A-81505, NOVEMBER 27, 1936, 16 COMP. GEN. 535

A-81505: Nov 27, 1936

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TO WHOM WAS RETURNED THE SALARY WITHHELD UNDER THE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT. IS NOT ENTITLED. IS AS FOLLOWS: I HEREBY REQUEST THE HONOR OF YOUR ATTENTION AND RULING ON THE FOLLOWING QUESTIONS. I WAS APPOINTED UNDER CIVIL SERVICE TO THE FIELD FORCE OF THE INTERNAL REVENUE AGENT IN CHARGE OF CINCINNATI. A PERCENTAGE DEDUCTION WAS TAKEN IN ORDER TO MEET THE REQUIREMENTS OF THE ACT RELATIVE TO DISABILITY. I WAS REINSTATED IN THE SERVICE OF THE TREASURY DEPARTMENT AS AN INTERNAL REVENUE AGENT AT THE AGE OF THIRTY TWO (32) YEARS. I HAVE SERVED IN THE OFFICIAL CAPACITY AS AN INTERNAL REVENUE AGENT AND HAVE BEEN SUBJECTED TO THE PERCENTAGE DEDUCTION FROM MY SALARY ALLOWANCE IN ORDER TO MEET THE REQUIREMENTS OF THE ACT RELATIVE TO DISABILITY.

A-81505, NOVEMBER 27, 1936, 16 COMP. GEN. 535

CIVILIAN RETIREMENT BENEFITS - GOVERNMENT EMPLOYEES SEPARATED AND REINSTATED - PREVIOUS REFUND REPAYMENTS AND SUBSEQUENT SALARY DEDUCTIONS A GOVERNMENT EMPLOYEE SEPARATED FROM THE SERVICE, TO WHOM WAS RETURNED THE SALARY WITHHELD UNDER THE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT, IS NOT ENTITLED, UPON REINSTATEMENT, TO THE BENEFITS OF SAID ACT UNLESS AND UNTIL REPAYMENT OF THE AMOUNT PREVIOUSLY REFUNDED, PLUS INTEREST COVERING THE PERIOD OF SERVICE FROM DATE OF REINSTATEMENT, BUT SALARY DEDUCTIONS SHOULD CONTINUE UNDER THE REINSTATEMENT SO LONG AS THE EMPLOYEE OCCUPIES A POSITION WITHIN THE PURVIEW OF THE RETIREMENT ACT, NOTWITHSTANDING HIS FAILURE TO MAKE THE REQUIRED ELIGIBILITY PAYMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO WILLIAM E. WALFHORST, NOVEMBER 27, 1936:

YOUR LETTER OF NOVEMBER 3, 1936, IS AS FOLLOWS:

I HEREBY REQUEST THE HONOR OF YOUR ATTENTION AND RULING ON THE FOLLOWING QUESTIONS.

STATEMENT OF FACTS

ON MAY 1ST, 1930, I WAS APPOINTED UNDER CIVIL SERVICE TO THE FIELD FORCE OF THE INTERNAL REVENUE AGENT IN CHARGE OF CINCINNATI, OHIO, AS AN INTERNAL REVENUE INSPECTOR AND LATER AS AN INTERNAL REVENUE AGENT.

EFFECTIVE AUGUST 1ST, 1920, AND FROM EACH PAYMENT, TO ME AS SALARY, A PERCENTAGE DEDUCTION WAS TAKEN IN ORDER TO MEET THE REQUIREMENTS OF THE ACT RELATIVE TO DISABILITY, INVOLUNTARY SEPARATION, AND ANNUITY.

AS OF NOVEMBER 1ST, 1934, I RESIGNED AT THE AGE OF THIRTY-ONE (31) YEARS TO TAKE EMPLOYMENT WITH A PRIVATE BUSINESS AND RECEIVED A CHECK FROM THE TREASURY IN PAYMENT OF THE SALARY WITHHELD, PLUS INTEREST FROM AUGUST 1ST, 1920, TO NOVEMBER 1ST, 1924.

AS OF OCTOBER 15TH, 1925, I WAS REINSTATED IN THE SERVICE OF THE TREASURY DEPARTMENT AS AN INTERNAL REVENUE AGENT AT THE AGE OF THIRTY TWO (32) YEARS. FROM OCTOBER 15TH, 1925, I HAVE SERVED IN THE OFFICIAL CAPACITY AS AN INTERNAL REVENUE AGENT AND HAVE BEEN SUBJECTED TO THE PERCENTAGE DEDUCTION FROM MY SALARY ALLOWANCE IN ORDER TO MEET THE REQUIREMENTS OF THE ACT RELATIVE TO DISABILITY, INVOLUNTARY SEPARATION,AND ANNUITY. HAVE NOT REPAID THE AMOUNT PAID TO ME AS THE RESULT OF MY SEPARATION FROM THE SERVICE NOVEMBER 1ST, 1924.

QUESTIONS

(A) UNDER THE ABOVE CIRCUMSTANCES, AM I ENTITLED TO THE BENEFITS OF THE ACT RELATIVE TO DISABILITY, INVOLUNTARY SEPARATION, AND ANNUITY, OR ARE THESE PRIVILEGES NULLIFIED BECAUSE I HAVE NOT MADE REPAYMENT OF AMOUNT REFUNDED ME AFTER MY SEPARATION FROM THE SERVICE ON NOVEMBER 1ST, 1924?

(B) IF BECAUSE I HAVE NOT MADE REPAYMENT, I AM NOT ENTITLED TO THE BENEFITS OF THE ABOVE ACT, SHOULD THE TREASURY DEPARTMENT CONTINUE TO WITHHOLD FROM MY SALARY THE 3 1/2 PERCENT RETIREMENT DEDUCTION?

SECTION 12 (B) OF THE RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 476, PROVIDES AS FOLLOWS:

IN THE CASE OF ANY EMPLOYEE TO WHOM THIS ACT APPLIES WHO SHALL BE TRANSFERRED TO A POSITION NOT WITHIN THE PURVIEW OF THE ACT, OR WHO SHALL BECOME ABSOLUTELY SEPARATED FROM THE SERVICE BEFORE BECOMING ELIGIBLE FOR RETIREMENT ON ANNUITY, THE AMOUNT CREDITED TO HIS INDIVIDUAL ACCOUNT SHALL BE RETURNED TO SUCH EMPLOYEE TOGETHER WITH INTEREST AT 4 PERCENTUM PER ANNUM COMPOUNDED ON JUNE 30 OF EACH YEAR: PROVIDED, THAT WHEN AN 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: AND PROVIDED FURTHER, THAT ALL MONEY SO RETURNED TO AN EMPLOYEE MUST, UPON REINSTATEMENT, RETRANSFER, OR REAPPOINTMENT TO A POSITION COMING WITHIN THE PURVIEW OF THIS ACT, BE REDEPOSITED WITH INTEREST BEFORE SUCH EMPLOYEE MAY DERIVE ANY BENEFITS UNDER THIS ACT, EXCEPT AS PROVIDED IN THIS SECTION, BUT INTEREST SHALL NOT BE REQUIRED COVERING ANY PERIOD OF SEPARATION FROM THE SERVICE.

THIS SECTION OF THE STATUTE ANSWERS YOUR QUESTION (A) THAT IS, YOU WILL NOT BE ENTITLED TO THE BENEFITS OF THE RETIREMENT ACT UNLESS AND UNTIL YOU MAKE REPAYMENT OF THE AMOUNT REFUNDED PLUS INTEREST COVERING THE PERIOD OF YOUR SERVICE FROM DATE OF REINSTATEMENT.

QUESTION (B) IS ANSWERED IN THE AFFIRMATIVE BY SECTION 10 OF THE RETIREMENT ACT WHICH REQUIRES DEDUCTION FROM YOUR SALARY WHILE YOU CONTINUE TO OCCUPY A POSITION WITHIN THE PURVIEW OF THE RETIREMENT ACT, NOTWITHSTANDING YOUR FAILURE TO MAKE REPAYMENT AS REQUIRED BY SECTION 12 (B), SUPRA. ..END :