B-174977(1), MAY 19, 1972

B-174977(1): May 19, 1972

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FOR BACK PAY FOR THE PERIOD OF TIME HE WAS ERRONEOUSLY SEPARATED FROM EMPLOYMENT WITH THE NEW YORK DEFENSE CONTRACT ADMINISTRATION SERVICES. IT IS THE OPINION OF THE COMP. NIDERMAYER TO BACK PAY FOR THE PERIOD DURING WHICH HE WAS ERRONEOUSLY REMOVED FROM THE ROLLS. 174199. WHICH WAS THE SUBJECT OF A REPORT YOU FURNISHED THIS OFFICE UNDER DATE OF MARCH 30. WE HAVE REVIEWED THE CLAIM IN RESPONSE TO CONGRESSIONAL INTEREST AND UPON APPEAL BY THE CLAIMANT OF OUR CLAIMS DIVISION SETTLEMENT OF SEPTEMBER 28. AT THAT TIME IT WAS BELIEVED THAT HE MET REQUIREMENTS FOR SUCH RETIREMENT AS PROVIDED BY SUBSECTION 8336(D). NIDERMAYER HAD BEEN SEPARATED WAS ADVISED BY THE CIVIL SERVICE COMMISSION THAT A PERIOD OF MR.

B-174977(1), MAY 19, 1972

CIVILIAN EMPLOYEE - RETIREMENT ANNUITY - UNWARRANTED PERSONNEL ACTION - RESTORATION OF BACK PAY DECISION ALLOWING THE CLAIM OF VICTOR A. NIDERMAYER, FOR BACK PAY FOR THE PERIOD OF TIME HE WAS ERRONEOUSLY SEPARATED FROM EMPLOYMENT WITH THE NEW YORK DEFENSE CONTRACT ADMINISTRATION SERVICES, NOTWITHSTANDING HIS RESTORATION TO THE ROLLS IN A LEAVE-WITHOUT-PAY STATUS FOR THE PURPOSE OF ESTABLISHING ENTITLEMENT TO A RETIREMENT ANNUITY. IT IS THE OPINION OF THE COMP. GEN. THAT THE SEPARATION MAY PROPERLY BE CONSIDERED AN UNWARRANTED PERSONNEL ACTION WITHIN THE MEANING OF 5 U.S.C. 5596(B), THE CORRECTION OF WHICH WOULD ENTITLE MR. NIDERMAYER TO BACK PAY FOR THE PERIOD DURING WHICH HE WAS ERRONEOUSLY REMOVED FROM THE ROLLS. 174199, DECEMBER 14, 1971. ALSO, IN VIEW OF THE ENACTMENT OF PUB. L. 91- 630, APPROVED DECEMBER 31, 1970, CLAIMANT'S SERVICE AS A TEMPORARY SUBSTITUTE EMPLOYEE OF THE POST OFFICE DEPARTMENT MAY NOW BE CONSIDERED CREDITABLE SERVICE FOR PURPOSES OF RETIREMENT. ACCORDINGLY, HE HAS BEEN ADVISED TO APPLY TO THE CIVIL SERVICE COMMISSION FOR A RECOMPUTATION OF HIS ANNUITY.

TO MR. R. G. BORDLEY:

WE REFER TO THE CLAIM OF VICTOR A. NIDERMAYER, A FORMER EMPLOYEE OF THE DEFENSE CONTRACT ADMINISTRATION SERVICES, NEW YORK, WHICH WAS THE SUBJECT OF A REPORT YOU FURNISHED THIS OFFICE UNDER DATE OF MARCH 30, 1971 (DSAH- CFF). WE HAVE REVIEWED THE CLAIM IN RESPONSE TO CONGRESSIONAL INTEREST AND UPON APPEAL BY THE CLAIMANT OF OUR CLAIMS DIVISION SETTLEMENT OF SEPTEMBER 28, 1971. THAT SETTLEMENT DISALLOWED MR. NIDERMAYER'S CLAIM FOR BACK PAY.

AS REPORTED ADMINISTRATIVELY, MR. NIDERMAYER, FORMERLY AN EMPLOYEE OF THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, NEW YORK, DEFENSE SUPPLY AGENCY, RETIRED ON A DISCONTINUED SERVICE ANNUITY EFFECTIVE APRIL 10, 1970. AT THAT TIME IT WAS BELIEVED THAT HE MET REQUIREMENTS FOR SUCH RETIREMENT AS PROVIDED BY SUBSECTION 8336(D), TITLE 5, U.S.C. HAVING ATTAINED 50 YEARS OF AGE AND COMPLETED 20 YEARS OF GOVERNMENT SERVICE.

SUBSEQUENTLY, IN EARLY JUNE 1970, THE OFFICE FROM WHICH MR. NIDERMAYER HAD BEEN SEPARATED WAS ADVISED BY THE CIVIL SERVICE COMMISSION THAT A PERIOD OF MR. NIDERMAYER'S SERVICE AS A TEMPORARY SUBSTITUTE POST OFFICE EMPLOYEE FROM FEBRUARY 12, 1958, TO APRIL 1, 1958, WAS NOT CREDITABLE FOR CIVIL SERVICE RETIREMENT ELIGIBILITY PURPOSES. THUS, HE LACKED APPROXIMATELY 7 WEEKS OF CREDITABLE SERVICE PREVIOUSLY THOUGHT TO BE INCLUDABLE FOR RETIREMENT PURPOSES.

IN ORDER TO OBTAIN CREDIT FOR THE PERIOD OF TIME IN QUESTION, MR. NIDERMAYER WAS ADVISED THAT HE COULD BE RESTORED TO THE ROLLS OF THE AGENCY AND CARRIED ON LEAVE WITHOUT PAY FOR TIME EQUIVALENT TO THAT FOR WHICH CREDIT WAS LACKING OR THAT HE COULD REFUND THE LUMP-SUM PAYMENT FOR ANNUAL LEAVE HE RECEIVED WHEN HE WAS SEPARATED AND BE CARRIED ON ANNUAL LEAVE FOR THE SAME LENGTH OF TIME. IT ALSO APPEARS THAT HE WAS OFFERED AN OPPORTUNITY TO RETURN TO THE AGENCY FOR RESTORATION TO THE ROLLS IN AN ACTIVE STATUS FOR THE NECESSARY PERIOD.

IN ACCORDANCE WITH MR. NIDERMAYER'S APPARENT CHOICE OF REMEDIES, HE WAS RESTORED TO THE ROLLS IN LEAVE-WITHOUT-PAY STATUS FOR THE PERIOD APRIL 13, 1970, THROUGH MAY 30, 1970.

MR. NIDERMAYER NOW CLAIMS BACK PAY FOR THE PERIOD OF TIME HE WAS ERRONEOUSLY SEPARATED NOTWITHSTANDING HIS RESTORATION TO THE ROLLS IN LWOP STATUS FOR THE PURPOSE OF ESTABLISHING ENTITLEMENT TO A RETIREMENT ANNUITY.

SUBSECTIONS (B) AND (C) OF SECTION 5596, TITLE 5, U.S.C. PROVIDE AS FOLLOWS:

"(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 DIFFERENTIALS 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 ALL 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.

"(C) THE CIVIL SERVICE COMMISSION SHALL PRESCRIBE REGULATIONS TO CARRY OUT THIS SECTION. HOWEVER, THE REGULATIONS ARE NOT APPLICABLE TO THE TENNESSEE VALLEY AUTHORITY AND ITS EMPLOYEES."

APPLICABLE REGULATIONS OF THE CIVIL SERVICE COMMISSION ARE FOUND AT SUBSECTION 550.803 OF TITLE 5, CODE OF FEDERAL REGULATIONS, AS FOLLOWS:

"SEC 550.803 DETERMINING ENTITLEMENT.

"(A) THE REQUIREMENT FOR AN ADMINISTRATIVE DETERMINATION REFERRED TO IN THE PHRASE 'ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL' IN SECTION 5596 OF TITLE 5, UNITED STATES CODE, IS MET WHEN AN APPROPRIATE AUTHORITY IN AN AGENCY MAKES A DECISION ON ITS OWN INITIATIVE IN A CASE INVOLVING AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. ***

"(C) THE APPROPRIATE AUTHORITY REFERRED TO IN SECTION 5596 OF TITLE 5, U.S.C. AND THIS SUBPART IS (1) THE AGENCY OR THE OFFICE OR OFFICIAL IN AN AGENCY AUTHORIZED UNDER APPLICABLE LAW OR REGULATION TO CORRECT, OR TO DIRECT THE CORRECTION OF, THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION

"(E) A PERSONNEL ACTION REFERRED TO IN SECTION 5596 OF TITLE 5, U.S.C. AND THIS SUBPART IS ANY ACTION BY AN AUTHORIZED OFFICIAL OF AN AGENCY WHICH RESULTS IN THE WITHDRAWAL OR REDUCTION OF ALL OR ANY PART OF THE PAY ALLOWANCES, OR DIFFERENTIALS OF AN EMPLOYEE AND INCLUDES, BUT IS NOT LIMITED TO, SEPARATIONS FOR ANY REASON (INCLUDING RETIREMENT), SUSPENSIONS, FURLOUGHS WITHOUT PAY, DEMOTIONS, REDUCTIONS IN PAY, AND PERIODS OF ENFORCED PAID LEAVE WHETHER OR NOT CONNECTED WITH AN ADVERSE ACTION COVERED BY PART 752 OF THIS CHAPTER."

WE BELIEVE THE ACTIONS OF THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION IN CANCELLING THE APRIL 10, 1970 SEPARATION ACTION AND RESTORING MR. NIDERMAYER TO THE AGENCY ROLLS MAY BE REGARDED AS CORRECTION OF AN UNWARRANTED PERSONNEL ACTION (PREMATURE RETIREMENT BASED ON AN ERRONEOUS ADMINISTRATIVE INTERPRETATION OF AN EMPLOYEE'S SERVICE RECORD) BY APPROPRIATE AUTHORITY WITHIN THE MEANING OF THE LAW AND REGULATIONS. ALSO, OUR DECISIONS HAVE HELD THAT UPON CORRECTION OF SUCH ACTIONS THE EMPLOYEE IS ENTITLED TO BACK PAY FOR THE PERIOD DURING WHICH HE WAS ERRONEOUSLY REMOVED FROM THE ROLLS. SEE A-59740, JULY 17, 1967; B-166062, FEBRUARY 24, 1969; AND B-174199, DECEMBER 14, 1971.

THERE IS NO INDICATION THAT MR. NIDERMAYER WAS AWARE THAT THE SERVICE IN QUESTION WAS NOT CREDITABLE FOR RETIREMENT PURPOSES (CF. B-166180, APRIL 21, 1969). THUS, HE IS ENTITLED TO BACK PAY FOR THE PERIOD BEGINNING APRIL 10, 1970, AND ENDING MAY 30, 1970, WHEN HE WOULD HAVE BEEN ELIGIBLE FOR RETIREMENT BUT FOR THE PREMATURE SEPARATION. THE COMPUTATION SHOULD BE MADE IN ACCORDANCE WITH PROVISIONS OF SUBSECTION 5596(B) OF TITLE 5, U.S.C. AND SUBSECTION 550.804, TITLE 5, CODE OF FEDERAL REGULATIONS, AND YOU ARE AUTHORIZED TO EFFECT PAYMENT TO THE FORMER EMPLOYEE FOR THE ADDITIONAL AMOUNT FOUND DUE.

MEANWHILE, AS NOTED IN THE ADMINISTRATIVE REPORT DATED MARCH 16, 1971, PUBLIC LAW 91-630, APPROVED DECEMBER 31, 1970, REPEALED SECTION 115 OF THE SOCIAL SECURITY AMENDMENTS OF 1954 WHICH WAS THE PROVISION OF LAW UNDER WHICH MR. NIDERMAYER'S SERVICE AS A TEMPORARY SUBSTITUTE EMPLOYEE OF THE POST OFFICE DEPARTMENT WAS EXCLUDED FROM CREDITABLE SERVICE FOR CIVIL SERVICE RETIREMENT PURPOSES. SINCE UNDER PROVISIONS OF PUBLIC LAW 91-630, MR. NIDERMAYER APPARENTLY BECAME ENTITLED TO RETIREMENT CREDIT FOR HIS POST OFFICE DEPARTMENT SERVICE, WE ARE ADVISING HIM BY LETTER TODAY THAT HE MAY APPLY TO THE CIVIL SERVICE COMMISSION FOR A DETERMINATION OF HIS ENTITLEMENT TO ADDITIONAL SERVICE CREDIT FOR PURPOSES OF RECOMPUTATION OF HIS ANNUITY.