A-58709, NOVEMBER 30, 1934, 14 COMP. GEN. 425

A-58709: Nov 30, 1934

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THERE IS NO PROVISION OF LAW WHICH PROHIBITS THE RECEIPT OF CIVILIAN RETIREMENT ANNUITY AND ACTIVE MILITARY PAY AS A MEMBER OF THE OFFICERS' RESERVE CORPS WHEN CALLED TO ACTIVE DUTY. WERE ELIGIBLE FOR APPOINTMENT OR EMPLOYMENT. TO THE ADMINISTRATOR OF VETERANS' AFFAIRS IN CONSTRUING THE TERMS OF SECTION 8 (A) YOU STATED THAT: "IF AN EMPLOYEE IS TEMPORARILY REEMPLOYED WHILE IN A RETIREMENT STATUS ACQUIRED UNDER SECTION 8 (A) OF THE ACT OF JUNE 16. THAT IS. THERE IS NO RIGHT OF RETIREMENT FROM A TEMPORARY POSITION. WHO SUBSEQUENT TO THE GRANT OF ANNUITY IS ORDERED TO ACTIVE DUTY. A PARTICULAR CASE IN POINT IS THAT OF WILLIAM T. MARX WAS INVOLUNTARILY SEPARATED FROM THE SERVICE AS A RURAL CARRIER.

A-58709, NOVEMBER 30, 1934, 14 COMP. GEN. 425

RETIREMENT - REEMPLOYMENT - OFFICERS' RESERVE CORPS A PERSON IN A RETIREMENT STATUS ACQUIRED UNDER SECTION 8 (A) OF THE ACT OF JUNE 16, 1933, 48 STAT. 305, BECAUSE OF INVOLUNTARY SEPARATION FROM THE SERVICE AFTER 30 OR MORE YEARS, WOULD, IF TEMPORARILY REEMPLOYED UNDER THE GOVERNMENT IN A CIVILIAN CAPACITY, AUTOMATICALLY REACQUIRE A STATUS UNDER THE RETIREMENT LAW, AND RETIREMENT DEDUCTIONS SHOULD BE TAKEN FROM THE SALARY OF SUCH PERSON DURING THE PERIOD OF TEMPORARY EMPLOYMENT. THERE IS NO PROVISION OF LAW WHICH PROHIBITS THE RECEIPT OF CIVILIAN RETIREMENT ANNUITY AND ACTIVE MILITARY PAY AS A MEMBER OF THE OFFICERS' RESERVE CORPS WHEN CALLED TO ACTIVE DUTY.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, NOVEMBER 30, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 8, 1934, AS FOLLOWS:

IN YOUR DECISION OF AUGUST 23, 1933, A-50660, YOU ADVISED THE ADMINISTRATOR OF THE NATIONAL RECOVERY ADMINISTRATION THAT OFFICERS OR EMPLOYEES RETIRED UNDER THE PROVISIONS OF SECTION 8 (A), INDEPENDENT OFFICES APPROPRIATION ACT, 1934, APPROVED JUNE 16, 1933, WERE ELIGIBLE FOR APPOINTMENT OR EMPLOYMENT, BUT PURSUANT TO THE LAST SENTENCE OF THE SAID SECTION THEIR RETIREMENT ANNUITY WOULD AUTOMATICALLY CEASE UPON SUCH EMPLOYMENT OR APPOINTMENT AND THAT THE RETIREMENT STATUS OF SUCH REEMPLOYED RETIRED PERSONNEL UPON SUBSEQUENT SEPARATION FROM THE SERVICE WOULD BE A MATTER PRIMARILY FOR CONSIDERATION BY THE VETERANS' ADMINISTRATION (NOW THE CIVIL SERVICE COMMISSION).

IN DECISION OF NOVEMBER 11, 1933, TO THE ADMINISTRATOR OF VETERANS' AFFAIRS IN CONSTRUING THE TERMS OF SECTION 8 (A) YOU STATED THAT:

"IF AN EMPLOYEE IS TEMPORARILY REEMPLOYED WHILE IN A RETIREMENT STATUS ACQUIRED UNDER SECTION 8 (A) OF THE ACT OF JUNE 16, 1933, HIS RIGHT TO RECEIVE ANNUITY MUST CEASE AND THE SECOND CONDITION OF THE PROVISO ATTACHES, THAT IS, IF AND WHEN THE EMPLOYEE SHOULD, WHILE SO SERVING, ATTAIN THE AGE FOR AUTOMATIC SEPARATION FROM THE SERVICE HE WOULD BE SO SEPARATED AND ENTITLED TO ANNUITY UNDER THE PROVISIONS OF THE REGULAR RETIREMENT ACT. BUT IF THE EMPLOYEE SHOULD BE INVOLUNTARILY SEPARATED FROM THE SERVICE IN WHICH HE HAD BEEN SO REEMPLOYED BEFORE ATTAINING THE AGE FOR AUTOMATIC OR OPTIONAL RETIREMENT AND PRIOR TO JULY 1, 1935, HE WOULD AGAIN BECOME ENTITLED TO THE ANNUITY AUTHORIZED UNDER THE SAID SECTION 8 (A) OF THE ACT OF JUNE 16, 1933. IF, HOWEVER, HE SHOULD BE VOLUNTARILY SEPARATED FROM THE SERVICE IN WHICH REEMPLOYED BEFORE ATTAINING THE AGE FOR OPTIONAL RETIREMENT HE WOULD NOT THEREUPON BECOME ENTITLED TO A RESUMPTION OF ANNUITY PAYMENTS.'

ORDINARILY, SERVICE IN A TEMPORARY POSITION DOES NOT FORM THE BASIS FOR ANNUITY, AND THERE IS NO RIGHT OF RETIREMENT FROM A TEMPORARY POSITION, SUCH POSITION NOT BEING CONSIDERED WITHIN THE PURVIEW OF THE CIVIL RETIREMENT LAW. YOUR DECISION OF NOVEMBER 11, 1933, WOULD INDICATE THAT A PERSON IN A RETIREMENT STATUS ACQUIRED UNDER SECTION 8 (A) BY THE ACT OF JUNE 16, 1933 WOULD, IF TEMPORARILY REEMPLOYED, AUTOMATICALLY REACQUIRE A STATUS UNDER THE RETIREMENT LAW, AND ACCORDINGLY DEDUCTION SHOULD BE TAKEN FROM THE SALARY OF SUCH PERSON DURING THE PERIOD OF TEMPORARY EMPLOYMENT.

IT HAS NOW BEEN ASKED WHETHER A PERSON RECEIVING AN ANNUITY UNDER THE PROVISIONS OF SECTION 8 (A) OF THE ACT OF JUNE 16, 1933, WHO ALSO HOLDS A COMMISSION IN THE OFFICERS' RESERVE CORPS, U.S. ARMY, AND WHO SUBSEQUENT TO THE GRANT OF ANNUITY IS ORDERED TO ACTIVE DUTY, HAS THE RIGHT OF RECEIVING ANNUITY BENEFITS DURING THE PERIOD OF ACTIVE SERVICE, AND IF NOT, WHETHER HE HAS A RIGHT TO RESUMPTION OF ANNUITY PAYMENTS UPON THE CESSATION OF ACTIVE DUTY, OR SHOULD THE 3 1/2 PERCENT REDUCTION BE TAKEN FROM HIS SALARY AS AN OFFICER DURING THE PERIOD OF ACTIVE DUTY AND A NEW RIGHT OF RETIREMENT ARISE UPON SEPARATION FROM THE SERVICE.

A PARTICULAR CASE IN POINT IS THAT OF WILLIAM T. MARX, A RETIRED RURAL LETTER CARRIER, CLAIM NO. R-60333. MR. MARX WAS INVOLUNTARILY SEPARATED FROM THE SERVICE AS A RURAL CARRIER, POST OFFICE DEPARTMENT, ON OCTOBER 31, 1933, AFTER HAVING COMPLETED MORE THAN 30 YEARS OF SERVICE. HE WAS AWARDED AN ANNUITY OF $1,158.00 PER ANNUM EFFECTIVE FROM NOVEMBER 1, 1933, UNDER THE PROVISIONS OF SECTION 8 (A), ACT OF JUNE 16, 1933. HE HAS HELD A COMMISSION AS CAPTAIN, ADJUTANT GENERAL'S DEPARTMENT RESERVE IN THE OFFICERS' RESERVE CORPS SINCE OCTOBER 5, 1929. UNDER THAT COMMISSION THE COMMANDING GENERAL, EIGHTH CORPS AREA, FORT SAM HOUSTON, TEXAS, PLACED CAPTAIN MARX ON ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS FOR THE PERIOD, AUGUST 12, 1934, TO FEBRUARY 11, 1935, BOTH DATES INCLUSIVE, UNLESS SOONER RELIEVED. WHILE ON ACTIVE DUTY AS A RESERVE OFFICER HE WILL RECEIVE THE PAY AND ALLOWANCES OF HIS GRADE AS PROVIDED IN THE ACT APPROVED JUNE 10, 1922, 42 STAT. 625 AND 626.

IT IS UNDERSTOOD THAT CAPTAIN MARX IS STILL ON ACTIVE DUTY. ANNUITY PAYMENTS TO CAPTAIN MARX HAVE BEEN SUSPENDED.

YOUR EARLY DECISION ON THE QUESTIONS PRESENT HEREIN WILL BE APPRECIATED.

SECTION 8 (A) OF THE ACT OF JUNE 16, 1933, 48 STAT. 305, PROVIDES AS FOLLOWS:

WHENEVER AT ANY TIME HEREAFTER PRIOR TO JULY 1, 1935, ANY EMPLOYEE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA TO WHOM THE CIVIL SERVICE RETIREMENT ACT, APPROVED MAY 29, 1930 (U.S.C. SUPP. VI, TITLE 5, CH. 14),APPLIES, WHO HAS AN AGGREGATE PERIOD OF SERVICE OF AT LEAST THIRTY YEARS COMPUTED AS PRESCRIBED IN SECTION 5 OF SUCH ACT, IS INVOLUNTARILY SEPARATED FROM THE SERVICE FOR REASONS OTHER THAN HIS MISCONDUCT, SUCH EMPLOYEE SHALL BE ENTITLED TO AN ANNUITY COMPUTED AS PROVIDED IN SECTION 4 OF SUCH ACT PAYABLE FROM THE CIVIL-SERVICE RETIREMENT AND DISABILITY FUND LESS A SUM EQUAL TO 3 1/2 PERCENTUM OF SUCH ANNUITY: PROVIDED, THAT WHEN AN ANNUITANT HEREUNDER ATTAINS THE AGE WHICH WOULD HAVE BEEN THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE APPLICABLE TO SUCH ANNUITANT HAD HE CONTINUED IN THE SERVICE TO SUCH RETIREMENT AGE, SUCH DEDUCTION FROM THE ANNUITY SHALL CEASE. IF AND WHEN ANY SUCH ANNUITANT SHALL BE REEMPLOYED IN THE SERVICE OF THE DISTRICT OF COLUMBIA OR THE UNITED STATES (INCLUDING ANY CORPORATION THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES), THE RIGHT TO THE ANNUITY PROVIDED BY THIS SECTION SHALL CEASE AND THE SUBSEQUENT ANNUITY RIGHTS OF SUCH PERSON SHALL BE DETERMINED IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF RETIREMENT LAW EXISTING AT THE TIME OF THE SUBSEQUENT SEPARATION OF SUCH PERSON FROM THE SERVICE.

YOUR CONCLUSION IS CORRECT THAT---

* * * YOUR DECISION (OF THIS OFFICE) OF NOVEMBER 11, 1933, WOULD INDICATE THAT A PERSON IN A RETIREMENT STATUS ACQUIRED UNDER SECTION 8 (A) BY THE ACT OF JUNE 16, 1933, WOULD, IF TEMPORARILY REEMPLOYED, AUTOMATICALLY REACQUIRE A STATUS UNDER THE RETIREMENT LAW, AND ACCORDINGLY DEDUCTIONS SHOULD BE TAKEN FROM THE SALARY OF SUCH PERSON DURING THE PERIOD OF TEMPORARY EMPLOYMENT.

THE GENERAL PRINCIPLE HAS BEEN STATED UNDER THE QUOTED STATUTE, THE PROVISIONS OF THE LIGHTHOUSE SERVICE RETIREMENT ACT, AND THE PROVISIONS OF THE CIVIL RETIREMENT ACT, THAT "IN NO CASE MAY BOTH RETIREMENT ANNUITY AND CIVILIAN COMPENSATION BE PAID TO THE SAME PERSON FOR THE SAME PERIOD OF TIME.' SEE 10 COMP. GEN. 309; 13 ID. 133, CITED BY YOU, AND DECISION OF OCT. 6, 1934, A-56990, 14 COMP. GEN. 285. HOWEVER, THERE IS NO PROVISION OF LAW WHICH PROHIBITS, EITHER EXPRESSLY OR BY REASONABLE IMPLICATION, THE RECEIPT OF CIVILIAN RETIREMENT ANNUITY AND ACTIVE MILITARY PAY AS A MEMBER OF THE OFFICER'S RESERVE CORPS WHEN CALLED TO ACTIVE DUTY. THE SENTENCE OF THE ABOVE STATUTORY PROVISION BEGINNING WITH "IF AND WHEN ANY SUCH ANNUITANT SHALL BE REEMPLOYED IN THE SERVICE OF THE DISTRICT OF COLUMBIA OR THE UNITED STATES" RELATES ONLY TO REEMPLOYMENT IN A CIVILIAN CAPACITY AND WOULD NOT BAR THE PAYMENT OF ANNUITY IN THE INSTANT CASE.