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B-158012, NOVEMBER 4, 1966, 46 COMP. GEN. 383

B-158012 Nov 04, 1966
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THE EMPLOYEE WOULD NOT QUALIFY FOR THE INCREASED RETIREMENT BENEFIT UNDER THE RULE THAT EMPLOYEES HAVE A VESTED RIGHT TO COMPENSATION FOR A HOLIDAY WHEN IN A PAY STATUS FOR THE FULL WORKDAY PRECEDING THE HOLIDAY. 1966: THIS IS IN REPLY TO YOUR LETTER OF OCTOBER 27. WAS A LEGAL HOLIDAY. EMPLOYEES WHO WERE IN PAY STATUS AT CLOSE OF BUSINESS THURSDAY. WERE ENTITLED TO PAY FOR THE . IS THE HOLIDAY MONDAY. PROVIDED A SCHEDULE OF INCREMENTS TO CIVIL SERVICE ANNUITIES OF WHICH THE LAST 1 PERCENT IS APPLIED TO ANNUITIES COMMENCING BETWEEN JANUARY 1. WOULD HAVE A VESTED RIGHT TO COMPENSATION ON THE HOLIDAY. PREVENT HIS ENTITLEMENT TO THE ANNUITY INCREASE WHICH WAS AVAILABLE ONLY IF THE RETIREMENT ANNUITY COMMENCED NOT LATER THAN DECEMBER 31.

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B-158012, NOVEMBER 4, 1966, 46 COMP. GEN. 383

RETIREMENT - CIVILIAN - INCREASED BENEFITS - SCHEDULED INCREMENTS - STATUS ON DECEMBER 30, 1966 IN ORDER TO ATTAIN THE STATUS OF AN ANNUITANT ON DECEMBER 31, 1966, AND THUS BECOME ENTITLED TO THE 1 PERCENT SCHEDULED INCREMENT PROVIDED BY SECTION 1101 OF THE ACT OF OCTOBER 11, 1962, FOR ANNUITIES COMMENCING BETWEEN JANUARY 1 AND DECEMBER 31, 1966, AN EMPLOYEE SEEKING DISABILITY RETIREMENT MUST BE IN A LEAVE-WITHOUT-PAY STATUS AS OF THE CLOSE OF BUSINESS FRIDAY, DECEMBER 30, 1966, FOR IF IN A PAY STATUS THROUGH DECEMBER 30, THE LAST WORKDAY IMMEDIATELY PRECEDING THE MONDAY, JANUARY 2, 1967 HOLIDAY, THE EMPLOYEE WOULD NOT QUALIFY FOR THE INCREASED RETIREMENT BENEFIT UNDER THE RULE THAT EMPLOYEES HAVE A VESTED RIGHT TO COMPENSATION FOR A HOLIDAY WHEN IN A PAY STATUS FOR THE FULL WORKDAY PRECEDING THE HOLIDAY. RETIREMENT - CIVILIAN - INCREASED BENEFITS - COST-OF-LIVING INCREASES - STATUS ON DECEMBER 30, 1966 TO QUALIFY FOR THE COST-OF-LIVING ANNUITY INCREASE PRESCRIBED BY SECTION 1102 OF THE ACT OF OCTOBER 11, 1962 (5 U.S.C. 8340), WHICH MAY BECOME EFFECTIVE JANUARY 1, 1967, AN EMPLOYEE SEEKING DISABILITY RETIREMENT MUST BE IN A LEAVE-WITHOUT-PAY STATUS AS OF THE CLOSE OF BUSINESS FRIDAY, DECEMBER 30, 1967, THE LAST WORKDAY IMMEDIATELY PRECEDING THE MONDAY, JANUARY 2, 1967 HOLIDAY, OTHERWISE THE RIGHT TO HOLIDAY COMPENSATION FOR THE HOLIDAY WOULD DEPRIVE THE EMPLOYEE OF THE COST-OF-LIVING ANNUITY INCREASE BENEFIT ON JANUARY 1, 1967, THE ASSUMED EFFECTIVE DATE OF THE INCREASE.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, NOVEMBER 4, 1966:

THIS IS IN REPLY TO YOUR LETTER OF OCTOBER 27, 1966, IN WHICH YOU ASK IN REGARD TO EMPLOYEES WHOSE REQUEST FOR DISABILITY RETIREMENT CANNOT BE ACTED ON BY DECEMBER 31, 1966, THE FOLLOWING QUESTION:

FOR EMPLOYEES WITH THE COMMON MONDAY-THROUGH-FRIDAY WORKWEEK FRIDAY, DECEMBER 31, 1965, WAS A LEGAL HOLIDAY. UNDER THE ROLE ANNOUNCED IN B- 158012 AND DECISIONS THERE CITED, EMPLOYEES WHO WERE IN PAY STATUS AT CLOSE OF BUSINESS THURSDAY, DECEMBER 30, 1965, WERE ENTITLED TO PAY FOR THE ,IMMEDIATELY SUCCEEDING" LEGAL HOLIDAY. IS THE HOLIDAY MONDAY, JANUARY 2, 1967, ONE "IMMEDIATELY SUCCEEDING" FRIDAY, DECEMBER 30, 1966, WITHIN THE MEANING OF THE RULE SO AS TO ENTITLE EMPLOYEES IN PAY STATUS ON FRIDAY TO RECEIVE PAY FOR THE HOLIDAY? IF SO, WE WOULD EXPECT A NUMBER OF EMPLOYEES TO SEEK LEAVE WITHOUT PAY BEFORE THE CLOSE OF BUSINESS, FRIDAY, SO THAT ANNUITY COULD COMMENCE DECEMBER 31, 1966, RATHER THAN JANUARY 3, 1967.

PRELIMINARY TO ASKING THE FOREGOING QUESTION YOU POINTED OUT THAT SECTION 1101 OF PUBLIC LAW 87-793, APPROVED OCTOBER 11, 1962, 76 STAT. 868, 5 U.S.C. 8339 NOTE, PROVIDED A SCHEDULE OF INCREMENTS TO CIVIL SERVICE ANNUITIES OF WHICH THE LAST 1 PERCENT IS APPLIED TO ANNUITIES COMMENCING BETWEEN JANUARY 1, AND DECEMBER 31, 1966.

IN 45 COMP. GEN. 291, WE HELD THAT AN APPLICANT FOR DISABILITY RETIREMENT IN A PAY STATUS AT THE CLOSE OF BUSINESS ON DECEMBER 30, 1965, THE DAY BEFORE A DAY OBSERVED AS A HOLIDAY, DECEMBER 31, 1965, WOULD HAVE A VESTED RIGHT TO COMPENSATION ON THE HOLIDAY. THIS WOULD CONTINUE HIS PAY STATUS THROUGH DECEMBER 31, AND PREVENT HIS ENTITLEMENT TO THE ANNUITY INCREASE WHICH WAS AVAILABLE ONLY IF THE RETIREMENT ANNUITY COMMENCED NOT LATER THAN DECEMBER 31, 1965. IN ORDER TO PREVENT THIS IT WAS NECESSARY FOR EMPLOYEES REQUESTING DISABILITY RETIREMENT TO BE IN A LEAVE-WITHOUT-PAY STATUS AS OF THE CLOSE OF BUSINESS ON DECEMBER 30.

SIMILARLY UNDER THE PRESENT CIRCUMSTANCES AN EMPLOYEE IN A PAY STATUS THROUGH FRIDAY, DECEMBER 30, 1966, THE LAST WORKDAY IMMEDIATELY PRECEDING THE HOLIDAY ON MONDAY, JANUARY 2, 1967, WOULD BE ENTITLED TO A DAY'S COMPENSATION FOR THE HOLIDAY. THEREFORE, IN ORDER TO ATTAIN THE STATUS OF AN ANNUITANT ON DECEMBER 31, 1966, AND THUS BECOME ENTITLED TO THE 1 PERCENT INCREASE AN EMPLOYEE SEEKING DISABILITY RETIREMENT MUST BE IN A LEAVE-WITHOUT-PAY STATUS AS OF THE CLOSE OF BUSINESS ON DECEMBER 30, 1966.

YOU ALSO ADVISED THAT A COST-OF-LIVING INCREASE FOR CIVIL SERVICE ANNUITIES UNDER SECTION 1102 OF PUBLIC LAW 87-793, SUPRA, AS AMENDED, FORMERLY 5 U.S.C. 2268, NOW 5 U.S.C. 8340, MAY BECOME EFFECTIVE ON JANUARY 1, 1967, FOR ANNUITIES COMMENCING ON OR BEFORE THAT DATE, IF THE 3 MONTHS OF AUGUST, SEPTEMBER AND OCTOBER 1966 EACH SHOW AN INCREASE OF AT LEAST 3 PERCENT IN THE COST-OF-LIVING PRICE INDEX OVER THE BASE MONTH. IF AN EMPLOYEE SEEKING DISABILITY RETIREMENT WAS IN A PAY STATUS THROUGH FRIDAY, DECEMBER 30, 1966, UNDER THE RULE DISCUSSED ABOVE HIS VESTED RIGHT TO HOLIDAY PAY ON MONDAY, JANUARY 2, 1967, WOULD PREVENT HIS BECOMING AN ANNUITANT RETROACTIVELY UNTIL JANUARY 3, 1967, AND THEREBY DEPRIVE HIM OF THE COST-OF-LIVING INCREASE.

IN ORDER, THEREFORE, TO QUALIFY AS AN ANNUITANT AS OF JANUARY 1, 1967, THE ASSUMED EFFECTIVE DATE OF THE COST-OF-LIVING INCREASES, AN EMPLOYEE SEEKING DISABILITY RETIREMENT MUST BE IN A LEAVE-WITHOUT-PAY STATUS AS OF THE CLOSE OF BUSINESS ON FRIDAY, DECEMBER 30, 1966.

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