B-166742, JUN. 11, 1969

B-166742: Jun 11, 1969

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MEARS: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 14. THE RECORD SHOWS THAT SUBSEQUENT TO YOUR TRANSFER TO THE FLEET RESERVE IN 1955 YOU WERE EMPLOYED BY THE AIR FORCE IN A CIVILIAN CAPACITY UNTIL FEBRUARY 4. WHEN YOUR JOB WAS TERMINATED PURSUANT TO A REDUCTION IN FORCE. YOU WERE INVOLUNTARILY SEPARATED FROM YOUR POSITION ON THAT DATE. SINCE YOUR MILITARY SERVICE WAS THAT OF AN ENLISTED MAN. YOU WERE ENTITLED TO AND DID RECEIVE BOTH YOUR RETAINER PAY AND YOUR FULL CIVILIAN SALARY DURING THE PERIOD OF THAT EMPLOYMENT. YOU WERE PERMITTED TO RETIRE AND RECEIVE A CIVIL SERVICE ANNUITY EFFECTIVE FEBRUARY 6 BASED UPON YOUR COMBINED CIVILIAN AND MILITARY SERVICE. YOUR NAVY RETAINER PAY WAS SUSPENDED EFFECTIVE FEBRUARY 1.

B-166742, JUN. 11, 1969

TO MR. EDWARD S. MEARS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 14, 1969, REQUESTING REVIEW OF OUR CLAIMS DIVISION SETTLEMENT DATED NOVEMBER 13, 1968, WHICH DISALLOWED YOUR CLAIM FOR RETIRED PAY FOR THE PERIOD NOVEMBER 8, 1965, TO OCTOBER 21, 1966, INCIDENT TO YOUR SERVICE AS AN ENLISTED MEMBER OF THE UNITED STATES NAVY.

THE RECORD SHOWS THAT SUBSEQUENT TO YOUR TRANSFER TO THE FLEET RESERVE IN 1955 YOU WERE EMPLOYED BY THE AIR FORCE IN A CIVILIAN CAPACITY UNTIL FEBRUARY 4, 1965, WHEN YOUR JOB WAS TERMINATED PURSUANT TO A REDUCTION IN FORCE. YOU WERE INVOLUNTARILY SEPARATED FROM YOUR POSITION ON THAT DATE. SINCE YOUR MILITARY SERVICE WAS THAT OF AN ENLISTED MAN, YOU WERE ENTITLED TO AND DID RECEIVE BOTH YOUR RETAINER PAY AND YOUR FULL CIVILIAN SALARY DURING THE PERIOD OF THAT EMPLOYMENT. AT THE TIME OF THE REDUCTION IN FORCE, YOU WERE PERMITTED TO RETIRE AND RECEIVE A CIVIL SERVICE ANNUITY EFFECTIVE FEBRUARY 6 BASED UPON YOUR COMBINED CIVILIAN AND MILITARY SERVICE. UPON ACCEPTANCE BY YOU OF THIS ANNUITY, YOUR NAVY RETAINER PAY WAS SUSPENDED EFFECTIVE FEBRUARY 1, 1965.

THE RECORD FURTHER SHOWS THAT ON NOVEMBER 8, 1965, YOU WERE APPOINTED TO A TEMPORARY CIVIL SERVICE POSITION WITH AN AIR FORCE ACTIVITY. SUCH APPOINTMENT APPEARS NOT TO HAVE BEEN SUBJECT TO THE CIVIL SERVICE RETIREMENT LAWS. YOU CONTINUED TO RECEIVE YOUR CIVIL SERVICE ANNUITY. WHILE YOU STATE THAT SUCH EMPLOYMENT TERMINATED ON OCTOBER 21, 1966, IT APPEARS THAT YOU WERE PAID THROUGH OCTOBER 23, 1966. ON OCTOBER 24, 1966, YOU RECEIVED A CIVIL SERVICE CAREER CONDITIONAL APPOINTMENT, WHICH WE HAVE BEEN ADVISED BY THE CIVIL SERVICE COMMISSION IS SUBJECT TO THE CIVIL SERVICE RETIREMENT LAWS, AND YOUR ANNUITY WAS TERMINATED ON OCTOBER 23, 1966. IT IS INDICATED THAT NAVY RETIRED PAY WAS COMMENCED THE FOLLOWING DAY -- YOU WERE TRANSFERRED TO THE RETIRED LIST ON APRIL 1, 1965 -- AND YOU WERE ALSO PAID THE FULL SALARY FOR YOUR CIVILIAN POSITION.

SUBSEQUENT TO THE DATE OF YOUR CAREER APPOINTMENT, IT WAS DETERMINED THAT YOU, HAVING RECEIVED BOTH THE CIVIL SERVICE ANNUITY AND YOUR FULL CIVIL SERVICE SALARY FOR THE PERIOD NOVEMBER 8, 1965, TO OCTOBER 23, 1966, WERE OVERPAID $3,354.69, THE AMOUNT OF YOUR ANNUITY. YOU STATE THAT $50 PER PAY PERIOD HAS BEEN WITHHELD FROM YOUR SALARY SINCE JUNE 17, 1967, TO COLLECT THIS OVERPAYMENT.

YOU EXPRESS THE BELIEF THAT THE ACTION TAKEN WITH RESPECT TO WITHHOLDING FROM YOUR SALARY THE ENTIRE AMOUNT OF THE ANNUITY RECEIVED DURING THE PERIOD OF YOUR TEMPORARY EMPLOYMENT FROM NOVEMBER 8, 1965, TO OCTOBER 21 (23), 1966, IN EFFECT TERMINATED YOUR ANNUITY EFFECTIVE NOVEMBER 8, 1965. YOU CONTEND THAT, SINCE YOU HAVE BEEN CHARGED WITH THE AMOUNT OF THE ANNUITY, IT IS AS THOUGH YOU DID NOT RECEIVE AN ANNUITY ON AND AFTER NOVEMBER 8, AND THAT YOU, THEREFORE, ARE ENTITLED TO RECEIVE YOUR NAVY RETAINER AND RETIRED PAY IN LIEU THEREOF.

YOU WERE AWARDED A CIVIL SERVICE ANNUITY EFFECTIVE FEBRUARY 6, 1965, BASED ON AN INVOLUNTARY SEPARATION. ON NOVEMBER 8, 1965, YOU WERE RE EMPLOYED IN A TEMPORARY CIVIL SERVICE POSITION, NOT SUBJECT TO CIVIL SERVICE RETIREMENT LAWS. PERTINENT REGULATIONS GOVERNING THE RE EMPLOYMENT OF CIVIL SERVICE ANNUITANTS IN TEMPORARY APPOINTMENTS ARE CONTAINED IN FEDERAL PERSONNEL MANUAL SUPPLEMENT 831-1, APPENDIX G, SUBPART H, SECTION 831.801 (C) OF WHICH PROVIDES IN PERTINENT PART:

"/2) * * * WHEN AN ANNUITANT WHOSE ANNUITY IS BASED ON INVOLUNTARY SEPARATION * * * BECOMES EMPLOYED AFTER NOVEMBER 14, 1958, THE COMMISSION SHALL CONTINUE HIS ANNUITY; THE DEPARTMENT OR AGENCY SHALL NOT TAKE RETIREMENT DEDUCTIONS FROM HIS PAY; AND THE DEPARTMENT OR AGENCY SHALL DEDUCT FROM HIS PAY, * * *, AN AMOUNT EQUAL TO THE ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT.'

DURING THE PERIOD OF YOUR TEMPORARY EMPLOYMENT YOU REMAINED IN THE STATUS OF A CIVIL SERVICE ANNUITANT AND WERE ENTITLED TO AND WERE PAID AN ANNUITY BASED ON YOUR COMBINED CIVILIAN AND MILITARY SERVICE. IN ADDITION TO THIS ANNUITY, SINCE YOU WERE EMPLOYED IN A POSITION NOT SUBJECT TO THE RETIREMENT LAW, YOU WERE ENTITLED TO RECEIVE YOUR CIVILIAN SALARY BUT IN A REDUCED AMOUNT. SINCE YOUR SALARY SHOULD HAVE BEEN REDUCED BY AN AMOUNT EQUAL TO YOUR ANNUITY, THE PAYMENT TO YOU OF YOUR FULL SALARY RESULTED IN AN OVERPAYMENT OF SALARY.

BOTH YOUR MILITARY AND CIVILIAN SERVICE WERE USED TO COMPUTE YOUR ANNUITY, AND SINCE YOU REMAINED IN THE STATUS OF A CIVIL SERVICE ANNUITANT DURING THE PERIOD INVOLVED, THERE IS NO AUTHORITY TO PAY YOU MILITARY RETAINER AND RETIRED PAY FOR THAT PERIOD. ACCORDINGLY, THE ACTION HERETOFORE TAKEN IN YOUR CASE IS SUSTAINED.

WITH RESPECT TO THE PUBLISHED INFORMATION MENTIONED IN YOUR LETTER OF APRIL 14, 1969, CONCERNING "GOVERNMENT REPAYMENT OF OVERPAYMENT CLAIMS," IT APPEARS THAT YOU HAVE REFERENCE TO PUBLIC LAW 90 616, APPROVED OCTOBER 21, 1968, 82 STAT. 1212, 5 U.S.C. 5584, RELATING TO THE WAIVING OF CLAIMS OF THE UNITED STATES ARISING OUT OF ERRONEOUS PAYMENTS OF PAY TO EMPLOYEES OF THE UNITED STATES IN CERTAIN CASES. PRESUMABLY YOU ARE SEEKING A WAIVER OF YOUR INDEBTEDNESS UNDER THE PROVISIONS OF SUCH STATUTE. AS THE OVERPAYMENT IN QUESTION RELATES DIRECTLY TO YOUR CIVIL SERVICE EMPLOYMENT, THIS ASPECT OF YOUR CASE IS BEING REFERRED TO THE APPROPRIATE DIVISION OF OUR OFFICE WHICH WILL CONSIDER THE PROPRIETY OF WAIVING THE INDICATED OVERPAYMENT AND ADVISE YOU ACCORDINGLY.