B-198396.OM, JAN 22, 1981

B-198396.OM, JAN 22, 1981

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING FOR YOUR CONSIDERATION THE CLAIM OF EMMET J. WHALEN FOR SEVERANCE PAY AFTER SEPARATION FROM THE POSITION OF NATIONAL GUARD TECHNICIAN.

AS A CONDITION OF EMPLOYMENT A NATIONAL GUARD TECHNICIAN MUST BE A MEMBER OF THE NATIONAL GUARD AND HOLD THE MILITARY GRADE SPECIFIED FOR HIS POSITION. 32 U.S.C. 709(E)(1). TPM 300(302.2), COPY IN FILE, STATES THAT GENERAL OFFICERS MAY NOT BE EMPLOYED AS TECHNICIANS UNLESS THEY ARE ASSIGNED AS COMMANDERS OF TACTICAL COMBAT UNITS ORGANIZED TO SERVE AS SUCH AND ARE EMPLOYED AS TECHNICIANS FOR THAT EXPRESS PURPOSE. IN FEBRUARY 1973, MR. WHALEN ACCEPTED THE AIR TECHNICIAN POSITION OF BASE DETACHMENT COMMANDER WITH THE RANK OF COLONEL. 10 U.S.C. 8851 SETS 30 YEARS OF FEDERAL COMMISSIONED SERVICE AS THE MANDATORY RETIREMENT LIMIT FOR COLONELS. HE WOULD HAVE HAD 30 YEARS OF SERVICE FEBRUARY 1977 BUT THE TIME WAS WAIVED UNTIL DECEMBER 1979, AT WHICH TIME HE WOULD HAVE BEEN FORCED TO TERMINATE HIS TECHNICIAN POSITION.

MR. WHALEN WAS NOTIFIED THAT IF HE ACCEPTED THE PROMOTION TO THE RANK OF BRIGADIER GENERAL IT WOULD BE CONSIDERED AS A VOLUNTARY RESIGNATION FROM HIS TECHNICIAN POSITION AND HE WOULD NOT BE ENTITLED TO SEVERANCE PAY. HOWEVER, IF HE HAD NOT ACCEPTED THE PROMOTION HE WOULD HAVE BEEN SEPARATED IN DECEMBER 1979, BUT THIS WOULD HAVE BEEN CONSIDERED INVOLUNTARY SEPARATION.

IN B-172682, JUNE 14, 1971, IT WAS HELD THAT THE SEPARATION OF TECHNICIANS BECAUSE OF THEIR NONSELECTION FOR PROMOTION AS MILITARY OFFICERS COULD BE VIEWED AS INVOLUNTARY, AND THAT THEY WERE ENTITLED TO SEVERANCE PAY IF OTHERWISE QUALIFIED.

THE CLAIM IS REFERRED TO DETERMINE IF IN THE PRESENT CIRCUMSTANCES THE MILITARY PROMOTION OF MR. WHALEN CONSTITUTES A VOLUNTARY OR INVOLUNTARY SEPARATION FROM HIS TECHNICIAN POSITION. THE AGENCY HAS DENIED PAYMENT OF SEVERANCE PAY ON THE BASIS THAT HE KNEW IF HE ACCEPTED THE PROMOTION HE WOULD BE SEPARATED FROM HIS CIVILIAN POSITION. WHILE THIS IS TRUE, IF HE DID NOT ACCEPT THE PROMOTION HE WOULD HAVE BEEN SEPARATED FROM HIS TECHNICIAN POSITION IN DECEMBER 1979, SINCE HIS MILITARY STATUS WOULD HAVE BEEN TERMINATED IF HE HAD NOT ACCEPTED THE PROMOTION.

IT SHOULD ALSO BE NOTED THAT HE WOULDN'T BE ELIGIBLE FOR CIVIL SERVICE ANNUITY UNTIL 1986, WHEN HE WILL REACH THE AGE OF 62.

INDORSEMENT

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858)

RETURNED. ALTHOUGH A MILITARY OFFICER MAY DECLINE A PROMOTION WE DO NOT BELIEVE THAT ACCEPTANCE OF A PROMOTION MUST BE VIEWED AS A VOLUNTARY ACT BY THE INDIVIDUAL SO AS TO PRECLUDE PAYMENT OF SEVERANCE PAY.

IN THAT CONNECTION SEE, SPRING V. UNITED STATES, 492 F.2D 1053 (CA4, 1974) WHICH INVOLVED AN INDIVIDUAL WHO WAS SEPARATED FOR REFUSAL TO ACCEPT A TRANSFER TO ANOTHER LOCATION. THE COURT OF APPEALS HELD THAT THE LOSS OF EMPLOYMENT IN THAT SITUATION WAS NOT VOLUNTARY, EVEN THOUGH IT COULD HAVE BEEN AVOIDED BY THE EMPLOYEE IF HE HAD ACCEPTED THE TRANSFER. SEE ALSO 5 C.F.R. 550.705.

SIMILARLY, THE MILITARY OFFICER INVOLVED COULD HAVE AVOIDED SEPARATION FROM HIS CIVILIAN POSITION BY REFUSING THE PROMOTION. SUCH ACTION, HOWEVER, WOULD HAVE BEEN CONTRARY TO THE NORMAL PROGRESS OF A MILITARY CAREER. NORMALLY, AN OFFICER MUST BE PROMOTED OR HE WILL BE SUBJECT TO THE PREMATURE TERMINATION OF HIS CAREER. IT WOULD BE ANOMALOUS TO CONCLUDE THAT THE ACCEPTANCE OF A PROMOTION IS VOLUNTARY WHEN IN THE ABSENCE OF A PROMOTION THE INDIVIDUAL'S CAREER PROBABLY WILL BE TERMINATED PREMATURELY.

THUS, ALTHOUGH GENERAL WHALEN COULD HAVE REFUSED TO ACCEPT THE PROMOTION FOR WHICH HE HAD BEEN SELECTED AND AVOIDED IMMEDIATE SEPARATION FROM HIS CIVILIAN POSITION, SUCH ACTION COULD NOT BE CONSIDERED AS BEING IN THE INTEREST OF THE INDIVIDUAL CONCERNED, THE AIR NATIONAL GUARD OR THE GOVERNMENT AS A WHOLE. IN THE CIRCUMSTANCES IT WOULD BE UNREALISTIC TO CONSIDER THE CONSEQUENTIAL LOSS OF THE CIVILIAN POSITION AS HAVING RESULTED FROM A VOLUNTARY ACT ON THE PART OF GENERAL WHALEN.

ACCORDINGLY, THE CLAIM FOR SEVERANCE PAY SHOULD BE ALLOWED.

DIGEST

NATIONAL GUARD TECHNICIANS SEPARATED FROM THEIR CIVILIAN POSITIONS BECAUSE OF THEIR LOSS OF MILITARY STATUS ARE CONSIDERED TO BE INVOLUNTARILY SEPARATED AND ENTITLED TO SEVERANCE PAY AUTHORIZED BY 5 U.S.C. 5595(B), IF OTHERWISE QUALIFIED. SEE 53 COMP.GEN. 493 (1974). HOWEVER, WHERE A NATIONAL GUARD TECHNICIAN CAN EXERCISE VIABLE OPTIONS AND CHOOSES A COURSE OF ACTION WHICH AVOIDS THE FUTURE LOSS OF MILITARY TECHNICIAN STATUS WHICH WOULD OCCUR BY OPERATION OF LAW, SUCH ACTION MUST BE CONSIDERED VOLUNTARY ON HIS PART AND SEVERANCE PAY WOULD NOT BE AUTHORIZED.