B-174199, DEC 14, 1971

B-174199, DEC 14, 1971

CIVILIAN EMPLOYEES - PREMATURE RETIREMENT - FAULT OF GOVERNMENT AGENCY - ENTITLEMENT TO BACK PAY DECISION ALLOWING PAYMENT OF BACK PAY TO MRS. OZELLE A. FONES, EMPLOYEE OF THE DEFENSE SUPPLY AGENCY, FOR THE PERIOD OF SEPARATION DUE TO ADMINISTRATIVE ERROR REGARDING ELIGIBILITY FOR RETIREMENT. MRS. FONES RETIRED VOLUNTARILY PURSUANT TO DGSC OCP BULLETIN NUMBER 3 DURING A PERIOD OF A REDUCTION-IN-FORCE, UPON ADVICE OF THE PERSONNEL OFFICE. IT WAS LATER DISCOVERED THAT MRS. FONES WAS NOT ELIGIBLE FOR OPTIONAL RETIREMENT AT THE TIME EFFECTED AND SHE WAS TRANSFERRED TO A LWOP STATUS. IN VIEW OF AN AGENCY'S RESPONSIBILITY, WHICH IS EVEN GREATER IN THE CONTEXT OF A REDUCTION-IN-FORCE SITUATION, FOR MAINTAINING RETIREMENT RECORDS AND COUNSELING EMPLOYEES IN REGARD TO THEIR RETIREMENT RIGHTS, AND IN VIEW OF THE IMPROPER ADVICE GIVEN MRS. FONES, IT APPEARS THAT DSA IS LARGELY RESPONSIBLE FOR HER PREMATURE RETIREMENT. IN VIEW OF THIS FACT, WITHOUT REGARD TO WHETHER THE RETIREMENT WAS VOLUNTARY OR INVOLUNTARY, CLAIMANT IS ENTITLED TO BACK PAY AND ALLOWANCES.

TO MR. M. E. SMITH

WE REFER TO YOUR LETTER OF SEPTEMBER 14, 1971, REFERENCE DGSC-CF, BY WHICH YOU HAVE REQUESTED OUR ADVANCE DECISION WHETHER THE VOUCHER FOR BACK PAY IN FAVOR OF MRS. OZELLE A. FONES, FORWARDED WITH YOUR LETTER, MAY BE CERTIFIED FOR PAYMENT.

THE SITUATION OUT OF WHICH MRS. FONES' CLAIM AROSE IS REPORTED BY YOU TO BE AS FOLLOWS:

"MRS. OZELLE A. FONES WAS SEPARATED 7 MAY 1971 BY A 'RESIGNATION - RIF SITUATION' *** TO TAKE ADVANTAGE OF THE PROVISIONS FOR INVOLUNTARY SEPARATION AND IMMEDIATE DISCONTINUED SERVICE ANNUITY. *** THE SERVICE COMPUTATION DATE FOR MRS. FONES IS 6 JULY 1953, WHICH COMPUTES TO 18 YEARS OF SERVICE ON HER SEPARATION DATE. AT THE TIME OF SEPARATION MRS. FONES HAD 34 HOURS OF ACCRUED ANNUAL LEAVE AND HAD AN UNLIQUIDATED ADVANCE OF SICK LEAVE OF 34 HOURS. THESE LEAVE BALANCES EXACTLY OFFSET AND, THEREFORE, A LUMP SUM PAYMENT WAS NOT DUE MRS. FONES. *** ON A REVIEW OF RECORDS IT WAS DETERMINED THAT MRS. FONES WAS NOT ELIGIBLE FOR AN IMMEDIATE ANNUITY. UNDER THE PROVISIONS OF PARAGRAPH S8-7, SUBCHAPTER 8, FPM SUPPLEMENT 990-2, A SF-50, DATED 31 AUGUST 1971, WAS PREPARED CANCELLING THE SF-50 DATED 5 MAY 1971 FOR A RESIGNATION - RIF SITUATION *** . RECORDS REFLECT THAT MRS. FONES WAS NOT PRESENT FOR DUTY DURING THE PERIOD 8 MAY - 30 AUGUST 1971. MRS. FONES HAS NOT RETURNED TO DUTY AS OF 8 SEPTEMBER 1971, BUT HAS BEEN CARRIED IN AN LWOP STATUS SINCE 31 AUGUST 1971. BY LETTER DATED AUGUST 1971 MRS. FONES STATES THAT SHE DID NOT RECEIVE ANY PAYMENTS FOR OUTSIDE EMPLOYMENT DURING THE PERIOD 8 MAY - 30 AUGUST 1971 AND THAT SHE WAS AVAILABLE AND ABLE TO WORK DURING THE PERIOD *** . MRS. FONES HAS RESUBMITTED HER RESIGNATION FOR PURPOSES OF OPTIONAL RETIREMENT, WITH AN EFFECTIVE DATE OF 28 OCTOBER 1971, AND DOES NOT INTEND TO RETURN TO WORK PRIOR TO HER SEPARATION. THE PROVISIONS OF DGSC OCP BULLETIN NUMBER 3 HAVE BEEN INDEFINITELY EXTENDED BEYOND THE 31 MARCH 1970 DATE SPECIFIED THEREIN."

YOU HAVE REFERENCED OUR DECISION 32 COMP. GEN. 449 (1953). IN THAT CASE IT WAS HELD THAT AN EMPLOYEE WHO, UPON RECEIPT OF A REDUCTION-IN FORCE NOTICE, WAS PLACED IN A TERMINAL LEAVE STATUS AND SUBSEQUENTLY FURLOUGHED AND WHO, UPON APPEAL TO THE CIVIL SERVICE COMMISSION, WAS ORDERED TO BE RESTORED TO DUTY AND TO BE REIMBURSED FOR TIME LOST IS ENTITLED TO COMPENSATION FROM THE DATE OF EXPIRATION OF HIS ANNUAL LEAVE TO THE DATE OF HIS RESTORATION TO DUTY UNDER THE BACK PAY PROVISIONS OF THE ACT OF JUNE 10, 1948, 5 U.S.C. 5596.

YOU STATE THAT UNLIKE THE INVOLUNTARY SEPARATION IN THAT CASE MRS. FONES WAS SEPARATED VOLUNTARILY TO TAKE ADVANTAGE OF THE PROVISIONS FOR AN IMMEDIATE DISCONTINUED SERVICE ANNUITY. YOU INDICATE THAT ALTHOUGH THE U.S. ARMY SUPPORT CENTER, RICHMOND, WAS IN A REDUCTION-IN-FORCE SITUATION THERE WAS NO QUESTION BUT THAT MRS. FONES' EMPLOYMENT WOULD HAVE BEEN CONTINUED AND, ADDITIONALLY, THAT IN YOUR OPINION SHE SHOULD HAVE BEEN AWARE THAT SHE DID NOT HAVE THE REQUISITE 20 YEARS OF SERVICE TO ENTITLE HER TO AN IMMEDIATE ANNUITY. IN VIEW OF THESE FACTS, YOU ASK THE FOLLOWING QUESTIONS:

"1. IS MRS. FONES ENTITLED TO PAY FOR THE PERIOD 8 MAY THROUGH 30 AUGUST 1971?

"2. IF THE ANSWER TO THE ABOVE IS 'YES,' IS SHE ALSO ENTITLED TO ANNUAL AND SICK LEAVE ACCRUALS FOR THE PERIOD?

"3. IF THE ANSWER TO 1. IS 'NO,' IS MRS. FONES ENTITLED TO PAYMENT FOR 34 HOURS ANNUAL LEAVE, WITH A RESTORATION OF THE NEGATIVE 34 HOURS OF SICK LEAVE AS OF 31 AUGUST 1971? IF 'YES,' SHOULD THIS PAYMENT BE WITHHELD IN VIEW OF THE PENDING RETIREMENT WITH NO EARNINGS SUBSEQUENT TO 5 MAY 1971 TO OFFSET THE SICK LEAVE ADVANCE?

"4. WOULD THE ANSWER TO QUESTION 1 ABOVE BE DIFFERENT IF MRS. FONES HAD ACTUALLY RETURNED TO DUTY?"

YOU STATE THAT IT IS BELIEVED THE VOUCHER IS PROPER FOR PAYMENT AND THAT MRS. FONES SHOULD ACCRUE ANNUAL AND SICK LEAVE DURING THE PERIOD OF ABSENCE.

WE FIRST POINT OUT THAT FEDERAL PERSONNEL MANUAL SUPPLEMENT 831-1, SUBCHAPTER S11, DISCONTINUED SERVICE RETIREMENT, PROVIDES THAT SEPARATION RESULTING FROM A REQUEST SUCH AS WAS MADE BY OCP BULLETIN NUMBER 3 IS CONSIDERED TO BE "INVOLUNTARY." THIS IS TRUE NOTWITHSTANDING THAT THE POSITION OF A PARTICULAR EMPLOYEE WHO CHOOSES TO RETIRE IN RESPONSE TO THE REQUEST WOULD NOT IN FACT HAVE BEEN ABOLISHED. THIS DISTINCTION, HOWEVER, IS NOT CRUCIAL TO THE DETERMINATION OF ENTITLEMENT TO BACK PAY.

THIS OFFICE HAS CONCURRED IN THE ADMINISTRATIVE CORRECTION OF A SEPARATION DATE WHERE THROUGH SOME MISCONCEPTION THE SEPARATION DID NOT CONFORM TO THE INTENT OF THE PARTIES CONCERNED. B-131720, MAY 16, 1957; B -159889, SEPTEMBER 1, 1966. IT APPEARS FROM YOUR AGENCY'S CANCELLATION OF THE PERSONNEL ACTION EFFECTING MRS. FONES' RETIREMENT ON MAY 8, 1971, AND HER REINSTATEMENT TO A LEAVE-WITHOUT-PAY STATUS THAT MRS. FONES' PREMATURE RETIREMENT DID NOT CONFORM TO HER INTENT. THAT INTENT IS CLEAR FROM THE STANDARD FORM 50 DATED MAY 5, 1971, WHEREIN IT IS NOTED THAT HER REASON FOR RETIRING WAS:

"TO TAKE ADVANTAGE OF THE PROVISIONS FOR INVOLUNTARY SEPARATION AND IMMEDIATE DISCONTINUED SERVICE ANNUITY AS DESCRIBED IN OCP BULLETIN #3."

THE BACK PAY ACT AS CODIFIED AT 5 U.S.C. 5596 PROVIDES IN PERTINENT PART:

"(B) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIAL OF THE EMPLOYEE -

"(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD; AND

"(2) FOR THE PURPOSES, IS DEEMED TO HAVE PERFORMED SERVICE FOR THE AGENCY DURING THAT PERIOD, EXCEPT THAT THE EMPLOYEE MAY NOT BE CREDITED, UNDER THIS SECTION, LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT OF THE LEAVE AUTHORIZED FOR THE EMPLOYEE BY LAW OR REGULATION."

THIS OFFICE HAS HELD IN CERTAIN SITUATIONS WHERE AN EMPLOYEE IS SEPARATED UNDER A MISAPPREHENSION REGARDING HIS ELIGIBILITY FOR A RETIREMENT ANNUITY AND IS SUBSEQUENTLY REINSTATED THAT HE IS ENTITLED TO BACK PAY FOR THE PERIOD OF HIS SEPARATION. 32 COMP. GEN. 449 (1953). WHERE, HOWEVER, THE EMPLOYEE RETIRES KNOWING THAT THERE IS A QUESTION REGARDING HIS ENTITLEMENT TO SUCH AN ANNUITY, WE HAVE TAKEN THE POSITION THAT THERE IS NO BASIS FOR PAYMENT TO HIM OF BACK PAY. B 166180, APRIL 21, 1969.

THE APPLICABILITY OF THE BACK PAY ACT TO SITUATIONS WHERE AN EMPLOYEE'S RETIREMENT WAS NOT IN CONFORMANCE WITH THE PARTIES' INTENT HAS NOT BEEN RESTRICTED TO INSTANCES WHERE THE RETIREMENT WAS INVOLUNTARY. IN A-59740, JULY 17, 1967, WE CONSIDERED THE SITUATION OF AN EMPLOYEE WHO THOUGHT HE HAD RETIRED PURSUANT TO THE OPTIONAL RETIREMENT PROVISIONS. IT WAS SUBSEQUENTLY DISCOVERED THAT HE HAD BEEN ERRONEOUSLY CREDITED BY HIS AGENCY WITH SERVICE WHICH WAS NOT CREDITABLE AND THAT IN FACT HE LACKED SOME 11 MONTHS OF THE 30-YEAR SERVICE REQUIREMENT. UPON THE RECOMMENDATION OF THE CIVIL SERVICE COMMISSION, THE EMPLOYEE WAS RESTORED TO THE ROLLS. WE THERE HELD THAT THE EMPLOYEE WAS ENTITLED TO BACK PAY FOR THE PERIOD OF HIS SEPARATION. THE BASIS FOR THAT DECISION WAS AS FOLLOWS:

"FEDERAL PERSONNEL MANUAL SUPPLEMENT 831-1, SUBCHAPTER S1-4, RELATING TO AGENCY RESPONSIBILITIES IN REGARD TO RETIREMENT APPEARS TO PLACE UPON AN AGENCY THE DUTY OF MAINTAINING ACCURATE RETIREMENT RECORDS AND OF PROPER COUNSELING OF EMPLOYEES CONCERNING RIGHTS AND OBLIGATIONS UNDER THE RETIREMENT ACT.

"SINCE MR. BAUMAN'S PREMATURE RETIREMENT APPEARS TO HAVE STEMMED FROM AN ERRONEOUS ADMINISTRATIVE INTERPRETATION OF HIS SERVICE RECORDS WE ARE OF THE OPINION THAT HE IS ENTITLED TO BACK PAY FOR THE PERIOD MARCH 11, 1966 THROUGH MAY 9, 1966, THE DATE OF HIS RESTORATION TO THE ROLLS. *** "

IN THE ABOVE-QUOTED CASE, THE EMPLOYEE'S RETIREMENT WAS INDUCED BY AN ADMINISTRATIVE ERROR. WE NOTE THAT IN MRS. FONES' LETTER OF AUGUST 31, 1971, ADDRESSED TO THE COMPTROLLER, DEFENSE GENERAL SUPPLY CENTER, SHE EXPLAINS HER REASON FOR HAVING RETIRED ON MAY 8, 1971, AS FOLLOWS:

"I WAS ADVISED BY THE OFFICE OF CIVIL PERSONNEL THAT IT WOULD BE TO MY ADVANTAGE TO RETIRE BEFORE 28 MAY 1971 IN ORDER THAT I MAY RECEIVE THE BENEFIT OF THE 4.5% INCREASE IN THE RETIREMENT ANNUITY. IF I HAD KNOWN THAT I WAS NOT ELIGIBLE FOR RETIREMENT I WOULD HAVE WORKED UNTIL 28 OCTOBER 1971 WHEN I WILL BE 62 YEARS OLD AND HAVE 18 YEARS AND 3 MONTHS GOVERNMENT SERVICE."

YOU HAVE NOT INDICATED WHY, IN VIEW OF THE FACT THAT SHE HAD INSUFFICIENT SERVICE, MRS. FONES WAS ADVISED THAT SHE SHOULD RETIRE PRIOR TO MAY 28 BUT STATE THAT BY OCP BULLETIN NUMBER 3 SHE WAS MADE AWARE OF THE REQUIREMENTS FOR ENTITLEMENT TO AN IMMEDIATE DISCONTINUED SERVICE ANNUITY AND SHOULD HAVE KNOWN THAT SHE DID NOT HAVE THE NECESSARY 20 YEARS OF SERVICE.

IN VIEW OF YOUR AGENCY'S RESPONSIBILITY, WHICH IS EVEN GREATER IN THE CONTEXT OF A REDUCTION-IN-FORCE SITUATION, FOR MAINTAINING RETIREMENT RECORDS AND COUNSELING EMPLOYEES IN REGARD TO THEIR RETIREMENT RIGHTS, AND IN VIEW OF THE APPARENTLY IMPROPER ADVICE GIVEN MRS. FONES, IT APPEARS THAT YOUR AGENCY WAS LARGELY RESPONSIBLE FOR HER PREMATURE RETIREMENT. VIEW OF THIS FACT, WE WOULD CONSIDER IT PROPER TO COMPENSATE MRS. FONES IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 5596.

IN RESPONSE TO YOUR SECOND QUESTION, WE REFER YOU TO 5 U.S.C. 5596, IN ACCORDANCE THEREWITH, MRS. FONES MAY BE CREDITED WITH ANNUAL LEAVE WHICH WOULD HAVE ACCRUED TO HER CREDIT, SUBJECT TO THE 240-HOUR CEILING UPON SUCH ACCRUAL, 48 COMP. GEN. 572 (1969), AND WITH SICK LEAVE WHICH WOULD HAVE BEEN EARNED DURING THE PERIOD OF HER REMOVAL, B-163493, MARCH 29, 1968.

THE ABOVE RESPONSES TO YOUR FIRST TWO QUESTIONS HAVE RENDERED IT UNNECESSARY TO ANSWER THE TWO ADDITIONAL QUESTIONS POSED BY YOU. YOUR VOUCHER IS RETURNED HEREWITH.