B-155145, SEP. 22, 1964

B-155145: Sep 22, 1964

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IN WHICH YOU CLAIM CREDIT FOR CIVIL SERVICE RETIREMENT PURPOSES FOR THE TIME YOU WERE CARRIED ON THE EMPLOYEES' COMPENSATION ROLL (NOVEMBER 1935 UNTIL DECEMBER 1939). THE REASON YOU WERE NOT ALLOWED CREDIT FOR THE PERIOD YOU WERE CARRIED ON THE EMPLOYEES' COMPENSATION ROLL IS BECAUSE AT THAT TIME YOU HAD BEEN SEPARATED FROM THE SERVICE BY YOUR FORMER EMPLOYING AGENCY AND NO LONGER HELD A CIVILIAN POSITION UNDER THE UNITED STATES. NEITHER THAT ACT NOR ANY OTHER LAW OF WHICH WE ARE AWARE AUTHORIZES SUCH CREDIT UNLESS THE EMPLOYEE IS CARRIED ON LEAVE OF ABSENCE BY HIS EMPLOYING AGENCY. WE ARE NOT AWARE OF ANY LAW WHICH WOULD PREVENT AN AGENCY FROM SEPARATING AN EMPLOYEE EVEN THOUGH THE EMPLOYEE MIGHT QUALIFY FOR FEDERAL EMPLOYEES' COMPENSATION ACT BENEFITS.

B-155145, SEP. 22, 1964

TO MR. WILLIAM H. REEVES:

THIS REFERS TO YOUR LETTER OF AUGUST 27, 1964, IN WHICH YOU CLAIM CREDIT FOR CIVIL SERVICE RETIREMENT PURPOSES FOR THE TIME YOU WERE CARRIED ON THE EMPLOYEES' COMPENSATION ROLL (NOVEMBER 1935 UNTIL DECEMBER 1939).

YOU POINT OUT THAT YOU RETIRED FROM THE VETERANS ADMINISTRATION HOSPITAL, MUSKOGEE, OKLAHOMA, ON JULY 5, 1963, FOR PHYSICAL DISABILITY. WHILE YOU CLAIMED 34 YEARS OF CREDITABLE SERVICE FOR RETIREMENT PURPOSES THE CIVIL SERVICE COMMISSION ALLOWED YOU CREDIT FOR 30 YEARS ONLY.

THE REASON YOU WERE NOT ALLOWED CREDIT FOR THE PERIOD YOU WERE CARRIED ON THE EMPLOYEES' COMPENSATION ROLL IS BECAUSE AT THAT TIME YOU HAD BEEN SEPARATED FROM THE SERVICE BY YOUR FORMER EMPLOYING AGENCY AND NO LONGER HELD A CIVILIAN POSITION UNDER THE UNITED STATES. SECTION 3 (C) OF THE CIVIL SERVICE RETIREMENT ACT, 5 U.S.C. 2253 (C), SPECIFICALLY PROVIDES THAT "CREDIT SHALL BE ALLOWED FOR LEAVES OF ABSENCE GRANTED AN EMPLOYEE * * * WHILE RECEIVING BENEFITS UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, AS AMENDED.' HOWEVER, NEITHER THAT ACT NOR ANY OTHER LAW OF WHICH WE ARE AWARE AUTHORIZES SUCH CREDIT UNLESS THE EMPLOYEE IS CARRIED ON LEAVE OF ABSENCE BY HIS EMPLOYING AGENCY. MOREOVER, WE ARE NOT AWARE OF ANY LAW WHICH WOULD PREVENT AN AGENCY FROM SEPARATING AN EMPLOYEE EVEN THOUGH THE EMPLOYEE MIGHT QUALIFY FOR FEDERAL EMPLOYEES' COMPENSATION ACT BENEFITS. IN FACT, THE CONGRESS HAS RECOGNIZED THAT AN EMPLOYEE MAY BE SEPARATED AND AT THE SAME TIME RECEIVE FEDERAL EMPLOYEES' COMPENSATION BENEFITS. SEE SECTION 7 (G) OF THE CIVIL SERVICE RETIREMENT ACT, 5 U.S.C. 2257 (G) RELATING TO THE CONCURRENT PAYMENT OF BENEFITS UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, AND AN ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT. SEE ALSO SECTION 202 OF PUB.L. 86-767, 5 U.S.C. 757.

UNDER THE CIRCUMSTANCES WE DO NOT PERCEIVE ANY BASIS FOR VIEWING YOUR SEPARATION FROM THE SERVICE ON OR ABOUT DECEMBER 18, 1935, AS ILLEGAL OR OTHERWISE IMPROPER SO AS TO PERMIT CREDIT FOR THE PERIOD THEREAFTER (UNTIL NOVEMBER 1939) TOWARD CIVIL SERVICE RETIREMENT. WHILE THE AGENCY MAY HAVE CARRIED YOU ON THE ROLLS IN A LEAVE WITHOUT PAY STATUS, THE FACT REMAINS THAT IT ELECTED NOT TO DO SO, THERE BEING NO REQUIREMENT OF LAW OR REGULATION TO THAT EFFECT.