B-119962, OCTOBER 30, 1956, 36 COMP. GEN. 340

B-119962, OCTOBER 30, 1956, 36 COMP. GEN. 340

RETIRED EMPLOYEES REEMPLOYED - LUMP-SUM LEAVE PAYMENTS - ANNUITY DEDUCTION EMPLOYEES WHO WERE IMMEDIATELY REEMPLOYED AFTER HAVING REACHED MANDATORY RETIREMENT AGE AND WHO HAVE BEEN FINALLY SEPARATED FROM THE SERVICE AFTER DECEMBER 15, 1953 AND BEFORE NOVEMBER 1, 1956, ARE ENTITLED PURSUANT TO SECTION 13 (B) OF THE CIVIL SERVICE RETIREMENT ACT TO THE AMOUNT WHICH WAS DEDUCTED FROM THEIR LUMP-SUM LEAVE PAYMENT FOR THE RETIREMENT ANNUITY.

TO THE CHAIRMAN, NATIONAL MEDIATION BOARD, OCTOBER 30, 1956:

YOUR LETTER OF OCTOBER 8, 1956, REQUESTS OUR DECISION CONCERNING THE PROPRIETY OF PAYING THE CLAIM PRESENTED TO YOU BY MR. ROBERT F. COLE UNDER THE PROVISIONS OF SECTION 13 (B) OF THE ACT OF JULY 31, 1956, 70 STAT. 757, PUBLIC LAW 854.

MR. COLE RETIRED AT THE CLOSE OF BUSINESS DECEMBER 16, 1953, WHEN HE REACHED HIS SEVENTIETH BIRTHDAY. THE NEXT DAY HE WAS GIVEN AN APPOINTMENT PURSUANT TO THE PROVISIONS OF SECTION 2 (B) OF THE ACT OF FEBRUARY 28, 1948, 62 STAT. 49, 5 U.S.C. 715 (B). AT THE TIME OF RETIREMENT HE HAD TO HIS CREDIT 90 DAYS ACCUMULATED ANNUAL LEAVE WHICH REMAINED TO HIS CREDIT UPON REEMPLOYMENT. HIS REEMPLOYMENT TERMINATED JANUARY 16, 1955, AT WHICH TIME A LUMP-SUM PAYMENT WAS MADE TO HIM FOR HIS 90 DAYS' ACCUMULATED ANNUAL LEAVE PURSUANT TO THE LUMP-SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944, AS AMENDED. THAT LUMP-SUM LEAVE PAYMENT WAS MADE AT THE SALARY RATE OF $10,600 PER ANNUM IN EFFECT ON THE DATE OF SEPARATION, LESS THE AMOUNT OF HIS ANNUITY, NAMELY, $5,052, IN ACCORDANCE WITH OUR DECISION 33 COMP. GEN. 591. THE AMOUNT PAID WAS $1,920.42, BUT MR. COLE CONTENDED THAT HIS LUMP-SUM LEAVE PAYMENT SHOULD HAVE BEEN IN THE AMOUNT OF $3,669.21, COMPUTED AT THE RATE OF $10,600 PER ANNUM WITH REDUCTION BY THE AMOUNT OF THE ANNUITY. HIS CASE WAS CONSIDERED IN OUR DECISION OF JUNE 20, 1955, 34 COMP. GEN. 685, TO THE THEN CHAIRMAN OF YOUR BOARD, IN WHICH WE HELD THAT, UNDER THE THEN EXISTING LAW AND DECISIONS OF OUR OFFICE, MR. COLE WAS NOT ENTITLED TO ANY ADDITIONAL AMOUNT, THAT IS, THE DIFFERENCE BETWEEN $3,669.21 AND $1,920.42.

SINCE OUR DECISION OF JUNE 20, 1955, THE RETIREMENT ACT OF 1948 WAS AMENDED BY THE ACT OF JULY 31, 1956, SECTION 13 (B) OF WHICH READS IN PERTINENT PART AS FOLLOWS:

* * * NO DEDUCTIONS FOR THE FUND SHALL BE WITHHELD FROM HIS SALARY, BUT THERE SHALL BE DEDUCTED FROM HIS SALARY, EXCEPT FOR LUMP-SUM LEAVE PAYMENT PURPOSES UNDER THE ACT OF DECEMBER 21, 1944, A SUM EQUAL TO THE ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT, AND THIS PROVISION CONCERNING THE LUMP-SUM LEAVE PAYMENTS SHALL ALSO BE EFFECTIVE IN THE CASE OF EACH RETIRED EMPLOYEE SEPARATED FROM REEMPLOYMENT AFTER DECEMBER 15, 1953, AND BEFORE THE EFFECTIVE DATE OF THE CIVIL SERVICE RETIREMENT ACT AMENDMENTS OF 1956: * * *. ( ITALICS SUPPLIED FOR EMPHASIS.)

SINCE MR. COLE WAS SEPARATED FROM HIS REEMPLOYMENT AFTER DECEMBER 15, 1953, AND BEFORE THE EFFECTIVE DATE OF THE CIVIL SERVICE RETIREMENT ACT AMENDMENTS OF 1956, THE ITALICIZED LANGUAGE OF SECTION 13 (B) ABOVE HAS THE EFFECT OF OVERCOMING THE RULING IN OUR DECISION OF JUNE 20, 1955, IN HIS CASE. ACCORDINGLY, HIS CLAIM UNDER THE AMENDED STATUTE FOR THE DIFFERENCE BETWEEN $3,669.21 AND $1,920.42, OR $1,748.79, NOW IS FOR PAYMENT.

MR. COLE'S CLAIM IS RETURNED HEREWITH FOR ADMINISTRATIVE SETTLEMENT IN ACCORDANCE WITH THE FOREGOING.