B-181825, AUG 27, 1974

B-181825, AUG 27, 1974

ALTHOUGH EMPLOYEE RETIRED EFFECTIVE JUNE 30, 1973, FROM HIS POSITION AS A SHIP'S PURSER WITH THE MILITARY SEALIFT COMMAND AND HAD NOTIFIED HIS AGENCY OF HIS REQUEST FOR RETIREMENT ON JUNE 14, 1973, BUT IN FACT DUE TO THE AGENCY'S INABILITY TO PROVIDE RELIEF AT PUSAN, SOUTH KOREA, UNTIL JULY 25, 1973, SERVED UNDER A TEMPORARY APPOINTMENT EFFECTIVE JULY 1, 1973, IN HIS FORMER POSITION IS SUBJECT TO 5 U.S.C. 8344(A) WHICH REQUIRES A DEDUCTION FROM HIS PAY EQUAL TO THE ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT INCLUDING SHORE LEAVE GRANTED BEFORE TERMINATION OF THE TEMPORARY EMPLOYMENT ENDING AUGUST 14, 1973.

REEMPLOYED ANNUITANT - SALARY DEDUCTION:

THIS ACTION IS A REVIEW OF THE DISALLOWANCE BY OUR TRANSPORTATION AND CLAIMS DIVISION OF THE CLAIM OF MR. JOHN J. KEENAN, A REEMPLOYED ANNUITANT OF THE MILITARY SEALIFT COMMAND (MSC) FOR REFUND OF AN AMOUNT EQUAL TO HIS RETIREMENT ANNUITY DEDUCTED FROM HIS PAY FOR THE PERIOD FROM JULY 1, 1973 THROUGH AUGUST 14, 1973.

IN A LETTER DATED OCTOBER 16, 1973, TO THE GENERAL ACCOUNTING OFFICE MR. KEENAN IN PERTINENT PART STATES:

"*** I COMPLETED MY FEDERAL SERVICE AS OF 30 JUNE 1973. AT THE TIME OF MY RETIREMENT I WAS EMPLOYED AS A SHIP'S PURSER WITH THE MILITARY SEALIFT COMMAND, ATLANTIC. THE VESSEL I WAS ON WAS AT SEA PRIOR TO 30 JUNE 1973 AND DID NOT ARRIVE IN PUSAN, SOUTH KOREA UNTIL 2 JULY 1973, HENCE IT WAS NOT POSSIBLE FOR ME TO BE RELIEVED DURING THIS PERIOD. COMSCLANT WAS NOTIFIED BY ME VIA MSG ON 14 JUNE 1973 OF MY REQUEST FOR RETIREMENT UNDER H.R. 6077. ON 21 JUNE 1973 THEY INFORMED ME THAT I WOULD BE RETAINED AS A TEMPORARY APPOINTMENT EFFECTIVE 1 JULY 1973 UNTIL I COULD BE RELIEVED. UPON MY ARRIVAL IN PUSAN, COMSCO, PUSAN INFORMED ME THAT NO RELIEF HAD ARRIVED. I FORWARDED A MSG TO COMSCLANT ON 10 JULY 1973 REQUESTING INFORMATION AND PROGRESS BEING MADE ON MY REQUEST FOR RELIEF. ANOTHER MSG WAS RECEIVED FROM COMSCLANT ON 14 JULY 1973 INFORMING ME THAT A RELIEF WAS NOT FEASIBLE NOW BUT THAT I COULD RETURN TO CONUS AT MY OWN EXPENSE. REPLIED TO THEIR MSG, STATING THAT I WOULD REPAT TO CONUS AT MY OWN EXPENSE. THIS MSG SENT ON 16 JULY 1973. SO, AS NOT TO IN - CONVIENCE SHIP'S PERSONNEL I REMAINED ON BOARD AND COMPLETED THE PAYROLL FOR THE PERIOD COVERING 1 JULY THRU 15 JULY 1973. I WAS FINALLY RELIEVED ON 25 JULY 1973 IN PUSAN, SOUTH KOREA, FORTY-TWO (42) DAYS AFTER COMSCLANT RECEIVED NOTICE OF MY REQUEST FOR RETIREMENT. ***"

MR. KEENAN CLAIMED $821.43 REPRESENTING $466.70 DEDUCTED FROM HIS BASE PAY FOR THE PERIOD JULY 1-25, 1973, AND $354.73 DEDUCTED FROM HIS BASE PAY FOR THE PERIOD FROM JULY 26 TO AUGUST 14, 1973, REPRESENTING PAYMENT FOR 19 DAYS OF SHORE LEAVE ACCUMULATED FROM DECEMBER 28, 1972 THROUGH JULY 25, 1973.

MR. KEENAN URGES THAT SINCE HE WAS RETAINED ON DUTY IN WHAT HE CONSIDERS AN INVOLUNTARY STATUS AND THAT HIS AGENCY HAD AMPLE TIME TO PROVIDE HIM RELIEF OR SHOULD HAVE NOTIFIED HIM SOONER THAT HE COULD HAVE RETURNED TO THE UNITED STATES AT HIS OWN EXPENSE WITHOUT WAITING FOR RELIEF HE SHOULD NOT BE PENALIZED BY THE DEDUCTIONS INDICATED ABOVE. MR. KEENAN REQUESTS A WAIVER OF THE STATUTORY PROVISIONS - 5 U.S.C. 8344(A) - WHICH REQUIRED THE SUBJECT DEDUCTIONS.

THE RECORD BEFORE US SHOWS THAT MR. KEENAN'S VOLUNTARY RETIREMENT EFFECTIVE JUNE 30, 1973, RESULTED IN HIS ENTITLEMENT TO RETIREMENT ANNUITY EFFECTIVE JULY 1, 1973, AND COMPUTED BY THE CIVIL SERVICE COMMISSION TO BE $559 MONTH. HE RECEIVED A TEMPORARY APPOINTMENT AS A PURSER, HIS FORMER POSITION, AND SERVED AS INDICATED IN HIS STATEMENT QUOTED ABOVE UNTIL JULY 25, 1973, AND HIS AGENCY CARRIED HIM IN A PAY STATUS FROM JULY 26 TO AUGUST 14, 1973, IN ORDER TO AVOID FORFEITURE OF HIS SHORE LEAVE AS OF JUNE 30, 1973. IN THIS CONNECTION 5 U.S.C. 6305 WHICH PROVIDES THE AUTHORITY FOR THE SUBJECT SHORE LEAVE PRECLUDES ITS USE AS A BASIS FOR TERMINAL LEAVE OR LUMP-SUM PAYMENT THEREFORE THE AMOUNT OF SUCH LEAVE UNUSED BEFORE JUNE 30, 1973, WOULD HAVE BEEN FORFEITED UPON MR. KEENAN'S RETIREMENT HAD HE NOT BEEN REEMPLOYED AS AN ANNUITANT. SEE 5 CFR 630.604(F).

ADDITIONALLY HAD MR. KEENAN'S RETIREMENT NOT BEEN EFFECTED BY JULY 1, 1973, HE WOULD NOT HAVE BEEN ENTITLED TO HAVE HIS ANNUITY INCREASED BY THE COST OF LIVING INCREASE GRANTED TO ANNUITANTS ON THE RETIRED ROLLS AS OF THAT DATE. ALTHOUGH IN SUCH CASE HIS BASIC PAY AFTER JULY 31 WOULD NOT HAVE BEEN REDUCED BY THE AMOUNT OF HIS ANNUITY, THERE IS, HOWEVER, NO NET MONEY LOSS TO HIM SINCE HIS PAY WOULD HAVE ONLY EQUALED WHAT HE RECEIVED IN FACT FOR THE PERIOD IN QUESTION, I.E., HIS ANNUITY PLUS THE AMOUNT OF PAY IN EXCESS THEREOF. IN THE CIRCUMSTANCES THE ISSUE RAISED IS WITHOUT MERIT.

AS POINTED OUT IN THE SETTLEMENT CERTIFICATE DATED JUNE 11, 1974, WHICH DENIED MR. KEENAN'S CLAIM, ISSUED BY OUR TRANSPORTATION AND CLAIMS DIVISION, THE PROVISIONS OF 5 U.S.C. 8344(A) - WHICH REQUIRES A DEDUCTION FROM HIS PAY EQUAL TO THE ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT - ARE MANDATORY, THE AGENCY METHOD IN REDUCING HIS PAY FOR THE SUBJECT PERIOD WAS PROPER, AND THIS OFFICE IS WITHOUT AUTHORITY TO WAIVE APPLICATION OF SUCH STATUTORY PROVISIONS. THE DISALLOWANCE ACTION IS THEREFORE SUSTAINED.