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B-202274 1 (1981-07-15)

handle is hein.gao/gaobadjnz0001 and id is 1 raw text is: .V 1.4 I I . n '~'~~ THE COMPTROLLERGERA 0ECISION oF THE UNITEO. STATES WASHINGTON. D. . 20548 FILE: B-202274 DATE: July 15, 1981 MATTER OF: DIGEST: James J. Burns - Retroactive Discontinued Service Retirement Agency abolished employee's position effec- tive December 7, 1979, while he was on extended sick leave and detailed him to a nonexistent position. Agency did not notify employee of these personnel actions and his eligibility to elect a discontinued service retirement until February 1980. Office of Personnel Management denied employee's appli- cation for retirement on basis that employee cannot retire from nonexistent position. Agency may retroactively change effective date of separation to December 7, 1979, since agency did not provide employee with specific written notice prior to December 7, 1979, effective date of abolishment of position, of option to elect discontinued service retirement as required by regulation. This failure constitutes administrative error which justifies retroactive relief. The Internal Revenue Service (IRS) requests our de- cision on whether the separation date of one of its employees may be retroactively adjusted for purposes of seeking a discontinued service retirement. We hold that the employee is entitled to be retroactively separated as of December 7, 1979, because of the agency's failure to properly notify the employee of his impending invol- untary separation and his option to elect a discontinued service retirement. Mr. D. S. Burckman, Director, Personnel Division, states that the former employee, Mr. James J. Burns, served as Chief, Field Branch No. 3, GS-13, at Camden, New Jersey, until a reorganization in which the duties of his position were absorbed in a GS-14 position. Mr. Burns was also given a temporary promotion to a GS-14 position for a period not to exceed December 7, 1979. On the date that his temporary promotion expired, Mr. Burns' original position was also abolished. The agency did not advise Mr. Burns of the abol- ishment of his position or his eligibility for discontinued service retirement because he was on extended sick leave at that time. Instead, he was assigned to a Group Manager, >t/$Xrd 7 i4CQA446,

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