B-166062, FEB. 24, 1969

B-166062: Feb 24, 1969

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THE NECESSARY PAPERS WERE PROCESSED SHOWING HIS SEPARATION AT THAT TIME AND HE WAS PAID FOR 448 HOURS TERMINAL LEAVE (440 HOURS PLUS ONE HOLIDAY) IN THE NET AMOUNT OF $1. IN JUNE OF 1967 THE CIVIL SERVICE COMMISSION QUESTIONED THE SERVICE COMPUTATION AND IT WAS DETERMINED THAT INASMUCH AS MR. FENSTON WAS IN A FURLOUGH STATUS FROM OCTOBER 9. HE DID NOT HAVE THE REQUIRED 30 YEARS OF SERVICE FOR OPTIONAL RETIREMENT. HE WAS ADVISED BY LETTER OF JUNE 30. THE EMPLOYEE WAS ADVISED THAT HE WOULD BE PLACED ON THE ROLLS AND GIVEN THE OPTION OF: "1. FENSTON WAS RESTORED RETROACTIVELY TO THE ROLLS ON JULY 5. THE CHECK WAS SENT BACK TO THE EMPLOYEE AND HE WAS ADVISED TO RETAIN THE CHECK INASMUCH AS HE CHOSE TO BE ON LEAVE AND LEAVE WITHOUT PAY AND ANY REGULAR SALARY DUE WOULD BE REDUCED BY THE AMOUNT OF THE TERMINAL LEAVE PREVIOUSLY PAID.

B-166062, FEB. 24, 1969

TO MR. STANLEY J. TREASURE:

YOUR LETTER OF JANUARY 29, 1969, D:MI:DC:F, WITH ENCLOSURES, REQUESTS OUR ADVANCE DECISION WHETHER YOU MAY PROPERLY CERTIFY FOR PAYMENT THE VOUCHER OF MR. WILLIAM W. FENSTON IN THE GROSS AMOUNT OF $4,006.68 AS A FORMER EMPLOYEE OF THE INTERNAL REVENUE SERVICE.

THE VOUCHER COVERS THE AMOUNT CLAIMED BY MR. FENSTON UNDER THE BACK PAY ACT OF 1966, PUBLIC LAW 89-380, FOR THE PERIOD APRIL 16 THROUGH SEPTEMBER 10, 1967, PLUS 448 HOURS LUMP-SUM PAYMENT FOR TERMINAL LEAVE. THE EMPLOYEE REQUESTED OPTIONAL RETIREMENT TO BE EFFECTIVE APRIL 16, 1967. THE NECESSARY PAPERS WERE PROCESSED SHOWING HIS SEPARATION AT THAT TIME AND HE WAS PAID FOR 448 HOURS TERMINAL LEAVE (440 HOURS PLUS ONE HOLIDAY) IN THE NET AMOUNT OF $1,827.11. IN JUNE OF 1967 THE CIVIL SERVICE COMMISSION QUESTIONED THE SERVICE COMPUTATION AND IT WAS DETERMINED THAT INASMUCH AS MR. FENSTON WAS IN A FURLOUGH STATUS FROM OCTOBER 9, 1939, TO JANUARY 14, 1941, HE DID NOT HAVE THE REQUIRED 30 YEARS OF SERVICE FOR OPTIONAL RETIREMENT. HE WAS ADVISED BY LETTER OF JUNE 30, 1967, THAT HIS RETIREMENT, EFFECTIVE APRIL 16, 1967, HAD BEEN DISAPPROVED DUE TO ERRONEOUS CREDIT FOR THE PERIOD IN A FURLOUGH STATUS.

THE EMPLOYEE WAS ADVISED THAT HE WOULD BE PLACED ON THE ROLLS AND GIVEN THE OPTION OF:

"1. RETURNING THE CHECK FOR TERMINAL LEAVE, BEING PLACED IN NON-DUTY STATUS, AND AGAIN PAID TERMINAL LEAVE WHEN RETIREMENT COULD BE EFFECTIVE, SEPTEMBER 10, 1967, OR

"2. BEING PLACED IN A COMBINATION OF LEAVE AND LEAVE WITHOUT PAY STATUS UNTIL RETIREMENT COULD BE EFFECTIVE. IN THE LATTER OPTION THE TERMINAL LEAVE PAYMENT WOULD BE APPLIED TO REGULAR PAY DUE AND ANY DIFFERENCE PAID OR OVERPAYMENT COLLECTED.'

MR. FENSTON WAS RESTORED RETROACTIVELY TO THE ROLLS ON JULY 5, 1967. RETURNED THE TERMINAL LEAVE CHECK AND ASKED TO BE CARRIED IN A COMBINATION OF LEAVE AND LEAVE WITHOUT PAY. THE CHECK WAS SENT BACK TO THE EMPLOYEE AND HE WAS ADVISED TO RETAIN THE CHECK INASMUCH AS HE CHOSE TO BE ON LEAVE AND LEAVE WITHOUT PAY AND ANY REGULAR SALARY DUE WOULD BE REDUCED BY THE AMOUNT OF THE TERMINAL LEAVE PREVIOUSLY PAID. MR. FENSTON WAS SUBSEQUENTLY RETIRED EFFECTIVE SEPTEMBER 10, 1967, AND RECEIVED ADDITIONAL AMOUNTS BECAUSE OF THE ADJUSTMENT REQUIRED IN THE MATTER AS INDICATED ABOVE.

FEDERAL PERSONAL MANUAL SUPPLEMENT 831-1, SUBCHAPTER S1-4, RELATING TO AGENCY RESPONSIBILITIES IN REGARD TO RETIREMENT APPEARS TO PLACE UPON AN AGENCY THE DUTY OF MAINTAINING ACCURATE RETIREMENT RECORDS AND OF PROPER COUNSELING OF EMPLOYEES CONCERNING RIGHTS AND OBLIGATIONS UNDER THE RETIREMENT ACT.

SINCE MR. FENSTON'S PREMATURE RETIREMENT APPEARS TO HAVE STEMMED FROM AN ERRONEOUS ADMINISTRATIVE INTERPRETATION OF HIS SERVICE RECORDS, WE ARE OF THE OPINION THAT HE IS ENTITLED TO BACK PAY FOR THE PERIOD APRIL 17 TO JULY 5, 1967, THE DATE OF HIS RESTORATION TO THE ROLLS, LESS ANY AMOUNT EARNED THROUGH OUTSIDE EMPLOYMENT. BACK PAY FOR ANY PERIOD SUBSEQUENT THERETO IS NOT ALLOWABLE SINCE MR. FENSTON FAILED TO REQUEST RESTORATION TO ACTIVE DUTY BUT IN LIEU THEREOF CONSENTED TO BEING CARRIED ON ANNUAL LEAVE AND LEAVE WITHOUT PAY.

IT FOLLOWS THAT THE MATTER MUST AGAIN BE ADJUSTED SO AS TO CREDIT THE EMPLOYEE WITH THE ANNUAL LEAVE CHARGED DURING THE PERIOD APRIL 17 TO JULY 5, 1967. HE SHOULD THEN BE CHARGED ANNUAL LEAVE FOR THE PERIOD JULY 5, 1967 THROUGH SEPTEMBER 10, 1967, AND ANY ANNUAL LEAVE REMAINING TO HIS CREDIT TREATED AS BEING SUBJECT TO LUMP-SUM PAYMENT.

ACTION ON THE VOUCHER WHICH IS RETURNED SHOULD BE TAKEN IN ACCORDANCE WITH THE FOREGOING.