B-158263, JAN. 17, 1966

B-158263, JAN. 17, 1966

TO MR. C. W. LAMAR, AUTHORIZED CERTIFYING OFFICER, POSTAL DATA CENTER, POST OFFICE DEPARTMENT:

YOUR LETTER OF DECEMBER 28, 1965, REFERENCE 9000:CWL:MK, WITH ENCLOSURES, REFERS TO THE SEPARATION OF MRS. LILLIAN Y. MCHENRY FROM THE POSTAL SERVICE, CHICAGO, ILLINOIS, EFFECTIVE DECEMBER 8, 1965, PURSUANT TO THE DIRECTION OF THE BOARD OF APPEALS AND REVIEW, CIVIL SERVICE COMMISSION, AND REQUESTS OUR DECISION CONCERNING MRS. MCHENRY'S ENTITLEMENT TO A SALARY CHECK, A U.S. SAVINGS BOND, AND AN AMOUNT TO MRS. MCHENRY'S CREDIT IN THE RETIREMENT FUND.

MRS. MCHENRY'S REMOVAL WAS ORDERED BY THE CIVIL SERVICE COMMISSION BECAUSE OF ITS FINDING THAT SHE INTENTIONALLY FALSIFIED HER EMPLOYMENT APPLICATION IN REGARD TO HER FORMER MEMBERSHIP IN THE COMMUNIST PARTY. DOES NOT APPEAR THAT HER EMPLOYMENT WAS IN CONTRAVENTION OF SECTION 9A OF THE HATCH ACT, AS AMENDED, 5 U.S.C. 118P, OR ANY PROHIBITION CONTAINED IN AN APPLICABLE APPROPRIATION ACT. FURTHER, THE POST OFFICE DEPARTMENT WAS AUTHORIZED BY THE COMMISSION TO CONTINUE MRS. MCHENRY IN AN ACTIVE DUTY STATUS PENDING A DECISION ON HER APPEAL FROM THE PROPOSED REMOVAL ACTION. IN A LETTER DATED NOVEMBER 26, 1965, THE REGIONAL DIRECTOR WAS INFORMED THAT THE COMMISSION'S BOARD OF APPEALS AND REVIEW HAD AFFIRMED THE ORIGINAL DECISION. BY NOTIFICATION OF PERSONNEL ACTION, STANDARD FORM 50, DATED DECEMBER 8, 1965, THE POST OFFICE SPECIFIED HER SEPARATION WAS TO BE EFFECTIVE DECEMBER 8. THE RECORD DOES NOT SHOW, HOWEVER, WHETHER SHE RECEIVED NOTICE OF THE SEPARATION ACTION ON THAT DAY OR AT A LATER DATE. FURTHER, WHILE THE LAST DAY OF HER ACTIVE DUTY IS NOT SHOWN, IT APPEARS FROM HER RATE OF PAY, $5,181, AND THE UNPAID SALARY, $93.15, THAT SHE WORKED SUBSEQUENT TO DECEMBER 8.

SINCE HER EMPLOYMENT WAS VOIDABLE ONLY, RATHER THAN VOID AB INITIO, IT IS TO BE REGARDED AS DE JURE THROUGH DECEMBER 8 OR THE DATE OF RECEIPT BY HER OF NOTICE OF HER SEPARATION, WHICHEVER WAS LATER. SEE GENERALLY 38 COMP. GEN. 185. IF THE STANDARD FORM 50 DOES NOT SHOW A SEPARATION DATE CONSISTENT WITH THE ABOVE, IT SHOULD BE CORRECTED ACCORDINGLY.

THEREFORE, HER FINAL SALARY CHECK--- CORRECTED IF NECESSARY TO TO ACCORD WITH THE FOREGOING--- SHOULD BE DETERMINED FROM THE GROSS AMOUNT DUE LESS THE USUAL DEDUCTIONS, INCLUDING THAT TO COMPLETE THE PURCHASE OF THE U.S. SAVINGS BOND FOR THAT PAY PERIOD, WHICH TOGETHER WITH THE CHECK MAY BE DELIVERED TO HER.

APPLICATION FOR REFUND OF RETIREMENT DEDUCTIONS (STANDARD FORM NO. 2802) SHOULD BE SUBMITTED BY MRS. MCHENRY TO THE UNITED STATES CIVIL SERVICE COMMISSION REGARDING RECOVERY OF HER CONTRIBUTIONS TO THE RETIREMENT FUND.