B-129997, JANUARY 4, 1957, 36 COMP. GEN. 486

B-129997, JANUARY 4, 1957, 36 COMP. GEN. 486

FEDERAL EMPLOYEES - MANDATORY RETIREMENT - SICK LEAVE STATUS BEYOND EFFECTIVE RETIREMENT DATE A FEDERAL EMPLOYEE WHO WAS CARRIED IN A SICK LEAVE STATUS BEYOND THE EFFECTIVE DATE OF HIS MANDATORY RETIREMENT FOR AGE IS REQUIRED TO REFUND THE DIFFERENCE BETWEEN THE SALARY ERRONEOUSLY RECEIVED AND THE ANNUITY ACCRUING DURING THE LEAVE PERIOD.

TO THE SECRETARY OF THE NAVY, JANUARY 4, 1957:

BY FIRST ENDORSEMENT DATED DECEMBER 4, 1956, THE CHIEF, BUREAU OF SHIPS, TRANSMITTED HERE FOR CONSIDERATION THE REQUEST OF THE COMMANDER, CHARLESTON NAVAL SHIPYARD, FOR A DECISION UPON THE LIABILITY OF A FORMER EMPLOYEE FOR SALARY PAYMENTS MADE FOR SICK LEAVE GRANTED AFTER THE OFFICIAL DATE SET FOR HIS AUTOMATIC RETIREMENT AFTER REACHING AGE 70.

THE RECORD SHOWS THAT ON AUGUST 26, 1955, THE EMPLOYEE REACHED HIS 70TH BIRTHDAY. ON AUGUST 1, 1955, HE WAS OFFICIALLY NOTIFIED THAT HE WOULD BE SEPARATED FOR RETIREMENT ON SEPTEMBER 30, 1955. BY LETTER DATED SEPTEMBER 16, 1955, THE EMPLOYEE WAS OFFICIALLY NOTIFIED THAT THE MEDICAL OFFICER DECLARED HIM TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE ON AUGUST 4, 1955, AND THAT HE WAS ELIGIBLE TO RECEIVE ALL SICK LEAVE AND WOULD BE CARRIED ON THE PAYROLL UNTIL EXPIRATION OF SICK LEAVE ON FEBRUARY 29, 1956 --- THIS LATTER NOTIFICATION APPARENTLY OVERLOOKING THE PRIOR OFFICIAL NOTIFICATION OF AUGUST 1, 1955, DIRECTING SEPARATION AS OF SEPTEMBER 30, 1955. AS A RESULT OF THAT MEDICAL FINDING THE EMPLOYEE WAS NOT SEPARATED FOR RETIREMENT ON SEPTEMBER 30, 1955, AS NOTIFIED BY LETTER DATED AUGUST 1, 1955. INSTEAD, HE WAS CARRIED ON SICK LEAVE UNTIL FEBRUARY 29, 1956, WHEN HE WAS SEPARATED FOR RETIREMENT, AND PRESUMABLY RECEIVED HIS SALARY FOR THE PERIOD OCTOBER 1, 1955, THE ORIGINAL DATE WHEN THE ANNUITY PAYMENTS WERE TO BEGIN, UNTIL MARCH 1, 1956, WHEN SUCH ANNUITY PAYMENTS ACTUALLY COMMENCED, SUCH SALARY PAYMENTS TOTALING $1,688.96.

SECTIONS 715, 715 (A), AND 718 OF TITLE 5, U.S.C., READ, RESPECTIVELY, IN PERTINENT PART AS FOLLOWS:

* * * ANY * * * EMPLOYEE* * * WHO SHALL HAVE COMPLETED FIFTEEN YEARS OF SERVICE * * * SHALL, ON THE LAST DAY OF THE MONTH IN WHICH HE ATTAINS THE AGE OF SEVENTY YEARS * * * BE AUTOMATICALLY SEPARATED FROM THE SERVICE, AND ALL SALARY, PAY, OR COMPENSATION SHALL CEASE FROM THAT DATE, AND THE HEAD OF EACH DEPARTMENT, BRANCH, OR INDEPENDENT OFFICE OF THE GOVERNMENT CONCERNED SHALL NOTIFY EACH SUCH EMPLOYEE UNDER HIS DIRECTION OF THE DATE OF HIS SEPARATION FROM THE SERVICE AT LEAST SIXTY DAYS IN ADVANCE THEREOF: PROVIDED, THAT SHOULD THE HEAD OF THE DEPARTMENT, BRANCH, OR INDEPENDENT OFFICE FAIL, THROUGH ERROR, TO GIVE TIMELY NOTIFICATION, THE EMPLOYEE'S SEPARATION FROM THE SERVICE SHALL NOT BE EFFECTED WITHOUT HIS CONSENT UNTIL THE EXPIRATION OF SAID SIXTY-DAY PERIOD. UPON SUCH SEPARATION, THE * * * EMPLOYEE SHALL BE ELIGIBLE FOR RETIREMENT ON ANNUITY * * *.

ON AND AFTER JULY 1, 1932, NO PERSON RENDERING CIVILIAN SERVICE IN ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT * * * WHO SHALL HAVE REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE * * * SHALL BE CONTINUED IN SUCH SERVICE, NOTWITHSTANDING ANY PROVISION OF LAW OR REGULATION TO THE CONTRARY: PROVIDED, THAT THE PRESIDENT MAY, BY EXECUTIVE ORDER, EXEMPT FROM THE PROVISIONS OF THIS SECTION ANY PERSON WHEN, IN HIS JUDGMENT, THE PUBLIC INTEREST SO REQUIRES

AN ANNUITY GRANTED FOR RETIREMENT UNDER THE PROVISIONS OF * * * 715 OF THIS TITLE SHALL COMMENCE THE FIRST DAY OF THE MONTH FOLLOWING THE DATE OF SEPARATION FROM THE SERVICE, OR ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SALARY SHALL CEASE PROVIDED THE EMPLOYEE MEETS THE AGE AND SERVICE REQUIREMENTS FOR RETIREMENT AT THAT TIME * * *.

THE EMPLOYEE HERE INVOLVED BECAME 70 YEARS OF AGE ON AUGUST 26, 1955. WAS NOTIFIED ON AUGUST 1, 1955, THAT HE WOULD BE RETIRED EFFECTIVE SEPTEMBER 30, 1955, WHICH NOTIFICATION SATISFIED THE REQUIREMENT OF THE FOREGOING STATUTORY PROVISIONS.

THEREFORE, SINCE THE PROVISIONS OF SECTION 715 AND 715 (A) ABOVE, MAKE SEPARATION AUTOMATIC AND MANDATORY AND PRESCRIBE THAT ALL SALARY, PAY, AND COMPENSATION SHALL CEASE FROM THAT DATE AND THAT NO SUCH PERSON SHALL BE CONTINUED IN THE SERVICE, NOTWITHSTANDING ANY OTHER PROVISION OF LAW OR REGULATION EXCEPT IN CERTAIN CIRCUMSTANCES NOT PERTINENT HERE, UPON ATTAINING THE AGE OF 70 WITH MORE THAN 15 YEARS OF SERVICE, WE CONCLUDE THAT THE ADMINISTRATIVE ACTION OF RETAINING THE EMPLOYEE ON THE PAYROLL AFTER SEPTEMBER 30, 1955, WAS LEGALLY INEFFECTIVE.

ACCORDINGLY, THE FORMER EMPLOYEE'S RECORDS SHOULD BE CHANGED TO SHOW HIS ENTITLEMENT TO HIS ANNUITY BEGINNING OCTOBER 1, 1955. THE AMOUNT OF THE ANNUITY ACCRUING OVER THE PERIOD DURING WHICH SALARY WAS RECEIVED SHOULD BE SET OFF AGAINST THE SALARY ERRONEOUSLY RECEIVED AND THE ANNUITANT CHARGED WITH THE DIFFERENCE. OUR OFFICE WOULD INTERPOSE NO OBJECTION TO LIQUIDATION OF THAT DEBT BY INSTALLMENTS OVER A REASONABLE PERIOD OF TIME TO BE FIXED BY YOUR DEPARTMENT IN ORDER TO ALLEVIATE ANY HARDSHIP ON THE EMPLOYEE.