B-141102, FEB. 8, 1960

B-141102: Feb 8, 1960

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COMPENSATION PAYABLE UNDER THE EMPLOYEES COMPENSATION ACT IS COMPENSATION GROWING OUT OF CIVIL EMPLOYMENT FOR PERSONAL INJURIES SUSTAINED IN THE PERFORMANCE OF HIS DUTIES AS A GOVERNMENT EMPLOYEE REGARDLESS OF THE LENGTH OF CIVIL EMPLOYMENT. YOU FURTHER SAY THAT REGARDLESS OF YOUR PRIOR RESIGNATION FROM THE SERVICE TO ACCEPT EMPLOYEES DISABILITY COMPENSATION YOU WERE IN THE SERVICE OF THE UNITED STATES UPON THE ENACTMENT DATE OF THE 1958 ACT AND THEREFORE ELIGIBLE TO RECEIVE THE ADDITIONAL COMPENSATION PROVIDED BY SECTION 8 (A) OF THE ACT. AFTER THE EFFECTIVE DATE OF YOUR RESIGNATION YOU NO LONGER WERE CARRIED ON THE ROLLS OF THE INTERNAL REVENUE SERVICE AND YOU THEREFORE WERE NOT IN THE SERVICE OF THE UNITED STATES ON THE ENACTMENT DATE OF THE 1958 ACT TO ENTITLE YOU TO THE ADDITIONAL COMPENSATION PROVIDED BY SECTION 8 (A).

B-141102, FEB. 8, 1960

TO MISS LEONE PATRICIA KNOX:

YOUR LETTER OF DECEMBER 16, 1959, RELATES TO OUR OFFICE SETTLEMENT OF DECEMBER 8, 1959, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE COMPENSATION UNDER THE PROVISIONS OF SECTION 8 (A) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT, 1958, 72 STAT. 212. THAT SECTION AUTHORIZES THE PAYMENT OF RETROACTIVE COMPENSATION TO EMPLOYEES WHO RETIRED AFTER THE EFFECTIVE DATE BUT PRIOR TO THE ENACTMENT DATE OF THE ACT.

SECTION 8 (A) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT READS, IN 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 ON OR AFTER JANUARY 1, 1958, AND ENDING ON THE DATE OF ENACTMENT OF THIS ACT FOR SERVICES RENDERED DURING SUCH PERIOD * * *.'

THE RECORD SHOWS YOU RESIGNED YOUR POSITION AS TAX EXAMINER, INTERNAL REVENUE SERVICE ON JUNE 13, 1958, PRIOR TO THE EFFECTIVE DATE OF THE ACT, TO ACCEPT COMPENSATION PAYABLE UNDER THE EMPLOYEES COMPENSATION ACT, 1916, AS AMENDED, 5 U.S.C. 751.

YOU SAY ALTHOUGH YOU ELECTED TO RECEIVE DISABILITY COMPENSATION RATHER THAN APPLY FOR RETIREMENT UNDER THE CIVIL SERVICE RETIREMENT ACT, 1920, AS AMENDED, 5 U.S.C. 691, ET SEQ., YOU BELIEVE YOU SHOULD BE CONSIDERED IN A RETIREMENT STATUS AND THEREFORE ELIGIBLE UNDER THE EXCEPTION IN SECTION 8 (A) OF THE 1958 ACT TO BE PAID THE RETROACTIVE INCREASE COMPENSATION PROVIDED BY THAT SECTION.

AN EMPLOYEE WHO RETIRES UNDER THE CIVIL SERVICE RETIREMENT ACT OR COMPARABLE LAW BECAUSE OF AGE OR LENGTH OF SERVICE OR BECAUSE OF DISABILITY RECEIVES AN ANNUITY INCIDENT TO HIS GOVERNMENT SERVICE AND COMPUTED UPON THE LENGTH OF HIS CIVIL EMPLOYMENT. HOWEVER, COMPENSATION PAYABLE UNDER THE EMPLOYEES COMPENSATION ACT IS COMPENSATION GROWING OUT OF CIVIL EMPLOYMENT FOR PERSONAL INJURIES SUSTAINED IN THE PERFORMANCE OF HIS DUTIES AS A GOVERNMENT EMPLOYEE REGARDLESS OF THE LENGTH OF CIVIL EMPLOYMENT. THEREFORE, AN INDIVIDUAL RECEIVING EMPLOYEES COMPENSATION MAY NOT BE CONSIDERED TO BE IN A RETIRED STATUS UNDER THE REQUIREMENTS OF THE CIVIL SERVICE RETIREMENT ACT OR COMPARABLE LAW.

YOU FURTHER SAY THAT REGARDLESS OF YOUR PRIOR RESIGNATION FROM THE SERVICE TO ACCEPT EMPLOYEES DISABILITY COMPENSATION YOU WERE IN THE SERVICE OF THE UNITED STATES UPON THE ENACTMENT DATE OF THE 1958 ACT AND THEREFORE ELIGIBLE TO RECEIVE THE ADDITIONAL COMPENSATION PROVIDED BY SECTION 8 (A) OF THE ACT. HOWEVER, AFTER THE EFFECTIVE DATE OF YOUR RESIGNATION YOU NO LONGER WERE CARRIED ON THE ROLLS OF THE INTERNAL REVENUE SERVICE AND YOU THEREFORE WERE NOT IN THE SERVICE OF THE UNITED STATES ON THE ENACTMENT DATE OF THE 1958 ACT TO ENTITLE YOU TO THE ADDITIONAL COMPENSATION PROVIDED BY SECTION 8 (A).

YOU ALSO SAY IN YOUR LETTER THAT AT THE TIME YOU RESIGNED FROM THE SERVICE ALTHOUGH YOU HAD THE ELECTION EITHER TO RETIRE UNDER THE PROVISIONS OF THE RETIREMENT ACT OR RECEIVE COMPENSATION UNDER THE EMPLOYEES COMPENSATION ACT, YOU ELECTED TO RECEIVE COMPENSATION UNDER THE LATTER ACT. UPON YOUR ELECTION YOU THEN BECAME INELIGIBLE UNDER SECTION 757 OF THE EMPLOYEES COMPENSATION ACT TO RECEIVE A RETIREMENT ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT UPON YOUR SEPARATION.

SINCE YOU WERE NOT IN A RETIRED STATUS OR IN THE SERVICE OF THE UNITED STATES ON THE DATE OF ENACTMENT OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT YOU ARE NOT ENTITLED TO RECEIVE THE ADDITIONAL COMPENSATION PROVIDED BY THAT ACT.

THEREFORE, THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL COMPENSATION WAS PROPER AND UPON REVIEW, THE SETTLEMENT IS SUSTAINED.