B-204890 L/M, DEC 22, 1981

B-204890 L/M, DEC 22, 1981

DIGEST: 1. WHAT CONSTITUTES CREDITABLE SERVICE FOR PURPOSES OF CIVIL SERVICE RETIREMENT ACT IS PRIMARILY FOR THE OFFICE OF PERSONNEL MANAGEMENT'S DETERMINATION. THE GENERAL ACCOUNTING OFFICE IS WITHOUT AUTHORITY TO REVIEW OR MODIFY THEIR DETERMINATION WITH RESPECT TO SUCH MATTERS. 2. RETIRED NAVY MEMBER EMPLOYED IN FEDERAL CIVILIAN POSITION WHO WILL HAVE ACCUMULATED ABOUT 16 YEARS', 4 MONTHS' CIVILIAN SERVICE AS OF HIS 60TH BIRTHDAY CANNOT RETIRE AT THAT AGE UNLESS HE WAIVES HIS MILITARY RETIRED PAY IN ORDER THAT HIS MILITARY AND CIVILIAN SERVICE CAN BE COMBINED FOR CIVIL SERVICE RETIREMENT PURPOSES. 3. FACT THAT CIVILIAN EMPLOYEE'S MILITARY RETIRED PAY WAS REDUCED UNDER THE DUAL COMPENSATION ACT WHILE HE WAS EMPLOYED IN A CIVILIAN POSITION DID NOT ENTITLE EMPLOYEE TO HAVE HIS MILITARY RETIRED PAY ADDED TO HIS ANNUAL CIVILIAN PAY FOR PURPOSES OF COMPUTING HIS ANNUITY. HIS MILITARY RETIRED PAY IS COMPENSATION RECEIVED SEPARATE AND APART FROM HIS CIVILIAN POSITION AS FIXED BY LAW OR REGULATION AND THEREFORE MAY NOT BE CONSIDERED IN THE COMPUTATION.

BILL GOODLING, UNITED STATES HOUSE OF REPRESENTATIVES:

THIS LETTER IS IN ANSWER TO YOUR COMMUNICATION OF SEPTEMBER 14, 1981, WITH ENCLOSURES, CONCERNING MATTERS CONTAINED IN A LETTER DATED JULY 21, 1981, TO YOU FROM MR. HAROLD E. LAMB, 108 OCTOBER DRIVE, APARTMENT 4, CAMP HILL, PENNSYLVANIA 17011. MR. LAMB, A RETIRED REGULAR NAVY CHIEF WARRANT OFFICER, SUBSEQUENTLY EMPLOYED IN A FEDERAL GOVERNMENT CIVILIAN POSITION, QUESTIONS THE REQUIREMENTS INVOLVED IN COMBINING MILITARY AND CIVILIAN SERVICE IN THE COMPUTATION OF A CIVIL SERVICE RETIREMENT ANNUITY.

MR. LAMB SERVED OVER 20 YEARS IN THE MILITARY BEFORE RETIRING ON AUGUST 31, 1966. HE BEGAN CIVILIAN SERVICE ON JUNE 28, 1967. HE HAS BEEN RECEIVING MILITARY RETIRED PAY WHICH, DUE TO HIS GOVERNMENT CIVILIAN EMPLOYMENT, HAS BEEN REDUCED UNDER THE DUAL COMPENSATION ACT OF 1964, 5 U.S.C. SEC. 5532.

MR. LAMB DESIRES A DECISION FROM OUR OFFICE ON QUESTIONS CONCERNING HIS ELIGIBILITY FOR A CIVIL SERVICE RETIREMENT ANNUITY AT AGE 60. HIS QUESTIONS WERE INITIALLY SUBMITTED TO THE OFFICE OF PERSONNEL MANAGEMENT (OPM) WHICH PROVIDED A RESPONSE. HOWEVER, HE IS DISSATISFIED WITH THEIR RESPONSE AND NOW DESIRES A DECISION FROM OUR OFFICE ON AN EXPANDED VERSION OF THOSE SAME QUESTIONS WHICH HE HAS RELABELED "SUPPOSITION 1 AND 2."

WHAT CONSTITUTES CREDITABLE SERVICE FOR PURPOSES OF THE CIVIL SERVICE RETIREMENT ACT IS A MATTER WITHIN OPM'S JURISDICTION AND OUR OFFICE DOES NOT HAVE AUTHORITY TO REVIEW OR MODIFY THEIR DETERMINATIONS WITH RESPECT TO SUCH MATTERS. SEE 5 U.S.C. SEC. 8347; MATTER OF FILAMENO Q. ORTIZ, B-193337, JANUARY 4, 1979; AND 55 COMP.GEN. 684, 687-688 (1976). THEREFORE ARE NOT RENDERING A DECISION AS REQUESTED. HOWEVER, THE FOLLOWING MAY HELP TO CLARIFY THE MATTER FOR MR. LAMB. OUR COMMENTS, AS THEY RELATE TO MR. LAMB, ARE BASED ON THE INFORMATION HE HAS PROVIDED AS TO HIS AGE AND SERVICE.

IN "SUPPOSITION 1" MR. LAMB ESSENTIALLY QUESTIONS WHETHER HE MUST WAIVE HIS MILITARY RETIRED PAY IN ORDER TO QUALIFY FOR A CIVILIAN RETIREMENT ANNUITY AT AGE 60.

AS OPM INDICATED, THE ANSWER IS YES BECAUSE, WHILE MR. LAMB'S COMBINED CIVILIAN AND MILITARY SERVICE IS SUFFICIENT TO QUALIFY HIM FOR AN ANNUITY AT AGE 60, HIS SEPARATE CIVILIAN SERVICE IS NOT. UNDER 5 U.S.C. SEC. 8336(B) AN EMPLOYEE IS ELIGIBLE TO RETIRE ON AN ANNUITY AT AGE 60 IF HE HAS AT LEAST 20 YEARS OF FEDERAL SERVICE. THAT SERVICE NEED NOT BE PURELY CIVILIAN. AN EMPLOYEE WHO HAS LESS THAN 20 YEARS OF CIVILIAN SERVICE PLUS ADDITIONAL MILITARY SERVICE MIGHT QUALIFY IF HIS COMBINED MILITARY AND CIVILIAN SERVICE IS AT LEAST 20 YEARS. HOWEVER, IN DETERMINING ELIGIBILITY FOR A CIVILIAN ANNUITY, AN EMPLOYEE IS NOT GIVEN CREDIT FOR MILITARY SERVICE IF HE OR SHE RECEIVES MILITARY RETIRED PAY FOR THAT SERVICE. AN EXCEPTION TO THAT RULE AS CONTAINED IN 5 U.S.C. SEC. 8332(C) APPLIES WHEN THE INDIVIDUAL WAS RETIRED FOR A SERVICE-CONNECTED DISABILITY INCURRED IN COMBAT OR CAUSED BY INSTRUMENTALITY OF WAR. THE INDIVIDUAL MAY ALSO QUALIFY FOR CIVIL SERVICE RETIREMENT IN THESE CIRCUMSTANCES IF HE WAIVES MILITARY RETIRED PAY AS PROVIDED FOR IN OPM REGULATIONS. WAIVER IS REQUIRED BECAUSE, INSOFAR AS THE EMPLOYEE'S PERIOD OF MILITARY SERVICE HAS ALREADY BEEN CREDITED IN THE GRANTING OF MILITARY RETIRED PAY, ALLOWING IT TO AGAIN BE CREDITED FOR A CIVILIAN RETIREMENT ANNUITY WOULD RESULT IN A DOUBLE CREDIT FOR A SINGLE PERIOD OF SERVICE. BAILY V. UNITED STATES, 511 F.2D 540, 545-548 (CT.CL. 1975). SEE ALSO 52 COMP.GEN. 429, 430-31 (1973).

MR. LAMB BEGAN HIS CIVILIAN SERVICE ON JUNE 28, 1967. HIS 60TH BIRTHDAY WILL BE ON OCTOBER 28, 1983. BASED ON THIS INFORMATION OPM STATED THAT IT APPEARED MR. LAMB'S TOTAL CIVILIAN SERVICE AS OF HIS 60TH BIRTHDAY WOULD BE 16 YEARS AND 4 MONTHS IF HE WERE CONTINUOUSLY EMPLOYED WITH NO EXCESS LEAVE-WITHOUT-PAY PERIODS. SINCE THIS FALLS SHORT OF THE 20-YEAR REQUIREMENT, AND HIS MILITARY RETIRED PAY IS BASED ON HIS LENGTH OF SERVICE RATHER THAN THE EXCEPTIONS CITED IN 5 U.S.C. SEC. 5332(C), OPM CONCLUDED THAT HE COULD NOT QUALIFY FOR AN ANNUITY AT AGE 60 UNLESS HE WAIVED HIS MILITARY RETIRED PAY SO THAT HIS MILITARY SERVICE COULD BE COMBINED WITH HIS CIVILIAN SERVICE FOR CIVIL SERVICE RETIREMENT PURPOSES.

MR. LAMB CORRECTLY POINTS OUT THAT ONE MAY QUALIFY FOR A CIVILIAN RETIREMENT ANNUITY WITHOUT WAIVING MILITARY RETIRED PAY. WHILE THAT IS TRUE IF THE RETIREE HAS SUFFICIENT CIVILIAN SERVICE TO QUALIFY WITHOUT USE OF MILITARY SERVICE, THE ONLY WAY THAT MR. LAMB APPEARS TO BE ABLE TO QUALIFY WITHOUT WAIVING MILITARY RETIRED PAY IS TO WAIT UNTIL HE BECOMES 62. AT THAT TIME HIS CIVILIAN SERVICE WILL EXCEED THE 5 YEARS NEEDED TO QUALIFY AT THAT AGE. SEE 5 U.S.C. SEC. 8336(F).

AS TO MR. LAMB'S REFERENCE TO THE REDUCTION IN THE CIVIL SERVICE RETIREMENT ANNUITY OF AN ANNUITANT WHO COMBINED MILITARY SERVICE WITH CIVILIAN SERVICE, SUCH A REDUCTION IS REQUIRED BY LAW WHEN THE ANNUITANT REACHES AGE 62. AT THAT AGE THE ANNUITANT BECOMES ENTITLED TO SOCIAL SECURITY BENEFITS BASED ON MILITARY SERVICE PERFORMED AFTER DECEMBER 1956, AND SUCH SERVICE IS THEN EXCLUDED IN THE COMPUTATION OF THE CIVIL SERVICE ANNUITY. 5 U.S.C. SEC. 8332(J). ALTHOUGH SUCH A PERSON WHOSE ANNUITY IS REDUCED IS USUALLY THEN ENTITLED TO RECEIVE SOCIAL SECURITY BENEFITS, THOSE BENEFITS DO NOT ALWAYS EQUAL OR EXCEED THE AMOUNT OF THE REDUCTION IN THE ANNUITY.

IN "SUPPOSITION 2" MR. LAMB ASKS, IF HE WAIVES HIS MILITARY RETIRED PAY, MAY THE COMPUTATION OF HIS AVERAGE PAY, UPON WHICH HIS CIVIL SERVICE ANNUITY IS COMPUTED, INCLUDE HIS ANNUAL MILITARY RETIRED PAY. INDICATES THAT HE BELIEVES HIS MILITARY RETIRED PAY SHOULD BE INCLUDED IN THIS COMPUTATION BECAUSE WHILE HE WAS EMPLOYED IN THE CIVILIAN POSITION HIS MILITARY RETIRED PAY WAS REDUCED UNDER THE DUAL COMPENSATION ACT, 5 U.S.C. SEC. 5532.

AS OPM ADVISED, UNDER APPLICABLE LAWS AND REGULATIONS "AVERAGE PAY" AS USED TO COMPUTE THE CIVIL SERVICE RETIREMENT ANNUITY DOES NOT INCLUDE MILITARY PAY. THE METHOD OF COMPUTATION OF A CIVIL SERVICE ANNUITY IS CONTAINED IN 5 U.S.C. SEC. 8339(A), WHICH CALLS FOR CERTAIN COMPUTATIONS BASED UPON THE EMPLOYEE'S "AVERAGE PAY." THE TERM "AVERAGE PAY" AS USED IN SECTION 8339 IS DEFINED IN 5 U.S.C. SEC. 8331(4) AS FOLLOWS:

"(4) 'AVERAGE PAY' MEANS THE LARGEST ANNUAL RATE RESULTING FROM AVERAGING AN EMPLOYEE'S *** RATES OF BASIC PAY IN EFFECT OVER ANY 3 CONSECUTIVE YEARS OF CREDITABLE SERVICE *** WITH EACH RATE WEIGHTED BY THE TIME IT WAS IN EFFECT ***."

IN THIS REGARD, THE TERM "BASIC PAY" IS DEFINED IN 5 U.S.C. SEC. 8331(3) FOR THE PURPOSE OF COMPUTING RETIREMENT AS EXCLUDING, AMONG OTHERS, "MILITARY PAY" AND "PAY IN ADDITION TO THE BASE PAY OF THE POSITION AS FIXED BY THE LAW OR REGULATION."

AS TO MR. LAMB'S CONTENTION THAT HIS MILITARY RETIRED PAY SHOULD BE INCLUDED AS BASIC PAY BECAUSE HIS MILITARY RETIRED PAY WAS REDUCED BY THE DUAL COMPENSATION ACT OF 1964 WHILE HE WAS EMPLOYED IN THE CIVILIAN POSITION, NEITHER THE DUAL COMPENSATION ACT NOR ANY OTHER STATUTE OF WHICH WE ARE AWARE AUTHORIZES SUCH COMPUTATION.

WE TRUST THIS INFORMATION WILL SERVE THE PURPOSE OF YOUR INQUIRY.

WE ARE RETURNING THE ENCLOSURES WITH YOUR COMMUNICATION AND ARE ALSO ENCLOSING COPIES OF DECISIONS CITED IN THIS LETTER.