B-172682, SEP 18, 1974, 54 COMP GEN 212

B-172682, SEP 18, 1974, 54 COMP GEN 212

NATIONAL GUARD - CIVILIAN EMPLOYEES - TECHNICIANS - SEVERANCE PAY NATIONAL GUARD TECHNICIAN PRIOR TO FULFILLING REQUIREMENT FOR IMMEDIATE CIVIL SERVICE ANNUITY, ALTHOUGH INVOLUNTARILY REMOVED FROM HIS CIVILIAN POSITION DUE TO LOSS OF MILITARY MEMBERSHIP, IS PRECLUDED BY 5 U.S.C. 5595(A)(2)(IV) FROM RECEIVING SEVERANCE PAY WHEN HE IS QUALIFIED FOR MILITARY RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 1331 BY HAVING ATTAINED AGE 60 WITH THE REQUISITE YEARS OF SERVICE.

IN THE MATTER OF NATIONAL GUARD TECHNICIAN SEVERANCE PAY, SEPTEMBER 18, 1974:

THIS DECISION IS IN RESPONSE TO A REQUEST BY THE NATIONAL GUARD BUREAU, DEPARTMENTS OF THE ARMY AND THE AIR FORCE, CONCERNING ENTITLEMENT TO SEVERANCE PAY OF AN INDIVIDUAL ELIGIBLE FOR AN IMMEDIATE ANNUITY UNDER 10 U.S.C. 1331. THE NATIONAL GUARD TECHNICIANS ACT OF 1968 - PUBLIC LAW 90- 486, APPROVED AUGUST 13, 1968 - REQUIRES THAT A TECHNICIAN EMPLOYED IN THE DEPARTMENT OF THE ARMY OR THE AIR FORCE, EXCEPT AS OTHERWISE PRESCRIBED BY THE SECRETARY CONCERNED, MUST BE A MEMBER OF THE NATIONAL GUARD. UNDER 32 U.S.C. 709, AS AMENDED BY PUBLIC LAW 90-486, SUCH A TECHNICIAN MUST BE PROMPTLY SEPARATED UPON LOSS OF THIS MILITARY MEMBERSHIP. UNDER THESE CIRCUMSTANCES A TECHNICIAN MAY BE INVOLUNTARILY SEPARATED FROM HIS FEDERAL POSITION PRIOR TO FULFILLING THE REQUIREMENT FOR AN IMMEDIATE CIVIL SERVICE ANNUITY, AND IF OTHERWISE ELIGIBLE WOULD BE NORMALLY ENTITLED TO SEVERANCE PAY UNDER 5 U.S.C. 5595. SEE 53 COMP. GEN. 493 (1974). HOWEVER, THE TECHNICIAN MAY HAVE QUALIFIED FOR MILITARY RETIRED PAY UNDER 10 U.S.C. 1331 IF HE HAS ATTAINED AGE 60 AND COMPLETED THE REQUISITE YEARS OF SERVICE FOLLOWING AN INITIAL PERIOD OF ACTIVE DUTY. IN VIEW OF THE EXPLANATORY MATERIAL IN THE FEDERAL PERSONNEL MANUAL TO THE EFFECT THAT ANYONE ENTITLED TO AN IMMEDIATE ANNUITY, INCLUDING A RETIREMENT FROM A RESERVE COMPONENT, MAY NOT RECEIVE SEVERANCE PAY, THE AGENCY ASKS:

IS AN ARMY OR AIR FORCE TECHNICIAN WHO HAS BEEN INVOLUNTARILY SEPARATED FROM HIS FEDERAL EMPLOYMENT PRECLUDED FROM ENTITLEMENT TO SEVERANCE PAY AS A RESULT OF HIS IMMEDIATE QUALIFICATION FOR RETIRED PAY UNDER PROVISIONS OF CHAPTER 67, TITLE 10, U.S.C., SECTION 1331, PROVIDED HE IS OTHERWISE ELIGIBLE?

THE SEVERANCE PAY PROVISIONS IN 5 U.S.C. 5595 PROVIDE IN PERTINENT PART IN SUBSECTION (A)(2)(B)(IV) AS FOLLOWS:

(2) "EMPLOYEE" MEANS -

BUT DOES NOT INCLUDE -

(IV) AN EMPLOYEE WHO IS SUBJECT TO SUBCHAPTER III OF CHAPTER 83 OF THIS TITLE OR ANY OTHER RETIREMENT STATUTE OR RETIREMENT SYSTEM APPLICABLE TO AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE OR A MEMBER OF A UNIFORMED SERVICE AND WHO, AT THE TIME OF SEPARATION FROM THE SERVICE, HAS FULFILLED THE REQUIREMENTS FOR IMMEDIATE ANNUITY UNDER SUCH A STATUTE OR SYSTEM ***.

THE FEDERAL PERSONNEL MANUAL IN SETTING FORTH THE COVERAGE REQUIREMENT FOR SEVERANCE PAY PROVIDES IN FPM SUPPLEMENT 990-2, SUBCHAPTER 7, PARAGRAPH B(8)(C)(V) IN PERTINENT PART:

(V) THE LAW EXCLUDES FROM ENTITLEMENT TO SEVERANCE PAY AN EMPLOYEE WHO, AT THE TIME OF SEPARATION, HAS FULFILLED THE REQUIREMENTS FOR AN IMMEDIATE ANNUITY. THE STATUTORY EXCLUSION IS APPLICABLE TO ANY EMPLOYEE WHO AT THE TIME OF SEPARATION IS RECEIVING OR IS ELIGIBLE TO RECEIVE (HE NEED NOT ACTUALLY APPLY) RETIREMENT BENEFITS UNDER ANY FEDERAL MILITARY (INCLUDING A RESERVE COMPONENT) OR CIVILIAN RETIREMENT PROGRAM.

IN 50 COMP. GEN. 46 (1970) IT WAS HELD THAT ANY RETIRED MEMBER OF THE UNIFORMED SERVICE WHO IS ELIGIBLE TO RECEIVE MILITARY RETIRED PAY UNDER ANY LAW PROVIDING SUCH PAY FOR MEMBERS OR FORMER MEMBERS OF THE UNIFORMED SERVICES AT THE TIME OF HIS SEPARATION FROM CIVILIAN GOVERNMENT EMPLOYMENT IS NOT ENTITLED TO RECEIVE SEVERANCE PAY UNDER 5 U.S.C. 5595.

ACCORDINGLY, THE QUESTION SET FORTH ABOVE IS ANSWERED IN THE AFFIRMATIVE.