B-151986, JUL. 30, 1963

B-151986, JUL. 30, 1963

TO THE SECRETARY OF THE AIR FORCE:

THIS REFERS TO LETTER OF JULY 3, 1963, WITH ENCLOSURES, REFERENCE ASPCU, FROM THE CHIEF, PLACEMENT AND EMPLOYEE RELATIONS BRANCH, HEADQUARTERS, AERONAUTICAL SYSTEMS DIVISION, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, REQUESTING OUR DECISION WHETHER AN EMPLOYEE OF THE AIR FORCE MAY BE RESTORED RETROACTIVELY AND RECEIVE SALARY FOR A PERIOD OF SEPARATION.

THE INFORMATION FURNISHED SHOWS THAT DR. PAUL R. RIDER WAS SEPARATED ERRONEOUSLY FOR MANDATORY RETIREMENT ON FEBRUARY 28, 1963. HE WAS REINSTATED RETROACTIVELY APRIL 28, 1963, AFTER A DETERMINATION BY THE CIVIL SERVICE COMMISSION THAT HE WAS NOT ELIGIBLE FOR MANDATORY RETIREMENT, SINCE ON FEBRUARY 28, HE ONLY HAD 14 YEARS, 4 MONTHS AND 27 DAYS CREDITABLE SERVICE TOWARD RETIREMENT. WHEN THE ERROR WAS DISCOVERED DR. RIDER ELECTED TO RETURN TO HIS FORMER POSITION IN ORDER TO COMPLETE THE REQUIRED PERIOD OF SERVICE FOR MANDATORY RETIREMENT. DURING THE PERIOD FEBRUARY 28 TO APRIL 23, DR. RIDER WAS UNDER CONTRACT AS A CONSULTANT TO THE OHIO STATE UNIVERSITY, COLUMBUS, OHIO, PERFORMING DUTIES SIMILAR TO THOSE HE PERFORMED FOR THE GOVERNMENT, EXCEPT FOR THE PERIOD BETWEEN MARCH 14 AND MARCH 22, 1963, WHEN HE WAS ON VACATION. THE QUESTION SUBMITTED IS WHETHER DR. RIDER IS ENTITLED TO COMPENSATION FOR THE PERIOD BETWEEN THE DATE OF HIS SEPARATION FROM THE SERVICE FOR RETIREMENT AND THE DATE OF HIS RESTORATION TO DUTY FOLLOWING A DETERMINATION BY THE CIVIL SERVICE COMMISSION THAT HE WAS NOT THEN ELIGIBLE FOR MANDATORY RETIREMENT.

THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, 5 CFR 29.16, PROVIDE FOR AN APPEAL FROM ACTIONS OF THE BUREAU OF RETIREMENT AND INSURANCE ON RETIREMENT APPLICATIONS. HOWEVER, IN THE EVENT THE MANDATORY SEPARATION FROM THE SERVICE IS NOT APPROVED BY THE BUREAU OF RETIREMENT AND INSURANCE AND THE EMPLOYEE IS RESTORED TO DUTY, NO PROVISION OF LAW SPECIFICALLY AUTHORIZES COMPENSATION FOR THE PERIOD OF SEPARATION. THUS, THERE REMAINS FOR CONSIDERATION THE QUESTION WHETHER THE GENERAL BACK PAY PROVISIONS OF SECTION 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652 (B) (1), ARE APPLICABLE.

SECTION 6 (B) (1) AUTHORIZES BACK PAY IN THE CASE OF A PERSON "REMOVED OR SUSPENDED WITHOUT PAY UNDER SUBSECTION (A) WHO, AFTER SUBSECTION OR AFTER ANY FURTHER APPEAL TO PROPER AUTHORITY AFTER RECEIPT OF AN ADVERSE DECISION ON THE ANSWER, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED * * *.' SUBSECTION (A) MENTIONED PRESCRIBES THE PROCEDURE FOR REMOVING OR SUSPENDING EMPLOYEES FROM THE CLASSIFIED CIVIL SERVICE ,FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF SUCH SERVICE.' THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA HELD IN ELLMORE V. BRUCKER, 236 F.2ND 734, CERT. DENIED, 352, U.S. 955, THAT "THE TWO STATUTES (SECTION 6 (A) AND THE CIVIL SERVICE RETIREMENT ACT) CLEARLY SERVE DIFFERENT PURPOSES, AND ARE INDEPENDENTLY OPERATIVE IN THEIR RESPECTIVE FIELDS; " AND IN A COMPANION CASE, MURPHY V. WILSON, ID. 737, THE COURT REPHRASED THE PROPOSITION AS FOLLOWS: "* * * RETIREMENT, WHETHER VOLUNTARY OR INVOLUNTARY, IS NOT TO BE EQUATED WITH REMOVALS FROM THE CLASSIFIED CIVIL SERVICE FOR CAUSE * * *.' SINCE SEPARATION ON ACCOUNT OF MANDATORY RETIREMENT DOES NOT FALL WITHIN THE PURVIEW OF SECTION 6 (A), IT FOLLOWS FROM THE SPECIFIC TERMS OF SECTION 6 (B) (1) THAT THE BACK PAY PROVISIONS THEREOF ARE INAPPLICABLE.

THEREFORE, THE QUESTION IS ANSWERED IN THE NEGATIVE.

A COPY OF THE LETTER OF JULY 3, 1963, FROM THE AIR FORCE SYSTEMS COMMAND IS ENCLOSED. YOU WILL NOTE THEREFROM THAT DR. RIDER WILL AGAIN BE SEPARATED FOR MANDATORY RETIREMENT ON JULY 28, 1963.