B-160554, MAR. 28, 1967

B-160554, MAR. 28, 1967

TO AUTHORIZED CERTIFYING OFFICER:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13, 1966, YOUR FILE 725:GB/CFS, REQUESTING AN ADVANCE DECISION ON WHETHER OR NOT YOU MAY PROPERLY REFUND TO JAMES ROBERT BIRD THE SUM OF $101.48, WHICH HAD BEEN WITHHELD FROM HIS TERMINAL LEAVE AND APPLIED TO HIS INDEBTEDNESS TO THE UNITED STATES FOR FEDERAL EMPLOYEES' GROUP LIFE INSURANCE PREMIUMS NOT DEDUCTED FROM HIS SALARY BETWEEN JUNE 8, 1959, AND MARCH 29, 1963.

MR. BIRD RECEIVED A TEMPORARY APPOINTMENT AS A TEMPORARY SUBSTITUTE CARRIER ON JUNE 8, 1959. HE WAS EMPLOYED AT THE SECOND CLASS POST OFFICE AT RIO VISTA, CALIFORNIA, FOR EIGHT HOURS EACH SATURDAY AND COVERED FOR VACATIONS DURING THE SUMMER MONTHS. WE UNDERSTAND THAT MR. BIRD'S EMPLOYMENT WAS OTHERWISE COVERED BY THE FEDERAL EMPLOYEES' GROUP LIFE INSURANCE ACT, AS AMENDED, 5 U.S.C. 2091-2103 (1964 ED.) BUT AT THE TIME OF HIS APPOINTMENT IT WAS APPARENTLY HIS INTENTION TO WAIVE THE COVERAGE THEREOF. ALTHOUGH MR. BIRD FAILED TO EXECUTE A STANDARD FORM 53, WAIVER OF LIFE INSURANCE COVERAGE, A BOX IS CHECKED ON MR. BIRD'S ORIGINAL POST OFFICE DEPARTMENT FORM 50, NOTIFICATION OF PERSONNEL ACTION, AS WELL AS ALL SUBSEQUENT ONES, INDICATING THAT HE WAIVED THE LIFE INSURANCE.

YOU STATE THAT THE POSTMASTER AND THE EMPLOYEE WERE HONESTLY UNAWARE THAT CHECKING THE BOX ALONE WOULD NOT EXCLUDE THE EMPLOYEE FROM COVERAGE. THIS IS CORROBORATED BY THE FACT THAT NO DEDUCTIONS WERE MADE FROM MR. BIRD'S SALARY FOR INSURANCE PREMIUMS. IMMEDIATELY AFTER THE DISCOVERY THAT HIS PERSONNEL FILE DID NOT CONTAIN A WAIVER MR. BIRD EXECUTED A STANDARD FORM 53 WHICH WAS DATED MARCH 18, 1963. YOU INDICATE THAT THE POST OFFICE DEPARTMENT FAVORS REFUNDING THE $101.48 WITHHELD FROM MR. BIRD'S TERMINAL LEAVE UPON HIS RESIGNATION ON NOVEMBER 20, 1965.

SECTION 5 OF THE FEDERAL EMPLOYEES' GROUP LIFE INSURANCE ACT OF 1954 SUPRA, PROVIDES THAT ALL ELIGIBLE EMPLOYEES ARE AUTOMATICALLY INSURED UNLESS THEY ELECT TO THE CONTRARY IN WRITING "ON AN APPROPRIATE FORM TO BE PRESCRIBED BY THE COMMISSION.' THE CIVIL SERVICE COMMISSION IN ACCORDANCE THEREWITH PRESCRIBED STANDARD FORM 53 FOR THAT PURPOSE.

OUR VIEW IS THAT SINCE MR. BIRD FAILED TO EXECUTE STANDARD FORM 53, THE FORM PRESCRIBED FOR GIVING NOTICE TO HIS AGENCY THAT HE DID NOT DESIRE TO BE INSURED, HE WAS AUTOMATICALLY COVERED BY THE ACT FROM HIS FIRST DAY IN A PAY STATUS, JUNE 8, 1959, UNTIL HE EXECUTED THE WAIVER ON MARCH 18, 1963. WE ARE NOT AWARE OF ANY AUTHORITY WHEREBY THE WAIVER ON MARCH 18, 1963, MAY BE REGARDED AS RETROACTIVE IN EFFECT. IN THE OPINION OF THE CIVIL SERVICE COMMISSION, THE AGENCY AUTHORIZED TO PROMULGATE SUCH REGULATIONS AS MAY BE NECESSARY AND PROPER TO GIVE EFFECT TO THE INTENT, PURPOSES AND PROVISIONS OF THE LIFE INSURANCE LAW, THE ENTRY ON THE POST OFFICE DEPARTMENT FORM 50 DOES NOT AMOUNT TO EVIDENCE OF EXISTENCE OF ACTUAL WAIVER OF INSURANCE. MOREOVER, WE POINT OUT THAT THE FORM 50 MAY NOT BE CONSIDERED AS TANTAMOUNT TO A WAIVER ON STANDARD FORM 55 BECAUSE THE FORM 50 WAS NOT SIGNED BY MR. BIRD.

IT SHOULD BE NOTED THAT IF MR. BIRD HAD DIED DURING THE PERIOD IN WHICH NO DEDUCTIONS WERE MADE FOR INSURANCE PREMIUMS THE AMOUNT OF THE INSURANCE WOULD HAVE BEEN PAID TO HIS FAMILY IN ACCORDANCE WITH 5 U.S.C. 2093 (1964 ED.). B-143492, AUGUST 11, 1960.

ACCORDINGLY, THE COLLECTION OF THE AMOUNT IN QUESTION WAS CORRECT AND THE VOUCHER WHICH WITH ITS ATTACHMENTS IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.