A-81275, NOVEMBER 9, 1936, 16 COMP. GEN. 475

A-81275: Nov 9, 1936

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IS NOT ENTITLED TO ANY BENEFITS UNDER THE CIVIL SERVICE RETIREMENT ACT. FINNAN AS CERTIFIED BY THE POST OFFICE DEPARTMENT SHOWS THAT HE WAS APPOINTED SUBSTITUTE CARRIER MAY 29. HE WAS BORN ON FEBRUARY 6. HE WAS BORN ON FEBRUARY 6. DOES SHOW THAT NO ACTUAL SERVICE WAS RENDERED BY MR. ALSO WHETHER HE WAS SUBJECT TO CALL AND AVAILABLE FOR DUTY DURING THE PERIOD COVERED BY THE REINSTATEMENT AS SUBSTITUTE. IS IN PART AS FOLLOWS: "IN REPLY TO THE INQUIRY PRESENTED IN THE THIRD PARAGRAPH OF YOUR LETTER. YOU ARE INFORMED THAT THERE IS NOTHING IN THE RECORDS OF THE DEPARTMENT OR THE POST OFFICE SHOWING TO WHAT EXTENT MR. NOTHING OF RECORD HAS BEEN FOUND TO SHOW WHETHER HE WAS SUBJECT TO CALL AND AVAILABLE FOR DUTY OVER THIS PERIOD.

A-81275, NOVEMBER 9, 1936, 16 COMP. GEN. 475

RETIREMENT - POSTAL EMPLOYEE - NON-PERFORMANCE OF DUTIES AFTER REINSTATEMENT PRIOR TO RETIREMENT ACT A POSTAL EMPLOYEE SEPARATED FROM ACTIVE SERVICE BY RESIGNATION AND REINSTATED AS A SUBSTITUTE CARRIER PRIOR TO THE EFFECTIVE DATE OF THE RETIREMENT ACT, WHO HAS PERFORMED NO ACTIVE SERVICE AS A GOVERNMENT EMPLOYEE SINCE REINSTATEMENT BUT HAS PERFORMED FULL-TIME SERVICE AS AN OFFICER OF THE NATIONAL ASSOCIATION OF LETTER CARRIERS, IS NOT ENTITLED TO ANY BENEFITS UNDER THE CIVIL SERVICE RETIREMENT ACT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, NOVEMBER 9, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 20, 1936, AS FOLLOWS:

A CLAIM FOR ANNUITY UNDER THE TERMS OF SECTION 1 OF THE RETIREMENT ACT OF MAY 29, 1930 (46 STAT. 468), HAS BEEN FILED BY MR. MICHAEL T. FINNAN, ALLEGING FINAL EMPLOYMENT AS A SUBSTITUTE CITY LETTER CARRIER, BLOOMINGTON, ILLINOIS, POST-OFFICE.

THE RECORD OF EMPLOYMENT OF MR. FINNAN AS CERTIFIED BY THE POST OFFICE DEPARTMENT SHOWS THAT HE WAS APPOINTED SUBSTITUTE CARRIER MAY 29, 1893; PROMOTED TO CARRIER APRIL 1, 1896, AND SERVED CONTINUOUSLY UNTIL SEPARATION BY RESIGNATION MAY 17, 1917; REINSTATED AS SUBSTITUTE CARRIER MAY 1, 1918, AND CARRIED ON THE ROLLS AS A SUBSTITUTE UNTIL SEPTEMBER 30, 1935. HE WAS BORN ON FEBRUARY 6, 1866, AND THEREFORE REACHED THE AGE OF 1935. HE WAS BORN ON FEBRUARY 6, 1966, AND THEREFORE REACHED THE AGE OF 65 YEARS ON FEBRUARY 6, 1931. ACCORDINGLY, IF SUBJECT TO THE TERMS OF THE RETIREMENT ACT MR. FINNAN'S SEPARATION FROM SERVICE BECAME AUTOMATIC BY OPERATION OF LAW ON FEBRUARY 28, 1931, AND HE WOULD BE ENTITLED TO ANNUITY, EFFECTIVE FROM MARCH 1, 1931.

MR. FINNAN ALLEGES THE DATE OF HIS ORIGINAL ENTRY IN SERVICE AS JULY 29, 1885. HOWEVER, THE POST OFFICE DEPARTMENT SHOWS NO RECORD OF ANY SERVICE BETWEEN THAT DATE AND MAY 29, 1893. THE CERTIFICATION BY THE DEPARTMENT MAKES NO MENTION OF ANY LEAVES OF ABSENCE IN EXCESS OF SIX MONTHS IN ANY CALENDAR YEAR, BUT DOES SHOW THAT NO ACTUAL SERVICE WAS RENDERED BY MR. FINNAN SINCE THE EFFECTIVE DATE OF THE RETIREMENT ACT,AUGUST 1, 1920, AND NO CONTRIBUTIONS TO THE RETIREMENT FUND IN VIEW OF THE FACT THAT HE RECEIVED NO SALARY. IN HIS APPLICATION MR. FINNAN STATES IN ANSWER TO THE QUESTION OF WHETHER HE HAS BEEN ABSENT IN EXCESS OF SIX MONTHS IN ANY CALENDAR YEAR, THAT HE HAS BEEN SO ABSENT SINCE JANUARY 12, 1910, AND GIVES AS REASON FOR HIS ABSENCE: "FOR SERVICE AS AN OFFICER OF THE NATIONAL ASSOCIATION OF LETTER CARRIERS AT WASHINGTON, D.C., AND ELSEWHERE SINCE JANUARY 12, 1910. SUBJECT TO CALL AS A SUBSTITUTE SINCE REINSTATEMENT AS A SUBSTITUTE LETTER CARRIER ON MAY 1, 1918.'

A LETTER ADDRESSED TO THE FIRST ASSISTANT POSTMASTER GENERAL, DATED JULY 31, 1936, BY THIS OFFICE REQUESTED A DETAILED STATEMENT OF THE AMOUNT OF SERVICE RENDERED BY MR. FINNAN SINCE JANUARY 12, 1910, AND WHETHER HE RENDERED ANY SERVICE UNDER HIS REINSTATEMENT OF MAY 1, 1918, ALSO WHETHER HE WAS SUBJECT TO CALL AND AVAILABLE FOR DUTY DURING THE PERIOD COVERED BY THE REINSTATEMENT AS SUBSTITUTE, OR IF HE HAD BEEN GRANTED LEAVE OF ABSENCE OR EXCUSED FROM CALL. THE REPLY OF THE POST OFFICE DEPARTMENT TO THESE INQUIRIES UNDER DATE OF SEPTEMBER 3, 1936, IS IN PART AS FOLLOWS:

"IN REPLY TO THE INQUIRY PRESENTED IN THE THIRD PARAGRAPH OF YOUR LETTER, YOU ARE INFORMED THAT THERE IS NOTHING IN THE RECORDS OF THE DEPARTMENT OR THE POST OFFICE SHOWING TO WHAT EXTENT MR. FINNAN PERFORMED SERVICE SINCE JANUARY 12, 1910, OR WHETHER HE RENDERED ANY SERVICE WHATSOEVER UNDER HIS APPOINTMENT OF MAY 1, 1918.

"WITH REFERENCE TO PARAGRAPH 1, PAGE 2, OF YOUR LETTER, NOTHING OF RECORD HAS BEEN FOUND TO SHOW WHETHER HE WAS SUBJECT TO CALL AND AVAILABLE FOR DUTY OVER THIS PERIOD. THE ONLY RECORD SHOWING THAT HE WAS GRANTED LEAVE OF ABSENCE WITHOUT PAY IS CONTAINED IN AN ORDER OF THE POSTMASTER GENERAL DATED JUNE 25, 1913, NO. 7234. THERE IS INCLOSED A COPY OF THIS ORDER, TOGETHER WITH COPIES OF RELATED CORRESPONDENCE.

"THE FILES DO NOT DISCLOSE WHETHER MR. FINNAN WAS OFFERED OPPORTUNITY OF PERFORMING SUBSTITUTE SERVICE.'

THE LEAVES OF ABSENCE REFERRED TO BY THE DEPARTMENT WERE GRANTED IN THE YEARS 1913 AND 1916. NO RECORD HAS BEEN FURNISHED OF ANY LEAVE OF ABSENCE GRANTED SUBSEQUENT TO REINSTATEMENT AS A SUBSTITUTE CARRIER ON MAY 1, 1918.

MR. FINNAN WAS REINSTATED AS A SUBSTITUTE CARRIER, BLOOMINGTON, ILLINOIS POST-OFFICE, AND SINCE THE DATE OF REINSTATEMENT HE HAS SERVED AS AN OFFICER OF THE NATIONAL ASSOCIATION OF LETTER CARRIERS IN WASHINGTON AND ELSEWHERE. IT WOULD THEREFORE APPEAR THAT BEING ABSENT IN A CITY DISTANT FROM HIS POST OF DUTY, HE COULD NOT BE CONSIDERED AS AVAILABLE FOR DUTY AT ANY TIME.

PARAGRAPH 2, SECTION 5, OF THE ACT OF MAY 29, 1930 PROVIDES:

"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.'

IN HIS DECISION OF SEPTEMBER 17, 1926 (22 P. AND R. 207) CONSTRUING AND IDENTICAL PROVISION IN THE PRIOR RETIREMENT ACT OF JULY 3, 1936, THE SECRETARY OF THE INTERIOR HELD:

"IN THE COMPUTATION OF SERVICE OF SUBSTITUTE POSTAL EMPLOYEES UNDER SECTION 5 OF THE ACT OF JULY 3, 1926, CREDIT SHOULD BE ALLOWED FROM THE DATE OF ORIGINAL APPOINTMENT, AND MERE FAILURE TO PERFORM ACTUAL SERVICE WILL NOT BE REGARDED AS EQUIVALENT TO LEAVE OF ABSENCE SO LONG AS HE IS SUBJECT TO CALL, BUT PERIODS DURING WHICH HE IS EXCUSED FROM CALL OR ON FURLOUGH SHOULD BE CONSIDERED UNDER THE GENERAL RULE EXCLUDING PERIODS OF LEAVE IN EXCESS OF SIX MONTHS IN ANY CALENDAR YEAR.'

ASSUMING THAT MR. FINNAN WAS A BONA FIDE EMPLOYEE AND SUBJECT TO THE TERMS OF THE RETIREMENT ACT, AND COMPUTING SERVICE UPON THE CERTIFIED RECORD OF THE POST OFFICE DEPARTMENT, ALLOWING FULL-TIME CREDIT FOR SERVICE ACTUALLY RENDERED FROM MAY 29, 1893 TO JANUARY 12, 1910, AGGREGATING 16 YEARS, 7 MONTHS, AND 13 DAYS, AND CREDIT IN ACCORDANCE WITH PARAGRAPH 2 OF SECTION 5 OF THE ACT OF MAY 29, 1930 FOR SIX MONTHS IN EACH CALENDAR YEAR HIS NAME WAS BORNE ON THE ROLLS OF THE DEPARTMENT AND APPARENTLY EXCUSED FROM CALL, AT THE DATE OF RETIREMENT, MARCH 1, 1931, HE WOULD BE CREDITED WITH 27 YEARS, 1 MONTH, AND 6 DAYS' SERVICE.

SUBSTITUTES IN THE POSTAL SERVICE, WITH THE EXCEPTION OF SUBSTITUTE RURAL CARRIERS, ARE IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES AND WITHIN THE PROVISIONS OF THE RETIREMENT ACT.

MR. FINNAN WAS APPOINTED AS A SUBSTITUTE CITY LETTER CARRIER, AND HIS NAME BORNE ON THE ROLLS OF THE DEPARTMENT AS AN EMPLOYEE SINCE THE DATE OF HIS APPOINTMENT ALTHOUGH HE WAS NOT CALLED UPON TO RENDER ANY SERVICE.

YOU ARE REQUESTED TO ADVISE WHETHER A REINSTATEMENT BY THE CIVIL SERVICE COMMISSION AND AN APPOINTMENT PURSUANT THERETO CONSTITUTE THE PERSON SO APPOINTED AN EMPLOYEE SUBJECT TO THE PROVISIONS OF THE RETIREMENT ACT IN THE ABSENCE OF THE PERFORMANCE OF ANY ACTUAL SERVICE UNDER THE APPOINTMENT AND ENTITLE THE PERSON TO ALLOWANCE OF CREDIT IN COMPUTING HIS AGGREGATE SERVICE THEREUNDER.

THIS APPLICANT FOR RETIREMENT WAS SEPARATED FROM THE ACTIVE SERVICE OF THE GOVERNMENT BY RESIGNATION MAY 17, 1917, PRIOR TO THE EFFECTIVE DATE OF THE RETIREMENT ACT. IT HAS BEEN REPORTED BY THE POST OFFICE DEPARTMENT THAT THERE IS NO RECORD OF HIS HAVING PERFORMED ANY ACTIVE SERVICE AS A POSTAL EMPLOYEE SINCE THAT TIME. WHILE IT IS NOT EXPRESSLY SO STATED, IT WOULD APPEAR HIS ATTEMPTED REINSTATEMENT AS A SUBSTITUTE CARRIER ON MAY 1, 1918, WAS FOR THE PURPOSE OF PERMITTING HIM TO CONTINUE HIS SERVICES AS AN OFFICER OF THE NATIONAL ASSOCIATION OF LETTER CARRIERS WITH WHICH HE HAD BEEN CONNECTED AT LEAST SINCE JANUARY 12, 1910. FULL-TIME SERVICE AS AN OFFICER OF AN ORGANIZATION OF GOVERNMENT EMPLOYEES IS INCONSISTENT WITH ACTIVE SERVICE AS AN EMPLOYEE OF THE GOVERNMENT. NO STATUTE HAS BEEN BROUGHT TO ATTENTION UNDER WHICH AN OFFICER OF A GOVERNMENT EMPLOYEE'S ORGANIZATION MAY RETAIN HIS STATUS AS AN EMPLOYEE OF THE GOVERNMENT AND RETIREMENT BENEFITS AS SUCH BY MERELY HAVING HIS NAME PLACED ON THE GOVERNMENT ROLL AS ONE AVAILABLE FOR DUTY BUT WITH NO INTENT OR PURPOSE OF BEING CALLED TO DUTY. THERE IS NOTHING IN THE RETIREMENT ACT TO JUSTIFY SUCH A PROCEDURE.

FURTHER INDICATION THAT NEITHER THE POST OFFICE DEPARTMENT NOR THIS FORMER EMPLOYEE REGARDED HIS STATUS AS THAT OF A BONA FIDE EMPLOYEE OF THE GOVERNMENT AT ANY TIME AFTER HIS RESIGNATION IN MAY 1917 IS THE FACT THAT ALTHOUGH HE REACHED AUTOMATIC RETIREMENT AGE IN FEBRUARY 1931 NO STEPS WERE TAKEN WITH A VIEW TO ESTABLISHING A RIGHT TO ANNUITY UNTIL 4 OR 5 YEARS THEREAFTER.

IT IS THE VIEW OF THIS OFFICE ON THE BASIS OF THE FACTS STATED, THAT THE SO-CALLED REINSTATEMENT OF MAY 1, 1918, WAS NOT A BONA FIDE REINSTATEMENT INTO THE SERVICE OF THE UNITED STATES AND, THEREFORE, THAT THIS FORMER EMPLOYEE IS NOT ENTITLED TO ANY BENEFIT UNDER THE RETIREMENT ACT. SEE 14 COMP. GEN. 9.