§5597. Separation pay

(a) For the purpose of this section-

(1) the term "Secretary" means the Secretary of Defense;

(2) the term "defense agency" means an agency of the Department of Defense, as further defined under regulations prescribed by the Secretary; and

(3) the term "employee" means an employee of a defense agency, serving under an appointment without time limitation, who has been currently employed for a continuous period of at least 12 months, except that such term does not include-

(A) a reemployed annuitant under subchapter III of chapter 83, chapter 84, or another retirement system for employees of the Government; or

(B) an employee having a disability on the basis of which such employee is or would be eligible for disability retirement under any of the retirement systems referred to in subparagraph (A).

(b) In order to avoid or minimize the need for involuntary separations due to a reduction in force, base closure, reorganization, transfer of function, or other similar action affecting 1 or more defense agencies, the Secretary shall establish a program under which separation pay may be offered to encourage eligible employees to separate from service voluntarily (whether by retirement or resignation).

(c) Under the program, separation pay may be offered by a defense agency only-

(1) with the prior consent, or on the authority, of the Secretary; and

(2) to employees within such occupational groups or geographic locations, or subject to such other similar limitations or conditions, as the Secretary may require.

(d) Such separation pay-

(1) shall be paid in a lump sum;

(2) shall be equal to the lesser of-

(A) an amount equal to the amount the employee would be entitled to receive under section 5595(c) if the employee were entitled to payment under such section; or

(B) $25,000;

(3) shall not be a basis for payment, and shall not be included in the computation, of any other type of Government benefit; and

(4) shall not be taken into account for purposes of determining the amount of any severance pay to which an individual may be entitled under section 5595 based on any other separation.

(e) No amount shall be payable under this section based on any separation occurring after September 30, 1999.

(f) The Secretary shall prescribe such regulations as may be necessary to carry out this section.

(g)(1) An employee who receives separation pay under this section on the basis of a separation occurring on or after the date of the enactment of the Federal Workforce Restructuring Act of 1994 and accepts employment with the Government of the United States within 5 years after the date of the separation on which payment of the separation pay is based shall be required to repay the entire amount of the separation pay to the defense agency that paid the separation pay.

(2) If the employment is with an Executive agency, the Director of the Office of Personnel Management may, at the request of the head of the agency, waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant available for the position.

(3) If the employment is with an entity in the legislative branch, the head of the entity or the appointing official may waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant available for the position.

(4) If the employment is with the judicial branch, the Director of the Administrative Office of the United States Courts may waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant available for the position.

(Added Pub. L. 102–484, div. D, title XLIV, §4436(a)(1), Oct. 23, 1992, 106 Stat. 2723 ; amended Pub. L. 103–226, §8(a), Mar. 30, 1994, 108 Stat. 118 ; Pub. L. 103–337, div. A, title III, §341(b)(1), Oct. 5, 1994, 108 Stat. 2720 .)

References in Text

The date of the enactment of the Federal Workforce Restructuring Act of 1994, referred to in subsec. (g)(1), is the date of enactment of Pub. L. 103–226, which was approved Mar. 30, 1994.

Amendments

1994-Subsec. (e). Pub. L. 103–337 substituted "September 30, 1999" for "September 30, 1997".

Subsec. (g). Pub. L. 103–226 added subsec. (g).

Voluntary Separation Incentives

Section 3 of Pub. L. 103–226 provided that:

"(a) Definitions.-For the purpose of this section-

"(1) the term 'agency' means an Executive agency (as defined by section 105 of title 5, United States Code), but does not include the Department of Defense, the Central Intelligence Agency, or the General Accounting Office; and

"(2) the term 'employee' means an employee (as defined by section 2105 of title 5, United States Code) who is employed by an agency, is serving under an appointment without time limitation, and has been currently employed for a continuous period of at least 12 months; such term includes an individual employed by a county committee established under section 8(b) of the Soil Conservation and Domestic Allotment Act (16 U.S.C. 590h(b)), but does not include-

"(A) a reemployed annuitant under subchapter III of chapter 83 or chapter 84 of title 5, United States Code, or another retirement system for employees of the Government; or

"(B) an employee having a disability on the basis of which such employee is or would be eligible for disability retirement under the applicable retirement system referred to in subparagraph (A).

"(b) Authority.-

"(1) In general.-In order to avoid or minimize the need for involuntary separations due to a reduction in force, reorganization, transfer of function, or other similar action, and subject to paragraph (2), the head of an agency may pay, or authorize the payment of, voluntary separation incentive payments to agency employees-

"(A) in any component of the agency;

"(B) in any occupation;

"(C) in any geographic location; or

"(D) on the basis of any combination of factors under subparagraphs (A) through (C).

"(2) Condition.-

"(A) In general.-In order to receive an incentive payment, an employee must separate from service with the agency (whether by retirement or resignation) before April 1, 1995.

"(B) Exception.-An employee who does not separate from service before the date specified in subparagraph (A) shall be ineligible for an incentive payment under this section unless-

"(i) the agency head determines that, in order to ensure the performance of the agency's mission, it is necessary to delay such employee's separation; and

"(ii) the employee separates after completing any additional period of service required (but not later than March 31, 1997).

"(c) Amount and Treatment of Payments.-A voluntary separation incentive payment-

"(1) shall be paid in a lump sum after the employee's separation;

"(2) shall be equal to the lesser of-

"(A) an amount equal to the amount the employee would be entitled to receive under section 5595(c) of title 5, United States Code, if the employee were entitled to payment under such section; or

"(B) $25,000;

"(3) shall not be a basis for payment, and shall not be included in the computation, of any other type of Government benefit;

"(4) shall not be taken into account in determining the amount of any severance pay to which an employee may be entitled under section 5595 of title 5, United States Code, based on any other separation; and

"(5) shall be paid from appropriations or funds available for the payment of the basic pay of the employee.

"(d) Effect of Subsequent Employment With the Government.-

"(1) In general.-An employee who has received a voluntary separation incentive payment under this section and accepts employment with the Government of the United States within 5 years after the date of the separation on which the payment is based shall be required to repay the entire amount of the incentive payment to the agency that paid the incentive payment.

"(2) Waiver authority.-

"(A) Executive agency.-If the employment is with an Executive agency (as defined by section 105 of title 5, United States Code), the Director of the Office of Personnel Management may, at the request of the head of the agency, waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant available for the position.

"(B) Legislative branch.-If the employment is with an entity in the legislative branch, the head of the entity or the appointing official may waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant available for the position.

"(C) Judicial branch.-If the employment is with the judicial branch, the Director of the Administrative Office of the United States Courts may waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant available for the position.

"(3) Definition.-For purposes of paragraph (1) (but not paragraph (2)), the term 'employment' includes employment under a personal services contract with the United States.

"(e) Regulations.-The Director of the Office of Personnel Management may prescribe any regulations necessary for the administration of subsections (a) through (d).

"(f) Employees of the Judicial Branch.-The Director of the Administrative Office of the United States Courts may, by regulation, establish a program consistent with the program established by subsections (a) through (d) for individuals serving in the judicial branch."

Monitoring and Report Relating to Voluntary Separation Incentive Payments

Section 6 of Pub. L. 103–226 provided that: "No later than December 31st of each fiscal year, the Office of Personnel Management shall submit to the Committee on Governmental Affairs of the Senate and the Committee on Post Office and Civil Service of the House of Representatives a report which, with respect to the preceding fiscal year, shall include-

"(1) the number of employees who received a voluntary separation incentive payment under section 3 [set out above] during such preceding fiscal year;

"(2) the agency from which each such employee separated;

"(3) at the time of separation from service by each such employee-

"(A) such employee's grade or pay level; and

"(B) the geographic location of such employee's official duty station, by region, State, and city (or foreign nation, if applicable); and

"(4)(A) the number of waivers made (in the repayment upon subsequent employment) by each agency or other authority under section 3 [set out above] or the amendments made by section 8 [amending this section and provisions set out as a note under section 403–4 of Title 50, War and National Defense]; and

"(B) the title and the grade or pay level of the position filled by the employee to whom such waiver applied."

[Committee on Post Office and Civil Service of House of Representatives abolished and its jurisdiction given primarily to Committee on Government Reform and Oversight by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995.]

Source of Payments

Section 4436(b)(1) of Pub. L. 102–484 provided that: "For fiscal years after fiscal year 1993, separation pay shall be paid by an agency out of any funds or appropriations available for salaries and expenses of such agency."

Report

Section 4436(c) of Pub. L. 102–484 provided that: "At the end of each of fiscal years 1993 through 1998, the Secretary of Defense shall submit to the President, the Congress, and the Director of the Office of Personnel Management a report on the effectiveness and costs of carrying out the amendments made by this section [enacting this section]."

Section Referred to in Other Sections

This section is referred to in title 10 section 1598.