A-56045, JULY 5, 1934, 14 COMP. GEN. 9

A-56045: Jul 5, 1934

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WAS DENIED BY THIS ADMINISTRATION ON THE GROUNDTHAT CLAIMANT HAD TO HIS CREDIT LESS THAN 5 YEARS' SERVICE. FURTHER THAT THE ORDER OF THE POST OFFICE DEPARTMENT RESTORING HIS NAME TO THE ROLLS SUBSEQUENT TO HIS ABSOLUTE SEPARATION FROM THE SERVICE WAS WITHOUT LEGAL EFFECT FROM THE STANDPOINT OF PERMITTING THE CLAIMANT TO INCLUDE AS ACCREDITABLE SERVICE. DURING WHICH HE WAS A BENEFICIARY UNDER THE UNITED STATES EMPLOYEES' COMPENSATION ACT. YOUR DECISION RESPECTING THE POINT AT ISSUE IS RESPECTFULLY REQUESTED. THE FACTS SUBSTANTIALLY ARE AS FOLLOWS: MR. WAS INJURED IN THE PERFORMANCE OF HIS DUTY ON OCTOBER 18. HIS SERVICES WERE DISCONTINUED BY THE POST OFFICE DEPARTMENT ON OCTOBER 19. HE WAS DROPPED FROM THE ROLLS OF THE DEPARTMENT BY ORDER DATED NOVEMBER 11.

A-56045, JULY 5, 1934, 14 COMP. GEN. 9

RETIREMENT - CIVILIAN - RETROACTIVE REINSTATEMENT ON PAY ROLLS NO PERIOD OF TIME SUBSEQUENT TO AN EMPLOYEE'S SEPARATION FROM THE SERVICE IN 1924 AFTER A YEAR'S LEAVE OF ABSENCE MAY BE COUNTED FOR CIVIL RETIREMENT PURPOSES, NOTWITHSTANDING AN ATTEMPTED REINSTATEMENT OF THE EMPLOYEE UPON THE ROLLS IN 1928, HE HAVING RENDERED NO SERVICE SINCE AUGUST 18, 1923, AND HAVING BEEN IN RECEIPT OF DISABILITY COMPENSATION SINCE NOVEMBER 23, 1923.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JULY 5, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 7, 1934, AS FOLLOWS:

THE CLAIM OF EMIL H. BANISTER, FORMER POSTAL CLERK, RAILWAY MAIL SERVICE, FOR THE BENEFITS OF THE CIVIL SERVICE RETIREMENT LAW, AS AMENDED (ACT OF MAY 29, 1930), ON ACCOUNT OF TOTAL DISABILITY FOR USEFUL AND EFFICIENT SERVICE, WAS DENIED BY THIS ADMINISTRATION ON THE GROUNDTHAT CLAIMANT HAD TO HIS CREDIT LESS THAN 5 YEARS' SERVICE, AND FURTHER THAT THE ORDER OF THE POST OFFICE DEPARTMENT RESTORING HIS NAME TO THE ROLLS SUBSEQUENT TO HIS ABSOLUTE SEPARATION FROM THE SERVICE WAS WITHOUT LEGAL EFFECT FROM THE STANDPOINT OF PERMITTING THE CLAIMANT TO INCLUDE AS ACCREDITABLE SERVICE, SUBSEQUENT TO HIS SEPARATION FROM THE SERVICE, THE PERIOD, OR ANY PART THEREOF, DURING WHICH HE WAS A BENEFICIARY UNDER THE UNITED STATES EMPLOYEES' COMPENSATION ACT. THE GENERAL SUPERINTENDENT, DIVISION OF RAILWAY MAIL SERVICE, POST OFFICE DEPARTMENT, HAS ENTERED AN APPEAL IN BEHALF OF THE CLAIMANT CONTENDING THAT THE TIME SERVED BY THIS CLAIMANT AS A BENEFICIARY UNDER THE UNITED STATES EMPLOYEES' COMPENSATION ACT MAY BE INCLUDED IN COMPUTING ACCREDITED SERVICE AND, ACCORDINGLY, THE CLAIMANT MAY BE CONSIDERED AS HAVING MET THE 5-YEAR PERIOD REQUIRED FOR ELIGIBILITY UNDER SECTION 6 OF THE ACT OF MAY 29, 1930. INASMUCH AS THE CONTENTION OF THE SUPERINTENDENT, RAILWAY MAIL SERVICE, INVOLVES THE EFFECT OR INTERPRETATION OF CERTAIN DECISIONS OF YOUR OFFICE, AND IN VIEW OF THE THE RETIREMENT STATUTE AND THE UNITED STATES EMPLOYEES' COMPENSATION LAW, YOUR DECISION RESPECTING THE POINT AT ISSUE IS RESPECTFULLY REQUESTED.

THE FACTS SUBSTANTIALLY ARE AS FOLLOWS:

MR. EMIL H. BANISTER, WHO ENTERED THE RAILWAY MAIL SERVICE ON AUGUST 18, 1920, WAS INJURED IN THE PERFORMANCE OF HIS DUTY ON OCTOBER 18, 1923. HIS SERVICES WERE DISCONTINUED BY THE POST OFFICE DEPARTMENT ON OCTOBER 19, 1924. HE WAS DROPPED FROM THE ROLLS OF THE DEPARTMENT BY ORDER DATED NOVEMBER 11, 1924, FOLLOWING THE EXPIRATION OF A YEAR'S LEAVE OF ABSENCE. THE APPLICANT RENDERED NO ACTIVE SERVICE SUBSEQUENT TO THE EFFECTIVE DATE OF THE ORDER OF REMOVAL. APPLICATION FOR REFUND OF RETIREMENT DEDUCTIONS AS APPLIED FOR ON OCTOBER 27, 1924, WAS CERTIFIED TO BY THE GENERAL SUPERINTENDENT, RAILWAY MAIL SERVICE, ON NOVEMBER 15, 1924, IN WHICH CERTIFICATION IT WAS STATED THAT THE APPLICANT BECAME ABSOLUTELY SEPARATED FROM THE SERVICE BECAUSE OF DISCONTINUANCE ON OCTOBER 19, 1924. AT THE TIME OF HIS REMOVAL MR. BANISTER, HAVING SERVED ONLY FOR A PERIOD SLIGHTLY IN EXCESS OF FOUR YEARS, WAS NOT ENTITLED TO ANNUITY UNDER THE RETIREMENT LAW THEN IN EFFECT. IT APPEARS FROM THE RECORD THAT HE HAS BEEN IN RECEIPT OF COMPENSATION UNDER THE UNITED STATES EMPLOYEES' COMPENSATION ACT AT VARIOUS RATES FROM NOVEMBER 23, 1923. THE ORDER OF THE POST OFFICE DEPARTMENT REMOVING HIM FROM THE SERVICE DATED NOVEMBER 11, 1924, WAS REVOKED BY THE SAME DEPARTMENT MAY 9, 1928. THE REVOCATION APPEARS TO HAVE BEEN BASED UPON THE DECISION OF THE COMPTROLLER, DATED MARCH 20, 1920 (26 COMP. DEC. 763), WHEREIN IT WAS STATED:

"AN EMPLOYEE WHO IS INJURED IN THE PERFORMANCE OF HIS DUTIES AND IS PAID COMPENSATION UNDER THE ACT OF SEPTEMBER 7, 1916, CONTINUES TO BE AN EMPLOYEE OF THE UNITED STATES. HE RECEIVES COMPENSATION ON ACCOUNT OF HIS INJURY INSTEAD OF FOR SERVICES RENDERED AS IN THE CASE OF AN EMPLOYEE WHO IS ENGAGED IN THE PERFORMANCE OF THE DUTIES CALLED FOR BY THE TERMS OF HIS EMPLOYMENT. SINCE HIS STATUS OF EMPLOYEE CONTINUES DURING THE PERIOD WHEN HIS COMPENSATION IS ON ACCOUNT OF INJURY, SUCH AN EMPLOYEE IS ENTITLED TO ALL THE RIGHTS CONFERRED BY LAW ON EMPLOYEES OF THE UNITED STATES NOT INCONSISTENT WITH ANY PROVISION OF THE ACT OF SEPTEMBER 7, 1916. THEREFORE, SUCH AN EMPLOYEE, IF HE WAS WITHIN THE CLASS OF EMPLOYEES NAMED IN THE ACT OF AUGUST 29, 1916, SHOULD BE REGARDED AS EARNING LEAVE DURING THE PERIOD WHILE HE IS DISABLED AND BEING PAID COMPENSATION UNDER THE ACT OF SEPTEMBER 7, 1916.'

MR. BANISTER FILED CLAIM FOR ANNUITY ON SEPTEMBER 20, 1933, ON ACCOUNT OF TOTAL DISABILITY FOR USEFUL AND EFFICIENT SERVICE AS PROVIDED BY SECTION 6 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930. THIS CLAIM WAS DENIED BY THE DIRECTOR OF INSURANCE ON THE GROUND THAT AT THE TIME OF SEPARATION FROM THE CIVIL SERVICE, OCTOBER 19, 1924, THE CLAIMANT HAD NOT RENDERED SUFFICIENT SERVICE TO ENTITLE HIM TO ANY ANNUITY AND THAT THE REVOCATION OF THE ORDER OF DISCONTINUANCE AND THE RESTORATION OF THE NAME OF THE APPLICANT TO THE ROLLS OF THE EMPLOYEES OF THE POST OFFICE DEPARTMENT WAS WITHOUT LEGAL EFFECT. THE GENERAL SUPERINTENDENT, DIVISION OF RAILWAY MAIL SERVICE OF THE POST OFFICE DEPARTMENT, FILED AN APPEAL ON BEHALF OF THE CLAIMANT ON MARCH 7, 1934. THE GENERAL SUPERINTENDENT, MR. CISLER, IN ARGUING THE APPEAL ON BEHALF OF THE CLAIMANT, POINTED OUT THAT THE POLICY OF SEPARATING AT THE TERMINATION OF A YEAR'S CONTINUOUS LEAVE EMPLOYEES WHO WERE BENEFICIARIES UNDER THE U.S. EMPLOYEES' COMPENSATION ACT WAS CONTINUED UNTIL MARCH 24, 1928, WHEN GENERAL INSTRUCTIONS WERE ISSUED (CIRCULAR LETTER 3194, DIVISION OF RAILWAY MAIL SERVICE) REVERSING THE FORMER POLICY ON THE GROUNDS THAT "THE COMPTROLLER HAS RULED THAT SUCH EMPLOYEES WHILE PAID BY THE U.S. EMPLOYEES' COMPENSATION COMMISSION CONTINUE TO BE EMPLOYEES OF THE UNITED STATES, AND IN HARMONY THEREWITH THIS CLASS OF EMPLOYEES WILL BE CARRIED ON THE ROLLS UNTIL THE U.S. EMPLOYEES' COMPENSATION DROPS THEM, OR THEY RESIGN OR REACH THE RETIREMENT AGE.' HE FURTHER STATED: "AT THE SAME TIME IT WAS DECIDED TO REVOKE THE ORDERS WHICH HAD BEEN ISSUED SEPARATING EMPLOYEES OF THIS CLASS, IF ANY WHO HAD BEEN SEPARATED WERE STILL RECEIVING PAY UNDER THE EMPLOYEES' COMPENSATION LAW, AND IN THIS MANNER GIVE THEM THE SAME CONSIDERATION THEY WOULD HAVE BEEN ENTITLED TO IF THEY HAD CONTINUED ON OUR ROLLS IN ACCORDANCE WITH THE COMPTROLLER'S DECISION. MR. BANISTER (THE CLAIMANT IN THE INSTANT CASE) WAS ONE OF THE EMPLOYEES AFFECTED BY THIS DECISION.' ALSO STATED THAT THE ACTION "WAS TAKEN AS A RESULT OF THE COMPTROLLER'S DECISION OF AUGUST 24, 1926, A-15382.' THE PERTINENT PART OF THAT DECISION IS QUOTED AS FOLLOWS:

"IF AN EMPLOYEE IN THE POSTAL SERVICE IS CONTINUED ON THE ROLLS AS AN EMPLOYEE ABSENT ON ACCOUNT OF SICKNESS OR INJURY DURING THE ENTIRE PERIOD HE IS IN RECEIPT OF DISABILITY COMPENSATION AND RESUMES HIS DUTIES AS SUCH EMPLOYEE IMMEDIATELY UPON TERMINATION OF SUCH PERIOD, THE PERIOD OF SUCH ABSENCE MAY BE COUNTED AS SERVICE IN DETERMINING THE ANNUAL AND/OR SICK LEAVE WHICH THEREAFTER MAY BE GRANTED TO HIM UNDER THE ACT OF FEBRUARY 28, 1925, SUPRA.'

IN SUPPORT OF THE CONTENTION THE FOLLOWING PARAGRAPH WAS QUOTED FROM THE COMPTROLLER GENERAL'S LETTER TO THE POSTMASTER GENERAL UNDER DATE OF JUNE 21, 1930:

"WHERE EMPLOYEES ARE CARRIED ON LEAVE OF ABSENCE BECAUSE OF DISABILITY INCURRED AS A RESULT OF THEIR EMPLOYMENT AND ARE PAID COMPENSATION UNDER THE EMPLOYEE'S COMPENSATION ACT, THEY REMAIN EMPLOYEES OF THE UNITED STATES DURING THE PERIOD FOR WHICH THEY RECEIVE SUCH COMPENSATION.'

THE APPELLANT FURTHER CONTENDED:

"WITH RESPECT TO THE ASSERTION THAT REVOCATION OF THE ORDER OF DISCONTINUANCE, AND RESTORATION OF THE NAME OF THE CLAIMANT TO THE ROLLS, WAS WITHOUT LEGAL EFFECT, WE ARE CONSTRAINED TO QUESTION THE AUTHORITY OF THE VETERANS' ADMINISTRATION TO DECIDE UPON THAT POINT. ITIS THOUGHT SUCH A QUESTION IS ONE PRIMARILY OF ADMINISTRATION AND DUE TO BE ADJUSTED BETWEEN THE DEPARTMENT CONCERNED AND THE CIVIL SERVICE COMMISSION. COMP. DEC. 100; 5 COMP. GEN. 404.'

SECTION 5 OF THE RETIREMENT LAW, UNDER THE HEADING "ANNUITABLE SERVICE, COMPUTATION OF ACCREDITED SERVICE," PROVIDES IN PART:

"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.'

THE APPELLANT IN SUBSTANCE CONTENDS THAT THE RESTORATION OF THE NAME OF THIS CLAIMANT TO THE ROLLS OF THE POST OFFICE DEPARTMENT HAD THE EFFECT OF PLACING HIM IN A LEAVE OF ABSENCE STATUS SO LONG AS HE WAS RECEIVING BENEFITS UNDER THE U.S. EMPLOYEES' COMPENSATION ACT AND, ACCORDINGLY, UNDER THE PROVISION OF THE STATUTE AS QUOTED IN THE FOREGOING, HE IS ENTITLED TO INCLUDE SUCH SERVICE ON LEAVE OF ABSENCE IN COMPUTING THE FIVE YEARS' SERVICE REQUIRED FOR ELIGIBILITY TO BENEFITS FOR DISABILITY RETIREMENT UNDER SECTION 6 OF THE RETIREMENT LAW.

IN DETERMINING THIS QUESTION THERE APPEARS FOR CONSIDERATION THE DECISION OF THE COMPTROLLER OF DECEMBER 5, 1919 (26 COMP. DEC. 448), WHEREIN IT WAS HELD TO THE EFFECT THAT A SEPARATION FROM SERVICE HAVING BECOME EFFECTIVE, NOTHING BUT A NEW APPOINTMENT TO OPERATE PROSPECTIVELY CAN OPERATE TO PLACE THE CLAIMANT AGAIN IN THE SERVICE. THERE IS ALSO FOR CONSIDERATION THE EXECUTIVE ORDER OF JUNE 2, 1920, PROHIBITING THE REINSTATEMENT OF FORMER EMPLOYEES FOR THE PURPOSE OF CONFERRING UPON THEM THE BENEFITS OF THE RETIREMENT LAW. IF ONE MAY BE PERMITTED TO INCLUDE, FOR PURPOSES OF SERVING THE REQUIRED PERIOD FOR ELIGIBILITY,THE TIME DURING WHICH HE OR SHE RECEIVES COMPENSATION UNDER THE U.S. EMPLOYEES' COMPENSATION ACT, THEN THERE MAY BE PRESENTED A DUAL BENEFIT EXTENDED CONTRARY TO THE INTENT AND SPIRIT OF THE LEGISLATION UNDER WHICH THIS APPELLANT HAS MADE CLAIM.

IN VIEW OF THE FOREGOING, YOUR DECISION IS RESPECTFULLY REQUESTED RESPECTING THE RIGHT OF THIS CLAIMANT, UNDER THE CIRCUMSTANCES AS STATED IN THE FOREGOING, TO INCLUDE IN COMPUTATION FOR PURPOSES OF SECTION 6 OF THE RETIREMENT ACT OF MAY 29, 1930, ANY PERIOD OF TIME, SUBSEQUENT TO HIS SEPARATION FROM THE SERVICE, DURING WHICH HE IS IN RECEIPT OF BENEFITS UNDER THE UNITED STATES EMPLOYEES' COMPENSATION ACT.

IN DECISION OF AUGUST 24, 1926, 6 COMP. GEN. 156, IT WAS STATED:

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.

IN COMMENTING ON THE FOREGOING DECISION IT WAS STATED IN DECISION OF APRIL 30, 1932, 11 COMP. GEN. 409:

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.

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.

IT IS NOT STATED IN YOUR SUBMISSION WHETHER BANISTER HAS BEEN DECLARED TO BE PERMANENTLY AND TOTALLY DISABLED, BUT IN VIEW OF THE FACT THAT HE HAS NOT RENDERED SERVICE SINCE AUGUST 18, 1923, AND HAS BEEN IN RECEIPT OF DISABILITY COMPENSATION FROM NOVEMBER 23, 1923, AND NOW ALLEGES TOTAL DISABILITY, HIS STATUS APPEARS THAT OF PERMANENTLY AND TOTALLY DISABLED. FURTHERMORE, ANY ACTION TAKEN IN 1928, PURPORTING TO REVOKE THE ORDER ISSUED IN 1924, SEPARATING THE EMPLOYEE FROM THE SERVICE WAS WITHOUT FORCE OR EFFECT. I HAVE TO ADVISE, THEREFORE, THAT NO PERIOD OF TIME SUBSEQUENT TO THE FORMER EMPLOYEE'S SEPARATION FROM THE SERVICE IN 1924 MAY LEGALLY BE COUNTED FOR PURPOSES OF RETIREMENT UNDER SECTION 6 OF THE RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 472.