B-53567, DECEMBER 5, 1945, 25 COMP. GEN. 436

B-53567, DECEMBER 5, 1945, 25 COMP. GEN. 436

METROPOLITAN POLICE FORCE, FIRE DEPARTMENT, ETC. - REAPPOINTMENT AFTER MILITARY DUTY - RETIREMENT DEDUCTION REFUNDS MEMBERS OF THE METROPOLITAN POLICE FORCE, THE FIRE DEPARTMENT, THE UNITED STATES PARK POLICE, AND THE WHITE HOUSE POLICE FORCE RETURNING FROM MILITARY DUTY MAY NOT REFUND IN INSTALLMENTS AFTER REAPPOINTMENT THE AMOUNT OF RETIREMENT DEDUCTIONS WITHDRAWN FROM THE POLICEMEN AND FIREMEN'S RELIEF FUND, BUT, RATHER, UNDER SECTION 5 OF THE ACT OF JULY 1, 1930, THE FULL AMOUNT WITHDRAWN MUST BE REFUNDED AS A PREREQUISITE TO REAPPOINTMENT, SUCH BEING THE SPECIFIC REQUIREMENT OF THE ORDER OF AUGUST 3, 1937, ISSUED BY THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA IN FURTHERANCE OF SAID ACT, WHICH ORDER--- HAVING THE FORCE AND EFFECT OF LAW--- MAY NOT BE WAIVED IN PARTICULAR CASES.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, DECEMBER 5, 1945:

I HAVE YOUR LETTER OF OCTOBER 30, 1945, AS FOLLOWS:

THE AUDITOR, D.C. HAS RECEIVED FROM THE ASSISTANT SUPERINTENDENT, NATIONAL CAPITAL PARKS, THE FOLLOWING LETTER DATED OCTOBER 11, 1945:

"ATTENTION IS INVITED TO THE CASE OF MR. ANDREW J. BICKFORD, FORMERLY EMPLOYED AS PRIVATE, UNITED STATES PARK POLICE, WHO HAS RECENTLY BEEN DISCHARGED FROM THE U.S. COAST GUARD AND HAS MADE APPLICATION FOR RESTORATION TO HIS POSITION WITH THE NATIONAL CAPITAL PARKS.

" MR. BICKFORD WAS APPOINTED TO THE U.S. PARK POLICE FORCE EFFECTIVE APRIL 6, 1927 AND SERVED CONTINUOUSLY UNTIL THE CLOSE OF DECEMBER 8, 1942 AT WHICH TIME HE WAS FURLOUGHED FOR MILITARY SERVICE. EFFECTIVE APRIL 27, 1943, WHILE ON MILITARY FURLOUGH, MR. BICKFORD SUBMITTED HIS RESIGNATION FOR THE REASON THAT HE INTENDED TO REMAIN IN MILITARY SERVICE AND IN ORDER TO WITHDRAW RETIREMENT DEDUCTIONS. A STATEMENT WAS PREPARED AND SUBMITTED TO YOUR OFFICE INDICATING ACCUMULATED DEDUCTIONS IN THE AMOUNT OF $1,177.53 WHICH AMOUNT WAS REFUNDED TO MR. BICKFORD BY YOUR OFFICE.

"UPON RECEIPT OF MR. BICKFORD'S APPLICATION FOR REEMPLOYMENT HE WAS ADVISED OF AN ORDER ISSUED BY THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA UNDER DATE OF AUGUST 3, 1937, AS OLLOWS:

" "THAT NO REAPPOINTMENTS SHALL HEREAFTER BE MADE IN THE POLICE FORCES OR THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA OF PERSONS WHO HAVE PREVIOUSLY SEPARATED FROM THE SERVICE AND DRAWN OUT THEIR RETIREMENT DEDUCTIONS UNLESS AND UNTIL THE FULL AMOUNT OF SUCH DEDUCTIONS HAS BEEN RE -DEPOSITED WITH THE COLLECTOR OF TAXES OF THE DISTRICT OF COLUMBIA.'

"IN VIEW OF THE ABOVE QUOTED ORDER MR. BICKFORD WAS ADVISED THAT NO ACTION WOULD BE INITIATED TO RESTORE HIM TO DUTY UNTIL HE COMPLIED WITH THE REQUIREMENTS OF RE-DEPOSIT. MR. BICKFORD HAS BEEN ADVISED BY THE VETERANS SERVICE SECTION OF THE U.S. CIVIL SERVICE COMMISSION THAT SUCH RESTRICTION IS NOT APPLICABLE TO RETURNING VETERANS AND THAT HE SHOULD BE RESTORED AND ALLOWED TO REIMBURSE THE RETIREMENT FUND THEREAFTER THROUGH ANY ARRANGEMENT SATISFACTORY TO YOUR OFFICE.

"IN ORDER THAT HIS APPLICATION FOR RESTORATION TO DUTY MAY BE ACTED UPON WITHOUT UNDUE DELAY, IT WILL BE APPRECIATED IF YOU WILL ADVISE ME AS SOON AS PRACTICABLE WHETHER THE ORDER REFERRED TO ABOVE IS IN EFFECT WITH RESPECT TO VETERANS.'

SECTION 5 OF THE ACT OF JULY 1, 1930 (46 STAT. 840) PROVIDES IN PART AS FOLLOWS:

"THAT, COMMENCING WITH THE EFFECTIVE DATE OF THIS ACT, THERE SHALL BE DEDUCTED FOR THE BENEFIT OF THE POLICEMEN AND FIREMEN'S RELIEF FUND 3 1/2 PERCENTUM OF THE MONTHLY PAY OF EACH MEMBER OF THE METROPOLITAN POLICE FORCE, THE FIRE DEPARTMENT, THE UNITED STATES PARK POLICE, AND THE WHITE HOUSE POLICE FORCE. THAT, HEREAFTER, UPON THE SEPARATION FROM THE SERVICE OF ANY SUCH MEMBER, EXCEPT FOR RETIREMENT AS AUTHORIZED BY EXISTING LAW, HE SHALL BE REFUNDED THE DEDUCTIONS MADE FROM HIS SALARY FOR SAID FUND, AND SHOULD ANY SUCH MEMBER SUBSEQUENTLY BE REAPPOINTED TO ANY OF SUCH POLICE FORCES OR THE FIRE DEPARTMENT HE SHALL BE REQUIRED TO REDEPOSIT TO THE CREDIT OF THE POLICEMEN AND FIREMEN'S FUND THE AMOUNT OF DEDUCTIONS REFUNDED TO HIM.'

SECTION 8 (B) OF THE ACT OF SEPTEMBER 16, 1940 (54 STAT. 890) PROVIDES IN PART AS FOLLOWS:

"/B) IN THE CASE OF ANY SUCH PERSON WHO, IN ORDER TO PERFORM SUCH TRAINING AND SERVICE, HAS LEFT OR LEAVES A POSITION OTHER THAN A TEMPORARY POSITION, IN THE EMPLOY OF ANY EMPLOYER, AND WHO (1) RECEIVES SUCH CERTIFICATE, (2) IS STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION, AND (3) MAKES APPLICATION FOR REEMPLOYMENT WITHIN FORTY DAYS AFTER HE IS RELIEVED FROM SUCH TRAINING AND SERVICE- -

"/A) IF SUCH POSITION WAS IN THE EMPLOY OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA, SUCH PERSON SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY: "

THIS SECTION WAS AMENDED BY PUBLIC LAW 473--- 78TH CONGRESS, APPROVED DECEMBER 8, 1944, INCREASING THE TIME WITHIN WHICH EMPLOYEES MAY MAKE APPLICATION FOR REINSTATEMENT FROM FORTY DAYS TO NINETY DAYS.

MR. BICKFORD RECEIVED A REFUND OF THE RETIREMENT DEDUCTIONS IN THE AMOUNT OF $1,177.53, WHICH AMOUNT WAS REFUNDED TO MR. BICKFORD ON AUDIT NUMBER 98750 DATED AUGUST 26, 1943, J. R. LUSBY, DISBURSING OFFICER, SYMBOL 94- 014, PAID FROM APPROPRIATION 9941210--- POLICEMEN AND FIREMEN'S RELIEF FUND--- DC 1944.

THE COMMISSIONERS WISH TO BE ADVISED AS TO WHETHER MEMBERS OF THE METROPOLITAN POLICE FORCE, THE FIRE DEPARTMENT, THE U.S. PARK POLICE AND THE WHITE HOUSE POLICE WHO HAVE ENTERED THE MILITARY SERVICES AND WHO HAVE WITHDRAWN THEIR RETIREMENT DEDUCTIONS AND ARE NOW APPLYING FOR REINSTATEMENT ARE REQUIRED TO REPAY THE AMOUNT REFUNDED TO THEM AS A PREREQUISITE TO REAPPOINTMENT OR WHETHER THE AMOUNT REFUNDED MAY BE REPAID IN INSTALLMENTS AS REQUESTED BY MR. BICKFORD.

IN VIEW OF THE FACT THAT MR. BICKFORD VOLUNTARILY TENDERED HIS RESIGNATION SEVERAL MONTHS AFTER HE HAD ENTERED THE MILITARY SERVICE, THAT HIS RESIGNATION WAS ACCEPTED, AND THAT THERE WERE REFUNDED TO HIM THE REFERRED-TO RETIREMENT DEDUCTIONS, THERE WOULD APPEAR ROOM FOR DOUBT, AT LEAST, WHETHER HE NOW HAS ANY REEMPLOYMENT RIGHT UNDER THE PROVISIONS OF SECTION 8 (B) OF THE ACT OF SEPTEMBER 16, 1940, AS AMENDED, 58 STAT. 798, QUOTED IN YOUR LETTER. HOWEVER, IT IS NOT NECESSARY TO DECIDE THAT POINT HERE.

THE LANGUAGE OF SECTION 5 OF THE ACT OF JULY 1, 1930, 46 STAT. 840, QUOTED IN YOUR LETTER, TO THE EFFECT THAT SHOULD ANY MEMBER WHO, UPON SEPARATION, HAS WITHDRAWN THE AMOUNT OF RETIREMENT DEDUCTIONS TO HIS CREDIT IN THE RETIREMENT FUND SUBSEQUENTLY BE REAPPOINTED HE "SHALL BE REQUIRED TO REDEPOSIT TO THE CREDIT OF THE POLICEMEN AND FIREMEN'S FUND THE AMOUNT OF DEDUCTIONS REFUNDED TO HIM" SEEMS TO CONTEMPLATE A RETURN TO THE FUND OF THE FULL AMOUNT REFUNDED BEFORE A REAPPOINTMENT IS AUTHORIZED- -- AND SUCH IS THE SPECIFIC REQUIREMENT OF THE ORDER OF AUGUST 3, 1937, QUOTED IN YOUR LETTER, SUPRA. THAT ORDER APPEARS TO HAVE BEEN ISSUED IN FURTHERANCE OF THE APPLICABLE STATUTE AND, AS SUCH, HAS THE FORCE AND EFFECT OF LAW. SAID ORDER PROVIDES THAT NO REAPPOINTMENT SHALL BE MADE OF PERSONS WHO PREVIOUSLY HAVE SEPARATED FROM THE SERVICE AND DRAWN OUT THEIR RETIREMENT DEDUCTIONS "UNLESS AND UNTIL THE FULL AMOUNT OF SUCH DEDUCTIONS HAS BEEN REDEPOSITED.' IT IS WELL SETTLED THAT SUCH ORDERS MAY NOT BE WAIVED IN PARTICULAR CASES. 21 COMP. DEC. 482; 4 COMP. GEN. 363, 480; 18 ID. 907.

IN THE LIGHT OF THE FOREGOING, THE FIRST ALTERNATE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE AND THE SECOND IN THE NEGATIVE.