B-74554, AUG. 8, 1958

B-74554: Aug 8, 1958

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YOU WERE OFFICIALLY NOTIFIED ON FEBRUARY 28. FOR AN EXEMPTION IN YOUR CASE FROM SUCH SEPARATION WAS DENIED BY OFFICE. DUE TO ILLNESS YOU WERE PLACED ON SICK LEAVE FROM APRIL 5 THROUGH APRIL 30. YOU WERE UNABLE TO ACCEPT EMPLOYMENT AS A REEMPLOYED ANNUITANT AT THAT TIME. BOTH REQUESTS WERE DENIED FOR THE REASON THAT NO AUTHORITY EXISTS FOR RETAINING YOU ON THE ROLLSAS AN EMPLOYEE AFTER APRIL 30. THAT SUCH AUTHORITY DOES NOT EXIST WAS AFFIRMED BY THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION IN REPLY TO YOUR LETTER DATED AUGUST 29. AN EMPLOYEE WHO SHALL HAVE ATTAINED THE AGE OF SEVENTY YEARS AND COMPLETED FIFTEEN YEARS OF SERVICE SHALL BE AUTOMATICALLY SEPARATED FROM THE SERVICE. WAS GRANTED.

B-74554, AUG. 8, 1958

TO MR. WILLIAM O. HANSEN, U.S. ARMY, CORPS OF ENGINEERS:

YOUR LETTER OF MAY 19, 1958, REQUESTS REVIEW OF OUR SETTLEMENT OF APRIL 21, 1958, WHICH DISALLOWED YOUR CLAIM FOR SALARY PAYMENTS FOR SICK LEAVE FROM MAY 1 THROUGH FIVE HOURS ON OCTOBER 23, 1957, IN THE AMOUNT OF $4,345.83.

THE RECORD DISCLOSES YOU REACHED YOUR 70TH BIRTHDAY ON APRIL 24, 1957, AFTER BEING IN FEDERAL SERVICE IN EXCESS OF 21 YEARS, AND YOU WERE OFFICIALLY NOTIFIED ON FEBRUARY 28, 1957, THAT YOU WOULD BE SEPARATED FOR RETIREMENT ON APRIL 30, 1957, DUE TO AGE. THE RECORD FURTHER DISCLOSES THAT THE REQUEST OF THE ALASKA DISTRICT ENGINEER, U.S. ARMY, CORPS OF ENGINEERS, DATED FEBRUARY 14, 1957, FOR AN EXEMPTION IN YOUR CASE FROM SUCH SEPARATION WAS DENIED BY OFFICE, SECRETARY OF THE ARMY, IN 2ND INDORSEMENT DATED MARCH 6, 1957, BUT SUGGESTED THAT YOU COULD BE EMPLOYED AS A REEMPLOYED ANNUITANT ON THE DAY FOLLOWING YOUR RETIREMENT. HOWEVER, DUE TO ILLNESS YOU WERE PLACED ON SICK LEAVE FROM APRIL 5 THROUGH APRIL 30, 1957, THE DATE YOUR RETIREMENT FOR AGE BECAME EFFECTIVE, AND YOU WERE UNABLE TO ACCEPT EMPLOYMENT AS A REEMPLOYED ANNUITANT AT THAT TIME.

AFTER YOU BECAME ILL, THE PERSONNEL OFFICER OF THE OFFICE OF THE ALASKA DISTRICT ENGINEER REQUESTED THE CIVIL SERVICE COMMISSION AND THE OFFICE OF THE DIVISION ENGINEER, PORTLAND, OREGON, TO CHANGE THE TYPE OF RETIREMENT IN YOUR CASE FROM RETIREMENT FOR AGE TO DISABILITY, FOR THE PURPOSE OF RETAINING YOU ON THE ROLLS IN A SICK LEAVE STATUS AFTER APRIL 30, 1957. BOTH REQUESTS WERE DENIED FOR THE REASON THAT NO AUTHORITY EXISTS FOR RETAINING YOU ON THE ROLLSAS AN EMPLOYEE AFTER APRIL 30, 1957, FOR THE PURPOSE OF GRANTING SICK LEAVE. THAT SUCH AUTHORITY DOES NOT EXIST WAS AFFIRMED BY THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION IN REPLY TO YOUR LETTER DATED AUGUST 29, 1957, TO PRESIDENT EISENHOWER.

SECTIONS 2255 (A), (B), AND (C) OF TITLE 5 OF THE UNITED STATES CODE PROVIDE AS FOLLOWS:

"/A) EXCEPT AS HEREINAFTER PROVIDED, AN EMPLOYEE WHO SHALL HAVE ATTAINED THE AGE OF SEVENTY YEARS AND COMPLETED FIFTEEN YEARS OF SERVICE SHALL BE AUTOMATICALLY SEPARATED FROM THE SERVICE. SUCH SEPARATION SHALL BE EFFECTIVE ON THE LAST DAY OF THE MONTH IN WHICH SUCH EMPLOYEE ATTAINS THE AGE OF SEVENTY YEARS OR COMPLETES FIFTEEN YEARS OF SERVICE IF THEN BEYOND SUCH AGE, AND ALL SALARY SHALL CEASE FROM THAT DAY.

"/B) EACH EMPLOYING OFFICE SHALL NOTIFY EACH EMPLOYEE UNDER ITS DIRECTION OF THE DATE OF SUCH SEPARATION FROM THE SERVICE AT LEAST SIXTY DAYS IN ADVANCE THEREOF; PROVIDED, THAT SUBSECTION (A) OF THIS SECTION SHALL NOT TAKE EFFECT WITHOUT THE CONSENT OF THE EMPLOYEE UNTIL SIXTY DAYS AFTER HE HAS BEEN SO NOTIFIED.

"/C) THE PRESIDENT MAY, BY EXECUTIVE ORDER, EXEMPT FROM AUTOMATIC SEPARATION UNDER THIS SECTION ANY EMPLOYEE WHEN, IN HIS JUDGMENT, THE PUBLIC INTEREST SO REQUIRES.'

YOU BECAME 70 YEARS OF AGE ON APRIL 24, 1957, HAD COMPLETED MORE THAN FIFTEEN YEARS OF SERVICE, RECEIVED NOTICE OF SEPARATION SIXTY DAYS IN ADVANCE THEREOF, AND NO EXCEPTION TO YOUR SEPARATION FOR RETIREMENT ON APRIL 30, 1957, WAS GRANTED.

THEREFORE, IN ACCORDANCE WITH THE FOREGOING STATUTORY PROVISIONS YOUR SEPARATION FOR RETIREMENT ON APRIL 30, 1957, WAS MANDATORY AND YOU COULD NOT BE RETAINED ON THE PAYROLL AFTER THAT DATE.

ACCORDINGLY, THE SETTLEMENT OF APRIL 21, 1958, IS SUSTAINED.

IN YOUR LETTER OF JUNE 24, 1958, YOU SAY THAT YOU WERE EMPLOYED AS A REEMPLOYED ANNUITANT BY THE ALASKA DISTRICT ENGINEER, U.S. ARMY, CORPS OF ENGINEERS, ON JUNE 9, 1958. HOWEVER, THAT FACT WOULD HAVE NO EFFECT ON THE FOREGOING DECISION BECAUSE YOU HAD A BREAK IN SERVICE OF MORE THAN 52 CALENDAR WEEKS, AND THE UNUSED SICK LEAVE, WHICH WAS FORFEITED AT THE TIME OF YOUR RETIREMENT MAY NOT BE RECREDITED. SEE SECTION 30.702, L-1-28, OF THE FEDERAL PERSONNEL MANUAL.