B-126269, OCT. 22, 1956

B-126269, OCT. 22, 1956

TO THE SECRETARY OF THE ARMY:

BY LETTER OF OCTOBER 10, 1956, FROM THE ASSISTANT SECRETARY OF THE ARMY, A DECISION IS REQUESTED WHETHER SECTION 13 (B) (3) OF THE ACT OF JULY 31, 1956, PUBLIC LAW 854, WOULD ENTITLE MR. HOWARD S. GAY TO A REFUND OF $984.30 DEDUCTED FROM HIS SALARY AS A TEMPORARY EMPLOYEE BECAUSE OF AN OVERPAYMENT FOR LUMP-SUM LEAVE IN A PRIOR SEPARATION FROM THE SERVICE. THE FACTS ARE STATED AS FOLLOWS:

"MR. HOWARD S. GAY WAS RETIRED ON NOVEMBER 30, 1952, FROM EMPLOYMENT WITH THE CORPS OF ENGINEERS, UNITED STATES ARMY. AT THE TIME OF RETIREMENT MR. GAY WAS RECEIVING A SALARY OF $9,800 PER ANNUM AND HAD 786 HOURS OF ACCUMULATED ANNUAL LEAVE TO HIS CREDIT. AS IT WAS CONTEMPLATED THAT MR. GAY WOULD BE REEMPLOYED ON A TEMPORARY BASIS, HE WAS AT THE TIME OF ORIGINAL RETIREMENT TENDERED A LUMP-SUM PAYMENT FOR ONLY 80 HOURS OF ACCUMULATED LEAVE. ON DECEMBER 15, 1952, MR. GAY WAS REEMPLOYED IN A TEMPORARY STATUS AT HIS FORMER SALARY OF $9,800 PER ANNUM LESS HIS RETIREMENT ANNUITY OF $2,868 RECEIVED UNDER THE CIVIL SERVICE RETIREMENT ACT, OR AN ANNUAL SALARY OF $6,932. THIS TEMPORARY EMPLOYMENT WAS TERMINATED ON MAY 29, 1953, AT WHICH TIME MR. GAY HAD A TOTAL OF 778 HOURS OF ACCUMULATED ANNUAL LEAVE TO HIS CREDIT (72 OF THESE HOURS HAD BEEN EARNED DURING HIS TEMPORARY APPOINTMENT, WHILE 706 REPRESENTED THE BALANCE OF HIS CREDIT AT THE TIME OF HIS RETIREMENT FROM HIS PERMANENT POSITION). LUMP-SUM PAYMENT IN THE AMOUNT OF $2,619.36, COVERING 778 HOURS OF ACCUMULATED ANNUAL LEAVE AT THE REDUCED PER-ANNUM SALARY OF $6,932 WAS MADE TO MR. GAY SUBSEQUENT TO THE TERMINATION OF THIS TEMPORARY EMPLOYMENT.

"ON MARCH 24, 1954, THE OFFICE OF THE DISTRICT ENGINEER, NEW YORK DISTRICT, CORPS OF ENGINEERS, UNITED STATES ARMY, RECEIVED A CLAIM FROM MR. GAY ADDRESSED TO THE GENERAL ACCOUNTING OFFICE, REQUESTING PAYMENT FOR 706 HOURS OF HIS ACCUMULATED ANNUAL LEAVE AT HIS SALARY RATE OF $9,800 PER ANNUM INSTEAD OF HIS REDUCED SALARY RATE OF $6,932. AFTER PAYING THIS CLAIM IN THE AMOUNT OF $984.30, THE OFFICE OF THE DISTRICT ENGINEER RECEIVED NOTICE OF THE COMPTROLLER GENERAL'S DECISION B 119962, DATED 9 JUNE 1954, WHICH INDICATED THAT PAYMENT WAS IMPROPER IN SUCH A CASE. MR. GAY WAS REEMPLOYED ON A TEMPORARY BASIS ON SEPTEMBER 1, 1954, AND TERMINATED ON JUNE 30, 1955. DURING THIS EMPLOYMENT, DEDUCTIONS WERE MADE FROM HIS SALARY ENABLING THE GOVERNMENT TO RECOUP THE ENTIRE AMOUNT OF $984.30 ERRONEOUSLY PAID MR. GAY.'

THE STATUTORY PROVISION REFERRED TO READS AS FOLLOWS:

"/B) IF AN ANNUITANT UNDER THIS ACT (OTHER THAN (1) A DISABILITY ANNUITANT WHOSE ANNUITY IS TERMINATED BY REASON OF HIS RECOVERY OR RESTORATION OF EARNING CAPACITY, (2) AN ANNUITANT WHOSE ANNUITY WAS BASED UPON AN INVOLUNTARY SEPARATION FROM THE SERVICE, EXCLUDING A SEPARATION UNDER THE AUTOMATIC SEPARATION PROVISIONS OF THIS ACT, OR (3) A MEMBER RETIRED UNDER THIS ACT) HEREAFTER BECOMES EMPLOYED, OR ON THE DATE OF ENACTMENT OF THE CIVIL SERVICE RETIREMENT ACT AMENDMENTS OF 1956 IS SERVING, IN AN APPOINTIVE OR ELECTIVE POSITION, HIS SERVICE ON AND AFTER THE DATE HE WAS OR IS SO EMPLOYED SHALL BE COVERED BY THIS ACT. DEDUCTIONS FOR THE FUND SHALL BE WITHHELD FROM HIS SALARY, BUT THERE SHALL BE DEDUCTED FROM HIS SALARY, EXCEPT FOR LUMP-SUM LEAVE PAYMENT PURPOSES UNDER THE ACT OF DECEMBER 21, 1944, A SUM EQUAL TO THE ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT, AND THIS PROVISION CONCERNING THE LUMP -SUM LEAVE PAYMENTS SHALL ALSO BE EFFECTIVE IN THE CASE OF EACH RETIRED EMPLOYEE SEPARATED FROM REEMPLOYMENT AFTER DECEMBER 15, 1953, AND BEFORE THE EFFECTIVE DATE OF THE CIVIL SERVICE RETIREMENT ACT AMENDMENTS OF 1956:

MR. GAY'S CLAIM FOR THE AMOUNT IN QUESTION WAS DISALLOWED BY SETTLEMENT OF SEPTEMBER 20, 1955, WHICH WAS REVIEWED AND SUSTAINED BY DECISION OF APRIL 4, 1956.

THE SEPARATION WHICH ENTITLED MR. GAY TO THE LUMP-SUM PAYMENT NOW IN QUESTION WAS DATED MAY 29, 1953, PRIOR TO THE RETROACTIVE DATE OF DECEMBER 15, 1953, NAMED IN THE ACT. HIS SUBSEQUENT TEMPORARY APPOINTMENT WAS DATED SEPTEMBER 1, 1954, MORE THAN A YEAR LATER AND DID NOT QUALIFY HIM FOR ANY RECREDIT OF THE LEAVE COVERED BY SUCH PAYMENT AS THE PERIOD THEREOF HAD LONG SINCE EXPIRED. ACCORDINGLY, SECTION 13 (B) (3) WOULD BE OF NO BENEFIT TO MR. GAY EXCEPT WITH RESPECT TO SUCH LEAVE AS MIGHT HAVE ACCRUED DURING HIS TEMPORARY APPOINTMENT EXPIRING JUNE 30, 1955. THE LATTER EMPLOYMENT DID NOT REVIVE HIS PRIOR LUMP-SUM LEAVE CLAIM NOR WARRANT ANY CHANGE IN THE DECISION OF APRIL 4, 1956.