B-172375, MAY 17, 1971

B-172375, MAY 17, 1971

RETIREMENT - OPTIONAL OR FOR DISABILITY DECISION ALLOWING CLAIM BY JAMES P. SETLIFF FOR 1419 HOURS OF SICK LEAVE STANDING TO HIS CREDIT AT THE TIME OF HIS SEPARATION FROM THE TREASURY DEPARTMENT, INTERNAL REVENUE SERVICE, NASHVILLE, TENNESSEE. BECAUSE CLAIMANT'S RETIREMENT WAS PROCESSED BY THE CIVIL SERVICE COMMISSION AS ONE FOR DISABILITY, IT WAS ERROR FOR IRS TO SEPARATE CLAIMANT ON THE BASIS OF HIS OPTIONAL RETIREMENT APPLICATION. THE ACTION OF THE CIVIL SERVICE COMMISSION WAS MADE WITH FULL KNOWLEDGE OF BOTH RETIREMENT APPLICATIONS, DISABILITY AND OPTIONAL, AND ITS ACTIONS ON QUESTIONS OF DISABILITY ARE BY STATUTE FINAL AND CONCLUSIVE. THEREFORE, CLAIMANT SHOULD BE RESTORED TO THE ROLLS FOR COMPENSATING HIM FOR THE SICK LEAVE IN QUESTION.

TO MR. SECRETARY:

TRANSMITTED HEREWITH FOR ADMINISTRATIVE DISPOSITION IS THE CLAIM OF MR. JAMES P. SETLIFF FOR 1419 HOURS OF SICK LEAVE STANDING TO HIS CREDIT AT THE TIME OF HIS SEPARATION FROM THE SERVICE ON FEBRUARY 28, 1969, AS AN EMPLOYEE OF THE TREASURY DEPARTMENT, INTERNAL REVENUE SERVICE, NASHVILLE, TENNESSEE.

THE RECORD SHOWS THAT MR. SETLIFF APPLIED FOR DISABILITY RETIREMENT ON JANUARY 13, 1969, AND WAS NOTIFIED BY THE CIVIL SERVICE COMMISSION ON FEBRUARY 24, 1969, THAT HIS APPLICATION FOR ANNUITY ON ACCOUNT OF DISABILITY HAD BEEN APPROVED. IN THE MEANTIME, ON FEBRUARY 14, 1969, HE HAD FILED AN APPLICATION FOR OPTIONAL RETIREMENT TO BECOME EFFECTIVE FEBRUARY 28, 1969. IT WAS MR. SETLIFF'S INTENTION THAT THIS LATTER APPLICATION WAS TO BE EFFECTIVE ONLY IN THE EVENT HIS DISABILITY RETIREMENT APPLICATION WAS NOT APPROVED. AS INDICATED IN THE ENCLOSED COPY OF LETTER DATED JULY 22, 1970, FROM THE DIRECTOR, PERSONNEL DIVISION, INTERNAL REVENUE SERVICE, TO THE CLAIMS DIVISION OF OUR OFFICE, MR. SETLIFF WAS REMOVED FROM THE ROLLS ON FEBRUARY 28, 1969, ON THE BASIS OF HIS OPTIONAL RETIREMENT APPLICATION, NOTWITHSTANDING HIS RETIREMENT WAS IN FACT PROCESSED BY THE CIVIL SERVICE COMMISSION AS A DISABILITY RETIREMENT. THE ACTION OF THE COMMISSION IN PROCESSING THE RETIREMENT AS ONE FOR DISABILITY WAS MADE WITH FULL KNOWLEDGE OF THE APPLICATION FOR OPTIONAL RETIREMENT, AND ITS ACTIONS ON QUESTIONS OF DISABILITY ARE BY STATUTE FINAL AND CONCLUSIVE. 5 U.S.C. 8347(C). IT THEREFORE APPEARS THAT THE ACTION TAKEN BY THE INTERNAL REVENUE SERVICE SEPARATING MR. SETLIFF ON THE BASIS OF HIS OPTIONAL RETIREMENT APPLICATION WAS ERRONEOUS.

IN LETTER DATED MAY 20, 1970, COPY HEREWITH, FROM THE UNITED STATES CIVIL SERVICE COMMISSION, BUREAU OF RETIREMENT, INSURANCE, AND OCCUPATIONAL HEALTH, TO MR. GARETH S. ADEN, ATTORNEY FOR MR. SETLIFF, IT WAS STATED:

"ONCE A PROPER SEPARATION IS EFFECTED IT CANNOT BE RESCINDED OR CHANGED BY ADMINISTRATIVE ACTION EXCEPT TO CORRECT AN OBVIOUS ERROR. THE QUESTION OF WHETHER THE RETIREMENT DATE OF FEBRUARY 28, 1969 COULD BE CHANGED TO PERMIT THE GRANTING OF SICK LEAVE IS A MATTER FOR THE INTERNAL REVENUE SERVICE TO DECIDE AND WHETHER SUCH CHANGE COULD BE MADE IS SUBJECT TO RULINGS OF THE COMPTROLLER GENERAL.

"IF THE INTERNAL REVENUE SERVICE FINDS A BASIS FOR CHANGING MR. SETLIFF'S SEPARATION DATE FROM FEBRUARY 28, 1969 TO SUCH DATE AS HIS SICK LEAVE WOULD EXPIRE AND SUBMITS A CORRECTED RECORD WE WOULD ADJUST HIS ANNUITY ACCORDINGLY."

THE LONG ESTABLISHED RULE OF OUR OFFICE IS THAT WHEN AN AUTHORIZED SEPARATION, BY RESIGNATION OR OTHERWISE, BECOMES AN ACCOMPLISHED FACT IT MAY NOT BE RESCINDED OR SET ASIDE BY ADMINISTRATIVE ACTION. 32 COMP. GEN. 111 (1952). HOWEVER, WE HAVE PERMITTED EXCEPTIONS TO THAT RULE WHEN THE SEPARATION DID NOT CONFORM TO THE INTENT OF THE PARTIES CONCERNED OR WAS NOT IN CONFORMANCE WITH APPLICABLE REGULATIONS. SEE 39 COMP. GEN. 89 (1959).

IT APPEARS FROM THE INTERNAL REVENUE SERVICE LETTER DATED JULY 22, 1970, THAT HAD MR. SETLIFF'S RETIREMENT BEEN VIEWED AS FOR DISABILITY, HE WOULD HAVE BEEN GIVEN, UPON HIS REQUEST, THE OPPORTUNITY TO EXHAUST HIS SICK LEAVE BEFORE FINAL SEPARATION.

WE BELIEVE THAT UNDER THE FACTS AND CIRCUMSTANCES OUTLINED ABOVE MR. SETLIFF SHOULD BE RESTORED TO THE ROLLS FOR THE PURPOSE OF COMPENSATING HIM FOR THE SICK LEAVE IN QUESTION WITH ADVICE OF SUCH ACTION TO THE CIVIL SERVICE COMMISSION IN ORDER THAT APPROPRIATE ADJUSTMENTS MAY BE MADE IN THE RETIREMENT ACCOUNT.

THE ENCLOSURES FORWARDED HEREWITH TO SUPPORT THE CLAIM INDICATE THE NATURE OF THE ADJUSTMENTS REQUIRED.

CONGRESSMAN RICHARD FULTON HAS EXPRESSED AN INTEREST IN THIS CLAIM AND IS BEING FURNISHED A COPY OF THIS LETTER.