B-19311, AUGUST 15, 1941, 21 COMP. GEN. 135

B-19311: Aug 15, 1941

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

- THE EFFECTIVE DATE OF HIS DISABILITY ANNUITY ON RETIREMENT IS THEREBY FIXED UNDER THE ACT OF APRIL 23. 1941: I HAVE YOUR LETTER OF JULY 25. CREDIT FOR SERVICE MAY BE GIVEN FOR THE PERIOD BETWEEN THE TERMINATION OF PAY STATUS AND THE BEGINNING DATE OF ANNUITY IF THE EMPLOYEE IS CARRIED ON THE ROLLS OF THE DEPARTMENT DURING SUCH TIME. CARE IS GENERALLY TAKEN TO TERMINATE AN EMPLOYEE'S PAY STATUS AT OR NEAR THE END OF A MONTH. THE COMMISSION HAS BY CIRCULAR LETTER INSTRUCTED THE DEPARTMENTS AND ESTABLISHMENTS TO USE DISCRETION IN GRANTING LEAVE WITH PAY TO AN APPLICANT FOR DISABILITY ANNUITY IN ORDER THAT A MONTH'S ANNUITY MAY NOT BE LOST BECAUSE SALARY IS PAID FOR A FEW DAYS' LEAVE AT THE BEGINNING OF THE MONTH.

B-19311, AUGUST 15, 1941, 21 COMP. GEN. 135

RETIREMENT - CIVILIAN - DISABILITY ANNUITIES - EFFECTIVE DATE RETROACTIVITY ONCE THE ACTIVE DUTY OR PAY STATUS OF AN EMPLOYEE TERMINATES AT SOME POINT DURING A MONTH--- WHETHER BY WORKING OR BY A GRANT OF LEAVE OF ABSENCE WITH PAY TO THAT DATE--- THE EFFECTIVE DATE OF HIS DISABILITY ANNUITY ON RETIREMENT IS THEREBY FIXED UNDER THE ACT OF APRIL 23, 1930, AS THE FIRST DAY OF THE FOLLOWING MONTH, AND SUCH DATE MAY NOT BE ADVANCED TO THE FIRST DAY OF THE PRECEDING MONTH BY CHANGING THE EMPLOYEE'S SERVICE RECORD CONTRARY TO THE ACTUAL FACTS--- WHETHER BY CANCELING THE LEAVE ALREADY GRANTED AND PAID FOR OR BY CANCELING THE CHECK ISSUED IN PAYMENT FOR THE SERVICES ACTUALLY RENDERED.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, AUGUST 15, 1941:

I HAVE YOUR LETTER OF JULY 25, 1941, REFERENCE CSA-110860, AS FOLLOWS:

IN ITS ADMINISTRATION OF THE CIVIL SERVICE RETIREMENT LAW, THE COMMISSION HAS ADOPTED THE FOLLOWING REGULATION REGARDING THE EFFECTIVE DATE OF ANNUITY IN DISABILITY CASES:

WHEN AN EMPLOYEE RETIRES ON ACCOUNT OF DISABILITY, THE ANNUITY SHALL COMMENCE ON THE FIRST DAY OF THE MONTH SUCCEEDING THE TERMINATION OF PAY STATUS, OR ON THE FIRST DAY OF ANY SUBSEQUENT MONTH, AS THE CASE MAY WARRANT. IN SUCH CASES, CREDIT FOR SERVICE MAY BE GIVEN FOR THE PERIOD BETWEEN THE TERMINATION OF PAY STATUS AND THE BEGINNING DATE OF ANNUITY IF THE EMPLOYEE IS CARRIED ON THE ROLLS OF THE DEPARTMENT DURING SUCH TIME.

BY REASON OF THE FACT THAT UNDER THE LAW AND REGULATIONS ANNUITY MAY BEGIN ONLY ON THE FIRST DAY OF A MONTH, CARE IS GENERALLY TAKEN TO TERMINATE AN EMPLOYEE'S PAY STATUS AT OR NEAR THE END OF A MONTH. THE COMMISSION HAS BY CIRCULAR LETTER INSTRUCTED THE DEPARTMENTS AND ESTABLISHMENTS TO USE DISCRETION IN GRANTING LEAVE WITH PAY TO AN APPLICANT FOR DISABILITY ANNUITY IN ORDER THAT A MONTH'S ANNUITY MAY NOT BE LOST BECAUSE SALARY IS PAID FOR A FEW DAYS' LEAVE AT THE BEGINNING OF THE MONTH.

A CASE HAS RECENTLY ARISEN WHERE THE EMPLOYEE WAS ALLOWED DISABILITY ANNUITY BEGINNING SEPTEMBER 1, 1940, BASED ON THE FACT THAT HE WAS PAID FOR LEAVE UP TO AND INCLUDING AUGUST 5. HOWEVER, HE REFUNDED TO THE EMPLOYING DEPARTMENT THE SALARY RECEIVED FOR THE 5 DAYS INVOLVED, AND THE DEPARTMENT REQUESTED THAT HIS CERTIFICATE BE REISSUED TO ALLOW ANNUITY EFFECTIVE AUGUST 1, 1940, TOTAL DISABILITY FOR USEFUL AND EFFICIENT SERVICE HAVING BEEN ESTABLISHED AS OF THAT TIME. SIMILAR FACTS ARE PRESENT IN ANOTHER CASE IN WHICH ANNUITY CERTIFICATE HAS NOT YET BEEN ISSUED, WHERE THE EMPLOYEE'S LEAVE PAY CEASED ON MARCH 3, 1941, BUT THE EMPLOYING DEPARTMENT HAS ACCEPTED A REFUND COVERING THE PAY INVOLVED.

THE COMMISSION REGARDS THIS AS AN ADMINISTRATIVE MATTER WITHIN THE DEPARTMENT, AND IS NOT INCLINED TO QUESTION THE ADMINISTRATIVE ACTION TAKEN. IT WOULD APPEAR TO CONSTITUTE A CORRECTION TO CONFORM TO INSTRUCTIONS PREVIOUSLY ISSUED BY THE COMMISSION RATHER THAN A CHANGE OF RECORD. IF THE COMMISSION'S VIEW IS CORRECT, ANNUITY MAY BE ALLOWED IN THESE CASES FROM AUGUST 1, 1940, AND MARCH 1, 1941, RESPECTIVELY.

A SOMEWHAT DIFFERENT SITUATION IS, HOWEVER, PRESENT IN A THIRD CASE INVOLVING AN INDIVIDUAL WHOSE CONDITION ENTITLES HER TO DISABILITY RETIREMENT BENEFITS. AFTER HAVING BEEN ON LEAVE-WITHOUT-PAY SINCE DECEMBER 12, 1939, SHE RETURNED TO DUTY DURING THE PERIOD, NOVEMBER 23, 1940, TO DECEMBER 2, 1940, AND CHECK REPRESENTING 96 1/2 PERCENT OF SALARY EARNED WAS ISSUED IN HER FAVOR, THE REMAINING 3 1/2 PERCENT BEING DEPOSITED IN THE RETIREMENT FUND. THE SALARY CHECK REFERRED TO WAS CANCELLED BECAUSE OF THE PAYEE'S INCOMPETENCY, AND THE CONSERVATOR DESIRES THE RETIREMENT DEPOSIT CANCELLED IN ORDER THAT ANNUITY MAY BE PAID FROM JANUARY 1, 1940. NO ANNUITY CERTIFICATE HAS YET BEEN ISSUED IN THIS CASE.

IN DETERMINING THE QUESTION AT ISSUE, REFERENCE MAY BE HAD TO DECISION OF COMPTROLLER GENERAL MCCARL DATED JANUARY 31, 1935 (14 COMP. GEN. 585) INVOLVING, HOWEVER, THE CASE OF A DECEASED ANNUITANT, IN WHICH IT WAS STATED (SYLLABUS):

"PAYMENT OF RETIREMENT ANNUITY UNDER THE CIVIL RETIREMENT ACT MAY NOT BEGIN UNTIL TERMINATION OF ACTIVE DUTY OR PAY STATUS, AND AS LEAVE OF ABSENCE WITH PAY IS SYNONYMOUS WITH ACTIVE SERVICE, DISABILITY RETIREMENT MAY NOT BE MADE RETROACTIVELY EFFECTIVE FROM THE BEGINNING OF THE DISABILITY IF PRIOR TO A MONTH IN WHICH LEAVE OF ABSENCE WITH PAY WAS GRANTED.

"NO RIGHT SURVIVES TO THE ESTATE OR PERSONAL REPRESENTATIVE OF AN ANNUITANT UNDER THE CIVIL RETIREMENT ACT TO QUESTION THE EFFECTIVE DATE OF THE RETIREMENT OF THE DECEDENT.'

YOUR DECISION ON THE MATTER PRESENTED IS RESPECTFULLY REQUESTED.

SECTIONS 5 AND 6 OF THE CIVIL RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 472, PROVIDE, IN PERTINENT PART, AS FOLLOWS:

IN COMPUTING LENGTH OF SERVICE FOR THE PURPOSES OF THIS ACT ALL PERIODS OF SEPARATION FROM THE SERVICE, AND SO MUCH OF ANY LEAVES OF ABSENCE AS MAY EXCEED SIX MONTHS IN THE AGGREGATE IN ANY CALENDAR YEAR, SHALL BE EXCLUDED, EXCEPT SUCH LEAVES OF ABSENCE GRANTED EMPLOYEES WHILE RECEIVING BENEFITS UNDER THE UNITED STATES EMPLOYEES' COMPENSATION ACT, AND IN THE CASE OF SUBSTITUTES IN THE POSTAL SERVICE CREDIT SHALL BE GIVEN FROM DATE OF ORIGINAL APPOINTMENT AS A SUBSTITUTE.

SEC. 6. ANY EMPLOYEE TO WHOM THIS ACT APPLIES WHO SHALL HAVE SERVED FOR A TOTAL PERIOD OF NOT LESS THAN FIVE YEARS, AND WHO, BEFORE BECOMING ELIGIBLE FOR RETIREMENT UNDER THE CONDITIONS DEFINED IN THE PRECEDING SECTIONS HEREOF, BECOMES TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE IN THE GRADE OR CLASS OF POSITION OCCUPIED BY THE EMPLOYEE, BY REASON OF DISEASE OR INJURY NOT DUE TO VICIOUS HABITS, INTEMPERANCE, OR WILLFUL MISCONDUCT ON THE PART OF THE EMPLOYEE, SHALL UPON HIS OWN APPLICATION OR UPON THE REQUEST OR ORDER OF THE HEAD OF THE DEPARTMENT, BRANCH, OR INDEPENDENT OFFICE CONCERNED, BE RETIRED ON AN ANNUITY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 HEREOF: * * *

THE UNIFORM RETIREMENT DATE ACT, APPROVED APRIL 23, 1930, 46 STAT. 253, PROVIDES AS FOLLOWS:

THAT HEREAFTER RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE ST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID ST DAY OF THE MONTH FOR RETIREMENTS HEREAFTER MADE SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS MAY NOW BE AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS ACT HAD NOT BEEN ENACTED.

SEC. 2. THIS ACT SHALL BECOME EFFECTIVE JULY 1, 1930. ALL LAWS OR PARTS OF LAWS, INSOFAR AS IN CONFLICT HEREWITH, ARE REPEALED.

FOR DECISIONS APPLYING THE PROVISIONS OF THE LAST QUOTED ACT, SEE 10 COMP. GEN. 28; ID. 36; 11 ID. 1; 12 ID. 54; 15 ID. 702.

IN THE TEXT OF THE DECISION DATED JANUARY 31, 1935, 14 COMP. GEN. 585, THE SYLLABUS OF WHICH IS QUOTED IN YOUR LETTER, IT WAS STATED:

LEAVE OF ABSENCE WITH PAY IS SYNONYMOUS WITH ACTIVE SERVICE. 13 COMP. GEN. 296; ID. 371; 14 ID. 351. HENCE, THE PAYMENT OF COMPENSATION TO THIS FORMER EMPLOYEE DURING THE MONTH OF JUNE 1924, PLACED HIM IN EXACTLY THE SAME STATUS, INSOFAR AS RETIREMENT ANNUITY IS CONCERNED, AS THOUGH HE WERE ON ACTIVE DUTY DURING THAT MONTH. RETIREMENT ANNUITY MAY NOT BE PAID UNTIL TERMINATION OF ACTIVE DUTY AND PAY STATUS, AS IT IS FUNDAMENTAL THAT BOTH RETIREMENT ANNUITY AND ACTIVE SERVICE COMPENSATION MAY NOT BE PAID FOR THE SAME PERIOD OF TIME. * * *

IN THE LIGHT OF THE DECISION ABOVE QUOTED AND OF SECTIONS 5 AND 6 OF THE RETIREMENT ACT, SUPRA, THE REGULATION QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER APPEARS PROPER.

IF AN EMPLOYEE APPLIES FOR AND IS ADMINISTRATIVELY GRANTED ALL OR ANY PORTION OF THE ANNUAL AND/OR SICK LEAVE TO HIS CREDIT PRIOR TO RETIREMENT FOR DISABILITY, THE TERMINATION DATE OF HIS ACTIVE DUTY OR PAY STATUS THEREBY BECOMES FIXED; AND UNLESS AN ERROR WAS MADE IN THE AMOUNT OF THE LEAVE DUE THE EMPLOYEE, THERE IS NO AUTHORITY IN THE ADMINISTRATIVE OFFICE OR IN THE CIVIL SERVICE COMMISSION TO CHANGE THE RECORD RETROACTIVELY EFFECTIVE SO AS TO ADVANCE THE BEGINNING DATE OF THE RETIREMENT ANNUITY. THUS, IF THE ACTIVE DUTY OR PAY STATUS OF AN EMPLOYEE TERMINATES AT ANY TIME DURING A MONTH, WHETHER HE WAS ACTUALLY WORKING OR ON LEAVE OF ABSENCE WITH PAY ADMINISTRATIVELY APPROVED, IMMEDIATELY PRECEDING THE TERMINATION OF HIS SERVICE, THE EFFECTIVE DATE OF HIS ANNUITY IS FIXED BY THE ACT OF APRIL 23, 1930, SUPRA, AS THE FIRST DAY OF THE FOLLOWING MONTH; AND SUCH DATE MAY NOT BE ADVANCED TO THE FIRST DAY OF THE PRECEDING MONTH SIMPLY BY CHANGING THE RECORD OF SERVICE OF THE EMPLOYEE CONTRARY TO THE ACTUAL FACTS--- SUCH AS BY CANCELING LEAVE ALREADY GRANTED AND PAID FOR OR BY CANCELING A CHECK ISSUED IN PAYMENT FOR SERVICES ACTUALLY RENDERED--- SO AS TO SHOW THE EFFECTIVE DATE OF THE TERMINATION OF ACTIVE DUTY OR PAY STATUS AS IN A PRECEDING MONTH. COMPARE 10 COMP. GEN. 11; 12 ID. 544; 16 ID. 953; 19 ID. 236; 13 ID. 58.

ACCORDINGLY, IN THE FIRST CASE REFERRED TO IN YOUR LETTER, THE EFFECTIVE DATE OF ANNUITY SHOULD NOT BE CHANGED FROM SEPTEMBER 1, 1940, TO AUGUST 1, 1940; IN THE SECOND CASE THE ANNUITY SHOULD BECOME EFFECTIVE APRIL 1, 1941; AND IN THE THIRD CASE, THE ANNUITY SHOULD BE MADE EFFECTIVE AS OF JANUARY 1, 1941, IF THE COMMISSION HAS FOUND AND DETERMINED THAT THE EMPLOYEE WAS THEN PERMANENTLY AND TOTALLY DISABLED.