B-175498, JUN 20, 1972

B-175498, JUN 20, 1972

CIVILIAN EMPLOYEE - ERRONEOUS ADMINISTRATIVE ACTION - BACK PAY - ENTITLEMENT CONCERNING THE ENTITLEMENT OF KARENZA C. SPRATLIN TO BACK PAY, INCIDENT TO HER ERRONEOUSLY INDUCED RETIREMENT FROM THE FEDERAL SERVICE. SINCE MRS. SPRATLIN'S RETIREMENT WAS INDUCED BY ADMINISTRATIVE ERROR, SHE IS ENTITLED TO BACK PAY UNDER THE BACK PAY ACT, 5 U.S.C. 5596. HOWEVER, SUCH ENTITLEMENT EXTENDS ONLY FROM THE DATE OF THE ERRONEOUS SEPARATION UNTIL THE DATE AT WHICH THE EMPLOYEE WAS RESTORED RETROACTIVELY TO THE ROLLS. B-166062, FEBRUARY 24, 1969.

TO MR. THOMAS K. COWDEN:

WE REFER TO YOUR LETTER OF MARCH 17, 1972, BY WHICH YOU REQUEST TO BE ADVISED WHETHER MRS. KARENZA C. SPRATLIN IS ENTITLED TO BACK PAY FOR THE PERIOD FROM JUNE 19, 1971, TO JANUARY 25, 1972.

YOU STATE THAT ON THE BASIS OF INFORMATION RECEIVED IN 1952 FROM THE CIVIL SERVICE COMMISSION AND FROM THIS OFFICE IN RESPONSE TO A REQUEST FOR VERIFICATION OF HER SERVICE WITH THE RECONSTRUCTION FINANCE CORPORATION FROM NOVEMBER 3, 1933, TO DECEMBER 31, 1934, YOUR AGENCY BELIEVED AND ADVISED MRS. SPRATLIN THAT THE ENTIRE AMOUNT OF SUCH SERVICE WAS CREDITABLE FOR RETIREMENT PURPOSES AND THAT ON JUNE 19, 1971, SHE WOULD HAVE THE REQUISITE 30 YEARS OF SERVICE TO ENTITLE HER TO AN IMMEDIATE ANNUITY UPON RETIREMENT IN ACCORDANCE WITH THE PROVISIONS FOR RETIREMENT OF 5 U.S.C. 8336. BECAUSE OF HER UNDERSTANDING THAT SHE WOULD BE SO ENTITLED, MRS. SPRATLIN RETIRED ON JUNE 19, 1971. THE CIVIL SERVICE COMMISSION, IN ADJUDICATING HER CLAIM FOR RETIREMENT, DETERMINED HOWEVER THAT ONLY 7 DAYS OF HER SERVICE WITH THE RECONSTRUCTION FINANCE CORPORATION WAS CREDITABLE AND ADVISED YOUR AGENCY ON JANUARY 7, 1972, THAT SHE HAD IN FACT COMPLETED ONLY 29 YEARS, 4 MONTHS AND 29 DAYS OF CREDITABLE SERVICE AND WAS NOT ELIGIBLE FOR RETIREMENT UNDER THE PROVISIONS OF 5 U.S.C. 8336.

THE PERSONNEL ACTION RECORDING MRS. SPRATLIN'S RETIREMENT EFFECTIVE JUNE 19, 1971, WAS CANCELED AND SHE WAS RETROACTIVELY PLACED IN A LEAVE WITHOUT -PAY STATUS AS OF THAT DATE. ON JANUARY 24, 1972, SHE WAS ADVISED THAT BECAUSE OF A REDUCTION-IN-FORCE SITUATION SHE COULD RESIGN AND BE ENTITLED TO AN INVOLUNTARY RETIREMENT ANNUITY AS OF JUNE 20, 1971. BY LETTER OF JANUARY 25, 1972, SHE RESIGNED EFFECTIVE ON THAT DATE.

YOU REQUEST TO BE ADVISED WHETHER UNDER THE CIRCUMSTANCES MRS. SPRATLIN IS ENTITLED TO BACK PAY UNDER THE AUTHORITY OF 5 U.S.C. 5596. WE ASSUME FROM YOUR REFERENCE TO B-166180, APRIL 21, 1969, THAT YOUR UNCERTAINTY AS TO HER ENTITLEMENT STEMS FROM OUR DETERMINATION THAT THE EMPLOYEE THERE CONCERNED WAS NOT ENTITLED TO BACK PAY.

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 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 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."

SUBSECTIONS 550.803(D) AND (E) OF PART 550 OF TITLE 5 OF THE CODE OF FEDERAL REGULATIONS PROVIDE AS FOLLOWS:

"(D) TO BE UNJUSTIFIED OR UNWARRANTED, A PERSONNEL ACTION MUST BE DETERMINED TO BE IMPROPER OR ERRONEOUS ON THE BASIS OF EITHER SUBSTANTIVE OR PROCEDURAL DEFECTS AFTER CONSIDERATION OF THE EQUITABLE, LEGAL, AND PROCEDURAL ELEMENTS INVOLVED IN THE PERSONNEL ACTION.

"(E) A PERSONNEL ACTION REFERRED TO IN SECTION 5596 OF TITLE 5, U.S. CODE, 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."

IN VIEW OF THE RESPONSIBILITY OF AN AGENCY TO MAINTAIN RETIREMENT RECORDS AND TO COUNSEL EMPLOYEES IN REGARD TO THEIR RETIREMENT RIGHTS, WE HAVE HELD, NOTWITHSTANDING THE RETIREMENT WAS VOLUNTARY, THAT WHERE AN EMPLOYEE'S RETIREMENT IS INDUCED BY AN ADMINISTRATIVE ERROR AND HE IS SUBSEQUENTLY RESTORED IN A LEAVE-WITHOUT-PAY STATUS TO THE EMPLOYMENT ROLLS OF THE AGENCY, THAT HE IS ENTITLED TO BACK PAY. SEE B 174199, DECEMBER 14, 1971, COPY ENCLOSED. ENTITLEMENT TO BACK PAY, HOWEVER, EXTENDS ONLY FROM THE DATE OF THE ERRONEOUS SEPARATION UNTIL THE DATE AT WHICH THE EMPLOYEE IS RESTORED RETROACTIVELY TO THE ROLLS. SEE B-166062, FEBRUARY 24, 1969, COPY ENCLOSED. IN THIS CASE SINCE THE NOTICE FROM THE CIVIL SERVICE COMMISSION WAS NOT RECEIVED UNTIL AFTER JANUARY 7, 1972, WE ASSUME THAT MRS. SPRATLIN WAS NOT RESTORED TO THE ROLLS AND NOTIFIED TO RETURN TO DUTY PRIOR TO HER RESIGNATION ON JANUARY 25, 1972, AS SUGGESTED BY YOUR AGENCY.

THE DENIAL OF ENTITLEMENT TO BACK PAY IN B-166180, APRIL 21, 1969, CITED IN YOUR LETTER, WAS PREDICATED UPON THE FACT THAT, UNLIKE IN MRS. SPRATLIN'S CASE, THE EMPLOYEE THERE INVOLVED INSTITUTED THE ACTION FOR VOLUNTARY RETIREMENT WITH NOTICE OF THE FACT THAT A CERTAIN PERIOD OF TIME USED IN COMPUTING HER YEARS OF SERVICE WAS NOT VIEWED BY THE CIVIL SERVICE COMMISSION AS CREDITABLE FOR RETIREMENT PURPOSES.

UNDER THE PARTICULAR CIRCUMSTANCES WHICH YOU HAVE RELATED, WE WOULD CONSIDER IT PROPER TO REGARD MRS. SPRATLIN AS ENTITLED TO BACK PAY IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 5596 FOR THE PERIOD FROM JUNE 19, 1971, UNTIL THE DATE OF HER RESIGNATION ON JANUARY 25, 1972.