B-181310, SEP 16, 1974

B-181310: Sep 16, 1974

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ARMY CIVILIAN EMPLOYEE WHO WAS RECEIVING RETIRED PAY BECAUSE OF PERMANENT DISABILITY INCURRED DURING MILITARY SERVICE IS NOT ELIGIBLE TO RECEIVE SEVERANCE PAY UNDER 5 U.S.C. FACT THAT THE EMPLOYEE HAD LESS THAN 3 YEARS MILITARY SERVICE IS IMMATERIAL SINCE IT IS THE ELIGIBILITY FOR OR THE RECEIPT OF RETIRED PAY. SEVERANCE PAY - ELIGIBILITY: THIS MATTER IS BEFORE US BASED UPON A REQUEST FOR AN ADVANCE DECISION SUBMITTED BY THE CIVILIAN PERSONNEL OFFICER. REGARDING THE ELIGIBILITY FOR SEVERANCE PAY OF A CIVILIAN EMPLOYEE WHO HAD LESS THAN 3 YEARS PRIOR MILITARY SERVICE AND WHO IS NOW RECEIVING RETIRED PAY BASED UPON A PERMANENT DISABILITY INCURRED WHILE IN THE MILITARY SERVICE. SEVERANCE PAY IS PAYABLE UNDER 5 U.S.C.

B-181310, SEP 16, 1974

ARMY CIVILIAN EMPLOYEE WHO WAS RECEIVING RETIRED PAY BECAUSE OF PERMANENT DISABILITY INCURRED DURING MILITARY SERVICE IS NOT ELIGIBLE TO RECEIVE SEVERANCE PAY UNDER 5 U.S.C. SEC. 5595 BECAUSE OF SPECIFIC STATUTORY EXCLUSION OF PEOPLE ENTITLED TO RECEIVE AN IMMEDIATE ANNUITY. FACT THAT THE EMPLOYEE HAD LESS THAN 3 YEARS MILITARY SERVICE IS IMMATERIAL SINCE IT IS THE ELIGIBILITY FOR OR THE RECEIPT OF RETIRED PAY, RATHER THAN LENGTH OF SERVICE, THAT CREATES THE EXCLUSION.

SEVERANCE PAY - ELIGIBILITY:

THIS MATTER IS BEFORE US BASED UPON A REQUEST FOR AN ADVANCE DECISION SUBMITTED BY THE CIVILIAN PERSONNEL OFFICER, DEPARTMENT OF THE ARMY, HEADQUARTERS FORT MACARTHUR, SAN PEDRO, CALIFORNIA, REGARDING THE ELIGIBILITY FOR SEVERANCE PAY OF A CIVILIAN EMPLOYEE WHO HAD LESS THAN 3 YEARS PRIOR MILITARY SERVICE AND WHO IS NOW RECEIVING RETIRED PAY BASED UPON A PERMANENT DISABILITY INCURRED WHILE IN THE MILITARY SERVICE.

SEVERANCE PAY IS PAYABLE UNDER 5 U.S.C. SEC. 5595, BUT SUBPARAGRAPH (A)(2)(IV) SPECIFICALLY EXCLUDES FROM THE DEFINITION OF EMPLOYEES ELIGIBLE TO RECEIVE SUCH PAY:

"AN EMPLOYEE WHO IS SUBJECT TO SUBCHAPTER III OF CHAPTER 83 OF THIS TITLE OR ANY OTHER STATUTE OR RETIREMENT SYSTEM APPLICABLE TO AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE OR A MEMBER OF A UNIFORMED SERVICE AND WHO, AT THE TIME OF SEPARATION FROM THE SERVICE, HAS FULFILLED THE REQUIREMENTS FOR IMMEDIATE ANNUITY UNDER SUCH A STATUTE OR SYSTEM;"

THE FEDERAL PERSONNEL MANUAL, SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER 7, SECTION S7-3BC)(V), PROVIDES, IN PERTINENT PART, THAT:

"*** THE LAW EXCLUDES FROM ENTITLEMENT TO SEVERANCE PAY AN EMPLOYEE WHO, AT THE TIME OF SEPARATION, HAS FULFILLED THE REQUIREMENTS FOR AN IMMEDIATE ANNUITY. THE STATUTORY EXCLUSION IS APPLICABLE TO ANY EMPLOYEE WHO AT THE TIME OF SEPARATION IS RECEIVING OR IS ELIGIBLE TO RECEIVE (HE NEED NOT ACTUALLY APPLY) RETIREMENT BENEFITS UNDER ANY FEDERAL MILITARY (INCLUDING A RESERVE COMPONENT) OR CIVILIAN RETIREMENT PROGRAM. ***"

IN 50 COMP. GEN. 46 (1970) WE HELD THAT EMPLOYEES WHO WERE RECEIVING RETIREMENT BENEFITS BECUASE OF MILITARY DISABILITY RETIREMENT WERE NOT ELIGIBLE TO RECEIVE SEVERANCE PAY. THE FACT THAT THE EMPLOYEE INVOLVED HERE SERVED IN THE MILITARY FOR LESS THAN 3 YEARS IS IMMATERIAL SINCE IT IS THE ELIGIBILITY FOR OR THE RECEIPT OF RETIREMENT BENEFITS, NOT LENGTH OF SERVICE, THAT CREATES THE EXCLUSION. ACCORDINGLY, THE EMPLOYEE IN QUESTION HERE IS NOT ELIGIBLE TO RECEIVE SEVERANCE PAY.