B-160754, APR. 19, 1967

B-160754, APR. 19, 1967

TO THE SECRETARY OF AGRICULTURE:

UNDER DATE OF JANUARY 20, 1967, KAREN DRUYVESTEIN, RETIREMENT CLERK, AGRICULTURAL RESEARCH SERVICE, NORTHERN ADMINISTRATIVE DIVISION, 400 SOUTH FOURTH STREET, ROOM 220, MINNEAPOLIS, MINNESOTA 55415, ASKED WHETHER THERE EXISTED ANY POSSIBILITY FOR REINSTATING MR. CHARLES F. WALKER WHO WAS RETIRED DECEMBER 20, 1965. MR. WALKER RECEIVED THE INCREASED ANNUITY BENEFITS OF PUB.L. 89-205, SEPTEMBER 27, 1965, 79 STAT. 840, AS AMENDED BY PUB.L. 89-314, NOVEMBER 1, 1965, 79 STAT. 1162, AND THE INCREASED COST-OF- LIVING ALLOWANCE AUTHORIZED BY PUB.L. 87-793, OCTOBER 11, 1962, SECTION 1101 (B), 76 STAT. 868. NOW HE ASKS WHETHER HE CAN BE RESTORED TO DUTY SO THAT HE CAN BE GRANTED THE SICK LEAVE TO HIS CREDIT AT THE TIME HE RETIRED.

MISS DRUYVESTEIN SUBMITTED FOR OUR CONSIDERATION A MEMORANDUM DATED OCTOBER 24, 1966, TO ROBERT FARSUND, EMPLOYMENT OFFICER, ARS, NAD, MINNEAPOLIS, MINNESOTA, FROM WAYNE M. GUERNSEY, CORPS RESEARCH, SALINAS, CALIFORNIA, CONCERNING THE DISABILITY RETIREMENT OF MR. WALKER. SHE ALSO SUBMITTED A COPY OF A LETTER DATED DECEMBER 8, 1966, FROM THE BUREAU OF RETIREMENT AND INSURANCE, UNITED STATES CIVIL SERVICE COMMISSION. ENCLOSE FOR YOUR INFORMATION A COPY OF EACH OF THE ABOVE-IDENTIFIED PAPERS AS WELL AS A COPY OF OUR REPLY TO MISS DRUYVESTEIN, DATED FEBRUARY 20, 1967. YOU WILL NOTE THEREFROM THAT WE ADVISED MISS DRUYVESTEIN WE COULD NOT RENDER HER A DECISION CONCERNING THE MATTER PRESENTED BUT THAT WE WOULD CONSIDER IT AND ADVISE YOU THEREON.

WE HAVE ASCERTAINED FROM THE BUREAU OF RETIREMENT AND INSURANCE THAT CHARLES F. WALKER, CSA-951210, WAS RETIRED FOR DISABILITY AND THAT HIS ANNUITY COMMENCED DECEMBER 20, 1965.

UNDER DATE OF OCTOBER 7, 1965, THE COMMISSION PUBLISHED DETAILED INSTRUCTIONS IN FPM LETTER NO. 831-12 TO ADVISE HEADS OF DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS REGARDING THE AMENDMENT OF THE CIVIL SERVICE RETIREMENT ACT BY PUB.L. 89-205, REFERRED TO ABOVE, PROVIDING INCREASES IN ANNUITIES. BECAUSE OF THE AMENDMENT TO THAT LAW BY PUB.L. 89-314, NOVEMBER 1, 1965, FPM LETTER NO. 831-13 WAS ISSUED TO SUPPLEMENT THOSE INSTRUCTIONS.

THE ABOVE-REFERRED TO INSTRUCTIONS POINTED OUT THAT EMPLOYEES WHO APPLIED FOR DISABILITY RETIREMENT HAD TO BE IN A NONPAY STATUS ON OR BEFORE DECEMBER 30, 1965, IN ORDER TO BE ENTITLED TO THE 6.1 PERCENT ANNUITY INCREASE GRANTED BY PUB.L. 89-205 AND PUB.L. 89-314, AND THE 2 PERCENT COST-OF-LIVING ALLOWANCE AUTHORIZED BY PUB.L. 87-793, PART III, SECTION 1101 (B), 76 STAT. 868. FURTHER, SUCH INSTRUCTIONS PROVIDED THAT APPLICANTS WHO HAD SUCH LEAVE (SICK AND/OR ANNUAL LEAVE NOT INCLUDABLE IN A LUMP-SUM PAYMENT) TO CARRY THEM BEYOND DECEMBER 30, 1965, SHOULD BE GIVEN THE OPPORTUNITY TO DECIDE BETWEEN FORFEITING ALL OR A PORTION OF SUCH LEAVE IN ORDER THAT THEIR PAY CEASE ON OR BEFORE DECEMBER 30, 1965, OR CONTINUING IN A PAY STATUS UNTIL SUCH LEAVE EXPIRED IN WHICH CASE THEY WOULD NOT BE ENTITLED TO THE 6.1 PERCENT ANNUITY INCREASE OR THE 2 PERCENT COST-OF-LIVING INCREASE AS SET OUT ABOVE. AS POINTED OUT ABOVE, MR. WALKER RECEIVED SUCH INCREASED BENEFITS UPON HIS DISABILITY RETIREMENT EFFECTIVE DECEMBER 20, 1965.

THE GENERAL RULE IN SUCH MATTERS IS THAT AN EMPLOYEE MAY NOT BE RESTORED TO A PAY STATUS FOR ANY PERIOD SUBSEQUENT TO THE DATE OF SEPARATION FOR THE PURPOSE OF GRANTING SICK LEAVE IN THE ABSENCE OF ADMINISTRATIVE ERROR OR OVERSIGHT IN THE MATTER OF PROCESSING A SEPARATION ACTION. 33 COMP. GEN. 422. MR. WALKER WAS REQUIRED TO EXERCISE HIS DISCRETION AS TO WHICH BENEFITS HE WOULD ELECT. HE CHOSE THE INCREASED ANNUITY AND COST-OF- LIVING BENEFITS IN PREFERENCE TO CONTINUING IN A PAY STATUS BEYOND DECEMBER 30, 1965. THERE WAS NO ADMINISTRATIVE ERROR, AND THE SEPARATION OF THE EMPLOYEE WAS PROCESSED IN ACCORDANCE WITH HIS REQUEST. THUS NO BASIS EXISTS, UPON THE PRESENT RECORD, FOR RESTORING HIM TO THE ROLLS FOR THE PURPOSE OF GRANTING THE SICK LEAVE HE ELECTED TO FORFEIT.