B-150356, DEC. 12, 1962

B-150356, DEC. 12, 1962

TO HONORABLE FRANK COFFIN, ACTING ADMINISTRATOR, AGENCY FOR INTERNATIONAL DEVELOPMENT:

BY LETTER OF NOVEMBER 21, 1962, MR. ROY W. CRAWLEY, DIRECTOR, OFFICE OF PERSONNEL ADMINISTRATION, SUBMITTED FOR OUR DECISION THE QUESTION OF WHETHER THE SEPARATION OF MR. WILLIAM WITTAUSCH EFFECTIVE JULY 13, 1962, MAY BE RESCINDED AND THE FORMER EMPLOYEE CARRIED IN A LEAVE WITHOUT PAY STATUS AS HE ORIGINALLY REQUESTED, SO AS TO PERMIT HIM TO ACQUIRE AN ELIGIBILITY FOR INVOLUNTARY SEPARATION RETIREMENT. WE UNDERSTAND THAT THE SUBMISSION WAS SIGNED BY MR. CRAWLEY IN THE ABSENCE OF THE FORMER ADMINISTRATOR.

THE CIRCUMSTANCES GIVING RISE TO THE QUESTION ARE SET FORTH IN MR. CRAWLEY'S LETTER AS FOLLOWS:

"MR. WILLIAM WITTAUSCH WAS APPOINTED AUGUST 19, 1961 AS A FOREIGN SERVICE RESERVE EMPLOYEE FOR A TOUR OF DUTY OVERSEAS UNDER A TIME LIMITED APPOINTMENT FOR THIRTY MONTHS. PRIOR TO THE EXPIRATION OF THE APPOINTMENT, IT WAS NECESSARY TO ABOLISH THE POSITION. THE AGENCY THEREFORE INITIATED A REDUCTION IN FORCE ACTION ON JUNE 5, 1962, AUTHORIZING 30 DAYS ACTIVE DUTY AND TRAVEL TIME PRIOR TO THE EFFECTIVE DATE OF THE INTENDED SEPARATION.

"CONSISTENT WITH AGENCY POLICY, MR. WITTAUSCH WAS ALSO NOTIFIED, IN THE LETTER OF REDUCTION IN FORCE, THAT HE WAS ELIGIBLE, UPON REQUEST, TO RECEIVE 90 ADDITIONAL DAYS IN A LEAVE WITHOUT PAY STATUS. BECAUSE OF THE INHERENT DELAYS IN TRAVEL FROM POST, THE TIME NECESSARY TO EFFECT MEDICAL CLEARANCE AND OTHER ADMINISTRATIVE DETAIL IN CONNECTION WITH SHIPMENT OF EFFECTS OF OVERSEAS EMPLOYEES, IT IS AGENCY POLICY TO ENCOURAGE THE TAKING OF LEAVE WITHOUT PAY IN ORDER TO ENABLE THE AGENCY TO EFFECT AN ORDERLY SEPARATION.

"ON JUNE 5, 1962, MR. WITTAUSCH APPLIED FOR THE 90 DAY LEAVE WITHOUT PAY, AND HIS REQUEST WAS GRANTED. SUBSEQUENTLY, IN A DISCUSSION WITH A REPRESENTATIVE OF THE OFFICE OF PERSONNEL, HE WAS ADVISED THAT IN VIEW OF HIS AGE AND LENGTH OF GOVERNMENT SERVICE HE WAS IMMEDIATELY ELIGIBLE FOR A CIVIL SERVICE ANNUITY IF HE WERE TERMINATED AND THAT IF HE WISHED TO TAKE ADVANTAGE OF SUCH ELIBILITY AT ONCE, HE SHOULD WITHDRAW HIS LEAVE WITHOUT PAY REQUEST. UNFORTUNATELY THE OFFICE OF PERSONNEL REPRESENTATIVE FAILED TO RECALL AND CITE THE REQUIREMENT OF ONE YEAR OF SERVICE IMMEDIATELY PRIOR TO SEPARATION IN ORDER TO BE ELIGIBLE FOR DISCONTINUED SERVICE ANNUITY.

"RELYING UPON SUCH INCOMPLETE ADVICE THE EMPLOYEE WITHDREW HIS REQUEST FOR LEAVE WITHOUT PAY AND WAS TERMINATED ON JULY 13, 1962, WHICH DATE WAS LESS THAN ONE FULL YEAR FROM THE DATE OF HIS APPOINTMENT. HE IMMEDIATELY APPLIED TO THE CIVIL SERVICE COMMISSION FOR DISCONTINUED SERVICE RETIREMENT. THIS APPLICATION WAS REJECTED BY THE COMMISSION BECAUSE CIVIL SERVICE REGULATIONS REQUIRE AS ONE OF THE PROVISIONS FOR ELIGIBILITY FOR RETIREMENT THAT AN EMPLOYEE SERVE IN A POSITION COVERED BY THE RETIREMENT ACT FOR AT LEAST ONE FULL YEAR WITHIN THE LAST TWO YEARS PRIOR TO SEPARATION. HAD THE EMPLOYEE CONTINUED ON THE ROLLS UNTIL COMPLETION OF THE PERIOD OF 90 DAYS LWOP AS REQUESTED, HE WOULD HAVE BEEN ELIGIBLE TO APPLY FOR DISCONTINUED SERVICE RETIREMENT AS ONE YEAR WOULD HAVE ELAPSED SINCE THE DATE OF HIS APPOINTMENT.

"INASMUCH AS THE SEPARATION WAS BASED UPON INCORRECT ADVICE GIVEN TO THE EMPLOYEE UPON WHICH THE EMPLOYEE RELIED, AND INASMUCH AS THE EMPLOYEE HAD REASON TO BELIEVE THAT THE PERSONNEL ADVISOR WHOM HE CONSULTED WAS FULLY INFORMED OF ALL THE BASIC RULES RELATING TO RETIREMENT ELIGIBILITY AND OF THE FACTS RELATING TO HIS CASE, THE AGENCY CONSIDERS THAT THE SEPARATION ACTION IN ALL EQUITY SHOULD BE CANCELLED ON GROUNDS OF ADMINISTRATIVE ERROR. THE AGENCY DESIRES TO ISSUE A SEPARATION JOURNAL BASED ON THE OFFICIAL REDUCTION IN FORCE LETTER WHICH PROVIDED FOR 30 DAYS ACTIVE DUTY AND 90 DAYS IN LEAVE WITHOUT PAY STATUS. HAD THE MISINFORMATION NOT BEEN GIVEN TO THE EMPLOYEE, THIS ACTION IS THE ONE WHICH THE AGENCY WOULD HAVE TAKEN AS IS REFLECTED BY ITS OFFICIAL LETTER TO THE EMPLOYEE ADVISING HIM OF HIS PROPOSED SEPARATION BY REASON OF REDUCTION IN FORCE. YOUR APPROVAL IS REQUESTED AUTHORIZING THE AGENCY TO ISSUE A CORRECTED SEPARATION JOURNAL ACTION WHICH WILL BE CONSISTENT WITH ITS ORIGINAL SEPARATION NOTICE.'

IT LONG HAS BEEN THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT ONCE AN EMPLOYEE'S SEPARATION BECOMES AN ACCOMPLISHED FACT THE DATE THEREOF MAY NOT BE CHANGED FOR THE PURPOSE OF RESTORING HIM TO THE ROLLS. 33 COMP. GEN. 422. HOWEVER, WE HAVE PERMITTED CERTAIN EXCEPTIONS TO THAT RULE WHERE THE SEPARATION DID NOT CONFORM TO THE INTENT OF THE PARTIES CONCERNED OR WAS NOT IN CONFORMANCE WITH APPLICABLE REGULATIONS. CF. 39 COMP. GEN. 89; B-145957, OCTOBER 25, 1961, AND B-144922, MARCH 14, 1961.

SINCE IT IS THE AGENCY POLICY TO RETAIN EMPLOYEES IN A LEAVE WITHOUT PAY STATUS UNDER CIRCUMSTANCES SIMILAR TO THOSE RELATED HEREIN AND AS IT IS CLEAR THE EMPLOYEE WOULD NOT HAVE CANCELLED HIS REQUEST FOR LEAVE WITHOUT PAY HAD HE BEEN PROPERLY ADVISED IN THE MATTER, WE HAVE NO OBJECTION TO ADMINISTRATIVE ACTION BEING TAKEN CHANGING HIS DATE OF SEPARATION SO THAT HE MAY BE REGARDED AS HAVING BEEN IN A LEAVE WITHOUT PAY STATUS FOR THE PERIOD ORIGINALLY REQUESTED.