B-8148, FEBRUARY 12, 1940, 19 COMP. GEN. 721

B-8148: Feb 12, 1940

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IS A VOLUNTARY SEPARATION FROM THE SERVICE WITHIN THE MEANING OF SECTION 11 OF THE UNIFORM SICK LEAVE REGULATIONS WHICH REQUIRES REFUNDS FOR OVERDRAWN SICK LEAVE IN CASES OF VOLUNTARY SEPARATION. THE AMOUNT PAID THE EMPLOYEE FOR ADVANCED SICK LEAVE WHICH WAS UNEARNED AT THE TIME OF HIS RETIREMENT SHOULD BE LIQUIDATED BY WITHHOLDING A SUFFICIENT AMOUNT FROM HIS RETIREMENT ANNUITY. 1940: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13. 1939 ( RET: DMB: MM CSA- 99004) AS FOLLOWS: THIS WILL ACKNOWLEDGE RECEIPT OF YOUR LETTER OF DECEMBER 6. IN RESPONSE IT IS DESIRED TO CALL ATTENTION TO THE FACT THAT MR. WATTS WAS NOT RETIRED FOR AGE OR DISABILITY BUT ON ACCOUNT OF COMPLETING 30 YEARS OF SERVICE AND ATTAINING THE OPTIONAL RETIREMENT AGE OF 60 YEARS.

B-8148, FEBRUARY 12, 1940, 19 COMP. GEN. 721

LEAVES OF ABSENCE - SICK - ACT, MARCH 14, 1936 - ADVANCES - ADJUSTMENT UPON OPTIONAL RETIREMENT RETIREMENT OF AN EMPLOYEE UPON HIS ATTAINING THE OPTIONAL RETIREMENT AGE OF 60 YEARS FIXED BY SECTION 1 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, FOR CERTAIN EMPLOYEES OF NAVY YARDS, IS A VOLUNTARY SEPARATION FROM THE SERVICE WITHIN THE MEANING OF SECTION 11 OF THE UNIFORM SICK LEAVE REGULATIONS WHICH REQUIRES REFUNDS FOR OVERDRAWN SICK LEAVE IN CASES OF VOLUNTARY SEPARATION, AS DISTINGUISHED FROM INVOLUNTARY SEPARATION SUCH AS RETIREMENT FOR AGE OR DISABILITY, AND THE AMOUNT PAID THE EMPLOYEE FOR ADVANCED SICK LEAVE WHICH WAS UNEARNED AT THE TIME OF HIS RETIREMENT SHOULD BE LIQUIDATED BY WITHHOLDING A SUFFICIENT AMOUNT FROM HIS RETIREMENT ANNUITY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, FEBRUARY 12, 1940:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13, 1939 ( RET: DMB: MM CSA- 99004) AS FOLLOWS:

THIS WILL ACKNOWLEDGE RECEIPT OF YOUR LETTER OF DECEMBER 6, 1939, RELATIVE TO THE OVERPAYMENT OF $44.64 MADE TO WILLIAM D. WATTS, TOOLMAKER, NAVY YARD, WASHINGTON, D.C., WHICH THE NAVY DEPARTMENT REQUESTED BE RECOVERED FROM THE ANNUITY DUE UNDER CLAIM NO. CSA-99004, AND IN RESPONSE IT IS DESIRED TO CALL ATTENTION TO THE FACT THAT MR. WATTS WAS NOT RETIRED FOR AGE OR DISABILITY BUT ON ACCOUNT OF COMPLETING 30 YEARS OF SERVICE AND ATTAINING THE OPTIONAL RETIREMENT AGE OF 60 YEARS, HE HAVING BEEN BORN ON JANUARY 19, 1879.

IT IS REQUESTED, THEREFORE, THAT THE COMMISSION BE ADVISED WHETHER THE LEAVE OF ABSENCE REGULATION TO WHICH REFERENCE IS MADE IN YOUR COMMUNICATION MAY BE CONSTRUED AS APPLYING TO EMPLOYEES SEPARATED FOR REASONS OTHER THAN TOTAL DISABILITY FOR USEFUL AND EFFICIENT SERVICE AND THE ATTAINING OF THE STATUTORY RETIREMENT AGE WHICH IN THIS CASE WOULD BE 62 YEARS.

LETTER DATED OCTOBER 23, 1939, FROM THE COMMANDANT, WASHINGTON NAVY YARD, TO THE UNITED STATES CIVIL SERVICE COMMISSION IS, IN PERTINENT PART, AS FOLLOWS:

REPLYING TO YOUR COMMUNICATION OF 18 OCTOBER 1939, FILE RET: FJG: LAK CSA -99004, REGARDING THE CLAIM FOR ANNUITY OF WILLIAM D. WATTS, YOU ARE ADVISED AS FOLLOWS:

DAYS SICK LEAVE ACCUMULATED TO 30 SEPTEMBER 1938 ---------------- -- 33 1/4 SICK LEAVE TAKEN, 12 OCTOBER 1938, TO 2 DECEMBER 1938,

INCLUSIVE --------------------------------------------- 52 SICK LEAVE TAKEN, IN EXCESS OF ACCUMULATION -------------------- 18 3/4 LIQUIDATED BY EARNINGS FROM 1 OCTOBER 1938 TO 31 AUGUST

1939 INCLUSIVE, 11 MONTHS ----------------------------- 13 3/4 UNLIQUIDATED ON DATE OF SEPARATION ----------------------------- 5

THE 5 DAYS UNLIQUIDATED SICK LEAVE COVERING THE PERIOD FROM 28 NOVEMBER TO 2 DECEMBER 1938 INCLUSIVE, AT $8.928 PER DAY, AMOUNTS TO $44.64. * *

SECTION 11 OF THE SICK LEAVE REGULATIONS, EXECUTIVE ORDER NO. 7846, DATED MARCH 21, 1938, PROVIDES AS FOLLOWS:

IN THE CASE OF VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE OF AN EMPLOYEE TO WHOM SICK LEAVE HAS BEEN ADVANCED IN AN AMOUNT IN EXCESS OF THAT ACCUMULATED, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTION THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM OR FROM ANY DEDUCTIONS IN THE RETIREMENT FUND TO HIS CREDIT. SUCH INDEBTEDNESS SHALL BE CHARGED AGAINST THE EMPLOYEE ON THE BASIS OF THE SALARY RATE OBTAINING DURING THE PERIOD OF ADVANCED SICK LEAVE, AND ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE, INCLUSIVE OF SUNDAYS AND HOLIDAYS. ABSENCES FOR FRACTIONAL PARTS OF A DAY WILL BE CHARGED PROPORTIONATELY. REFUND SHALL NOT BE REQUIRED IN CASES OF DEATH, RETIREMENT FOR AGE OR DISABILITY, REDUCTION OF FORCE, OR WHEN AN EMPLOYEE WHO IS NOT ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, WHICH SHALL BE EVIDENCED BY AN ACCEPTABLE CERTIFICATE FROM A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER.

UNDER THE QUOTED REGULATION REFUND FOR ADVANCED SICK LEAVE IS NOT REQUIRED IN CASE OF EMPLOYEES WHO ARE SEPARATED FROM THE SERVICE FOR REASONS BEYOND THEIR CONTROL, NAMELY (1) DEATH, (2) RETIREMENT FOR AGE OR DISABILITY, (3) REDUCTION OF FORCE, AND (4) WHEN AN EMPLOYEE WHO IS NOT ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY.

IN THE INSTANT CASE THE FACTS PRESENTED SHOW THAT THE SEPARATION WAS NOT FOR ANY OF THE FOUR REASONS SPECIFIED IN THE REGULATION. ON THE CONTRARY, THE SEPARATION WAS VOLUNTARY, I.E., FOR THE PURPOSE OF RETIREMENT UPON ATTAINING THE OPTIONAL RETIREMENT AGE OF 60 YEARS FIXED BY SECTION 1 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 468, 469, FOR CERTAIN EMPLOYEES OF THE NAVY YARDS. ACCORDINGLY, UPON THE BASIS OF THE PRESENT RECORD, MR. WILLIAM D. WATTS IS INDEBTED TO THE UNITED STATES IN THE SUM OF $44.64, REPRESENTING COMPENSATION ON ACCOUNT OF OVERDRAWN SICK LEAVE, AND FOLLOWING WELL-SETTLED RULES FOR SETTING OFF THERE SHOULD BE WITHHELD FROM THE ANNUITY OF THE APPLICANT A SUFFICIENT AMOUNT ($44.64) TO LIQUIDATE THE INDEBTEDNESS, AND THE PROPER DISBURSING AUTHORITY SHOULD BE INSTRUCTED TO DRAW A CHECK TO THE ORDER OF THE TREASURER OF THE UNITED STATES FOR SAID AMOUNT ($44.64), TO BE DEPOSITED TO THE CREDIT OF THE APPROPRIATION ,1790702--- ORDNANCE AND ORDNANCE STORES, NAVY, 1939.' COMPARE 16 COMP. GEN. 1017; ID. 1101.