B-129660, NOV. 28, 1956

B-129660, NOV. 28, 1956

TO MR. BENJAMIN A. GARCIA, AUTHORIZED CERTIFYING OFFICER, UNITED STATES DEPARTMENT OF THE INTERIOR:

YOUR LETTER OF AUGUST 14, 1956, FILE 5.20D-1, REQUESTS OUR DECISION WHETHER AN EMPLOYEE WHO RESIGNED HER POSITION ON JUNE 3, 1955, AND WHO WAS RETIRED ON JULY 1, 1955, WITH DISABILITY SHOWN FROM JUNE 3, 1955, IS ENTITLED TO RETROACTIVE COMPENSATION UNDER PUBLIC LAW 94 (FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955, APPROVED JUNE 28, 1955, 69 STAT. 172).

THE DELAY IN ANSWERING YOUR LETTER IS LARGELY ATTRIBUTABLE TO THE FACT THAT YOUR REQUEST WAS ADDRESSED TO THE CLAIMS DIVISION OF OUR OFFICE. THAT CONNECTION, SEE 22 COMP. GEN. 725--- PARTICULARLY THE LAST PARAGRAPH THEREOF BEGINNING AT BOTTOM OF PAGE 729.

IT IS NOT CLEAR FROM THE RECORD THAT YOU HAVE A VOUCHER BEFORE YOU FOR PAYMENT SO AS TO ENTITLE YOU TO AN ADVANCE DECISION. SEE 21 COMP. GEN. 1128. IN THIS INSTANCE, HOWEVER, WE WILL UNDERTAKE TO INFORM YOU OF OUR VIEWS CONCERNING THE MATTER IN QUESTION.

NOTICE OF PERSONNEL ACTION DATED JUNE 10, 1955, SHOWS THE EMPLOYEE RESIGNED EFFECTIVE JUNE 3, 1955, FOR REASONS OF HEALTH. ON AUGUST 1, 1955, SHE FILED AN APPLICATION FOR DISABILITY RETIREMENT UNDER THE CIVIL SERVICE RETIREMENT ACT WHICH APPLICATION WAS LATER APPROVED BY THE CIVIL SERVICE COMMISSION. THE COMMISSION FOUND THE DISABILITY AS SHOWN FROM JUNE 3, 1955, AND ALLOWED AN ANNUITY EFFECTIVE JULY 1, 1955, ON THE BASIS THAT DISABILITY ANNUITIES MUST COMMENCE THE FIRST OF THE MONTH FOLLOWING THE MONTH IN WHICH PAY CEASES.

SECTION 10 (A) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955, 69 STAT. 179, PROVIDES IN PERTINENT PART AS FOLLOWS:

"RETROACTIVE COMPENSATION OR SALARY SHALL BE PAID BY REASON OF THIS ACT ONLY IN THE CASE OF AN INDIVIDUAL IN THE SERVICE OF THE UNITED STATES (INCLUDING SERVICE IN THE ARMED FORCES OF THE UNITED STATES) OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA ON THE DATE OF ENACTMENT OF THIS ACT, EXCEPT THAT SUCH RETROACTIVE COMPENSATION OR SALARY SHALL BE PAID (1) TO AN OFFICER OR EMPLOYEE WHO RETIRED DURING THE PERIOD BEGINNING ON THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN AFTER FEBRUARY 28, 1955, AND ENDING ON THE DATE OF ENACTMENT OF THIS ACT FOR SERVICES RENDERED DURING SUCH PERIOD * * *.'

IN ORDER FOR AN EMPLOYEE TO BE CONSIDERED AS HAVING "RETIRED" WITHIN THE MEANING OF THE ABOVE-QUOTED SECTION 10 (A) DURING THE RETROACTIVE PERIOD COVERED BY THE SECTION, HE MUST HAVE BEEN SEPARATED FROM THE SERVICE AFTER HAVING BECOME ELIGIBLE FOR AN IMMEDIATE ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT, OR COMPARABLE LAW, BECAUSE OF AGE AND LENGTH OF SERVICE OR BECAUSE OF DISABILITY, REGARDLESS OF WHETHER A CLAIM FOR ANNUITY HAS BEEN SUBMITTED. 31 COMP. GEN. 230. AS THE DISABILITY RETIREMENT OF THE EMPLOYEE HERE IN QUESTION BECAME EFFECTIVE JUNE 3, 1955, WHICH WAS DURING THE PERIOD BEGINNING THE FIRST DAY OF THE FIRST PAY PERIOD AFTER FEBRUARY 28, 1955, AND THE DATE OF THE ACT OF JUNE 28, 1955, SHE COMES WITHIN THE QUOTED STATUTORY PROVISIONS.

ACCORDINGLY, THE EMPLOYEE MENTIONED IN YOUR LETTER IS ENTITLED TO THE RETROACTIVE ADJUSTMENT IN COMPENSATION AUTHORIZED BY THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955 (PUBLIC LAW 94).