B-168650, MARCH 11, 1970, 49 COMP. GEN. 581

B-168650: Mar 11, 1970

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REVOCATION A REGULAR ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO SUBSEQUENT TO RETIREMENT WAS EMPLOYED AS A CIVILIAN IN THE FEDERAL GOVERNMENT AND WAIVED HIS RETIRED PAY TO HAVE HIS MILITARY SERVICE CREDITED FOR CIVILIAN RETIREMENT PURPOSES MAY NOT IF REEMPLOYED IN THE CIVIL SERVICE REVOKE THE WAIVER OF RETIRED PAY. THE REEMPLOYED ANNUITANT IS ENTITLED TO CONTINUE TO RECEIVE HIS ANNUITY AND TO BE PAID BY THE EMPLOYING AGENCY ONLY THE DIFFERENCE BETWEEN THE ANNUITY DUE AND THE SALARY PAYABLE TO HIM. 1970: FURTHER REFERENCE IS MADE TO LETTER DATED DECEMBER 12. IT IS STATED THAT MR. HE WAS EMPLOYED AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT AND IT IS STATED THAT HE RETIRED THEREFROM ON MAY 1.

B-168650, MARCH 11, 1970, 49 COMP. GEN. 581

PAY -- RETIRED -- WAIVER FOR CIVILIAN RETIREMENT BENEFITS -- REVOCATION A REGULAR ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO SUBSEQUENT TO RETIREMENT WAS EMPLOYED AS A CIVILIAN IN THE FEDERAL GOVERNMENT AND WAIVED HIS RETIRED PAY TO HAVE HIS MILITARY SERVICE CREDITED FOR CIVILIAN RETIREMENT PURPOSES MAY NOT IF REEMPLOYED IN THE CIVIL SERVICE REVOKE THE WAIVER OF RETIRED PAY. REVOCATION OF THE WAIVER WOULD NOT TERMINATE THE FORMER MEMBER'S STATUS AS AN ANNUITANT OR TERMINATE HIS ELIGIBILITY TO RECEIVE AN ANNUITY, WHICH PURSUANT TO 5 U.S.C. 8344(A) WOULD BE DEDUCTED FROM THE CIVILIAN COMPENSATION PAYABLE TO THE ANNUITANT WHILE REEMPLOYED IN ORDER TO AVOID A DOUBLE BENEFIT BASED UPON THE SAME PERIOD OF MILITARY SERVICE. THEREFORE, THE REEMPLOYED ANNUITANT IS ENTITLED TO CONTINUE TO RECEIVE HIS ANNUITY AND TO BE PAID BY THE EMPLOYING AGENCY ONLY THE DIFFERENCE BETWEEN THE ANNUITY DUE AND THE SALARY PAYABLE TO HIM.

TO THE SECRETARY OF TRANSPORTATION, MARCH 11, 1970:

FURTHER REFERENCE IS MADE TO LETTER DATED DECEMBER 12, 1969, FROM THE COMMANDANT, UNITED STATES COAST GUARD, ASKING SEVERAL QUESTIONS CONCERNING THE WAIVER OF RETIRED PAY AND THE CREDITING OF MILITARY SERVICE FOR CIVILIAN RETIREMENT IN THE CASE OF CHIEF MACHINIST'S MATE RALPH DAVIS, UNITED STATES COAST GUARD, RETIRED.

IT IS STATED THAT MR. DAVIS RETIRED ON APRIL 1, 1954, AS A REGULAR ENLISTED MAN FOR YEARS OF SERVICE WITH 24 YEARS AND 10 MONTHS OF ACTIVE SERVICE. THEREAFTER, HE WAS EMPLOYED AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT AND IT IS STATED THAT HE RETIRED THEREFROM ON MAY 1, 1968. SINCE AT THE AGE OF 60 HIS CIVILIAN SERVICE WAS NOT SUFFICIENT TO QUALIFY HIM FOR CIVIL SERVICE RETIREMENT, IT IS STATED THAT HE WAIVED HIS MILITARY RETIRED PAY EFFECTIVE APRIL 30, 1968, SO THAT HIS MILITARY SERVICE WAS CREDITABLE FOR CIVILIAN RETIREMENT. THE COMMANDANT'S LETTER STATES THAT MR. DAVIS IS CONSIDERING REEMPLOYMENT IN THE CIVIL SERVICE AND THAT HE WOULD LIKE TO REVOKE HIS WAIVER OF RETIRED PAY AND AGAIN RECEIVE MILITARY RETIRED PAY WHILE SO EMPLOYED.

OUR VIEWS ARE ASKED ON THE FOLLOWING QUESTIONS:

1. MAY MR. DAVIS REVOKE HIS WAIVER AND THEREBY AGAIN BECOME ENTITLED TO MILITARY RETIRED PAY?

2. IF HE MAY DO SO, IS IT CORRECT THAT HIS MILITARY SERVICE WOULD NO LONGER BE CREDITABLE TOWARD HIS CIVIL SERVICE ANNUITY; AND THAT EVEN IF HE IS NOT REEMPLOYED IN THE CIVIL SERVICE, HIS ENTITLEMENT TO A CIVIL SERVICE ANNUITY WILL TERMINATE?

3. IF YOUR ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, MAY MR. DAVIS AT SOME LATER DATE AGAIN WAIVE RECEIPT OF HIS MILITARY RETIRED PAY FOR THE PURPOSE OF QUALIFYING, IF NECESSARY AT THE TIME, FOR A CIVIL SERVICE ANNUITY, AND FOR COMPUTATION OF THAT ANNUITY?

SECTION 8347(A) OF TITLE 5, U.S. CODE, PROVIDES THAT THE CIVIL SERVICE COMMISSION SHALL ADMINISTER THE CIVIL SERVICE RETIREMENT PROGRAM AND PRESCRIBE SUCH REGULATIONS AS ARE NECESSARY AND PROPER TO CARRY OUT THE PROVISIONS OF LAW AUTHORIZED IN THAT PROGRAM. SECTION 8332(C) OF TITLE 5 PROVIDES, INSOFAR AS IS HERE MATERIAL, THAT AN EMPLOYEE SHALL BE ALLOWED CREDIT FOR PERIODS OF MILITARY SERVICE, BUT THAT "HIS MILITARY SERVICE MAY NOT BE CREDITED" IF HE IS AWARDED RETIRED PAY ON ACCOUNT OF MILITARY SERVICE. SECTION 8332(J) ALSO PROVIDES FOR THE EXCLUSION OF MILITARY SERVICE PERFORMED AFTER 1956 IF THE MEMBER OR HIS WIDOW IS OR WOULD BE ELIGIBLE FOR OLD AGE AND SURVIVOR INSURANCE BENEFITS UNDER THE SOCIAL SECURITY ACT (42 U.S.C. 402) BASED UPON HIS WAGES AND SELF-EMPLOYMENT INCOME.

REGULATIONS IMPLEMENTING THE ABOVE STATUTORY PROVISIONS PROVIDE IN SECTION S3-5 OF THE FEDERAL PERSONNEL MANUAL SUPPLEMENT (RETIREMENT), 831- 1, IN PERTINENT PART, AS FOLLOWS:

A. SERVICE WHICH MAY BE CREDITED. HONORABLE ACTIVE MILITARY SERVICE PERFORMED PRIOR TO SEPARATION FROM A POSITION UNDER THE LAW IS CREDITABLE, WITH THE FOLLOWING EXCEPTIONS:

(1) IN DETERMINING ELIGIBILITY FOR RETIREMENT OR IN COMPUTING THE AMOUNT OF ANNUITY, NO CREDIT IS GIVEN FOR ANY MILITARY SERVICE TO AN EMPLOYEE WHO RECEIVES MILITARY RETIRED PAY UNLESS THE RETIRED PAY IS AWARDED:

(A) ON ACCOUNT OF A SERVICE-CONNECTED DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES, OR

(B) ON ACCOUNT OF A SERVICE-CONNECTED DISABILITY CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR, OR

(C) UNDER THE PROVISIONS OF CHAPTER 67, OF TITLE 10, U.S.C. (PERTAINING TO RETIREMENT FROM RESERVE COMPONENT OF THE ARMED FORCES).

D. DOUBLE CREDIT NOT PERMITTED. UNDER NO CIRCUMSTANCES IS CREDIT ALLOWED UNDER THE LAW FOR BOTH CIVILIAN AND MILITARY SERVICE COVERING THE SAME PERIOD OF TIME. THE PERIOD OF CREDITABLE SERVICE CANNOT EXCEED THE ACTUAL CALENDAR TIME. SECTION 831.301(B), APPENDIX G OF THE SAME MANUAL PROVIDES THAT:

(B) AN APPLICANT FOR ANNUITY WHO IS IN RECEIPT OF RETIRED PAY WHICH BARS CREDIT FOR HIS MILITARY SERVICE MAY ELECT TO SURRENDER THE RETIRED PAY AND TO HAVE HIS MILITARY SERVICE ADDED TO HIS PERIOD OF CIVILIAN SERVICE FOR THE PURPOSE OF OBTAINING A GREATER BENEFIT IN THE FORM OF ANNUITY. WHEN IT APPEARS ON THE ADJUDICATION OF A CLAIM FOR ANNUITY THAT THE EMPLOYEE WILL BENEFIT FROM RELINQUISHMENT OF RETIRED PAY AND INCLUSION OF HIS MILITARY SERVICE, THE BUREAU SHALL SO ADVISE HIM AND PERMIT HIM TO EXERCISE THE RIGHT OF ELECTION.

AS INDICATED ABOVE, MR. DAVIS WAIVED HIS MILITARY RETIRED PAY AND USED HIS MILITARY SERVICE TO DETERMINE HIS ELIGIBILITY TO RECEIVE HIS CIVIL SERVICE ANNUITY. THE QUESTION NOW PRESENTED IS WHETHER BY REVOKING THAT WAIVER HE WILL BECOME ENTITLED TO MILITARY RETIRED PAY. WE HAVE BEEN ADVISED INFORMALLY BY A REPRESENTATIVE OF THE CIVIL SERVICE COMMISSION THAT SUCH A REVOCATION OF HIS WAIVER WOULD NOT TERMINATE HIS STATUS AS AN ANNUITANT OR TERMINATE HIS ELIGIBILITY TO RECEIVE AN ANNUITY. SUCH ANNUITY WOULD BE CONTINUED AT A REDUCED RATE, THAT IS, AT A RATE DETERMINED SOLELY ON THE BASIS OF HIS SERVICE AS A CIVILIAN EMPLOYEE.

WHERE AN ANNUITANT IS REEMPLOYED IN THE CIVIL SERVICE, SECTION 8344(A) OF TITLE 5, U.S. CODE, REQUIRES, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, THAT "AN AMOUNT EQUAL TO THE ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT SHALL BE DEDUCTED FROM HIS PAY." IN OTHER WORDS, SHOULD MR. DAVIS BE REEMPLOYED IN THE CIVIL SERVICE, HE WOULD BE ENTITLED, AS AN EMPLOYED ANNUITANT, TO CONTINUE TO RECEIVE HIS ANNUITY AND BE PAID BY THE EMPLOYING AGENCY ONLY THE DIFFERENCE BETWEEN SUCH ANNUITY AND HIS SALARY.

IN OUR DECISION OF JANUARY 16, 1962, 41 COMP. GEN. 460, WE CONSIDERED THE RIGHT OF AN OFFICER TO RECEIVE RETIRED PAY, IN ADDITION TO HIS ANNUITY, WHERE HIS MILITARY SERVICE HAD BEEN USED TO DETERMINE HIS ELIGIBILITY FOR AN ANNUITY. IN HOLDING THAT THE MEMBER WAS NOT ENTITLED TO RETIRED PAY IN THAT SITUATION WE SAID:

*** A DETERMINATION AS TO HIS RIGHT TO RETIRED PAY BASED ON HIS MILITARY SERVICE IS FOR DECISION BY THIS OFFICE AND IT IS OUR VIEW THAT SUCH RETIRED PAY SHOULD NOT BE PAID SO LONG AS HIS MILITARY SERVICE IS USED TO DETERMINE HIS ELIGIBILITY FOR AN ANNUITY OR IN THE COMPUTATION OF THE ANNUITY. IN ORDER TO QUALIFY FOR A MEMBER ANNUITY HE HAD TO GIVE UP HIS RIGHT TO RECEIVE DISABILITY RETIRED PAY AS A RETIRED MARINE CORPS RESERVE OFFICER. WE ARE OF THE OPINION THAT CONGRESS DID NOT INTEND THAT A RETIRED OFFICER IN HIS SITUATION SHOULD RECEIVE A DOUBLE BENEFIT BASED UPON THE SAME PERIOD OF MILITARY SERVICE. WHILE 5 U.S.C. 2264(D)--A PROVISION WHICH HAD FOR ITS PURPOSE THE PROTECTION OF ANNUITANTS' RIGHTS TO RECEIVE NONSERVICE-CONNECTED VETERANS ADMINISTRATION PENSIONS--PERMITS ANY PERSON ENTITLED TO ANNUITY TO DECLINE TO ACCEPT ALL OR ANY PART OF SUCH ANNUITY BY WAIVER SIGNED AND FILED WITH THE COMMISSION, WE KNOW OF NO PROVISION OF LAW WHICH PERMITS HIM TO WAIVE A PERIOD OF MILITARY SERVICE AND DRAW RETIRED PAY BASED THEREON WHEN THAT SERVICE HAS BEEN CREDITED TO HIM ESTABLISHING HIS ELIGIBILITY TO RECEIVE AN ANNUITY. PAYMENT OF DISABILITY RETIRED PAY BASED ON HIS MILITARY SERVICE WOULD NOT BE AUTHORIZED IN THE ABSENCE OF A STATUTE CLEARLY GRANTING HIM A DOUBLE BENEFIT FOR THAT SERVICE, 5 U.S.C. 2253(B) EVIDENCES AN INTENT TO THE CONTRARY SINCE IT IS THERE INDICATED THAT A MEMBER WHO IS AWARDED RETIRED PAY ON ACCOUNT OF MILITARY SERVICE SUCH AS HERE INVOLVED MAY NOT BE CREDITED WITH SUCH SERVICE IN ESTABLISHING ENTITLEMENT TO THE ANNUITY. SEEMS TO BE THE INTENT OF CONGRESS THAT SUCH DOUBLE BENEFIT IS ONLY TO BE ALLOWED AN EMPLOYEE OR MEMBER AWARDED RETIRED PAY ON ACCOUNT OF A SERVICE CONNECTED DISABILITY IF THE DISABILITY WAS INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR. THE RECORD SHOWS THAT MAJOR PATTERSON IS NOT IN EITHER OF THOSE CATEGORIES. IN THE LIGHT OF THE ABOVE DECISION, QUESTION 1 IS ANSWERED IN THE NEGATIVE, SINCE MR. DAVIS WOULD CONTINUE TO BE PAID HIS CIVIL SERVICE ANNUITY IF HE IS REEMPLOYED AND ELIGIBILITY FOR SUCH ANNUITY HAD TO BE BASED, IN PART, ON HIS MILITARY SERVICE.

BOTH QUESTIONS 2 AND 3 INVOLVE PAYMENT OF CIVIL SERVICE ANNUITY AND THUS, AS INDICATED ABOVE, ARE WITHIN THE JURISDICTION OF THE CIVIL SERVICE COMMISSION. HOWEVER, IN VIEW OF THE NEGATIVE ANSWER TO QUESTION 1, NO ANSWERS ARE REQUIRED TO THOSE QUESTIONS.