTH IN WHICH LEAVE OF ABSENCE WITH PAY WAS GRANTED. NO RIGHT SURVIVES TO THE ESTATE OR PERSONAL REPRESENTATIVE OF AN ANNUITANT UNDER THE CIVIL RETIREMENT ACT TO QUESTION THE EFFECTIVE DATE OF THE RETIREMENT OF THE DECEDENT.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 31, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 19, 1934, AS FOLLOWS:

GEORGE W. BROWN, FORMER MECHANIC AND WATCHMAN IN THE BUREAU OF ENGRAVING AND PRINTING, TREASURY DEPARTMENT, WAS INJURED IN THE PERFORMANCE OF HIS DUTY ON AUGUST 16, 1923, AND WAS AWARDED COMPENSATION UNDER THE U.S. EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, EFFECTIVE FROM AUGUST 20, 1923, TO MAY 31, 1924, AND FROM JULY 1, 1924, TO APRIL 15, 1927, INCLUSIVE. HE WAS RETAINED ON THE ROLLS OF THE TREASURY DEPARTMENT AS AN EMPLOYEE THEREOF DURING THIS ENTIRE PERIOD.

HE FILED CLAIM FOR ANNUITY UNDER THE PROVISIONS OF SECTION 6 OF THE CIVIL SERVICE RETIREMENT ACT OF JULY 3, 1926, ON OCTOBER 6, 1926, AND WAS FOUND TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE FROM AUGUST 16. 1923. INASMUCH AS THE ANNUITY PAYMENTS WERE GREATER THAN THE COMPENSATION, MR. BROWN ELECTED TO RECEIVE ANNUITY AND TO REFUND ALL COMPENSATION PAID HIM. OFFICIAL RECORD OF THE BUREAU OF ENGRAVING AND PRINTING SHOWS THE LAST DAY OF PAY STATUS OF MR. BROWN AS JUNE 30, 1924. HE WAS ACCORDINGLY AWARDED ANNUITY AT THE RATE OF $720.00 PER ANNUM EFFECTIVE FROM JULY 1, 1924, WHICH RATE WAS INCREASED TO $999.96 EFFECTIVE FROM JULY 1, 1926, SUBJECT TO COMPENSATION BENEFITS PAID SINCE JULY 1, 1924.

MR. BROWN DIED ON JULY 29, 1927. HE FILED NO PROTEST TO THE PAYMENTS OF ANNUITY MADE HIM DURING HIS LIFETIME, BUT SUBSEQUENT TO HIS DEATH, CERTAIN OF HIS NEXT OF KIN CLAIMED FOR HIS ESTATE ANNUITY PAYMENTS EFFECTIVE FROM THE DATE OF TOTAL DISABILITY SUBJECT TO RECOVERY OF ANY COMPENSATION BENEFITS AND SALARY PAID MR. BROWN SUBSEQUENT TO THAT DATE.

REGULATIONS ISSUED BY THE SECRETARY OF THE INTERIOR, JUNE 20, 1921, PROVIDE IN PART THAT "THE ANNUITY MAY COMMENCE FROM THE DATE OF DISABILITY BUT NOT PRIOR TO THE TERMINATION OF REGULAR SALARY, PAY, OR COMPENSATION.'

REGULATION 358, EFFECTIVE JUNE 8, 1928, ISSUED BY THE SECRETARY OF THE INTERIOR, PROVIDES:

"AN ANNUITY FOR DISABILITY SHALL COMMENCE FROM THE DATE OF INCEPTION OF TOTAL DISABILITY FOR USEFUL AND EFFICIENT SERVICE, BUT NOT PRIOR TO TERMINATION OF PAY STATUS.'

THIS LATTER-MENTIONED REGULATION HAS BEEN ADOPTED BY THIS COMMISSION AND IS STILL IN FULL FORCE AND EFFECT.

A REPORT FROM THE BUREAU OF ENGRAVING AND PRINTING, DATED AUGUST 31, 1934, STATES:

"HE (MR. BROWN) WAS PAID HIS REGULAR SALARY IN JUNE 1924, DUE TO AN ADJUSTMENT OF HIS ANNUAL LEAVE, LEAVE ALLOWANCE FOR WORKING ON SUNDAYS, EQUALIZATION OF LEAVE FOR OVERTIME AND WORK PERFORMED ON HOLIDAYS. MR. BROWN WAS GRANTED LEAVE ON THE FISCAL-YEAR BASIS AND, WHILE HE DID NOT RENDER ANY SERVICE IN JUNE 1924, HE RENDERED SERVICE DURING THE FISCAL YEAR IN WHICH THE LEAVE WAS GRANTED.'

THE APPEAL IN THIS CASE WAS FILED WHILE THE ADMINISTRATION OF THE CIVIL- SERVICE RETIREMENT LAW WAS UNDER THE JURISDICTION OF THE VETERANS' ADMINISTRATION. THAT ADMINISTRATION REFUSED TO ENTERTAIN THE APPEAL INASMUCH AS THE SAME HAD NOT BEEN MADE BY THE ANNUITANT HIMSELF DURING HIS LIFETIME. THE SUBMISSION IN THIS CASE IS BEING MADE AT THE REQUEST OF CONGRESSMAN HAROLD KNUTSON, WHO AT THE TIME THE ORIGINAL APPEAL WAS FILED REQUESTED THAT IN THE EVENT THE DECISION WAS ADVERSE TO THE APPELLANT THE QUESTION BE PRESENTED TO YOU FOR FINAL DECISION.

IT IS CONTENDED THAT, IN VIEW OF THE FACT THAT THE SALARY RECEIVED BY MR. BROWN FOR THE MONTH OF JUNE 1924 WAS NOT FOR ACTIVE SERVICE RENDERED BUT A LEAVE ADJUSTMENT, THE ANNUITY SHOULD COMMENCE FROM THE DATE OF TOTAL DISABILITY AND A REFUND OF THE SALARY PAID PERMITTED.

IN YOUR DECISION OF APRIL 30, 1932 (11 COMP. GEN. 409), YOU STATED:

"* * * 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.'

IN THE INSTANT CLAIM NO RATING OF PERMANENT TOTAL DISABILITY HAD BEEN MADE PRIOR TO THE DATE OF RETIREMENT BY REASON OF DISABILITY ON JULY 1, 1924, ALTHOUGH THE ACTUAL FACTS ARE THAT HE WAS NEVER ABLE TO RETURN TO DUTY AT ANY TIME SUBSEQUENT TO HIS INJURY ON AUGUST 16, 1923.

IT IS REQUESTED THAT YOU ADVISE WHETHER IT IS PERMISSIBLE TO ALLOW ANNUITY PAYMENTS FROM THE DATE OF TOTAL DISABILITY ON AUGUST 16, 1923, NOTWITHSTANDING THE RECEIPT AND ACCEPTANCE OF ONE MONTH'S SALARY (JUNE 1924) DUE TO ADJUSTMENT OF ANNUAL LEAVE.

APPARENTLY, IT WAS THE ADMINISTRATIVE PRACTICE OF THE TREASURY DEPARTMENT IN 1924 TO MAKE ADJUSTMENTS IN THE ANNUAL-LEAVE CREDIT OF EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING AT THE END OF A FISCAL OR LEAVE YEAR, EVEN WHERE THE EMPLOYEE HAD BEEN IN AN EXTENDED LEAVE-WITHOUT-PAY STATUS PREVIOUSLY DURING THE SAME LEAVE YEAR AND WITHOUT A RETURN TO DUTY. THERE IS NO REASONABLE BASIS AT THE PRESENT TIME TO QUESTION THE ADMINISTRATIVE ACTION THEN TAKEN IN THIS RESPECT.

LEAVE OF ABSENCE WITH PAY IS SYNONYMOUS WITH ACTIVE SERVICE. 13 COMP. GEN. 296; ID 371; 14 ID 351. HENCE, THE PAYMENT OF COMPENSATION TO THIS FORMER EMPLOYEE DURING THE MONTH OF JUNE 1924, PLACED HIM IN EXACTLY THE SAME STATUS, INSOFAR AS RETIREMENT ANNUITY IS CONCERNED, AS THOUGH HE WERE ON ACTIVE DUTY DURING THAT MONTH. RETIREMENT ANNUITY MAY NOT BE PAID UNTIL TERMINATION OF ACTIVE DUTY AND PAY STATUS, AS IT IS FUNDAMENTAL THAT BOTH RETIREMENT ANNUITY AND ACTIVE SERVICE COMPENSATION MAY NOT BE PAID FOR THE SAME PERIOD OF TIME. THE DECISION CITED BY YOU, 11 COMP. GEN. 409, HAS NO BEARING IN THE PRESENT MATTER. FURTHERMORE, THIS EMPLOYEE WAS RETIRED BY PROPER AUTHORITY EFFECTIVE JULY 1, 1924, WHICH ACTION WAS NOT PROTESTED BY THE ANNUITANT DURING HIS LIFETIME. NO RIGHT SURVIVES TO HIS ESTATE OR PERSONAL REPRESENTATIVE TO QUESTION THE EFFECTIVE DATE OF HIS RETIREMENT.

ACCORDINGLY, THE QUESTION CONTAINED IN YOUR CONCLUDING PARAGRAPH IS ANSWERED IN THE NEGATIVE.