B-140542, SEP. 30, 1959

B-140542: Sep 30, 1959

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THAT SINCE SHE DID NOT HAVE ANY LEAVE TO HERE CREDIT SHE ASKED THE PERSONNEL OFFICE WHAT HER LAST DAT OF DUTY SHOULD BE IN ORDER THAT HER RETIREMENT ANNUITY MIGHT BEGIN ON JANUARY 1. SMITH ALLEGES AND YOUR REGIONAL OFFICE MANAGER AFFIRMS THAT SHE WAS ADVISED IF SHE WORKED THROUGH DECEMBER 31. SMITH'S RETIREMENT WAS DELAYED UNDER CIVIL SERVICE COMMISSION REGULATIONS UNTIL FEBRUARY 1. WE BELIEVE THE EVIDENCE SUPPORTS A CONCLUSION THAT IT WAS THE EMPLOYEE'S INTENTION TO RESIGN FROM THE SERVICE EFFECTIVE DECEMBER 31. THUS THERE WAS NO REQUIREMENT IN THIS CASE THAT THE EMPLOYEE BE KEPT ON THE ROLLS OF THE AGENCY FOR JANUARY 1.

B-140542, SEP. 30, 1959

TO THE HONORABLE SUMNER G. WHITTIER, ADMINISTRATOR, VETERANS ADMINISTRATION:

ON AUGUST 19, 1959, YOU REQUESTED OUR DECISION WHETHER MRS. DOROTHY J. SMITH'S RETIREMENT MAY BE MADE EFFECTIVE JANUARY 1, 1959, RATHER THAN FEBRUARY 1, 1959, UNDER THE FOLLOWING STATED FACTS AND CIRCUMSTANCES.

YOU SAY THAT MRS. SMITH INTENDED HER RETIREMENT TO BECOME EFFECTIVE JANUARY 1, 1959, AND THAT SINCE SHE DID NOT HAVE ANY LEAVE TO HERE CREDIT SHE ASKED THE PERSONNEL OFFICE WHAT HER LAST DAT OF DUTY SHOULD BE IN ORDER THAT HER RETIREMENT ANNUITY MIGHT BEGIN ON JANUARY 1, 1959. MRS. SMITH ALLEGES AND YOUR REGIONAL OFFICE MANAGER AFFIRMS THAT SHE WAS ADVISED IF SHE WORKED THROUGH DECEMBER 31, 1958, HER RETIREMENT WOULD BE EFFECTIVE AS OF THAT DATE AND HER RETIREMENT ANNUITY WOULD BE EFFECTIVE JANUARY 1, 1959. ACTING UPON THIS ADVICE MRS. SMITH WORKED THROUGH DECEMBER 31, 1958; HOWEVER, THE REGIONAL OFFICE, IN PROCESSING HER RETIREMENT, PAID HER THROUGH JANUARY 1, 1959, BECAUSE SHE HAD WORKED THROUGH DECEMBER 31, 1958, THE DAY PRECEDING A HOLIDAY. AS A RESULT OF HER BEING PAID FOR JANUARY 1, 1959, MRS. SMITH'S RETIREMENT WAS DELAYED UNDER CIVIL SERVICE COMMISSION REGULATIONS UNTIL FEBRUARY 1, 1959. MRS. SMITH HAS OFFERED TO REFUND THE ONE DAY'S PAY SO THAT HER RETIREMENT FROM THE SERVICE COULD BE MADE EFFECTIVE DECEMBER 31, 1958, AND HER RETIREMENT ANNUITY COULD THEN BE MADE EFFECTIVE JANUARY 1, 1959, AS INTENDED BY HER.

AS A GENERAL RULE AN EMPLOYEE'S VOLUNTARY RESIGNATION MUST BE ACCEPTED IN THE TERMS TENDERED. 21 COMP. GEN. 517; 32 ID. 111. IN THE PRESENT CASE, WE BELIEVE THE EVIDENCE SUPPORTS A CONCLUSION THAT IT WAS THE EMPLOYEE'S INTENTION TO RESIGN FROM THE SERVICE EFFECTIVE DECEMBER 31, 1958, SO THAT HER RETIREMENT ANNUITY COULD BEGIN JANUARY 1, 1959. THUS THERE WAS NO REQUIREMENT IN THIS CASE THAT THE EMPLOYEE BE KEPT ON THE ROLLS OF THE AGENCY FOR JANUARY 1, 1959, BEYOND THE DATE SET BY HER FOR HER RETIREMENT.

SINCE THE EMPLOYEE WORKED THROUGH DECEMBER 31, 1958, AFTER SHE RECEIVED OFFICIAL ASSURANCE THAT HER RETIREMENT WOULD BE EFFECTED ON THAT DATE SO HER ANNUITY COULD BEGIN JANUARY 1, 1959, CORRECTIVE ADMINISTRATIVE ACTION MAY, UNDER THE FACTS AND CIRCUMSTANCES HERE RELATED, BE TAKEN TO MAKE HER SEPARATION FOR RETIREMENT PURPOSES EFFECTIVE DECEMBER 31, 1958, PROVIDED SHE REFUNDS THE ONE DAY'S PAY FOR THE HOLIDAY, JANUARY 1, 1959.