B-175869, AUG 7, 1972

B-175869, AUG 7, 1972

CIVILIAN EMPLOYEE - RETIREMENT - WAIVER OF MILITARY RETIRED PAY DECISION REGARDING THE CLAIM OF PHILIP A. BALLERINO FOR BACK PAY CLAIMED BECAUSE OF AN ALLEGEDLY ERRONEOUS RETIREMENT SEPARATION EFFECTIVE MAY 29, 1971, AS AN EMPLOYEE OF THE CIVIL AERONAUTICS BOARD. IN VIEW OF THE EXTENSIVE RETIREMENT COUNSELING RECEIVED BY MR. BALLERINO, THE COMP. GEN. FEELS THAT IT IS REASONABLE TO ASSUME THAT CLAIMANT WAS AWARE THAT HE HAD TO WAIVE HIS MILITARY RETIRED PAY IN ORDER TO BE ELIGIBLE TO RETIRE, AND THAT HE DID INTEND TO WAIVE THAT PAY. THEREFORE, GAO CANNOT CONCLUDE THAT THE CAB WAS AT FAULT IN THE MATTER SO AS TO PROVIDE A BASIS FOR ALLOWANCE OF BACK PAY UNDER THE PROVISIONS OF 5 U.S.C. 5596.

TO MR. PHILIP A. BALLERINO:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 26, 1972, IN WHICH YOU SUBMITTED A REQUEST APPARENTLY FOR BACK PAY TO WHICH YOU BELIEVE YOU ARE ENTITLED BECAUSE OF AN ALLEGEDLY ERRONEOUS RETIREMENT SEPARATION EFFECTIVE MAY 29, 1971, AS AN EMPLOYEE OF THE CIVIL AERONAUTICS BOARD.

WE HAVE RECEIVED THE REPORT OF THE CIVIL AERONAUTICS BOARD IN THIS MATTER AND CAN NOW ADVISE YOU FURTHER. THE REPORT EXPLAINS THE CIRCUMSTANCES OF YOUR SEPARATION AS FOLLOWS:

"BY MEMORANDUM DATED JANUARY 9, 1969, THE FORMER DIRECTOR OF PERSONNEL NOTIFIED MR. BALLERINO OF HIS RETIREMENT ELIGIBILITY AND OFFERED THE AVAILABILITY OF RETIREMENT COUNSELING. *** SOMETIME DURING THE MONTH OF MARCH 1970, MR. BALLERINO WAS COUNSELED FOR THE FIRST TIME ON RETIREMENT BENEFITS. HE ASKED NUMEROUS QUESTIONS. HE FURNISHED ALL SORTS OF SUBSTANTIATION IN AN EFFORT TO RECEIVE ADDITIONAL SERVICE CREDIT. *** PERIODICALLY, THEREAFTER, MR. BALLERINO VISITED THE OFFICE OF PERSONNEL FOR NEW RETIREMENT ESTIMATES AND OTHER RETIREMENT INFORMATION. A COPY OF CSC PAMPHLET 18 WAS FURNISHED TO HIM. SECTION IV OF THIS PAMPHLET COVERS THE 'CREDITING OF MILITARY SERVICE', AND HIS QUESTIONS ON THIS SECTION WERE ANSWERED.

"A COST OF LIVING INCREASE OF 4.4 PERCENT WOULD BE GRANTED TO ALL ANNUITANTS WHO RETIRED BEFORE JUNE 1, 1971. WHEN MR. BALLERINO DECIDED TO APPLY FOR RETIREMENT, HE GAVE NO ADVANCE NOTICE TO HIS SUPERVISOR OR THE OFFICE OF PERSONNEL. HE PICKED UP A BLANK SF-2801 (APPLICATION FOR RETIREMENT) AT 2:00 P.M. ON THURSDAY, MAY 27. HE SIGNED AN SF-52 (REQUEST FOR PERSONNEL ACTION) ATTACHING HIS SF-2801 ON FRIDAY, MAY 28, AND LEFT THE AGENCY THAT DAY. HE DID NOT SEEK THE COUNSEL OF ANY PERSONNEL REPRESENTATIVE.

"WHEN HIS RETIREMENT APPLICATION WAS CHECKED AGAINST THE CRITERIA OF THE CIVIL SERVICE RETIREMENT SYSTEM, HE WAS INDEED ELIGIBLE TO RETIRE UPON WAIVER OF HIS MILITARY RETIRED PAY (SEE SUBCHAPTER S3-5F, FPM SUPPLEMENT 831-1). THE PERSONNEL REPRESENTATIVE TRIED TO REACH MR. BALLERINO BY PHONE TO REMIND HIM THAT HE MUST CONTACT THE MILITARY FINANCE CENTER TO WAIVE HIS MILITARY RETIRED PAY IN ORDER TO RECEIVE CREDIT FOR THAT PERIOD OF SERVICE. SINCE HE WAS NOT AVAILABLE, IT WAS ASSUMED THAT CSC WOULD VERIFY THE WAIVER UPON ADJUDICATION OF HIS RETIREMENT CLAIM.

"UPON RECEIPT OF MR. BALLERINO'S APPLICATION FOR REINSTATEMENT ON FEBRUARY 10, 1972, A TELEPHONE CONVERSATION WAS HELD WITH MR. DOMINICK MARRO, CSC CLAIMS EXAMINER. MR. BALLERINO HAD NOT WAIVED HIS MILITARY RETIRED PAY. WHEN THE CLAIMS EXAMINER WAS COMPLETING THE ADJUDICATION OF MR. BALLERINO'S APPLICATION FOR RETIREMENT, HE VERIFIED THAT MR. BALLERINO DID NOT WAIVE HIS MILITARY RETIRED PAY. THE TIME HAD ELAPSED FOR WHICH MR. BALLERINO COULD HAVE BEEN RESTORED TO THE AGENCY'S ROLLS IN ORDER TO OBTAIN RETIREMENT ELIGIBILITY; THEREFORE, MR. BALLERINO BECAME AN ANNUITANT ON OCTOBER 19, 1971, WHEN HE REACHED THE AGE OF 62 AND HAD COMPLETED AT LEAST FIVE YEARS OF CIVILIAN SERVICE. THE CSC EXAMINER DID NOT STATE THAT THE CAB HAD 'PREMATURELY' RETIRED MR. BALLERINO. IT WAS CONCLUDED THAT MR. BALLERINO'S SEPARATION SHOULD NOT BE MODIFIED, AND THAT HE WOULD BE CONSIDERED FOR REINSTATEMENT SHOULD A VACANCY FOR WHICH HE QUALIFIES OCCUR.

"IT IS THE AGENCY'S CONCLUSION THAT MR. BALLERINO'S SEPARATION WAS NOT ERRONEOUS. HE WAS ELIGIBLE TO RETIRE WITH HIS WAIVER OF HIS MILITARY PAY. HE RECEIVED RETIREMENT COUNSELING PERIODICALLY FOR MORE THAN A YEAR AND WAS AS KNOWLEDGEABLE CONCERNING THE CREDITING OF MILITARY SERVICE AS WERE THE COUNSELORS."

WE HAVE HELD THAT ONCE AN EMPLOYEE'S SEPARATION FOR RETIREMENT IS AN ACCOMPLISHED FACT THE DATE OF SEPARATION MAY NOT BE CHANGED. 22 COMP. GEN. 291 (1942). WE HAVE PERMITTED EXCEPTIONS TO THAT RULE WHERE THE SEPARATION DID NOT CONFORM TO THE INTENTION OF THE PARTIES. HOWEVER, IN VIEW OF THE EXTENSIVE RETIREMENT COUNSELING YOU RECEIVED, WE FEEL THAT IT IS APPROPRIATE TO CONCLUDE THAT YOU WERE AWARE OF THE FACT THAT YOU WOULD HAVE HAD TO WAIVE YOUR MILITARY RETIRED PAY IN ORDER TO BE ELIGIBLE TO RETIRE AS OF MAY 28, 1971. MOREOVER, WHEN YOU LEFT YOUR OFFICE WITHOUT ADVANCE NOTICE THAT YOU WERE APPLYING FOR RETIREMENT, IT WAS REASONABLE TO ASSUME THAT YOU INTENDED TO WAIVE YOUR MILITARY RETIRED PAY. THEREFORE, WE ARE UNABLE TO CONCLUDE THAT THE CIVIL AERONAUTICS BOARD WAS AT FAULT IN THE MATTER SO AS TO PROVIDE A BASIS FOR ALLOWANCE OF BACK PAY UNDER THE PROVISIONS OF 5 U.S.C. 5596, FOR THE PERIOD BETWEEN YOUR SEPARATION AND THE DATE YOU ACTUALLY BECAME ELIGIBLE FOR RETIREMENT. SEE OUR DECISION OF APRIL 21, 1969, B-166180, COPY ENCLOSED.

ACCORDINGLY, WE CONCUR IN THE CONCLUSION OF THE CIVIL AERONAUTICS BOARD TO THE EFFECT THAT YOUR SEPARATION WAS NOT ERRONEOUS.