B-170176, JUL 20, 1970, 50 COMP GEN 46

B-170176: Jul 20, 1970

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A RETIRED MEMBER OF THE UNIFORMED SERVICES MAY NOT BE PAID SEVERANCE PAY AS THE 1965 AUTHORIZING ACT (5 U.S.C. 5595) EXCLUDES THE PAYMENT OF SEVERANCE PAY TO A PERSON SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT OR ANY OTHER RETIREMENT LAW OR SYSTEM APPLICABLE TO FEDERAL OFFICERS OR EMPLOYEES OR MEMBERS OF THE UNIFORMED SERVICES WHO AT THE TIME OF SEPARATION HAVE FULFILLED THE REQUIREMENTS FOR IMMEDIATE ANNUITY - A TERM INCLUDING RETIRED PAY - AND THE PROHIBITION AGAINST PAYMENT OF SEVERANCE PAY IS APPLICABLE WITHOUT REGARD TO WHEN A MEMBER FIRST BECOMES ENTITLED TO MILITARY RETIRED PAY. OR WHETHER HE IS ELIGIBLE UNDER THE DUAL COMPENSATION ACT OF 1964 (5 U.S.C. 5531-5534) TO RECEIVE MILITARY RETIRED PAY CONCURRENTLY IN WHOLE OR IN PART WITH THE COMPENSATION OF HIS CIVILIAN OFFICE OR POSITION.

B-170176, JUL 20, 1970, 50 COMP GEN 46

COMPENSATION - SEVERANCE PAY - ELIGIBILITY - RETIRED MEMBERS OF THE UNIFORMED SERVICES UPON REDUCTION IN FORCE AS A CIVILIAN EMPLOYEE OF THE UNITED STATES, A RETIRED MEMBER OF THE UNIFORMED SERVICES MAY NOT BE PAID SEVERANCE PAY AS THE 1965 AUTHORIZING ACT (5 U.S.C. 5595) EXCLUDES THE PAYMENT OF SEVERANCE PAY TO A PERSON SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT OR ANY OTHER RETIREMENT LAW OR SYSTEM APPLICABLE TO FEDERAL OFFICERS OR EMPLOYEES OR MEMBERS OF THE UNIFORMED SERVICES WHO AT THE TIME OF SEPARATION HAVE FULFILLED THE REQUIREMENTS FOR IMMEDIATE ANNUITY - A TERM INCLUDING RETIRED PAY - AND THE PROHIBITION AGAINST PAYMENT OF SEVERANCE PAY IS APPLICABLE WITHOUT REGARD TO WHEN A MEMBER FIRST BECOMES ENTITLED TO MILITARY RETIRED PAY, OR WHETHER HE IS ELIGIBLE UNDER THE DUAL COMPENSATION ACT OF 1964 (5 U.S.C. 5531-5534) TO RECEIVE MILITARY RETIRED PAY CONCURRENTLY IN WHOLE OR IN PART WITH THE COMPENSATION OF HIS CIVILIAN OFFICE OR POSITION. COMPENSATION - SEVERANCE PAY - OVERPAYMENTS ERRONEOUS PAYMENTS OF SEVERANCE PAY MADE UNDER 5 U.S.C. 5595 TO RETIRED MEMBERS OF THE UNIFORMED SERVICES, WHO EMPLOYED AS CIVILIANS BY THE UNITED STATES WERE REDUCED IN FORCE, MAY BE WAIVED UNDER THE PROVISIONS OF THE ACT OF OCTOBER 21, 1968, PUBLIC LAW 90-616.

TO LIEUTENANT COLONEL G. W. GRIFFIN, DEPARTMENT OF THE ARMY, JULY 20, 1970:

YOUR LETTER OF APRIL 16, 1970, REQUESTS DECISIONS ON SEVERAL QUESTIONS RELATING TO THE ENTITLEMENT OF RETIRED MEMBERS OF THE UNIFORMED SERVICES TO SEVERANCE PAY INCIDENT TO SEPARATION FROM EMPLOYMENT AS CIVILIAN EMPLOYEES OF THE UNITED STATES BY REASON OF REDUCTION IN FORCE.

SECTION 9 OF THE ACT OF OCTOBER 29, 1965, PUBLIC LAW 89-301, 79 STAT. 1118-1120, 5 U.S.C. 5595, PROVIDED THAT, UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT OR HIS DESIGNEE, WITH CERTAIN EXCEPTIONS EACH CIVILIAN OFFICER OR EMPLOYEE OF THE EXECUTIVE BRANCH OF THE UNITED STATES WHO IS INVOLUNTARILY SEPARATED FROM EMPLOYMENT NOT FOR CAUSE, MISCONDUCT, DELINQUENCY OR INEFFICIENCY, AFTER HAVING BEEN EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF AT LEAST 12 MONTHS, SHALL BE PAID SEVERANCE PAY IN REGULAR PAY PERIODS IN AMOUNTS THERE PRESCRIBED. SUBSECTION (B) OF THAT SECTION PROVIDED THAT SECTION 9 THEREOF DOES NOT APPLY TO -

(4) AN OFFICER OR EMPLOYEE WHO IS SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, OR ANY OTHER RETIREMENT LAW OR RETIREMENT SYSTEM APPLICABLE TO FEDERAL OFFICERS OR EMPLOYEES OR MEMBERS OF THE UNIFORMED SERVICES, AND WHO, AT THE TIME OF SEPARATION FROM THE SERVICE, HAS FULFILLED THE REQUIREMENTS FOR IMMEDIATE ANNUITY UNDER ANY SUCH LAW OR SYSTEM;

SECTION 9 OF PUBLIC LAW 89-301 IS NOW CODIFIED IN 5 U.S.C. 5595.

FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER 7, PARAGRAPH 87-3B(7)(C)(V), READS:

THE LAW DOES NOT AUTHORIZE SEVERANCE PAY FOR AN EMPLOYEE WHO, AT THE TIME OF SEPARATION FROM THE SERVICE, HAS FULFILLED THE REQUIREMENTS FOR IMMEDIATE ANNUITY UNDER SUBCHAPTER III OF CHAPTER 83 OF TITLE 5, U.S.C. OR ANY OTHER RETIREMENT LAW OR RETIREMENT SYSTEM APPLICABLE TO FEDERAL EMPLOYEES OR MEMBERS OF THE UNIFORMED SERVICES. BECAUSE ENTITLEMENT TO A DISCONTINUED SERVICE ANNUITY OR DISABILITY ANNUITY (INCLUDING ONE BASED ON A FINDING OF DISABILITY AFTER SEPARATION) VESTS AT THE DATE OF SEPARATION, ENTITLEMENT TO SUCH ANNUITY BARS ENTITLEMENT TO SEVERANCE PAY.

YOU SAY THAT YOU HAVE PAID THE FIRST INSTALLMENT TOTALING $14,083.03 OF SEVERANCE PAY TO 41 EMPLOYEES WHO ARE RECEIVING MILITARY RETIRED PAY AND THAT YOU HAVE SUSPENDED THE REMAINING PAYMENTS TOTALING $26,007.40 PENDING OUR DECISION AS TO WHETHER THEY ARE ENTITLED TO SEVERANCE PAY. YOU INDICATE THAT EACH OF THE FORMER EMPLOYEES CONCERNED HAD BEEN RETIRED FROM THE ARMED SERVICES PRIOR TO ENTERING UPON CIVILIAN GOVERNMENT EMPLOYMENT.

YOUR BASIC QUESTION IS WHETHER A PERSON RECEIVING OR ENTITLED TO RECEIVE RETIRED PAY AS A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES AT THE TIME OF SEPARATION FROM CIVILIAN EMPLOYMENT IS ENTITLED TO RECEIVE SEVERANCE PAY UNDER SECTION 9 OF PUBLIC LAW 89-301, 5 U.S.C. 5595. YOU ALSO INQUIRE WHETHER ENTITLEMENT IS AFFECTED BY STATUS AS A REGULAR ARMY OFFICER, RESERVE PERSONNEL, OR NON-REGULAR OFFICER, WARRANT OFFICER, OR REGULAR ENLISTED MAN; OR BY HAVING PREVIOUSLY BEEN RETIRED FROM THE ARMED SERVICES BY COMPLETING ELIGIBILITY REQUIREMENTS FOR MILITARY RETIREMENT WHILE EMPLOYED IN A CIVILIAN POSITION, OR BY MILITARY RETIREMENT FOR PHYSICAL DISABILITY. IF SEVERANCE PAY IS NOT PAYABLE, YOU ASK WHETHER THE RECIPIENTS OF PREVIOUS PAYMENTS ARE ENTITLED TO REQUEST WAIVER OF ERRONEOUS PAYMENT UNDER PUBLIC LAW 90 616, 82 STAT. 1212, 5 U.S.C. 5584.

IT WILL BE NOTED THAT THE 1965 LAW EXCLUDED FROM SEVERANCE PAY ENTITLEMENT ANY OFFICER OR EMPLOYEE WHO IS SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT OR ANY OTHER RETIREMENT LAW OR RETIREMENT SYSTEM APPLICABLE TO FEDERAL OFFICERS OR EMPLOYEES OR MEMBERS OF THE UNIFORMED SERVICES WHO AT THE TIME OF SEPARATION HAS FULFILLED THE REQUIREMENTS FOR IMMEDIATE ANNUITY UNDER ANY SUCH LAW OR SYSTEM. WHILE THE TERM "ANNUITY" IS NOT GENERALLY USED TO DESCRIBE THE RETIRED PAY RECEIVED BY RETIRED MEMBERS OF THE UNIFORMED SERVICES, IT SEEMS CLEAR THAT SUCH TERM IS SO USED IN THE 1965 LAW.

WE HAVE FOUND NOTHING IN THE LANGUAGE OF THE 1965 LAW OR IN ITS LEGISLATIVE HISTORY WHICH SUGGESTS THAT SEVERANCE PAY IS BARRED ONLY WHEN AN INDIVIDUAL BECOMES ENTITLED TO MILITARY RETIRED PAY AT THE TIME OF HIS SEPARATION FROM CIVILIAN GOVERNMENT EMPLOYMENT SUCH AS SUGGESTED BY YOU. IN ITS REPORT ON H.R. 10281, THE BILL WHICH BECAME THE 1965 LAW, THE SENATE COMMITTEE ON POST OFFICE AND CIVIL SERVICE STATED THAT SUBSECTION 9(B) OF THAT LAW EXCLUDES CERTAIN EMPLOYEES:

(4) ANY EMPLOYEE WHO AT THE TIME OF SEPARATION IS RECEIVING OR ELIGIBLE TO RECEIVE RETIREMENT BENEFITS UNDER ANY FEDERAL CIVILIAN OR MILITARY RETIREMENT PROGRAM.

SEE S. REPT. NO. 910, 89TH CONG., 1ST SESS. 8,9.

WE MUST CONCLUDE, THEREFORE, THAT ANY RETIRED MEMBER OF THE UNIFORMED SERVICE WHO IS ELIGIBLE TO RECEIVE MILITARY RETIRED PAY UNDER ANY LAW PROVIDING SUCH PAY FOR MEMBERS OR FORMER MEMBERS OF THE UNIFORMED SERVICES AT THE TIME OF HIS SEPARATION FROM CIVILIAN GOVERNMENT EMPLOYMENT IS NOT ENTITLED TO RECEIVE SEVERANCE PAY UNDER SECTION 9 OF THE 1965 LAW, NOW CODIFIED IN 5 U.S.C. 5595. THIS IS SO WITHOUT REGARD TO THE TIME WHEN HE FIRST BECOMES ENTITLED TO MILITARY RETIRED PAY AND WITHOUT REGARD TO WHETHER HE WAS ELIGIBLE UNDER THE DUAL COMPENSATION ACT OF 1964, NOW CODIFIED IN 5 U.S.C. 5531-5534 (MENTIONED BY YOU) TO RECEIVE SUCH MILITARY RETIRED PAY CONCURRENTLY IN WHOLE OR IN PART WITH THE COMPENSATION OF HIS CIVILIAN OFFICE OR POSITION.

THE DISTINCTIONS MADE IN THE DUAL COMPENSATION ACT OF 1964 AND PRIOR DUAL COMPENSATION LAWS AS INTERPRETED BY JUDICIAL AND ADMINISTRATIVE DECISIONS WITH RESPECT TO TOTAL OR PARTIAL EXEMPTIONS THEREFROM BASED UPON MILITARY STATUS OR AMOUNT OF RETIRED PAY OR COMPENSATION HAVE NO BEARING ON ENTITLEMENT TO SEVERANCE PAY. PAYMENT ON THE VOUCHERS FORWARDED WITH YOUR REQUEST FOR DECISION IS NOT AUTHORIZED AND THE VOUCHERS AND ACCOMPANYING PAPERS WILL BE RETAINED HERE.

WE SEE NO REASON WHY THE ERRONEOUS PAYMENTS OF SEVERANCE PAY WOULD NOT BE FOR CONSIDERATION UNDER THE WAIVER PROVISIONS OF THE ACT OF OCTOBER 21, 1968, PUBLIC LAW 90-616, 82 STAT. 1212.