B-170098 L/M, DEC 4, 1981, OFFICE OF GENERAL COUNSEL

B-170098 L/M, DEC 4, 1981, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. ABRAHAM TABAKMAN:

WE REFER TO YOUR LETTER DATED AUGUST 5, 1981, CONCERNING THE RECOMPUTATION OF YOUR CIVIL SERVICE ANNUITY WHEN YOU BECOME 62 YEARS OLD.

YOU RETIRED FROM THE AIR FORCE IN 1964 AFTER COMPLETING 20 YEARS OF ACTIVE SERVICE AND BEGAN RECEIVING MILITARY RETIRED PAY. YOU SUBSEQUENTLY WORKED FOR THE DEPARTMENT OF THE NAVY IN A CIVILIAN POSITION FOR 10 YEARS, AND IN 1974 AT THE AGE OF 55 YOU RETIRED FROM THAT CIVILIAN EMPLOYMENT. IN 1974 YOU WAIVED THE MILITARY RETIRED PAY YOU WERE RECEIVING FROM THE AIR FORCE, AND COMBINED YOUR 30 YEARS OF MILITARY AND CIVILIAN GOVERNMENT SERVICE FOR CIVIL SERVICE RETIREMENT PURPOSES, IN ORDER TO QUALIFY FOR AN IMMEDIATE CIVIL SERVICE ANNUITY. YOU LATER LEARNED THAT WHEN YOU REACHED AGE 62 AND BECAME ELIGIBLE FOR SOCIAL SECURITY BENEFITS, BY STATUTE YOUR CIVIL SERVICE ANNUITY WOULD BE RECOMPUTED TO EXCLUDE CREDIT FOR THE MILITARY SERVICE YOU PERFORMED AFTER 1956. IN YOUR VIEW THIS IS UNFAIR, AND YOU EXPRESS DISSATISFACTION WITH THE STATUTE AND WITH DECISIONS OF THE COMPTROLLER GENERAL WHICH PRECLUDE YOU FROM REVOKING YOUR WAIVER OF MILITARY RETIRED PAY. YOU ASK THE COMPTROLLER GENERAL TO NOW SUPPORT YOUR VIEWS IN THE MATTER.

THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE IS SUCH THAT A DECISION OF THE COMPTROLLER GENERAL WILL NOT BE ISSUED ON THE BASIS OF YOUR LETTER. HOWEVER, THE FOLLOWING INFORMATION MAY BE OF USE TO YOU.

AS YOU MAY KNOW, 3 YEARS AGO WE WERE ASKED BY SENATOR DANIEL K. INOUYE TO REPORT ON A LETTER YOU HAD WRITTEN TO HIM ABOUT THIS SAME MATTER. A COPY OF THE COMPTROLLER GENERAL'S LETTER REPORT TO SENATOR INOUYE, B-170098 OF APRIL 20, 1979, IS ENCLOSED.

ESSENTIALLY, IN THE APRIL 20, 1979 REPORT IT WAS NOTED THAT WHEN YOU LEFT YOUR CIVILIAN EMPLOYMENT WITH THE DEPARTMENT OF THE NAVY IN 1974 AT AGE 55, YOU WERE NOT ELIGIBLE FOR AN IMMEDIATE CIVIL SERVICE ANNUITY BASED SOLELY ON YOUR 10 YEARS OF CIVILIAN SERVICE. RATHER, WITH THAT 10 YEARS' SERVICE YOU WERE ONLY ELIGIBLE FOR A DEFERRED CIVIL SERVICE ANNUITY COMMENCING AT AGE 62. HOWEVER, YOU QUALIFIED FOR AN IMMEDIATE CIVIL SERVICE ANNUITY AT AGE 55 IF YOU ELECTED TO WAIVE YOUR MILITARY RETIRED PAY AND COMBINED YOUR MILITARY AND CIVILIAN SERVICE, SO THAT YOU COULD COUNT THE PERFORMANCE OF 30 YEARS' TOTAL FEDERAL SERVICE TOWARDS A CIVIL SERVICE RETIREMENT. THIS YOU ELECTED TO DO.

THE REPORT ALSO NOTED THAT SOCIAL SECURITY COVERAGE HAD BEEN EXTENDED TO THE ARMED FORCES EFFECTIVE JANUARY 1, 1957, SO THAT YOU WOULD BECOME ELIGIBLE FOR SOCIAL SECURITY BENEFITS BASED ON YOUR MILITARY SERVICE PERFORMED AFTER 1956 WHEN YOU ATTAINED THE AGE OF 62. AT THAT POINT YOU WOULD HAVE A RETIREMENT BENEFIT NOT AVAILABLE TO A CIVIL SERVICE ANNUITANT WHO HAD PERFORMED 30 YEARS OF FEDERAL CIVILIAN SERVICE, SINCE CIVIL SERVICE EMPLOYMENT IS NOT COVERED BY SOCIAL SECURITY. HOWEVER, A LAW HAD BEEN ENACTED TO PREVENT AN INDIVIDUAL IN YOUR CIRCUMSTANCES FROM OBTAINING BOTH SOCIAL SECURITY AND CIVIL SERVICE RETIREMENT BENEFITS BASED ON THE SAME PERIOD OF FEDERAL SERVICE - SPECIFICALLY, SECTION 409 OF PUBLIC LAW 881, 84TH CONGRESS, AUGUST 1, 1956, 70 STAT. 877, AS AMENDED AND AS CODIFIED, 5 U.S.C. 8332(J). THAT PROVISION OF STATUTORY LAW REQUIRES YOUR CIVIL SERVICE ANNUITY TO BE RECOMPUTED WHEN YOU BECOME 62 YEARS OLD, DELETING CREDIT FOR THE PERIOD OF YOUR MILITARY SERVICE AFTER 1956 WHICH COULD SERVE AS A BASIS FOR THE PAYMENT OF SOCIAL SECURITY BENEFITS TO YOU. THUS, THAT LAW PROHIBITS THE USE OF THE SAME PERIOD OF FEDERAL SERVICE AS A BASIS FOR DUAL PAYMENTS OF BOTH SOCIAL SECURITY AND CIVIL SERVICE RETIREMENT BENEFITS.

IN THE REPORT TO SENATOR INOUYE IT WAS ALSO POINTED OUT THAT YOU COULD NOT PROPERLY REVOKE YOUR EARLIER WAIVER OF MILITARY RETIRED PAY WHEN YOU ATTAINED THE AGE OF 62. THE COMPTROLLER GENERAL HAD REPEATEDLY HELD THAT WHERE AN INDIVIDUAL WAIVES MILITARY RETIRED PAY FOR THE PURPOSE OF ESTABLISHING BASIC ELIGIBLITY FOR A CIVIL SERVICE ANNUITY PRIOR TO HIS ATTAINMENT OF THE OTHERWISE REQUISITE CIVILIAN YEARS OF SERVICE FOR HIS AGE, WAIVER OF HIS MILITARY RETIRED PAY MAY NOT BE WITHDRAWN. THE REASON FOR THAT IS THAT SINCE SUCH WITHDRAWAL OF THE WAIVER, IF PERMITTED, WOULD ALLOW THE PERSON TO RECEIVE MILITARY RETIRED PAY AND THE CONTINUATION OF A CIVIL SERVICE ANNUITY WOULD AMOUNT TO A DOUBLE BENEFIT NOT CONTEMPLATED BY THE LAW. 52 COMP.GEN. 429 (1973); 50 ID. 80 (1970); 49 ID. 581 (1970); 41 ID. 460 (1962).

NEITHER THAT LAW NOR THOSE DECISIONS HAVE BEEN MODIFIED SINCE THE TIME OF THE COMPTROLLER GENERAL'S REPORT TO SENATOR INOUYE IN 1979.

WE TRUST THIS WILL SERVE THE PURPOSE OF YOUR INQUIRY.