B-143028, AUG. 2, 1960

B-143028, AUG. 2, 1960

TO THE SECRETARY OF AGRICULTURE:

ON MAY 26, 1960, THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION AS TO THE PROPRIETY OF CHANGING THE RECORDS OF YOUR DEPARTMENT TO SHOW THAT A FORMER EMPLOYEE OF THE TEXAS STATE OFFICE OF THE SOIL CONSERVATION SERVICE WAS TERMINATED BY DEATH RATHER THAN SEPARATED BASED UPON HIS RESIGNATION.

THE ASSISTANT SECRETARY SAYS THAT BECAUSE OF OCCURRENCES ON THE JOB, REPORTS FROM SUPERVISORS, AND A LETTER FROM THE EMPLOYEE'S PERSONAL PHYSICIAN (INDICATING HYPERTENSION, HIGH BLOOD PRESSURE, AND CERTAIN CARDIAC ABNORMALITIES), THE EMPLOYEE WAS ADVISED BY THE TEXAS STATE OFFICE TO SEEK DISABILITY RETIREMENT. AN APPLICATION FOR SUCH RETIREMENT WAS SUBMITTED ON DECEMBER 2, 1958, WHICH APPLICATION WAS REJECTED BY THE CIVIL SERVICE COMMISSION. THE EMPLOYEE INFORMED THE STATE CONSERVATIONIST THAT HE FELT HE HAD NOT BEEN ACCORDED A THOROUGH EXAMINATION FOR RETIREMENT. HOWEVER, HE DID NOT APPEAL THE DISAPPROVAL OF HIS APPLICATION SINCE, IN VIEW OF THE STATE OF HIS HEALTH, HE FEARED THAT THE STRAIN AND ORDEAL OF MAKING AN APPEAL WOULD BE MORE THAN HE COULD STAND. HE DID NOT RETURN TO WORK BUT WAS GRANTED SICK LEAVE FROM JANUARY 1959 INTO AUGUST 1959, AND ANNUAL LEAVE THEREAFTER. AS OF JANUARY 31, 1959, AT AGE 60, HE HAD 27 YEARS, 3 MONTHS AND 15 DAYS OF ELIGIBLE RETIREMENT SERVICE. ON DECEMBER 5, 1959, HE SUBMITTED HIS RESIGNATION GIVING AS THE REASON "TO REDUCE TOTAL ACTIVITIES AND PERMIT TIMELY DAILY RELAXATION UPON ADVICE OF MY DOCTOR.' THE RESIGNATION WAS PROCESSED EFFECTIVE DECEMBER 9, 1959. THE FORMER EMPLOYEE DIED SUDDENLY ON DECEMBER 28, 1959. THE DEATH CERTIFICATE, WHICH DID NOT CONTAIN A MEDICAL CERTIFICATE, LISTS "NATURAL CAUSES" AS THE CAUSE OF DEATH.

THE DECEDENT'S WIDOW HAS APPLIED THROUGH ADMINISTRATIVE CHANNELS FOR A SURVIVOR'S ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT RATHER THAN DEATH BENEFITS.

THE ASSISTANT SECRETARY EXPRESSES THE OPINION THAT, SINCE THE EMPLOYEE'S ILL HEALTH WAS KNOWN TO ADMINISTRATIVE OFFICIALS AND SINCE ALMOST A YEAR HAD ELAPSED BETWEEN THE DATE OF INITIAL EXAMINATION FOR DISABILITY RETIREMENT AND THE DATE THE RESIGNATION WAS SUBMITTED, IT WAS INCUMBENT UPON THE AGENCY TO FILE A NEW APPLICATION FOR DISABILITY RETIREMENT BEFORE ACCEPTING THE RESIGNATION. HE CITES OUR DECISION OF AUGUST 13, 1959, 39 COMP. GEN. 89 (BASED UPON ANDERSON V. MORGAN, 263 F.2D 903), IN SUPPORT OF THAT OPINION.

IF YOUR DEPARTMENT HAD TAKEN STEPS TO HAVE THE EMPLOYEE'S RIGHTS REDETERMINED BEFORE ACCEPTANCE OF THE RESIGNATION AND, IN ACCORDANCE WITH THE USUAL PRACTICE, HAD CONTINUED HIM IN A LEAVE WITHOUT PAY STATUS PENDING THE OUTCOME OF SUCH FURTHER PROCEEDINGS, HE WOULD HAVE HAD THE STATUS OF "EMPLOYEE" ON THE DATE OF DEATH.

APPLYING THE GENERAL CONCEPT OF OUR DECISION OF AUGUST 13, 1959, SUPRA., WE ADVISED THE ATTORNEY GENERAL IN OUR DECISION OF JANUARY 14, 1960, B- 141660, THAT, IN VIEW OF THE ADMINISTRATIVE DETERMINATION THAT THE PHYSICAL CONDITION OF A FORMER EMPLOYEE AT THE TIME OF HIS RESIGNATION RESULTED IN AN IMPAIRMENT OF HIS MENTAL FACULTIES, THUS PREVENTING HIS MAKING A RATIONAL DECISION, WE WOULD OFFER NO OBJECTION TO THEIR CANCELING THE RESIGNATION AND RESTORING HIM TO THE ROLLS FOR THE PURPOSE OF GRANTING ACCRUED SICK LEAVE TO THE DATE OF HIS DEATH WHICH FOLLOWED WITHIN A SHORT TIME OF HIS RESIGNATION. WE CONCLUDE THAT THE RATIONALE OF THAT DECISION MAY REASONABLY BE APPLIED IN THIS CASE; THEREFORE, WE SHALL NOT OBJECT TO THE CORRECTIVE ACTIONS PROPOSED.

THE CIVIL SERVICE COMMISSION HAS ADVISED US THAT IF THE RECORDS ARE ADJUSTED AS PROPOSED, THE INDIVIDUAL INVOLVED WILL BE CONSIDERED AS HAVING AN EMPLOYEE STATUS WHEN HE DIED AND, THEREFORE, HIS WIDOW WILL BE ENTITLED TO A SURVIVOR ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT.