B-140959, NOV. 3, 1959

B-140959: Nov 3, 1959

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YOU CONTEND THAT YOU SHOULD HAVE BEEN RETIRED ON DISABILITY. SINCE ITEM THIRTEEN OF THE APPLICATION "ONLY APPLICANTS FOR DISABILITY RETIREMENT WILL COMPLETE ITEM 13" WAS NOT COMPLETED BY YOU YOUR APPLICATION WAS PROCESSED AS A VOLUNTARY RETIREMENT BY THE CIVIL SERVICE COMMISSION. PROCESSED BY THE ADMINISTRATIVE OFFICE SHOWS YOUR SEPARATION WAS VOLUNTARY. OR ANY CASE IN WHICH THE EMPLOYEE IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY. WHICH PROVIDES GENERALLY THAT NO CLAIM FOR DISABILITY RETIREMENT SHALL BE ALLOWED UNDER THIS SECTION "UNLESS THE APPLICATION IS FILED WITH THE COMMISSION PRIOR TO SEPARATION OF THE EMPLOYEE * * * OR WITHIN ONE YEAR THEREAFTER.'. ANY QUESTION YOU WOULD HAVE AS TO THE TYPE OF RETIREMENT UNDER WHICH YOU WERE SEPARATED SHOULD BE TAKEN UP WITH THE CIVIL SERVICE COMMISSION AS THAT AGENCY HAS FINAL JURISDICTION IN SUCH MATTERS AND THEIR ACTION IN THAT REGARD IS NOT SUBJECT TO REVIEW BY OUR OFFICE.

B-140959, NOV. 3, 1959

TO MR. HARRY G. ROHRS:

YOUR LETTER OF SEPTEMBER 29, 1959, REQUESTS RECONSIDERATION OF OUR SETTLEMENT OF AUGUST 12, 1959, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $249.11 COLLECTED FROM YOUR RETIREMENT FUND ON ACCOUNT OF 107 HOURS OF OVERDRAWN SICK LEAVE AT THE TIME OF YOUR VOLUNTARY RETIREMENT.

YOU CONTEND THAT YOU SHOULD HAVE BEEN RETIRED ON DISABILITY. THE RECORD SHOWS THAT ON SEPTEMBER 15, 1958, YOU SUBMITTED AN APPLICATION FOR RETIREMENT FROM YOUR POSITION WITH THE POST OFFICE DEPARTMENT. SINCE ITEM THIRTEEN OF THE APPLICATION "ONLY APPLICANTS FOR DISABILITY RETIREMENT WILL COMPLETE ITEM 13" WAS NOT COMPLETED BY YOU YOUR APPLICATION WAS PROCESSED AS A VOLUNTARY RETIREMENT BY THE CIVIL SERVICE COMMISSION. ALSO, THE PERSONNEL ACTION, EFFECTIVE OCTOBER 1, 1958, PROCESSED BY THE ADMINISTRATIVE OFFICE SHOWS YOUR SEPARATION WAS VOLUNTARY.

SECTION 30.206 OF THE ANNUAL AND SICK LEAVE REGULATIONS, PAGE L-1-26 OF THE FEDERAL PERSONNEL MANUAL, REQUIRES GENERALLY THAT A PERSON INDEBTED FOR EXCESS LEAVE MUST MAKE REFUND THEREFOR UPON SEPARATION, BUT PROVIDES FURTHER, THAT THE SECTION SHALL NOT APPLY IN CASES OF DEATH, RETIREMENT FOR DISABILITY, OR ANY CASE IN WHICH THE EMPLOYEE IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE MEDICAL CERTIFICATE.

REGARDING THE AUTHORITY FOR CHANGING YOUR TYPE OF RETIREMENT FROM VOLUNTARY TO DISABILITY, WE DIRECT YOUR ATTENTION TO SECTION 1 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED BY PUBLIC LAW 854, APPROVED JULY 31, 1956, 70 STAT. 758. SUBSECTIONS 16 (B) AND (C) IN PART PROVIDE THAT "THE COMMISSION SHALL ADJUDICATE ALL CLAIMS UNDER THIS ACT," AND THAT ITS DECISIONS REGARDING QUESTIONS OF DISABILITY "SHALL BE FINAL AND CONCLUSIVE AND SHALL NOT BE SUBJECT TO REVIEW.' WE ALSO DIRECT YOUR ATTENTION TO SECTION 7 (B) OF THE ACT, 70 STAT. 750, WHICH PROVIDES GENERALLY THAT NO CLAIM FOR DISABILITY RETIREMENT SHALL BE ALLOWED UNDER THIS SECTION "UNLESS THE APPLICATION IS FILED WITH THE COMMISSION PRIOR TO SEPARATION OF THE EMPLOYEE * * * OR WITHIN ONE YEAR THEREAFTER.'

ANY QUESTION YOU WOULD HAVE AS TO THE TYPE OF RETIREMENT UNDER WHICH YOU WERE SEPARATED SHOULD BE TAKEN UP WITH THE CIVIL SERVICE COMMISSION AS THAT AGENCY HAS FINAL JURISDICTION IN SUCH MATTERS AND THEIR ACTION IN THAT REGARD IS NOT SUBJECT TO REVIEW BY OUR OFFICE.

CONSEQUENTLY, ON THE BASIS OF THE PRESENT RECORD, WE HAVE NO ALTERNATIVE OTHER THAN TO CONCLUDE THAT THE SETTLEMENT OF AUGUST 12, 1959, DISALLOWING YOUR CLAIM WAS CORRECT AND MUST BE SUSTAINED.