B-172195, JUL 5, 1972

B-172195, JUL 5, 1972

CIVILIAN EMPLOYEE - FEDERAL EMPLOYEES SALARY ACT OF 1970 - RETROACTIVE SALARY INCREASE - ENTITLEMENT DECISION DENYING THE ENTITLEMENT OF CHARLES V. GIORLANDO TO A RETROACTIVE SALARY INCREASE AND OTHER BENEFITS WHICH MIGHT HAVE ACCRUED IF HIS EMPLOYMENT STATUS WITH THE ARMY CORPS OF ENGINEERS HAD CONTINUED BEYOND FEBRUARY 20, 1970. THERE EXISTS NO BASIS FOR RESTORING MR. GIORLANDO TO THE ROLLS FOR PURPOSES OF EFFECTING HIS ENTITLEMENT UNDER THE FEDERAL EMPLOYEES SALARY ACT OF 1970, PUB. L. 91-231. FURTHER, GAO HAS PREVIOUSLY HELD THAT AN EMPLOYEE WHO ELECTS TO RECEIVE COMPENSATION UNDER THE FEDERAL EMPLOYEES COMPENSATION ACT, INSTEAD OF A CIVIL SERVICE RETIREMENT ANNUITY, MAY NOT BE CONSIDERED RETIRED FOR PURPOSES OF RECEIVING RETROACTIVE PAY. 141102, FEBRUARY 8, 1960. HOWEVER, THE ARMY HAS BEEN ADVISED THAT THE ERRONEOUS PAYMENT OF SEVERANCE PAY IS WAIVED PURSUANT TO 5 U.S.C. 5584.

TO MR. CHARLES V. GIORLANDO:

WE REFER FURTHER TO YOUR INQUIRY AS TO WHETHER YOU ARE ENTITLED TO A SALARY INCREASE AS OF DECEMBER 27, 1969, AND SEVERAL CLAIMS RELATED TO YOUR FORMER EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS AT CINCINNATI, OHIO. YOUR INQUIRY IN PART WAS THE SUBJECT OF OUR LETTER TO YOU OF AUGUST 12, 1971. SINCE THEN ADDITIONAL DATA HAS BEEN OBTAINED CONCERNING YOUR SITUATION.

THE RECORD NOW BEFORE US SHOWS THAT YOU WERE RETIRED FROM MILITARY SERVICE ON APRIL 30, 1960, AS LIEUTENANT COLONEL, AUS, UNDER PROVISIONS OF 10 U.S.C. 3911. IN THIS CONNECTION PARAGRAPH 45, SPECIAL ORDERS NUMBER 56, DEPARTMENT OF THE ARMY, WASHINGTON 25, D. C., DATED MARCH 21, 1960, READS:

"45. SFC (E-6) CHARLES V. GIORLANDO RO15296083 (LTCOL USAE 0301129) UPON HIS APPL IS RET IN THE GR OF LTCOL UNDER PROV TITLE 10 US CODE SEC 3911 AFTER MORE THAN 20 YRS ACTIVE FED SVC. HE IS DISCH FR HIS ENL STATUS ON 30 APR 1960 FOR THE CONVN OF THE GOVT UNDER PROV PAR 2 AR 635 205 AT FT KNOX, KY, AND PLACED ON THE AUS RET LIST 1 MAY 1960. ON THIS DATE HE IS ASG TO USAR CTRL GP (REINF) IN THE US ARMY CORPS IN WHICH HIS HOME ADDRESS IS LOCATED. HOSTWOY. PCS. TDN. PPSIA. 2102010 01-43 P 1311-02 S99-999. TDHHG 2102010 01-210-13 P 1311-02, 03, 07 S99-999. HHG WEIGHT ALWS AUTH IN GR E-6. SPN 567 FOR RET. SPN 213 FOR DISCH."

YOU WERE ADVISED ON AUGUST 23, 1960, BY THE RETIRED PAY DIVISION OF THE U.S. ARMY THAT SINCE YOU WERE A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES, YOU WERE NOT SUBJECT TO THE RESTRICTIONS OF THE DUAL COMPENSATION PROVISION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED. ASSUME YOUR RESERVE STATUS ALSO EXEMPTED YOU FROM THE LIMITATION ON RECEIPT OF RETIRED PAY AND FEDERAL CIVILIAN COMPENSATION AS SET FORTH IN 5U.S.C. 5532, SUCH PROVISION OF LAW HAVING BEEN ENACTED IN 1964 TO SUPERSEDE SECTION 212 OF THE 1932 ACT AS WELL AS OTHER LAWS RELATING TO DUAL EMPLOYMENT.

THE CORPS OF ENGINEERS REPORTS THAT AT THE TIME OF YOUR INVOLUNTARY SEPARATION FROM YOUR CIVILIAN POSITION ON FEBRUARY 20, 1970 - DUE TO CLOSURE OF THE U.S. ARMY CINCINNATI PROCUREMENT AGENCY - IT HAD NO KNOWLEDGE OF YOUR ILLNESS AND, ACCORDINGLY, THERE WAS NO BASIS FOR DISCUSSING OR ENCOURAGING YOU TO FILE FOR DISABILITY CIVILIAN RETIREMENT BASED UPON YOUR FEDERAL CIVILIAN SERVICE WHICH WOULD THEN HAVE PERMITTED THE USE OF ACCUMULATED SICK LEAVE. THE CORPS REPORTS FURTHER THAT YOU WERE AWARDED SEVERANCE PAY DUE TO A MISINTERPRETATION OF THE EXISTING REGULATIONS AT THE TIME CONCERNING ELIGIBILITY. IT APPEARS THAT AFTER YOU HAD BEEN PAID $4,777.17 SEVERANCE PAY, IT WAS DISCOVERED THAT YOU WERE NOT ENTITLED TO SUCH PAYMENT DUE TO RECEIPT OF MILITARY RETIRED PAY. ALSO, THE CORPS REPORTS THERE IS NO INDICATION YOU WERE AWARE OF NOT BEING ELIGIBLE FOR SEVERANCE PAY BECAUSE OF RECEIPT OF MILITARY RETIRED PAY.

THE RECORD FURTHER SHOWS THAT ON MAY 8, 1971, YOU APPLIED FOR EMPLOYEES' COMPENSATION UNDER THE PROVISIONS OF 5 U.S.C. 8101-8173, BASED UPON "A DISEASE PROXIMITELY CAUSED" BY YOUR FEDERAL CIVILIAN EMPLOYMENT. THE DEPARTMENT OF LABOR, OFFICE OF FEDERAL EMPLOYEES' COMPENSATION, FOUND IN YOUR FAVOR AND AN AWARD OF COMPENSATION WAS MADE COVERING THE PERIOD FEBRUARY 20, 1970, TO FEBRUARY 29, 1972 - WITH CONTINUING PAYMENT THEREAFTER AS LONG AS YOU REMAIN DISABLED.

AS INDICATED ABOVE THE FACT THAT YOUR MILITARY RETIRED PAY APPEARS TO BE BASED ON YOUR RESERVE STATUS PERMITS YOU TO RECEIVE BOTH MILITARY RETIRED PAY AND FEDERAL CIVILIAN INJURY OR DISEASE COMPENSATION COVERING THE SAME PERIOD OF TIME. SEE 46 COMP. GEN. 761 (1967).

THE FEDERAL EMPLOYEES SALARY ACT OF 1970, PUBLIC LAW 91-231, APPROVED APRIL 15, 1970, 84 STAT. 195, PROVIDES IN PERTINENT PART AS FOLLOWS:

"SEC. 5(A) RETROACTIVE PAY, COMPENSATION, OR SALARY SHALL BE PAID BY REASON OF THIS ACT ONLY IN THE CASE OF AN INDIVIDUAL IN THE SERVICE OF THE UNITED STATES (INCLUDING SERVICE IN THE ARMED FORCES OF THE UNITED STATES) OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA ON THE DATE OF ENACTMENT OF THIS ACT, EXCEPT THAT SUCH RETROACTIVE PAY, COMPENSATION, OR SALARY SHALL BE PAID -

"(1) TO AN OFFICER OR EMPLOYEE WHO RETIRED, DURING THE PERIOD BEGINNING ON THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN ON OR AFTER DECEMBER 27, 1969, AND ENDING ON THE DATE OF ENACTMENT OF THIS ACT, FOR SERVICES RENDERED DURING SUCH PERIOD; AND"

UNDER THE ABOVE-QUOTED PROVISIONS IN ORDER TO QUALIFY FOR THE RETROACTIVE SALARY INCREASE YOU WOULD HAVE TO BE REGARDED AS HAVING AN EMPLOYEE STATUS ON APRIL 15, 1970, OR ELSE BE REGARDED AS HAVING BEEN RETIRED DURING THE RETROACTIVE PERIOD ENDING ON THAT DATE. SINCE YOU WERE SEPARATED ON FEBRUARY 20, 1970, AND AS THERE APPEARS NO BASIS FOR RESTORATION TO THE ROLLS FOR THE PURPOSE OF GRANTING YOU SICK AND ANNUAL LEAVE SO AS TO EXTEND YOUR DATE OF SEPARATION TO APRIL 15, 1970, OR THEREAFTER, YOU MAY NOT BE REGARDED AS HAVING AN EMPLOYEE STATUS AFTER FEBRUARY 20, 1970. ALSO, WE HAVE HELD THAT AN EMPLOYEE WHO ELECTS TO RECEIVE COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT - INSTEAD OF RETIREMENT ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT - MAY NOT BE CONSIDERED RETIRED FOR PURPOSES OF RECEIVING RETROACTIVE PAY UNDER A STATUTORY PROVISION SUCH AS CITED ABOVE. SEE B-141102, FEBRUARY 8, 1960, COPY ENCLOSED. MOREOVER, THE AWARD OF COMPENSATION MAY NOT BE REGARDED AS RESTORING YOUR STATUS AS AN EMPLOYEE WITHOUT A BREAK IN SERVICE - AS YOU CONTEND.

IN VIEW OF THE FOREGOING WE HAVE NO ALTERNATIVE BUT TO CONCLUDE THAT YOU WERE NOT ELIGIBLE FOR THE RETROACTIVE SALARY INCREASE HERE IN QUESTION OR ANY OTHER BENEFITS WHICH MIGHT HAVE ACCRUED HAD YOUR EMPLOYMENT STATUS CONTINUED.

WE ARE ADVISING THE DEPARTMENT OF THE ARMY THAT THE ERRONEOUS PAYMENT OF SEVERANCE PAY IN THE AMOUNT OF $4,777.17 IS WAIVED UNDER 5 U.S.C. 5584. WE UNDERSTAND THAT NO AMOUNT HAS BEEN COLLECTED FROM YOU BECAUSE OF THE ERRONEOUS PAYMENT.