B-140197, AUGUST 13, 1959, 39 COMP. GEN. 89

B-140197: Aug 13, 1959

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WHO AT THE TIME WAS DISABLED DUE TO A MENTAL CONDITION. WITHOUT FIRST APPLYING FOR DISABILITY RETIREMENT ON HIS BEHALF OR WITHOUT ADVISING THE EMPLOYEE OF HIS ELIGIBILITY FOR DISABILITY RETIREMENT IS IN DEROGATION OF THE OBLIGATION OF THE EMPLOYING AGENCY TO SECURE AND PRESERVE ANY BENEFITS TO WHICH THE EMPLOYEE IS ENTITLED AND CONSTITUTES A BASIS FOR SETTING ASIDE THE SEPARATION ACTION. ANY RETIREMENT BENEFITS BASED ON THE RECORD CORRECTION ARE FOR DETERMINATION BY THE CIVIL SERVICE COMMISSION. POST OFFICE WAS RETIRED FOR DISABILITY ON NOVEMBER 27. THE PERTINENT FACTS IN THE CASE ARE SUMMARIZED AS FOLLOWS: THE EMPLOYEE INVOLVED. IN THE BLOCK ON SUCH FORM ENTITLED " REMARKS" THE FOLLOWING EXPLANATION APPEARS " EMPLOYEE SEPARATED DUE TO CONTINUOUS ILLNESS OF 15 MONTHS (90 DAYS ADDITIONAL LEAVE WAS GRANTED).

B-140197, AUGUST 13, 1959, 39 COMP. GEN. 89

CIVILIAN PERSONNEL - SEPARATION ACTION CHANGES - DISABILITY RETIREMENT RIGHT AN ADMINISTRATIVE ACTION IN SEPARATING AN EMPLOYEE, WHO AT THE TIME WAS DISABLED DUE TO A MENTAL CONDITION, WITHOUT FIRST APPLYING FOR DISABILITY RETIREMENT ON HIS BEHALF OR WITHOUT ADVISING THE EMPLOYEE OF HIS ELIGIBILITY FOR DISABILITY RETIREMENT IS IN DEROGATION OF THE OBLIGATION OF THE EMPLOYING AGENCY TO SECURE AND PRESERVE ANY BENEFITS TO WHICH THE EMPLOYEE IS ENTITLED AND CONSTITUTES A BASIS FOR SETTING ASIDE THE SEPARATION ACTION, THEREFORE, THE SEPARATION MAY BE REGARDED AS INVALID AND THE RECORDS CORRECTED TO SHOW A RETIREMENT FOR DISABILITY; HOWEVER, ANY RETIREMENT BENEFITS BASED ON THE RECORD CORRECTION ARE FOR DETERMINATION BY THE CIVIL SERVICE COMMISSION.

TO THE POSTMASTER GENERAL, AUGUST 13, 1959:

ON JULY 10, 1959, YOUR DEPUTY POSTMASTER GENERAL REQUESTED A DECISION CONCERNING THE PROPRIETY OF CHANGING THE RECORDS OF YOUR DEPARTMENT TO SHOW THAT A FORMER EMPLOYEE OF THE AKRON, OHIO, POST OFFICE WAS RETIRED FOR DISABILITY ON NOVEMBER 27, 1957, RATHER THAN SEPARATED.

THE PERTINENT FACTS IN THE CASE ARE SUMMARIZED AS FOLLOWS: THE EMPLOYEE INVOLVED, A TEN-POINT VETERAN, HAD OVER TEN YEARS OF SERVICE IN THE POSTAL FIELD SERVICE AT THE TIME OF HIS SEPARATION. THE NOTIFICATION OF PERSONNEL ACTION FORM EFFECTING SUCH SEPARATION SHOWS " SEPARATION- DISABILITY.' IN THE BLOCK ON SUCH FORM ENTITLED " REMARKS" THE FOLLOWING EXPLANATION APPEARS " EMPLOYEE SEPARATED DUE TO CONTINUOUS ILLNESS OF 15 MONTHS (90 DAYS ADDITIONAL LEAVE WAS GRANTED). CONFINED TO HOSPITAL.' YOUR DEPUTY POSTMASTER GENERAL SAYS AND THE INFORMATION APPEARING IN THE PERSONNEL FOLDER OF THE EMPLOYEE WHICH WAS TRANSMITTED HERE CLEARLY SHOWS THAT THE DISABILITY REQUIRING HIS SEPARATION WAS OF A MENTAL NATURE. FOLLOWING HIS SEPARATION THE FORMER EMPLOYEE COMMITTED SUICIDE--- EXACT DATE OF SUICIDE NOT FURNISHED--- WITHOUT AGAIN BEING EMPLOYED IN A POSITION UNDER THE POST OFFICE DEPARTMENT. YOUR DEPARTMENT CONSIDERS THAT THE EMPLOYEE SHOULD NOT HAVE BEEN SEPARATED BUT SHOULD HAVE BEEN RETIRED FOR DISABILITY RETIREMENT ON THE DATE THAT HE WAS SEPARATED. HOWEVER, WHEN THE MATTER OF CORRECTING YOUR RECORDS TO SHOW A RETIREMENT FOR DISABILITY WAS TAKEN UP WITH THE CIVIL SERVICE COMMISSION, YOUR DEPARTMENT WAS ADVISED THAT BECAUSE OF THE RULE ENUNCIATED IN OUR DECISION APPEARING IN 22 COMP. GEN. 291, THERE IS NO AUTHORITY TO RETROACTIVELY CHANGE THE RECORDS TO SHOW A RETIREMENT FOR DISABILITY IN LIEU OF A " SEPARATION DISABILITY.'

THE EMPLOYEE IN THE CASE UNDER CONSIDERATION WAS A TEN-POINT VETERAN; YET THE INFORMATION SUBMITTED HERE DOES NOT ESTABLISH THAT HE WAS AFFORDED THE PROTECTION GUARANTEED VETERANS UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT, 5 U.S.C. 863. WHILE IT IS NOT WITHIN OUR JURISDICTION TO PASS UPON SUCH QUESTION, HIS SEPARATION ALSO APPEARS TO HAVE BEEN CONTRARY TO EXECUTIVE ORDER NO. 5396, JULY 17, 1930, WHICH ENTITLES DISABLED VETERANS TO LEAVE WITHOUT PAY--- AFTER THE EXPIRATION OF THEIR SICK AND ANNUAL LEAVE--- FOR PERIODS OF NECESSARY MEDICAL TREATMENT. AT THE TIME OF THE EMPLOYEE'S SEPARATION AND FOR MANY MONTHS AFTERWARD HE WAS RECEIVING MEDICAL CARE AND TREATMENT AT A VETERANS ADMINISTRATION HOSPITAL WHICH FACT APPEARS TO HAVE BEEN KNOWN TO THE EMPLOYING AGENCY AT THE TIME OF HIS SEPARATION AS EVIDENCED BY THE NOTATION ON NOTIFICATION OF PERSONNEL ACTION FORM " CONFINED IN HOSPITAL.'

OF PARTICULAR SIGNIFICANCE IS A RECENT CASE BEFORE THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA ( ANDERSON V. MORGAN, 263 F.2D 903), WHICH INVOLVED A DISABLED EMPLOYEE WHO HAD BEEN SEPARATED BY THE TREASURY DEPARTMENT RATHER THAN INVOLUNTARILY RETIRED FOR DISABILITY. THE COURT ORDERED THAT THE PROCEEDINGS BE REMANDED TO THE TREASURY DEPARTMENT FOR CANCELLATION OF THE SEPARATION ACTION AND FOR THE FILING OF AN APPLICATION BY THE DEPARTMENT WITH THE CIVIL SERVICE COMMISSION FOR THE DISABILITY RETIREMENT OF THE EMPLOYEE. THE COURT IN EFFECT HELD THAT THERE IS A DUTY ON A GOVERNMENT AGENCY NOT TO SEPARATE AN EMPLOYEE BECAUSE OF DISABILITY IF SUCH EMPLOYEE HAS THE NECESSARY SERVICE TO QUALIFY FOR DISABILITY RETIREMENT. RATHER, THE COURT REASONED, THE AGENCY SHOULD FILE ON BEHALF OF SUCH EMPLOYEE AN APPLICATION FOR DISABILITY RETIREMENT.

WHERE THE DISABILITY RESULTING IN THE SEPARATION OF AN EMPLOYEE IS A MENTAL CONDITION WHICH IMPAIRS HIS JUDGMENT AND ABILITY TO MAKE DECISIONS FOR HIMSELF, THE REASON FOR THE HOLDING IN THE CASE OF ANDERSON V. MORGAN IS EVEN MORE APPARENT. IN SUCH A CASE THERE IS AN OBLIGATION ON THE PART OF THE EMPLOYING DEPARTMENT OR AGENCY PROCESSING PERSONNEL ACTIONS WHICH, AS YOU NOTE, IS RECOGNIZED IN SOME DEGREE BY BOTH POST OFFICE DEPARTMENT AND CIVIL SERVICE COMMISION REGULATIONS TO SECURE AND PRESERVE ANY BENEFITS TO WHICH SUCH EMPLOYEE MAY BE ENTITLED. YOUR DEPARTMENT'S ACTION IN EFFECTING A SEPARATION WITHOUT FIRST APPLYING FOR DISABILITY RETIREMENT IN BEHALF OF THE EMPLOYEE HERE INVOLVED (SUCH AS SUGGESTED IN THE INSTRUCTIONS OF THE CIVIL SERVICE COMMISSION AND THE REGULATIONS OF THE POST OFFICE DEPARTMENT) OR ADVISING HIM OF HIS ELIGIBILITY FOR SUCH RETIREMENT DISREGARDED SUCH OBLIGATION AND, UNDER THE THEORY OF THE CASE OF ANDERSON V. MORGAN, WOULD CONSTITUTE A BASIS FOR SETTING ASIDE THE SEPARATION ACTION. WE AGREE, ALSO, THAT THE DECISIONS IN VITARELLI V. SEATON, 39 U.S. 535, AND SERVICE V. DULLES, 354 U.S. 363, INDICATE THE INVALIDITY OF A PERSONNEL ACTION ADVERSE TO AN EMPLOYEE WHEN NOT IN CONFORMITY WITH APPLICABLE REGULATIONS.

IN VIEW OF THE FOREGOING WE CONSIDER THAT THE SEPARATION ACTION OF NOVEMBER 17, 1957, REASONABLY MAY BE VIEWED AS INVALID AND THE RECORDS ADJUSTED ACCORDINGLY. ANY RETIREMENT ACT BENEFITS BASED UPON THE CONCLUSION WILL BE FOR DETERMINATION BY THE CIVIL SERVICE COMMISSION.