B-166683, MAY 21, 1969

B-166683, MAY 21, 1969

TO MR. KUNZIG:

WE REFER TO YOUR LETTER OF APRIL 14, 1969, TRANSMITTING FOR OUR CONSIDERATION UNDER THE PROVISIONS OF PUBLIC LAW 90-616, 5 U.S.C. 5584, AN INVESTIGATION REPORT ON THE INDEBTEDNESS ($3,742.72) OF MRS. JOAN M. BURNS, A FORMER EMPLOYEE OF THE GENERAL SERVICES ADMINISTRATION.

YOUR REPORT SHOWS THAT MRS. BURNS WAS SEPARATED FROM THE SERVICE ON FEBRUARY 29, 1968, DUE TO A REDUCTION IN FORCE. AS A RESULT OF HER SEPARATION SHE COMMENCED TO DRAW SEVERANCE PAY UNDER THE PROVISIONS OF 5 U.S.C. 5595. SUBSEQUENT TO HER SEPARATION MRS. BURNS FILED AN APPLICATION FOR DISABILITY RETIREMENT WITH THE CIVIL SERVICE COMMISSION. BY LETTER DATED OCTOBER 7, 1968, THE COMMISSION NOTIFIED YOUR AGENCY THAT MRS. BURNS' APPLICATION FOR DISABILITY RETIREMENT HAD BEEN APPROVED AND THAT SHE WAS ELIGIBLE FOR AN IMMEDIATE ANNUITY COMMENCING RETROACTIVELY ON MARCH 1, 1968.

UPON RECEIPT OF SUCH INFORMATION YOUR AGENCY IMMEDIATELY CEASED FURTHER PAYMENTS OF SEVERANCE PAY TO MRS. BURNS. SUCH ACTION WAS TAKEN IN ACCORDANCE WITH 5 U.S.C. 5595 (A) (2) (IV) WHICH EXCLUDES FROM SEVERANCE PAY BENEFITS THOSE EMPLOYEES WHO ARE ENTITLED TO AN IMMEDIATE ANNUITY AT THE TIME OF SEPARATION FROM THE SERVICE.

FOR THE PERIOD MARCH 1 THROUGH SEPTEMBER 7, 1968, MRS. BURNS RECEIVED A TOTAL OF $3,742.72 IN SEVERANCE PAY. FOR THAT SAME PERIOD SHE ALSO RECEIVED A RETROACTIVE ANNUITY PAYMENT OF $1,132. HOWEVER, SINCE MRS. BURNS WAS WITHOUT FAULT IN THE MATTER YOU RECOMMEND THAT THE CLAIM OF THE UNITED STATES AGAINST HER FOR THE ILLEGAL PAYMENTS OF SEVERANCE PAY BE WAIVED IN THE AMOUNT OF $2,610.72, WHICH REPRESENTS THE DIFFERENCE BETWEEN THE AMOUNT OF SEVERANCE PAY AND THE AMOUNT OF DISABILITY ANNUITY BENEFITS RECEIVED BY MRS. BURNS FOR THE SAME PERIOD.

ALTHOUGH MRS. BURNS' APPLICATION FOR DISABILITY RETIREMENT WAS NOT APPROVED UNTIL OCTOBER 1968 HER ENTITLEMENT TO AN ANNUITY UNDER THE LAW VESTED ON THE DAY FOLLOWING HER SEPARATION FROM THE SERVICE. THUS, THE PAYMENTS OF SEVERANCE PAY TO MRS. BURNS FOR THE PERIOD MARCH 1 THROUGH SEPTEMBER 7, 1968, MUST BE REGARDED AS BEING ILLEGAL AND ERRONEOUS IN VIEW OF THE STATUTORY PROVISION CITED ABOVE.

UNDER THE PROVISIONS OF PUBLIC LAW 90-616, A CLAIM FALLING WITHIN THE PURVIEW OF THAT ACT MAY BE WAIVED IN WHOLE OR IN PART. SINCE THE STATUTORY PROVISIONS GOVERNING SEVERANCE PAY CLEARLY EVIDENCE AN INTENT ON THE PART OF THE CONGRESS TO PRECLUDE THE RECEIPT OF BOTH SEVERANCE PAY AND RETIREMENT ANNUITY BENEFITS FOR THE SAME PERIOD, WE AGREE THAT WAIVER ACTION IN MRS. BURNS' CASE SHOULD BE LIMITED TO THE AMOUNT OF $2,610.72, AS RECOMMENDED BY YOU. ACCORDINGLY, SUCH AMOUNT IS HEREBY WAIVED UNDER THE AUTHORITY OF PUBLIC LAW 90-616.

APPROPRIATE ACTION SHOULD BE INITIATED BY YOUR AGENCY TO RECOVER THE BALANCE OF MRS. BURNS' INDEBTEDNESS IN THE AMOUNT OF $1,132.