B-157701, SEP. 30, 1965

B-157701: Sep 30, 1965

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YOU WERE NOTIFIED BY YOUR ADMINISTRATIVE OFFICE THAT YOU WOULD BE RETIRED EFFECTIVE JULY 31. YOU WERE NEVER INFORMED BY YOUR AGENCY THAT YOU WOULD HAVE 15 YEARS OF CREDITABLE SERVICE BY THE TIME YOU REACHED AGE 70 AND. YOU BELIEVE THAT YOU ARE ENTITLED TO RECEIVE PAYMENT FOR ALL ANNUAL AND SICK LEAVE WHICH YOU WERE UNABLE TO USE PRIOR TO YOUR MANDATORY RETIREMENT. AN EMPLOYEE WHO SHALL HAVE ATTAINED THE AGE OF SEVENTY YEARS AND COMPLETED FIFTEEN YEARS OF SERVICE SHALL BE AUTOMATICALLY SEPARATED FROM THE SERVICE. THERE WAS NO AUTHORITY TO RETAIN YOU ON THE ROLLS FOR THE PURPOSE OF GRANTING YOU SICK OR ANNUAL LEAVE. NOR IS THIS OFFICE AUTHORIZED TO COMPENSATE YOU FOR YOUR UNUSED SICK LEAVE AND FORFEITED ANNUAL LEAVE.

B-157701, SEP. 30, 1965

TO MR. LEROY R. LOGAN:

BY LETTER OF AUGUST 31, 1965, YOU REQUESTED REVIEW OF OUR SETTLEMENT DATED AUGUST 19, 1965, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT FOR ALL UNUSED SICK LEAVE AND ANNUAL LEAVE STANDING TO YOUR CREDIT AT THE TIME OF YOUR RETIREMENT FROM THE UNITED STATES NAVAL SUPPLY CENTER, SAN DIEGO, CALIFORNIA.

THE RECORD SHOWS THAT YOU REACHED YOUR 70TH BIRTHDAY ON JULY 15, 1965, AND THAT BY THAT DATE YOU HAD COMPLETED AT LEAST 15 YEARS OF CREDITABLE FEDERAL SERVICE. ON MAY 21, 1965, YOU WERE NOTIFIED BY YOUR ADMINISTRATIVE OFFICE THAT YOU WOULD BE RETIRED EFFECTIVE JULY 31, 1965. INCIDENT TO YOUR SEPARATION FROM THE SERVICE YOU RECEIVED A LUMP SUM PAYMENT FOR 30 DAYS ANNUAL LEAVE BUT APPARENTLY YOU FORFEITED AN AMOUNT OF ANNUAL LEAVE WHICH COULD NOT BE INCLUDED IN THE LUMP-SUM LEAVE PAYMENT. YOU ALLEGE THAT PRIOR TO RECEIPT OF THE OFFICIAL NOTIFICATION OF MAY 21, 1965, YOU WERE NEVER INFORMED BY YOUR AGENCY THAT YOU WOULD HAVE 15 YEARS OF CREDITABLE SERVICE BY THE TIME YOU REACHED AGE 70 AND, THEREFORE, YOU BELIEVE THAT YOU ARE ENTITLED TO RECEIVE PAYMENT FOR ALL ANNUAL AND SICK LEAVE WHICH YOU WERE UNABLE TO USE PRIOR TO YOUR MANDATORY RETIREMENT.

CONCERNING MANDATORY SEPARATION FROM THE SERVICE, SECTIONS 2255/A), (B) AND (C) OF TITLE 5, U.S.C. PROVIDE AS FOLLOWS:

"/A) SEVENTY YEARS OF AGE AND FIFTEEN YEARS OF SERVICE; EFFECTIVE DATE OF SEPARATION.

"EXCEPT AS HEREINAFTER PROVIDED, AN EMPLOYEE WHO SHALL HAVE ATTAINED THE AGE OF SEVENTY YEARS AND COMPLETED FIFTEEN YEARS OF SERVICE SHALL BE AUTOMATICALLY SEPARATED FROM THE SERVICE. SUCH SEPARATION SHALL BE EFFECTIVE ON THE LAST DAY OF THE MONTH IN WHICH SUCH EMPLOYEE ATTAINS THE AGE OF SEVENTY YEARS OR COMPLETES FIFTEEN YEARS OF SERVICE IF THEN BEYOND SUCH AGE, AND ALL SALARY SHALL CEASE FROM THAT DAY.

"/B) NOTIFICATION OF SEPARATION.

"EACH EMPLOYING OFFICE SHALL NOTIFY EACH EMPLOYEE UNDER ITS DIRECTION OF THE DATE OF SUCH SEPARATION FROM THE SERVICE AT LEAST SIXTY DAYS IN ADVANCE THEREOF: PROVIDED, THAT SUBSECTION (A) OF THIS SECTION SHALL NOT TAKE EFFECT WITHOUT THE CONSENT OF THE EMPLOYEE UNTIL SIXTY DAYS AFTER HE HAS BEEN SO NOTIFIED.

"/C) PRESIDENTIAL EXEMPTION.

"THE PRESIDENT MAY, BY EXECUTIVE ORDER, EXEMPT FROM AUTOMATIC SEPARATION UNDER THIS SECTION ANY EMPLOYEE WHEN, IN HIS JUDGMENT, THE PUBLIC INTEREST SO REQUIRES.'

YOUR ADMINISTRATIVE OFFICE COMPLIED WITH THE REQUIREMEMT OF SECTION 2255 (B) ABOVE BY NOTIFYING YOU OF YOUR MANDATORY SEPARATION 60 DAYS IN ADVANCE THEREOF. IN ACCORDANCE WITH THE FOREGOING STATUTORY PROVISIONS YOUR ADMINISTRATIVE OFFICE HAD NO ALTERNATIVE OTHER THAN TO SEPARATE YOU ON JULY 31, 1965. SINCE THE STATUTE PROVIDES THAT ALL SALARY SHALL CEASE FROM THE EFFECTIVE DATE OF RETIREMENT, THERE WAS NO AUTHORITY TO RETAIN YOU ON THE ROLLS FOR THE PURPOSE OF GRANTING YOU SICK OR ANNUAL LEAVE. SEE 36 COMP. GEN. 486 (COPY ENCLOSED).

NOR IS THIS OFFICE AUTHORIZED TO COMPENSATE YOU FOR YOUR UNUSED SICK LEAVE AND FORFEITED ANNUAL LEAVE. SECTION 1 OF THE ACT OF DECEMBER 21, 1944, AS AMENDED, 5 U.S.C. 61B, PROVIDES THAT NO LUMP-SUM PAYMENT SHALL EXCEED COMPENSATION FOR ANY PERIOD OF ANNUAL LEAVE IN EXCESS OF 30 DAYS FOR AN EMPLOYEE WHOSE MAXIMUM ANNUAL LEAVE CEILING IS 30 DAYS. SINCE THE RECORD INDICATES THAT YOU RECEIVED A LUMP-SUM PAYMENT FOR 30 DAYS ANNUAL LEAVE UPON SEPARATION FROM THE SERVICE, THERE IS NO AUTHORITY TO PAY YOU AN ADDITIONAL SUM. WITH RESPECT TO SICK LEAVE, THERE HAS NEVER BEEN AUTHORITY TO PAY EMPLOYEES FOR THEIR UNUSED SICK LEAVE UPON SEPARATION FROM THE SERVICE.

IN VIEW OF THE CONTROLLING STATUTORY PROVISIONS DISCUSSED HEREINABOVE, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.