B-133740, OCT. 30, 1957

B-133740: Oct 30, 1957

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WE ARE INFORMALLY ADVISED THAT MR. THE RECORD SHOWS THAT HIS EMPLOYMENT WAS INVOLUNTARILY TERMINATED BY A REDUCTION IN FORCE ON MAY 17. HE APPLIED FOR AND WAS GRANTED A RETIREMENT ANNUITY. UPON REEMPLOYMENT AND SINCE HE WAS OVER 60 YEARS OF AGE HIS APPLICABLE SALARY RATE WAS REDUCED BY THE AMOUNT OF HIS ANNUITY AS REQUIRED BY THE RETIREMENT ACT THEN IN EFFECT. THE ANNUAL RATE OF HIS SALARY AT THE TIME OF HIS RESIGNATION WAS $2. THE LUMP-SUM PAYMENT FOR HIS ACCUMULATED ANNUAL LEAVE OF 366 HOURS WAS MADE AT SUCH REDUCED RATE. THAT IS. TYUS' ENTITLEMENT UNDER THE RETROACTIVE PROVISION OF SECTION 13 (B) ARISES FROM THE FACT THAT HIS ANNUITY WAS PREDICATED UPON HIS INVOLUNTARY SEPARATION FROM THE SERVICE IN 1947 BY REDUCTION IN FORCE.

B-133740, OCT. 30, 1957

TO MR. PAUL P. CRAVIS, AUTHORIZED CERTIFYING OFFICER, SELECTIVE SERVICE SYSTEM:

YOUR LETTER OF SEPTEMBER 11, 1957, TRANSMITS A PAYROLL VOUCHER FOR $56.89 IN FAVOR OF OBER S. TYUS, A FORMER EMPLOYEE OF THE SELECTIVE SERVICE SYSTEM, GRIFFIN, GEORGIA, REPRESENTING AN ADDITIONAL LUMP SUM FOR ANNUAL LEAVE, AND REQUESTS OUR DECISION WHETHER THE VOUCHER PROPERLY MAY BE CERTIFIED FOR PAYMENT UNDER SECTION 13 (B) OF THE CIVIL SERVICE RETIREMENT ACT AMENDMENTS OF 1956, 70 STAT. 736, 757.

WE ARE INFORMALLY ADVISED THAT MR. TYUS ENTERED ON DUTY WITH THE SELECTIVE SERVICE SYSTEM ON OCTOBER 19, 1940. THE RECORD SHOWS THAT HIS EMPLOYMENT WAS INVOLUNTARILY TERMINATED BY A REDUCTION IN FORCE ON MAY 17, 1947. BETWEEN THE DATE OF HIS SEPARATION AND THAT OF HIS REEMPLOYMENT, EFFECTIVE AUGUST 24, 1948, HE APPLIED FOR AND WAS GRANTED A RETIREMENT ANNUITY. UPON REEMPLOYMENT AND SINCE HE WAS OVER 60 YEARS OF AGE HIS APPLICABLE SALARY RATE WAS REDUCED BY THE AMOUNT OF HIS ANNUITY AS REQUIRED BY THE RETIREMENT ACT THEN IN EFFECT. MR. TYUS RESIGNED FROM GOVERNMENT SERVICE EFFECTIVE JANUARY 2, 1954.

THE ANNUAL RATE OF HIS SALARY AT THE TIME OF HIS RESIGNATION WAS $2,950 LESS AN ANNUAL ANNUITY OF $396, AND THE LUMP-SUM PAYMENT FOR HIS ACCUMULATED ANNUAL LEAVE OF 366 HOURS WAS MADE AT SUCH REDUCED RATE, THAT IS, $2,554 PER ANNUM. YOUR DOUBT CONCERNING MR. TYUS' ENTITLEMENT UNDER THE RETROACTIVE PROVISION OF SECTION 13 (B) ARISES FROM THE FACT THAT HIS ANNUITY WAS PREDICATED UPON HIS INVOLUNTARY SEPARATION FROM THE SERVICE IN 1947 BY REDUCTION IN FORCE.

SECTION 13 (B) OF THE CIVIL SERVICE RETIREMENT ACT AMENDMENTS OF 1956, PROVIDES THAT, EXCEPT FOR LUMP-SUM PAYMENT PURPOSES, THE ANNUITIES OF REEMPLOYED ANNUITANTS SHALL BE DEDUCTED FROM THEIR SALARIES. HOWEVER, REEMPLOYED ANNUITANTS WHOSE ANNUITIES ARE PREDICATED ON INVOLUNTARY SEPARATION ARE EXCLUDED FROM COVERAGE OF THE SECTION WHICH SECTION ALSO CONTAINS AUTHORITY FOR ADJUSTMENT OF LUMP SUM LEAVE PAYMENTS BACK TO DECEMBER 15, 1953. THE RETROACTIVE LANGUAGE OF SECTION 13 (B) READS AS FOLLOWS:

"* * * 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 * * *.'

NOTHING IN THE ABOVE LANGUAGE CONDITIONS THE LUMP-SUM PAYMENT RIGHT OF A RETIRED EMPLOYEE SEPARATED FROM REEMPLOYMENT BETWEEN DECEMBER 15, 1953, AND THE EFFECTIVE DATE OF THE AMENDATORY ACT UPON HIS HAVING HAD HIS ANNUITY BASED ON A VOLUNTARY SEPARATION OR RETIREMENT FOR AGE. MOREOVER, THERE IS NO INDICATION IN THE LEGISLATIVE HISTORY OF THE ENACTMENT TO INDICATE THAT CONGRESS INTENDED TO DENY THE ADJUSTMENT OF LUMP-SUM LEAVE PAYMENTS TO EMPLOYEES WHOSE ANNUITIES WERE PREDICATED ON INVOLUNTARY SEPARATIONS.

MR. TYUS IS A RETIRED EMPLOYEE SEPARATED FROM REEMPLOYMENT AFTER DECEMBER 15, 1953, AND BEFORE THE EFFECTIVE DATE OF THE ACT AND THEREFORE IS ENTITLED TO HAVE HIS LUMP-SUM PAYMENT FOR LEAVE COMPUTED ON HIS FULL SALARY RATE.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT. SINCE, HOWEVER, THE EMPLOYEE HAS NOT ASSERTED A CLAIM IN THE 14 MONTHS WHICH HAVE ELAPSED SINCE HIS RIGHT ACCRUED, HIS CURRENT ADDRESS SHOULD BE ASCERTAINED BEFORE ISSUANCE AND DELIVERY OF THE CHECK.