Regs

Page 813

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

‘‘ ‘(2)(A) has been employed continuously by the
Government Accountability Office for at least the 31day period immediately preceding the start of the period referred to in subparagraph (D);
‘‘ ‘(B) is serving under an appointment that is not
time limited;
‘‘ ‘(C) has not received a notice of involuntary separation, for misconduct or unacceptable performance,
with respect to which final action remains pending;
and
‘‘ ‘(D) is separated from the service voluntarily during a period with respect to which the Comptroller
General determines that the application of this subsection is necessary and appropriate for the purpose
of—
‘‘ ‘(i) realigning the Government Accountability
Office’s workforce in order to meet budgetary constraints or mission needs;
‘‘ ‘(ii) correcting skill imbalances; or
‘‘ ‘(iii) reducing high-grade, managerial, or supervisory positions;’.
‘‘(b) FEDERAL EMPLOYEES’ RETIREMENT SYSTEM.—Effective October 13, 2000, subparagraph (B) of section
8414(b)(1) of title 5, United States Code, shall, with respect to officers and employees of the Government Accountability Office, be applied as if it had been amended to read as follows:
‘‘ ‘(B)(i) has been employed continuously by the
Government Accountability Office for at least the 31day period immediately preceding the start of the period referred to in clause (iv);
‘‘ ‘(ii) is serving under an appointment that is not
time limited;
‘‘ ‘(iii) has not received a notice of involuntary separation, for misconduct or unacceptable performance,
with respect to which final action remains pending;
and
‘‘ ‘(iv) is separated from the service voluntarily during a period with respect to which the Comptroller
General determines that the application of this subsection is necessary and appropriate for the purpose
of—
‘‘ ‘(I) realigning the Government Accountability
Office’s workforce in order to meet budgetary constraints or mission needs;
‘‘ ‘(II) correcting skill imbalances; or
‘‘ ‘(III) reducing high-grade, managerial, or supervisory positions;’.
‘‘(c) NUMERICAL LIMITATION.—Not to exceed 10 percent
of the Government Accountability Office’s workforce
(as of the start of a fiscal year) shall be permitted to
take voluntary early retirement in such fiscal year
pursuant to this section.
‘‘(d) REGULATIONS.—The Comptroller General shall
prescribe any regulations necessary to carry out this
section, including regulations under which an early retirement offer may be made to any employee or group
of employees based on—
‘‘(1) geographic area, organizational unit, or occupational series or level;
‘‘(2) skills, knowledge, or performance; or
‘‘(3) such other similar factors (or combination of
factors described in this or any other paragraph of
this subsection) as the Comptroller General considers
necessary and appropriate in order to achieve the
purpose involved.
‘‘(e) SENSE OF CONGRESS.—It is the sense of Congress
that the implementation of this section is intended to
reshape the Government Accountability Office workforce and not downsize the Government Accountability
Office workforce.’’
APPLICATION OF SUBSECTION (d)(2)
Pub. L. 105–174, title III, § 7001(a), May 1, 1998, 112
Stat. 91, as amended by Pub. L. 106–58, title VI, § 651(a),
Sept. 29, 1999, 113 Stat. 480, which provided that, effective May 1, 1998, subsec. (d)(2) of this section was to be
applied as if it read as specified in Pub. L. 105–174,

§ 8337

§ 7001(a), was repealed by Pub. L. 107–296, title XIII,
§ 1313(b)(4), Nov. 25, 2002, 116 Stat. 2296.
INDIAN PREFERENCE LAWS APPLICABLE TO BUREAU OF
INDIAN AFFAIRS AND INDIAN HEALTH SERVICE POSITIONS

Nonapplicability of annuity provisions of subsec. (j)
of this section to individuals accepting waiver of Indian
preference laws with respect to personnel actions, see
section 472a(c)(2) of Title 25, Indians.
INDIVIDUALS ENTITLED TO ANNUITY PAYMENTS FOR
PERIOD PRIOR TO OCTOBER 1, 1979
Section 1241(b)(2) of Pub. L. 96–70 provided that: ‘‘Effective October 1, 1979, any individual who, but for
paragraph (1) of this subsection [set out as an Effective
Date of 1979 Amendment note above], would have been
entitled to one or more annuity payments pursuant to
the amendments made by this section [amending this
section] for periods before October 1, 1979, shall be entitled, to such extent or in such amounts as are provided
in advance in appropriation Acts, to a lump sum payment equal to the total amount of all such annuity
payments.’’

§ 8337. Disability retirement
(a) An employee who completes 5 years of civilian service and has become disabled shall be
retired on the employee’s own application or on
application by the employee’s agency. Any employee shall be considered to be disabled only if
the employee is found by the Office of Personnel
Management to be unable, because of disease or
injury, to render useful and efficient service in
the employee’s position and is not qualified for
reassignment, under procedures prescribed by
the Office, to a vacant position which is in the
agency at the same grade or level and in which
the employee would be able to render useful and
efficient service. For the purpose of the preceding sentence, an employee of the United States
Postal Service shall be considered not qualified
for a reassignment described in that sentence if
the reassignment is to a position in a different
craft or is inconsistent with the terms of a collective bargaining agreement covering the employee. A judge of the United States Court of
Appeals for the Armed Forces who completes 5
years of civilian service and who is found by the
Office to be disabled for useful and efficient
service as a judge of such court or who is removed for mental or physical disability under
section 942(c) of title 10 shall be retired on the
judge’s own application or upon such removal. A
Member who completes 5 years of Member service and is found by the Office to be disabled for
useful and efficient service as a Member because
of disease or injury shall be retired on the Member’s own application. An annuity authorized by
this section is computed under section 8339(g) of
this title, unless the employee or Member is eligible for a higher annuity computed under section 8339(a) through (e), (n), (q), (r), or (s).
(b) A claim may be allowed under this section
only if the application is filed with the Office
before the employee or Member is separated
from the service or within 1 year thereafter.
This time limitation may be waived by the Office for an employee or Member who at the date
of separation from service or within 1 year
thereafter is mentally incompetent, if the application is filed with the Office within 1 year from
the date of restoration of the employee or Mem-

§ 8337

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

ber to competency or the appointment of a fiduciary, whichever is earlier.
(c) An annuitant receiving disability retirement annuity from the Fund shall be examined
under the direction of the Office—
(1) at the end of 1 year from the date of the
disability retirement; and
(2) annually thereafter until he becomes 60
years of age;
unless his disability is permanent in character.
If the annuitant fails to submit to examination
as required by this section, payment of the annuity shall be suspended until continuance of
the disability is satisfactorily established.
(d) If an annuitant receiving disability retirement annuity from the Fund, before becoming 60
years of age, recovers from his disability, payment of the annuity terminates on reemployment by the Government or 1 year after the date
of the medical examination showing the recovery, whichever is earlier. If an annuitant receiving disability retirement annuity from the
Fund, before becoming 60 years of age, is restored to an earning capacity fairly comparable
to the current rate of pay of the position occupied at the time of retirement, payment of the
annuity terminates on reemployment by the
Government or 180 days after the end of the calendar year in which earning capacity is so restored, whichever is earlier. Earning capacity is
deemed restored if in any calendar year the income of the annuitant from wages or self-employment or both equals at least 80 percent of
the current rate of pay of the position occupied
immediately before retirement.
(e) If an annuitant whose annuity is terminated under subsection (d) of this section is not
reemployed in a position in which he is subject
to this subchapter, he is deemed, except for service credit, to have been involuntarily separated
from the service for the purpose of this subchapter as of the date of termination of the disability annuity, and after that termination is
entitled to annuity under the applicable provisions of this subchapter. If an annuitant whose
annuity is heretofore or hereafter terminated
because of an earning capacity provision of this
subchapter or an earlier statute—
(1) is not reemployed in a position in which
he is subject to this subchapter; and
(2) has not recovered from the disability for
which he was retired;
his annuity shall be restored at the same rate
effective the first of the year following any calendar year in which his income from wages or
self-employment or both is less than 80 percent
of the current rate of pay of the position occupied immediately before retirement. If an annuitant whose annuity is heretofore or hereafter
terminated because of a medical finding that he
has recovered from disability is not reemployed
in a position in which he is subject to this subchapter, his annuity shall be restored at the
same rate effective from the date of medical examination showing a recurrence of the disability. The second and third sentences of this subsection do not apply to an individual who has
become 62 years of age and is receiving or is eligible to receive annuity under the first sentence
of this subsection.

Page 814

(f)(1) An individual is not entitled to receive—
(A) an annuity under this subchapter, and
(B) compensation for injury to, or disability
of, such individual under subchapter I of chapter 81, other than compensation payable under
section 8107,
covering the same period of time.
(2) An individual is not entitled to receive an
annuity under this subchapter and a concurrent
benefit under subchapter I of chapter 81 on account of the death of the same person.
(3) Paragraphs (1) and (2) do not bar the right
of a claimant to the greater benefit conferred by
either this subchapter or subchapter I of chapter
81.
(g) If an individual is entitled to an annuity
under this subchapter, and the individual receives a lump-sum payment for compensation
under section 8135 based on the disability or
death of the same person, so much of the compensation as has been paid for a period extended
beyond the date payment of the annuity commences, as determined by the Department of
Labor, shall be refunded to that Department for
credit to the Employees’ Compensation Fund.
Before the individual may receive the annuity,
the individual shall—
(1) refund to the Department of Labor the
amount representing the commuted compensation payments for the extended period; or
(2) authorize the deduction of the amount
from the annuity.
Deductions from the annuity may be made from
accrued or accruing payments. The amounts deducted and withheld from the annuity shall be
transmitted to the Department of Labor for reimbursement to the Employees’ Compensation
Fund. When the Department of Labor finds that
the financial circumstances of an individual entitled to an annuity under this subchapter warrant deferred refunding, deductions from the annuity may be prorated against and paid from accruing payments in such manner as the Department determines appropriate.
(h)(1) As used in this subsection, the term
‘‘technician’’ means an individual employed
under section 709(a) of title 32 or section 10216 of
title 10 who, as a condition of the employment,
is required under section 709(b) of title 32 or section 10216 of title 10, respectively, to be a member of the Selected Reserve.
(2)(A) Except as provided in subparagraph (B)
of this paragraph, an individual shall be retired
under this section if the individual—
(i) is separated from employment as a technician under section 709(e)(1) of title 32 or section 10216 of title 10 by reason of a disability
that disqualifies the individual from membership in the Selected Reserve;
(ii) is not considered to be disabled under the
second sentence of subsection (a) of this section;
(iii) is not appointed to a position in the
Government (whether under paragraph (3) of
this subsection or otherwise); and
(iv) has not declined an offer of an appointment to a position in the Government under
paragraph (3) of this subsection.
(B) Payment of any annuity for an individual
pursuant to this subsection terminates—

Page 815

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

(i) on the date the individual is appointed to
a position in the Government (whether pursuant to paragraph (3) of this subsection or
otherwise);
(ii) on the date the individual declines an
offer of appointment to a position in the Government under paragraph (3); or
(iii) as provided under subsection (d).
(3) Any individual applying for or receiving
any annuity pursuant to this subsection shall,
in accordance with regulations prescribed by the
Office, be considered by any agency of the Government before any vacant position in the agency is filled if—
(A) the position is located within the commuting area of the individual’s former position;
(B) the individual is qualified to serve in
such position, as determined by the head of
the agency; and
(C) the position is at the same grade or
equivalent level as the position from which
the individual was separated under section
709(e)(1) of title 32 or section 10216 of title 10.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 572; Pub. L.
90–83, § 1(76), Sept. 11, 1967, 81 Stat. 214; Pub. L.
95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92
Stat. 1224; Pub. L. 96–499, title IV, § 403(a), Dec.
5, 1980, 94 Stat. 2605; Pub. L. 97–253, title III,
§ 302(a), Sept. 8, 1982, 96 Stat. 792; Pub. L. 98–94,
title XII, § 1256(c), Sept. 24, 1983, 97 Stat. 701;
Pub. L. 100–238, title I, § 124(a)(1)(A), Jan. 8, 1988,
101 Stat. 1755; Pub. L. 101–189, div. A, title XIII,
§ 1304(b)(2), Nov. 29, 1989, 103 Stat. 1577; Pub. L.
101–428, § 2(d)(1), Oct. 15, 1990, 104 Stat. 929; Pub.
L. 102–378, § 2(61), Oct. 2, 1992, 106 Stat. 1354; Pub.
L. 103–337, div. A, title IX, § 924(d)(1)(A), Oct. 5,
1994, 108 Stat. 2832; Pub. L. 105–61, title V,
§ 516(a)(2), Oct. 10, 1997, 111 Stat. 1306; Pub. L.
106–65, div. A, title V, § 522(d), Oct. 5, 1999, 113
Stat. 597; Pub. L. 106–553, § 1(a)(2) [title III,
§ 308(h)(1)], Dec. 21, 2000, 114 Stat. 2762, 2762A–88.)
HISTORICAL AND REVISION NOTES
1966 ACT
Derivation
..................

Revised Statutes and
Statutes at Large

U.S. Code
5 U.S.C. 2257.

July 31, 1956, ch. 804, § 401
‘‘Sec. 7’’, 70 Stat. 750.
Oct. 4, 1961, Pub. L. 87–350,
§ 4(a), 75 Stat. 771.

In subsection (c), the words ‘‘receiving disability retirement annuity from the Fund’’ are coextensive with
and substituted for ‘‘retired under this section or under
section 6 of the Act of May 29, 1930, as amended’’.
In subsection (g), the words ‘‘Notwithstanding any
provision of law to the contrary’’ are omitted as unnecessary. The words ‘‘Employees’ Compensation Fund’’
are substituted for ‘‘Federal Employees’ Compensation
Fund’’ to conform to the title of that Fund as set forth
in section 8147.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
1967 ACT
This section amends 5 U.S.C. 8337(e) for consistency
within the subchapter and to reflect that it is the individual, rather than the position, that is subject to the
subchapter.

§ 8337

AMENDMENTS
2000—Subsec. (a). Pub. L. 106–553 substituted ‘‘8339(a)
through (e), (n), (q), (r), or (s)’’ for ‘‘8339(a)–(e), (n), (q),
or (r)’’ in last sentence.
1999—Subsec. (h)(1). Pub. L. 106–65, § 522(d)(1), inserted
‘‘or section 10216 of title 10’’ after ‘‘title 32’’ and substituted ‘‘title 32 or section 10216 of title 10, respectively, to be a member of the Selected Reserve.’’ for
‘‘such title to be a member of the National Guard and
to hold a specified military grade.’’
Subsec. (h)(2)(A)(i). Pub. L. 106–65, § 522(d)(2), inserted
‘‘or section 10216 of title 10’’ after ‘‘title 32’’ and substituted ‘‘Selected Reserve’’ for ‘‘National Guard or
from holding the military grade required for such employment’’.
Subsec. (h)(3)(C). Pub. L. 106–65, § 522(d)(3), inserted
‘‘or section 10216 of title 10’’ after ‘‘title 32’’.
1997—Subsec. (a). Pub. L. 105–61 substituted ‘‘(q), or
(r)’’ for ‘‘or (q)’’.
1994—Subsec. (a). Pub. L. 103–337 substituted ‘‘Court
of Appeals for the Armed Forces’’ for ‘‘Court of Military Appeals’’.
1992—Subsec. (a). Pub. L. 102–378 substituted ‘‘if’’ for
‘‘is’’ after ‘‘employee’’ in second sentence.
1990—Subsec. (a). Pub. L. 101–428 substituted
‘‘8339(a)–(e), (n), or (q)’’ for ‘‘8339(a)–(e) or (n)’’.
1989—Subsec. (a). Pub. L. 101–189 substituted ‘‘section
942(c) of title 10’’ for ‘‘section 867(a)(2) of title 10’’.
1988—Subsec. (f). Pub. L. 100–238 added subsec. (f) and
struck out former subsec. (f) which read as follows: ‘‘An
individual is not entitled to receive an annuity under
this subchapter and compensation for injury or disability to himself under subchapter I of chapter 81 of this
title covering the same period of time. This provision
does not bar the right of a claimant to the greater benefit conferred by either subchapter for any part of the
same period of time. Neither this provision nor any
provision of subchapter I of chapter 81 of this title denies to an individual an annuity accruing to him under
this subchapter on account of service performed by
him, or denies any concurrent benefit to him under
subchapter I of chapter 81 of this title on account of the
death of another individual.’’
Subsec. (g). Pub. L. 100–238 added subsec. (g) and
struck out former subsec. (g) which read as follows:
‘‘The right of an individual entitled to an annuity
under this subchapter is not affected because he has received a lump-sum payment for compensation under
section 8135 of this title. However, if the annuity is
payable on account of the same disability for which
compensation under section 8135 of this title has been
paid, so much of the compensation as has been paid for
a period extended beyond the date the annuity becomes
effective, as determined by the Department of Labor,
shall be refunded to that Department to be covered into
the Employees’ Compensation Fund. Before the individual may receive the annuity he shall—
‘‘(1) refund to the Department of Labor the amount
representing the commuted compensation payments
for the extended period; or
‘‘(2) authorize the deduction of that amount from
the annuity payable to him under this subchapter,
which amount shall be transmitted to the Department of Labor for reimbursement to the Employees’
Compensation Fund.
Deductions from the annuity may be made from accrued and accruing payments. When the Department of
Labor finds that the financial circumstances of the annuitant warrant deferred refunding, deductions from
the annuity may be prorated against and paid from accruing payments in such manner as that Department
determines.’’
1983—Subsec. (a). Pub. L. 98–94 inserted provision that
a judge of the United States Court of Military Appeals
who completes 5 years of civilian service and who is
found by the Office to be disabled for useful and efficient service as a judge of such court or who is removed
for mental or physical disability under section 867(a)(2)
of title 10 shall be retired on the judge’s own application or upon such removal.

§ 8338

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

1982—Subsec. (d). Pub. L. 97–253, § 302(a)(1), (2), substituted ‘‘180 days’’ for ‘‘1 year’’ in provision relating to
restoration of an annuitant to an earning capacity fairly comparable to the current rate of pay of the position
occupied at the time of retirement, and ‘‘any calendar
year’’ for ‘‘each of 2 succeeding calendar years’’.
Subsec. (h). Pub. L. 97–253, § 302(a)(3), added subsec.
(h).
1980—Subsec. (a). Pub. L. 96–499 provided that an employee was to be considered disabled only if the employee were found by the Office of Personnel Management to be unable to render useful and efficient service
in the employee’s position and was not qualified for reassignment to a vacant position in the agency at the
same grade or level and provided that an employee in
the Postal Service was to be considered not qualified
for such reassignment if such reassignment were to a
position in a different craft or were inconsistent with
the terms of the appropriate collective bargaining
agreement.
1978—Subsecs. (a) to (c). Pub. L. 95–454 substituted
‘‘Office of Personnel Management’’ and ‘‘Office’’ for
‘‘Civil Service Commission’’ and ‘‘Commission’’, respectively, wherever appearing.
EFFECTIVE DATE OF 2000 AMENDMENT
Amendment by Pub. L. 106–553 effective on the first
day of the first applicable pay period that begins on
Dec. 21, 2000, and applicable only to an individual who
is employed as a member of the Supreme Court Police
after Dec. 21, 2000, see section 1(a)(2) [title III, § 308(i),
(j)] of Pub. L. 106–553, set out in a Supreme Court Police
Retirement note under section 8331 of this title.
EFFECTIVE DATE OF 1997 AMENDMENT
Amendment by Pub. L. 105–61 applicable to any annuity commencing before, on, or after Oct. 10, 1997, and effective with regard to any payment made after the first
month following Oct. 10, 1997, see section 516(b) of Pub.
L. 105–61, set out as a note under section 8334 of this
title.
EFFECTIVE DATE OF 1988 AMENDMENT
Section 124(c) of Pub. L. 100–238 provided that:
‘‘(1) IN GENERAL.—Except as provided in paragraph (2),
the amendments made by this section [enacting section
8464a of this title, amending this section, renumbering
section 8457 of this title as section 8456, and repealing
former section 8456 of this title] shall be effective as of
January 1, 1987, and shall apply with respect to benefits
payable based on a death or disability occurring on or
after that date.
‘‘(2) EXCEPTION.—The amendment made by subsection
(a)(1)(A) [amending this section] shall take effect on
the date of the enactment of this Act [Jan. 8, 1988] and
shall apply with respect to benefits payable based on a
death or disability occurring on or after that date.’’

[Sept. 8, 1982]. Any annuity resulting from such application shall commence as of the day after the date such
application is received by the Office.’’
EFFECTIVE DATE OF 1980 AMENDMENT
Amendment by Pub. L. 96–499 effective on 90th day
after Dec. 5, 1980, see section 403(c) of Pub. L. 96–499, set
out as a note under section 8331 of this title.
EFFECTIVE DATE OF 1978 AMENDMENT
Amendment by Pub. L. 95–454 effective 90 days after
Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as
a note under section 1101 of this title.

§ 8338. Deferred retirement
(a) An employee who is separated from the
service or transferred to a position in which he
does not continue subject to this subchapter
after completing 5 years of civilian service is entitled to an annuity beginning at the age of 62
years.
(b) A Member who, after December 31, 1955, is
separated from the service as a Member after
completing 5 years of civilian service is entitled
to an annuity beginning at the age of 62 years.
A Member who is separated from the service
after completing 10 or more years of Member
service is entitled to an annuity beginning at
the age of 60 years. A Member who is separated
from the service after completing 20 or more
years of service, including 10 or more years of
Member service, is entitled to a reduced annuity
beginning at the age of 50 years.
(c) A judge of the United States Court of Appeals for the Armed Forces who is separated
from the service after completing 5 years of civilian service is entitled to an annuity beginning at the age of 62 years. A judge of such court
who is separated from the service after completing the term of service for which he was appointed is entitled to an annuity. If an annuity
is elected before the judge becomes 60 years of
age, it shall be a reduced annuity.
(d) An annuity or reduced annuity authorized
by this section is computed under section 8339 of
this title.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 574; Pub. L.
90–83, § 1(77), Sept. 11, 1967, 81 Stat. 214; Pub. L.
98–94, title XII, § 1256(d), Sept. 24, 1983, 97 Stat.
702; Pub. L. 103–337, div. A, title IX, § 924(d)(1)(A),
Oct. 5, 1994, 108 Stat. 2832.)
HISTORICAL AND REVISION NOTES
1966 ACT

EFFECTIVE DATE OF 1982 AMENDMENT
Section 302(c) of Pub. L. 97–253, as amended by Pub.
L. 97–346, § 3(i), Oct. 15, 1982, 96 Stat. 1649, provided that:
‘‘(1) Except as provided in paragraphs (2) and (3), the
amendments made by subsections (a) and (b) [amending
this section and section 8347 of this title] shall take effective October 1, 1982.
‘‘(2) The amendments made by paragraphs (1) and (2)
of subsection (a) [amending this section] shall take effect with respect to income earned after December 31,
1982.
‘‘(3) Subsection (h) of section 8337 of title 5, United
States Code (as added by subsection (a)) shall apply to
any technician (as defined in paragraph (1) of such subsection (h)) who is separated from employment as a
technician on or after October 1, 1982. Such subsection
(h) shall also apply to any technician separated from
employment as a technician on or after December 31,
1979, and before October 1, 1982, if application therefor
is made to the Office of Personnel Management within
12 months after the date of the enactment of this Act

Page 816

Derivation
..................

Revised Statutes and
Statutes at Large

U.S. Code
5 U.S.C. 2258.

July 31, 1956, ch. 804, § 401
‘‘Sec. 8’’, 70 Stat. 751.
July 7, 1960, Pub. L. 86–604,
§ 1(c), 74 Stat. 358.
July 12, 1960, Pub. L. 86–622,
§ 2(a), 74 Stat. 410.

In subsection (b), the words ‘‘after December 31, 1955’’
are substituted for ‘‘on or after January 1, 1956’’. The
word ‘‘hereafter’’ is omitted as unnecessary.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
1967 ACT
This section amends 5 U.S.C. 8338(a) for consistency
within the subchapter and to reflect that it is the indi-

Page 941

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

section (a) shall not be effective, in the case of
a former spouse, to the extent that it is inconsistent with any joint waiver previously executed with respect to such former spouse under
section 8416(a).
(f)(1) Any amount under section 8442(b)(1)(A)
which would otherwise be payable to a widow or
widower based on the service of another individual shall be paid (in whole or in part) by the Office to a former spouse of such individual if and
to the extent expressly provided for in the terms
of a court decree of divorce, annulment, or legal
separation, or the terms of a court order or
court-approved property settlement incident to
any decree of divorce, annulment, or legal separation.
(2) Paragraph (1) shall apply only to payments
made by the Office after the date of receipt in
the Office of written notice of such decree,
order, or agreement, and such additional information and documentation as the Office may
prescribe.
(g) Any payment under this section to a person bars recovery by any other person.
(h)(1) Subsection (c)(2) (to the extent that it
provides for termination of a survivor annuity
because of a remarriage before age 55) shall not
apply if the former spouse was married for at
least 30 years to the individual on whose service
the survivor annuity is based.
(2) A remarriage described in paragraph (1)
shall not be taken into account for purposes of
section 8419(b)(1)(B) or any other provision of
this chapter which the Office may by regulation
identify in order to carry out the purposes of
this subsection.
(Added Pub. L. 99–335, title I, § 101(a), June 6,
1986, 100 Stat. 564; amended Pub. L. 105–61, title
V, § 518(b)(2), Oct. 10, 1997, 111 Stat. 1308.)
AMENDMENTS
1997—Subsec. (c)(2). Pub. L. 105–61, § 518(b)(2)(B), substituted ‘‘except as provided in subsection (h), shall’’
for ‘‘shall’’.
Subsec. (h). Pub. L. 105–61, § 518(b)(2)(A), added subsec.
(h).
EFFECTIVE DATE OF 1997 AMENDMENT
Amendment by Pub. L. 105–61 applicable with respect
to remarriages occurring on or after Jan. 1, 1995, see
section 518(c) of Pub. L. 105–61, set out as a note under
section 8341 of this title.

SUBCHAPTER V—DISABILITY BENEFITS
§ 8451. Disability retirement
(a)(1)(A) An employee who completes at least
18 months of civilian service creditable under
section 8411 and has become disabled shall be retired on the employee’s own application or on
application by the employee’s agency.
(B) For purposes of this subsection, an employee shall be considered disabled only if the
employee is found by the Office to be unable, because of disease or injury, to render useful and
efficient service in the employee’s position.
(2)(A) Notwithstanding paragraph (1), an employee shall not be eligible for disability retirement under this section if the employee has declined a reasonable offer of reassignment to a
vacant position in the employee’s agency for
which the employee is qualified if the position—

§ 8452

(i) is at the same grade (or pay level) as the
employee’s most recent grade (or pay level) or
higher;
(ii) is within the employee’s commuting
area; and
(iii) is one in which the employee would be
able to render useful and efficient service.
(B) An employee who is applying for disability
retirement under this subchapter shall be considered for reassignment by the employee’s
agency to a vacant position described in subparagraph (A) in accordance with such procedures as the Office shall by regulation prescribe.
(C) An employee is entitled to appeal to the
Merit Systems Protection Board under section
7701 any determination that the employee is not
unable, because of disease or injury, to render
useful and efficient service in a position to
which the employee has declined reassignment
under this section.
(D) For purposes of subparagraph (A), an employee of the United States Postal Service shall
not be considered qualified for a position if such
position is in a different craft or if reassignment
to such position would be inconsistent with the
terms of a collective-bargaining agreement covering the employee.
(b) A Member who completes at least 18
months of service as a Member and is found by
the Office to be disabled for useful and efficient
service as a Member because of disease or injury
shall be retired on the Member’s own application.
(c) An employee or Member retiring under this
section is entitled to an annuity computed
under section 8452.
(Added Pub. L. 99–335, title I, § 101(a), June 6,
1986, 100 Stat. 565.)
§ 8452. Computation of disability annuity
(a)(1)(A) Except as provided in paragraph (2),
or subsection (b), (c), or (d), the annuity of an
annuitant under this subchapter—
(i) for the period beginning on the date on
which such annuity commences, or is restored
(as described in section 8455(b)(2) or (3)), and
ending at the end of the twelfth month beginning on or after such date, shall be equal to 60
percent of the annuitant’s average pay; and
(ii) after the end of the period referred to in
clause (i), shall be equal to 40 percent of the
annuitant’s average pay.
(B) An annuity computed under this paragraph—
(i) shall not, during any period referred to in
subparagraph (A)(i), be adjusted under section
8462; but
(ii) shall, after the end of any period referred
to in subparagraph (A)(i), be adjusted to reflect all adjustments made under section
8462(b) after the end of the period referred to
in subparagraph (A)(i), whether the amount
actually payable to the annuitant under this
section in any month is determined under this
subsection or otherwise.
(2)(A) For any month in which an annuitant is
entitled both to an annuity under this subchapter as computed under paragraph (1) and to
a disability insurance benefit under section 223

§ 8452

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

of the Social Security Act, the annuitant’s annuity for such month (as so computed) shall—
(i) if such month occurs during a period referred to in paragraph (1)(A)(i), be reduced by
100 percent of the annuitant’s assumed disability insurance benefit for such month; or
(ii) if such month occurs other than during a
period referred to in paragraph (1)(A)(i), be reduced by 60 percent of the annuitant’s assumed disability insurance benefit for such
month;
except that an annuity may not be reduced
below zero by reason of this paragraph.
(B)(i) For purposes of this paragraph, the assumed disability insurance benefit of an annuitant for any month shall be equal to—
(I) the amount of the disability insurance
benefit to which the annuitant is entitled
under section 223 of the Social Security Act
for the month in which the annuity under this
subchapter commences, or is restored, or, if no
entitlement to such disability insurance benefits exists for such month, the first month
thereafter for which the annuitant is entitled
both to an annuity under this subchapter and
disability insurance benefits under section 223
of the Social Security Act, adjusted by
(II) all adjustments made under section
8462(b) after the end of the period referred to
in paragraph (1)(A)(i) (or, if later, after the end
of the month preceding the first month for
which the annuitant is entitled both to an annuity under this subchapter and disability insurance benefits under section 223 of the Social Security Act) and before the start of the
month involved (without regard to whether
the annuitant’s annuity was affected by any of
those adjustments).
(ii) For purposes of applying section 224 of the
Social Security Act to the assumed disability
insurance benefit used to compute the reduction
under this paragraph, the amount of the annuity
under this subchapter which is considered shall
be the amount of the annuity as determined before the application of this paragraph.
(3) Section 8462 shall apply with respect to
amounts under this subsection only as provided
in paragraphs (1) and (2).
(b)(1) Except as provided in subsection (d), if
an annuitant is entitled to an annuity under
this subchapter as of the day before the date of
the sixty-second anniversary of the annuitant’s
birth (hereinafter in this section referred to as
the annuitant’s ‘‘redetermination date’’), such
annuity shall be redetermined by the Office in
accordance with paragraph (2). Effective as of
the annuitant’s redetermination date, the annuity (as so redetermined) shall be in lieu of any
annuity to which such annuitant would otherwise be entitled under this subchapter.
(2)(A) An annuity redetermined under this
subsection shall be equal to the amount of the
annuity to which the annuitant would be entitled under section 8415, taking into account the
provisions of subparagraph (B).
(B) In performing a computation under this
paragraph—
(i) creditable service of an annuitant shall be
increased by including any period (or periods)
before the annuitant’s redetermination date

Page 942

during which the annuitant was entitled to an
annuity under this subchapter; and
(ii) the average pay which would otherwise
be used shall be adjusted to reflect all adjustments made under section 8462(b) with respect
to any period (or periods) referred to in clause
(i) (without regard to whether the annuitant’s
annuity was affected by any of those adjustments).
(c) Except as provided in subsection (d), the
annuity of an annuitant under this subchapter
shall be computed under section 8415 if—
(1) such annuity commences, or is restored,
beginning on or after the redetermination date
of the annuitant; or
(2) as of the day on which such annuity commences, or is restored, the annuitant satisfies
the age and service requirements for entitlement to an annuity under section 8412 (other
than subsection (g) of such section).
(d)(1) The annuity to which an annuitant is entitled under this section (after the reduction
under subsection (a)(2), if applicable, has been
made) shall not be less than the amount of an
annuity computed under section 8415 (excluding
subsection (g) of such section).
(2) In applying this subsection with respect to
any annuitant, the amount of an annuity so
computed under section 8415 shall be adjusted
under section 8462 (including subsection (c)
thereof)—
(A) to the same extent, and otherwise in the
same manner, as if it were an annuity—
(i) subject to adjustment under such section; and
(ii) with a commencement date coinciding
with the date the annuitant’s annuity commenced or was restored under this subchapter, as the case may be; and
(B) whether the amount actually payable to
the annuitant under this section in any month
is determined under this subsection or otherwise.
(Added Pub. L. 99–335, title I, § 101(a), June 6,
1986, 100 Stat. 566; amended Pub. L. 99–556, title
I, §§ 104, 106, Oct. 27, 1986, 100 Stat. 3131, 3132;
Pub. L. 100–238, title I, § 122(a)–(c), Jan. 8, 1988,
101 Stat. 1753, 1754; Pub. L. 108–176, title II,
§ 226(b)(2)(B), Dec. 12, 2003, 117 Stat. 2530.)
REFERENCES IN TEXT
Sections 223 and 224 of the Social Security Act, referred to in subsec. (a)(2), are classified to sections 423
and 424a, respectively, of Title 42, The Public Health
and Welfare.
AMENDMENTS
2003—Subsec. (d)(1). Pub. L. 108–176 substituted ‘‘subsection (g)’’ for ‘‘subsection (f)’’.
1988—Subsec. (a)(1)(B). Pub. L. 100–238, § 122(c)(2)(A),
amended subpar. (B) generally. Prior to amendment,
subpar. (B) read as follows: ‘‘An annuity computed
under this paragraph shall not, for purposes of any adjustment under section 8462 (including any adjustment
under subsection (c)(1) of such section), be considered
to have commenced until after such annuity ceases to
be determined under subparagraph (A)(i).’’
Subsec. (a)(2)(B)(i). Pub. L. 100–238, § 122(a), amended
cl. (i) generally. Prior to amendment, cl. (i) read as follows: ‘‘For purposes of this paragraph, the assumed disability insurance benefit of an annuitant for any month
shall be equal to—

Page 943

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

‘‘(I) the amount of the disability insurance benefit
to which the annuitant would have been entitled
under section 223 of the Social Security Act for the
month in which the annuity under this subchapter
commenced, or was restored, determined as if such
annuitant had then satisfied all requirements for entitlement to a benefit under such section, adjusted by
‘‘(II) all adjustments made under section 8462(b) between the date on which the annuity commenced, or
was restored, and the start of the month involved
(without regard to whether the annuitant’s annuity
was affected by any of those adjustments).
For purposes of computing the assumed disability insurance benefit, the month in which the annuitant’s
disability began (as determined under section
216(i)(2)(C) of the Social Security Act) shall be the
month in which the annuity commenced or, if earlier
(and if a determination was actually made) the month
determined under such section.’’
Subsec. (a)(3). Pub. L. 100–238, § 122(c)(2)(B), added par.
(3).
Subsec. (b). Pub. L. 100–238, § 122(b), amended subsec.
(b) generally, substituting pars. (1) and (2) for former
pars. (1) to (4).
Subsec. (d). Pub. L. 100–238, § 122(c)(1), designated existing provisions as par. (1) and added par. (2).
1986—Subsec. (b)(3). Pub. L. 99–556, § 106, substituted
‘‘(a)(1)(A)(i)’’ for ‘‘(a)(1)(A)’’ in second sentence.
Subsec. (d). Pub. L. 99–556, § 104, inserted ‘‘(after the
reduction under subsection (a)(2), if applicable, has
been made)’’.
EFFECTIVE DATE OF 2003 AMENDMENT
Amendment by Pub. L. 108–176 effective on 60th day
after Dec. 12, 2003, and applicable with respect to any
annuity entitlement based on an individual’s separation from service occurring on or after such effective
date, and any service performed by any such individual
before, on, or after such effective date, subject to special rule relating to deposit requirement, see section
226(c) of Pub. L. 108–176, set out as a note under section
8401 of this title.
EFFECTIVE DATE OF 1988 AMENDMENT
Section 122(d) of Pub. L. 100–238 provided that: ‘‘The
amendments made by this section [amending this section] shall be effective as of January 1, 1987, as if they
had been enacted as part of the Federal Employees’ Retirement System Act of 1986 (Public Law 99–335; 100
Stat. 514 and following).’’

§ 8453. Application
A claim may be allowed under this subchapter
only if application is filed with the Office before
the employee or Member is separated from the
service or within 1 year thereafter. This time
limitation may be waived by the Office for an
employee or Member who, at the date of separation from service or within 1 year thereafter, is
mentally incompetent if the application is filed
with the Office within 1 year from the date of
restoration of the employee or Member to competency or the appointment of a fiduciary,
whichever is earlier.
(Added Pub. L. 99–335, title I, § 101(a), June 6,
1986, 100 Stat. 568.)
§ 8454. Medical examination
An annuitant receiving a disability retirement
annuity from the Fund shall be examined under
the direction of the Office—
(1) at the end of 1 year from the date of the
disability retirement; and
(2) annually thereafter until becoming 60
years of age;

§ 8456

unless the disability is permanent in character.
If the annuitant fails to submit to examination
as required by this section, payment of the annuity shall be suspended until continuance of
the disability is satisfactorily established.
(Added Pub. L. 99–335, title I, § 101(a), June 6,
1986, 100 Stat. 568.)
§ 8455. Recovery; restoration of earning capacity
(a)(1) If an annuitant receiving a disability retirement annuity from the Fund recovers from
the disability before becoming 60 years of age,
payment of the annuity terminates on reemployment by the Government or 1 year after the
date on which the Office determines that the annuitant has recovered, whichever is earlier.
(2) If an annuitant receiving a disability annuity from the Fund, before becoming 60 years of
age, is restored to an earning capacity fairly
comparable to the current rate of pay of the position occupied at the time of retirement, payment of the annuity terminates 180 days after
the end of the calendar year in which earning
capacity is so restored. Earning capacity is
deemed restored if in any calendar year the income of the annuitant from wages or self-employment or both equals at least 80 percent of
the current rate of pay of the position occupied
immediately before retirement.
(b)(1) If an annuitant whose annuity is terminated under subsection (a) is not reemployed in
a position in which that individual is subject to
this chapter, such individual is deemed, except
for service credit, to have been involuntarily
separated from the service for the purpose of
subchapter II of this chapter as of the date of
termination of the disability annuity, and after
that termination is entitled to annuity under
the applicable provisions of such subchapter.
(2) If an annuitant whose annuity is terminated under subsection (a)(2)—
(A) is not reemployed in a position subject
to this chapter; and
(B) has not recovered from the disability for
which that individual was retired;
the annuity of such individual shall be restored
at the applicable rate under section 8452 effective the first of the year following any calendar
year in which such individual’s income from
wages or self-employment or both is less than 80
percent of the current rate of pay of the position
occupied immediately before retirement.
(3) If an annuitant whose annuity is terminated because of a medical finding that the individual has recovered from disability is not reemployed in a position in which such individual is
subject to this chapter, the annuity of such individual shall be restored at the applicable rate
under section 8452 effective from the date on
which the Office determines that there has been
a recurrence of the disability.
(4) Paragraphs (2) and (3) shall not apply in the
case of an annuitant receiving an annuity from
the Fund under subchapter II of this chapter.
(Added Pub. L. 99–335, title I, § 101(a), June 6,
1986, 100 Stat. 568.)
§ 8456. Military reserve technicians
(a)(1) Except as provided in paragraph (2) or
(3), an individual shall be retired under this subchapter if the individual—

[§ 8457

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

(A) is separated from employment as a military reserve technician by reason of a disability that disqualifies the individual from membership in a reserve component of the Armed
Forces specified in section 10101 of title 10 or
from holding the military grade required for
such employment;
(B) is not considered to be disabled under
section 8451(a)(1)(B);
(C) is not appointed to a position in the Government (whether under subsection (b) or
otherwise); and
(D) has not declined an offer of an appointment to a position in the Government under
subsection (b).
(2) Payment of any annuity for an individual
pursuant to this section terminates—
(A) on the date the individual is appointed
to a position in the Government (whether pursuant to subsection (b) or otherwise);
(B) on the date the individual declines an
offer of appointment to a position in the Government under subsection (b); or
(C) as provided under section 8455(a).
(3) An individual eligible to retire under section 8414(c) shall not be eligible to retire under
this section.
(b) Any individual applying for or receiving
any annuity pursuant to this section shall, in
accordance with regulations prescribed by the
Office, be considered by any agency of the Government before any vacant position in the agency is filled if—
(1) the position is located within the commuting area of the individual’s former position;
(2) the individual is qualified to serve in
such position, as determined by the head of
the agency; and
(3) the position is at the same grade or
equivalent level as the position from which
the individual was separated.
(Added Pub. L. 99–335, title I, § 101(a), June 6,
1986, 100 Stat. 570, § 8457; amended Pub. L. 99–556,
title I, § 118, Oct. 27, 1986, 100 Stat. 3134; renumbered § 8456, Pub. L. 100–238, title I, § 124(b)(1)(B),
Jan. 8, 1988, 101 Stat. 1756; Pub. L. 103–337, div. A,
title XVI, § 1677(a)(4), Oct. 5, 1994, 108 Stat. 3019.)
PRIOR PROVISIONS
A prior section 8456, added Pub. L. 99–355, title I,
§ 101(a), June 6, 1986, 100 Stat. 569, related to relationship between annuity and workers’ compensation, prior
to repeal by Pub. L. 100–238, title I, § 124(b)(1)(A), Jan.
8, 1988, 101 Stat. 1756. See section 8464a of this title.
AMENDMENTS
1994—Subsec. (a)(1)(A). Pub. L. 103–337 substituted
‘‘section 10101’’ for ‘‘section 261(a)’’.
1988—Pub. L. 100–238 renumbered section 8457 of this
title as this section.
1986—Subsec. (a)(1)(C), (D), (2)(A), (B). Pub. L. 99–556
substituted ‘‘subsection (b)’’ for ‘‘subsection (c)’’.
EFFECTIVE DATE OF 1994 AMENDMENT
Amendment by Pub. L. 103–337 effective Dec. 1, 1994,
except as otherwise provided, see section 1691 of Pub. L.
103–337, set out as an Effective Date note under section
10001 of Title 10, Armed Forces.

Page 944

[§ 8457. Renumbered § 8456]
SUBCHAPTER VI—GENERAL AND
ADMINISTRATIVE PROVISIONS
§ 8461. Authority of the Office of Personnel Management
(a) The Office shall pay all benefits that are
payable under subchapter II, IV, V, or VI of this
chapter from the Fund.
(b) The Office shall administer all provisions
of this chapter not specifically required to be
administered by the Board, the Executive Director, the Secretary of Labor, or any other officer
or agency.
(c) The Office shall adjudicate all claims under
the provisions of this chapter administered by
the Office.
(d) The Office shall determine questions of disability and dependency arising under the provisions of this chapter administered by the Office.
Except to the extent provided under subsection
(e), the decisions of the Office concerning these
matters are final and conclusive and are not
subject to review. The Office may direct at any
time such medical or other examinations as it
considers necessary to determine the facts concerning disability or dependency of an individual receiving or applying for annuity under the
provisions of this chapter administered by the
Office. The Office may suspend or deny annuity
for failure to submit to examination.
(e)(1) Subject to paragraph (2), an administrative action or order affecting the rights or interests of an individual or of the United States
under the provisions of this chapter administered by the Office may be appealed to the Merit
Systems Protection Board under procedures prescribed by the Board.
(2) In the case of any individual found by the
Office to be disabled in whole or in part on the
basis of the individual’s mental condition, and
that finding was made pursuant to an application by an agency for purposes of disability retirement under section 8451, the procedures
under section 7701 shall apply and the decision
of the Board shall be subject to judicial review
under section 7703.
(f) The Office shall fix the fees for examinations made under subchapter V of this chapter
by physicians or surgeons who are not medical
officers of the United States. The fees and reasonable traveling and other expenses incurred in
connection with the examinations are paid from
appropriations for the cost of administering the
provisions of this chapter administered by the
Office.
(g) The Office may prescribe regulations to
carry out the provisions of this chapter administered by the Office.
(h)(1) Each Government agency shall furnish
the Director with such information as the Director determines necessary in order to administer
this chapter.
(2) The Director, in consultation with the officials from whom such information is requested,
shall establish (by regulation or otherwise) such
safeguards as are necessary to ensure that information made available under this subsection is
used only for the purpose authorized.
(i) In making a determination of ‘‘actuarial
equivalence’’ under this chapter, the economic

§ 831.1108

5 CFR Ch. I (1–1–12 Edition)

(b) Rule upon offers of proof and receive relevant evidence;
(c) Fix the time and place of hearing;
(d) Regulate the course of the hearing;
(e) Exclude any person from the hearing for contumacious conduct or misbehavior that obstructs the hearing;
(f) Hold conferences for simplification of the issues, or for any other purpose;
(g) Dispose of procedural requests or
similar matters;
(h) Authorize the filing of briefs and
set the time for filing;
(i) Make initial decisions; and
(j) Take any other action in the
course of the proceeding consistent
with the purposes of this subpart.
§ 831.1108

Witnesses.

(a) Witnesses shall testify under oath
or affirmation and shall be subject to
cross-examination.
(b) Each party is responsible for securing the attendance of his witnesses.
OPM has no power of subpena in these
cases.
§ 831.1109

Evidence.

(a) Rules of evidence are not strictly
applied, but the presiding officer shall
exclude irrelevant or unduly repetitious evidence.
(b) Each exhibit of a documentary
character shall be submitted to the
presiding officer, duly marked, and
made a part of the record. An exhibit
does not become evidence unless received in evidence by the presiding officer.
§ 831.1110

Initial decision.

(a) Upon completion of a hearing pursuant to § 831.1106, the presiding officer
shall make and file an initial decision,
a copy of which shall be served on each
party or counsel by certified or registered mail.
(b) The initial decision shall include
a statement of findings and conclusions, with the reasons therefor, and
shall be based upon a consideration of
the entire record.
(c) The initial decision shall become
the final decision of OPM unless the
case is appealed or reviewed pursuant
to § 831.1111.

§ 831.1111

Appeal and review.

(a) An appeal from an initial decision, or a decision of the Associate Director under § 831.1105(b), may be made
to OPM, with service on the other
party, within 30 calendar days from the
date of the decision. An appeal shall be
in writing and shall state plainly and
concisely the grounds for the appeal,
with a specific reference to the record
when issues of fact are raised. The
other party may file an opposition to
the appeal within 15 days after service
on him. On notice to the parties, OPM
may extend the time limits prescribed
in this paragraph.
(b) Within 30 calendar days from the
date of an initial decision or a decision
of the Associate Director, OPM, on its
own motion, may direct that the
record be certified to it for review.
[34 FR 17618, Oct. 31, 1969]

§ 831.1112

Final decision.

(a) On appeal from or review of an
initial decision or a decision of the Associate Director, OPM shall decide the
case on the record. The record shall include the notice, answer, transcript of
testimony and exhibits, briefs, the initial decision or the decision of the Associate Director, the papers filed in
connection with the appeal and opposition to the appeal and all other papers,
requests and exceptions filed in the
proceeding.
(b) OPM may adopt, modify, or set
aside the findings, conclusions, or
order of the presiding officer or the Associate Director.
(c) The final decision of OPM shall be
in writing and include a statement of
findings and conclusions, the reasons
or basis therefor, and an appropriate
order, and shall be served on the parties.
[33 FR 12498, Sept. 4, 1968, as amended at 34
FR 17618, Oct. 31, 1969]

Subpart L—Disability Retirement
SOURCE: 58 FR 49179, Sept. 22, 1993, unless
otherwise noted.

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Office of Personnel Management
§ 831.1201

§ 831.1202

Introduction.

This subpart sets out the requirements an employee must meet to qualify for disability retirement, how an
employee applies for disability retirement, how an agency applies for disability retirement for an employee,
when a disability annuity ends, an individual’s retirement rights after the
disability annuity ends, and the effect
of reemployment in the Federal service
on a disability annuitant.
§ 831.1202

Definitions.

As used in this subpart—
Accommodation means an adjustment
made to an employee’s job or work environment that enables the employee
to perform the duties of the position.
Reasonable accommodation may include modifying the worksite; adjusting the work schedule; restructuring
the job; obtaining or modifying equipment or devices; providing interpreters, readers, or personal assistants;
and reassigning or retraining the employee.
Basic pay means the pay an employee
receives that is subject to civil service
retirement deductions. The definition
is the same as the definition of ‘‘basic
pay’’ under 5 U.S.C. 8331(3).
Commuting area means the geographic
area that usually constitutes one area
for employment purposes. It includes a
population center (or two or more
neighboring ones) and the surrounding
localities in which people live and can
reasonably be expected to travel back
and forth daily from home to work in
their usual employment.
Disabled and disability mean unable or
inability, because of disease or injury,
to render useful and efficient service in
the employee’s current position, or in a
vacant position in the same agency at
the same grade or pay level for which
the individual is qualified for reassignment.
Examination and reexamination mean
an evaluation of evidentiary material
related to the question of disability.
Unless OPM exercises its choice of a
physician, the cost of providing medical documentation rests with the employee or disability annuitant, who
must provide any information OPM
needs to make an evaluation.

Medical condition means a health impairment resulting from a disease or
injury, including a psychiatric disease.
This is the same definition of ‘‘medical
condition’’ as in § 339.104 of this chapter.
Medical documentation and documentation of a medical condition mean a statement from a licensed physician or
other appropriate practitioner that
provides information OPM considers
necessary to determine an individual’s
entitlement to benefits under this subpart. Such a statement must meet the
criteria set forth in § 339.104 of this
chapter.
Permanent position means an appointment without time limitation.
Physician and practitioner have the
same meanings given in § 339.104 of this
chapter.
Qualified for reassignment means able
to meet the minimum requirements for
the grade and series of the vacant position in question.
Same grade or pay level means, in regard to a vacant position within the
same pay system as the employee currently occupies, the same grade and an
equivalent amount of basic pay. A position under a different pay system or
schedule is at the ‘‘same pay level’’ if
the representative rate, as defined in
§ 532.401 of this chapter, equals the representative rate of the employee’s current position.
Useful and efficient service means (1)
acceptable performance of the critical
or essential elements of the position;
and (2) satisfactory conduct and attendance.
Vacant position means an unoccupied
position of the same grade or pay level
and tenure for which the employee is
qualified for reassignment that is located in the same commuting area and
is serviced by the same appointing authority of the employing agency. The
vacant position must be full time, unless the employee’s current position is
less than full time, in which case the
vacant position must have a work
schedule of no less time than that of
the current position. In the case of an
employee of the United States Postal
Service, a vacant position does not include a position in a different craft or
a position to which reassignment
would be inconsistent with the terms

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§ 831.1203

5 CFR Ch. I (1–1–12 Edition)

of a collective bargaining agreement
covering the employee.
§ 831.1203 Basic requirements for disability retirement.
(a) Except as provided in paragraph
(b) of this section, the following conditions must be met for an individual to
be eligible for disability retirement:
(1) The individual must have completed at least 5 years of civilian service that is creditable under the Civil
Service Retirement System.
(2) The individual must, while employed in a position subject to the Civil
Service Retirement System, have become disabled because of a medical
condition, resulting in a service deficiency in performance, conduct, or attendance, or if there is no actual service deficiency, the disabling medical
condition must be incompatible with
either useful and efficient service or retention in the position.
(3) The disabling medical condition
must be expected to continue for at
least 1 year from the date the application for disability retirement is filed.
(4) The employing agency must be
unable to accommodate the disabling
medical condition in the position held
or in an existing vacant position.
(5) An application for disability retirement must be filed with the employing agency before the employee or
Member separates from service, or with
the former employing agency or the Office of Personnel Management (OPM)
within 1 year thereafter. This time
limit can be waived only in certain instances explained in § 831.1204.
(b) A National Guard technician who
is retiring under the special provisions
of 5 U.S.C. 8337(h) is not required to
meet the conditions given in paragraphs (a) (2), (3), and (4) of this section. Instead, the individual must be
disabled for membership in the National Guard or for the military grade
required to hold his or her position and
meet the other eligibility requirements
under 5 U.S.C. 8337(h)(2).
[58 FR 49179, Sept. 22, 1993, as amended at 63
FR 17049, Apr. 8, 1998]

§ 831.1204 Filing disability retirement
applications: General.
(a) Except as provided in paragraphs
(c) and (d) of this section, an applica-

tion for disability retirement is timely
only if it is filed with the employing
agency before the employee or Member
separates from service, or with the
former employing agency or OPM within 1 year thereafter.
(b) An application for disability retirement that is filed with OPM, an
employing agency or former employing
agency by personal delivery is considered filed on the date on which OPM,
the employing agency or former employing agency receives it. The date of
filing by facsimile is the date of the
facsimile. The date of filing by mail is
determined by the postmark date; if no
legible postmark date appears on the
mailing, the application is presumed to
have been mailed 5 days before its receipt, excluding days on which OPM,
the employing agency or former employing agency, as appropriate, is
closed for business. The date of filing
by commercial overnight delivery is
the date the application is given to the
overnight delivery service.
(c) An application for disability retirement that is filed with OPM or the
applicant’s former employing agency
within 1 year after the employee’s separation, and that is incompletely executed or submitted in a letter or other
form not prescribed by OPM, is deemed
timely filed. OPM will not adjudicate
the application or make payment until
the application is filed on a form prescribed by OPM.
(d) OPM may waive the 1-year time
limit if the employee or Member is
mentally incompetent on the date of
separation or within 1 year thereafter,
in which case the individual or his or
her representative must file the application with the former employing
agency or OPM within 1 year after the
date the individual regains competency
or a court appoints a fiduciary, whichever is earlier.
(e) An agency may consider the existence of a pending disability retirement
application when deciding whether and
when to take other personnel actions.
An employee’s filing for disability retirement does not require the agency
to delay any appropriate personnel action.
[63 FR 17049, Apr. 8, 1998]

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§ 831.1205 Agency-filed disability retirement applications.
(a) Basis for filing an application for an
employee. An agency must file an application for disability retirement of an
employee who has 5 years of civilian
Federal service when all of the following conditions are met:
(1) The agency has issued a decision
to remove the employee;
(2) The agency concludes, after its review of medical documentation, that
the cause for unacceptable performance, attendance, or conduct is disease
or injury;
(3) The employee is institutionalized,
or the agency concludes, based on a review of medical and other information,
that the employee is incapable of making a decision to file an application for
disability retirement;
(4) The employee has no personal representative or guardian; and
(5) The employee has no immediate
family member who is willing to file an
application on his or her behalf.
(b) Agency procedures. (1) When an
agency issues a decision to remove an
employee and not all of the conditions
described in paragraph (a) of this section have been satisfied, but the removal is based on reasons apparently
caused by a medical condition, the
agency must advise the employee in
writing of his or her possible eligibility
for disability retirement.
(2) If the agency is filing a disability
retirement application on the employee’s behalf, the agency must inform the
employee in writing at the same time
it informs the employee of its removal
decision, or at any time before the separation is effected, that—
(i) The agency is submitting a disability retirement application on the
employee’s behalf to OPM;
(ii) The employee may review any
medical information in accordance
with the criteria in § 294.106(d) of this
chapter; and
(iii) The action does not affect the
employee’s right to submit a voluntary
application for retirement under this
part.
(3) When an agency submits an application for disability retirement to
OPM on behalf of an employee, it must
provide OPM with copies of the decision to remove, the medical docu-

mentation, and any other documents
needed to show that the cause for removal is due to a medical condition.
Following separation, the agency must
provide OPM with a copy of the documentation of the separation.
(c) OPM procedures. (1) OPM will not
act on any application for disability retirement filed by an agency on behalf
on an employee until it receives the appropriate documentation of the separation. When OPM receives a complete
application for disability retirement
under this section, it will notify the
former employee that it has received
the application, and that he or she may
submit medical documentation. OPM
will determine entitlement to disability benefits under § 831.1206.
(2) OPM will cancel any disability retirement when a final decision of an
administrative authority or court reverses the removal action and orders
the reinstatement of an employee to
the agency rolls.
§ 831.1206 Evidence supporting entitlement to disability benefits.
(a) Evidence to support disability retirement application. (1) Before OPM determines whether an individual meets the
basic requirements for disability retirement under § 831.1203, an applicant
for disability retirement or the employing agency must submit to OPM
the following forms included in Standard Form 2824, ‘‘Documentation in Support of Disability Retirement Application:’’
(i) Standard Form 2824A—‘‘Applicant’s Statement;’’
(ii) Standard Form 2824B—‘‘Supervisor’s Statement;’’
(iii) Standard Form 2824D—‘‘Agency
Certification or Reassignment and Accommodation Efforts;’’ and
(iv) Standard Form 2824E—‘‘Disability Retirement Application Checklist.’’
(2) Standard Form 2824C—‘‘Physician’s Statement’’ and the supporting
medical documentation may be submitted directly to OPM.
(3) The applicant, or the employing
agency, must also obtain and submit
additional documentation as may be
required by OPM to determine entitlement to the disability retirement benefit.

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5 CFR Ch. I (1–1–12 Edition)

(4) Refusal by the applicant, physician, or employing agency to submit
the documentation OPM has determined is necessary to decide eligibility
for disability retirement is grounds for
disallowance of the application.
(b) OPM procedures for processing a
disability retirement application. (1) OPM
will review the documentation submitted under paragraph (a) of this section in support of an application for
disability retirement to determine
whether the applicant has met the conditions stated in § 831.1203 of this part.
OPM will issue its decision in writing
to the applicant and to the employing
agency. The decision will include a
statement of the findings and conclusions, and an explanation of the right
to request consideration under § 831.109
of this part.
(2) OPM may rescind a decision to
allow an application for disability retirement at any time if there is an indication of error in the original decision, such as fraud or misstatement of
fact, or if additional medical documentation is needed. The written notification will include a statement of the
findings and conclusions, and an explanation of the right to request reconsideration under § 831.109 of this part.
(c) Medical examination. OPM may
offer the applicant a medical examination when it determines that additional medical evidence is necessary to
make a decision on an application. The
medical evaluation will be conducted
by a medical officer of the United
States or a qualified physician or board
of physicians designated by OPM. The
applicant’s refusal to submit to an examination is grounds for disallowance
of the application.
(d) Responsibility for providing evidence. It is the responsibility of the applicant to obtain and submit documentation that is sufficient for OPM to
determine whether there is a service
deficiency, caused by disease or injury,
of sufficient degree to preclude useful
and efficient service, or a medical condition that warrants restriction from
the critical task or duties of the position held. It is also the responsibility
of the disability annuitant to obtain
and submit evidence OPM requires to
show continuing entitlement to disability benefits.

§ 831.1207 Withdrawal of disability retirement applications.
(a) OPM will honor, without question, an applicant’s request to withdraw an employee-filed disability retirement application if it receives the
withdrawal request before the employing agency has separated the current
employee, or, if the employee has already separated from the service, the
withdrawal request is received before
the official notice of approval has been
issued by OPM. Similarly, OPM will
honor, without question, an agency’s
request to withdraw an agency-filed
disability retirement application if it
receives the withdrawal request before
the employee has separated from the
service. Once the request to withdraw
the application is accepted, an applicant must reapply to receive any further consideration.
(b) Withdrawal of a disability retirement application does not ensure the
individual’s continued employment. It
is the employing agency’s responsibility to determine whether it is appropriate to continue to employ the individual.
(c) OPM considers voluntary acceptance of a permanent position in which
the employee has civil service retirement coverage, including a position at
a lower grade or pay level, to be a withdrawal of the employee’s disability retirement application. The employing
agency must notify OPM immediately
when an applicant for disability retirement accepts a position of this type.
(d) OPM also considers a disability
retirement application to be withdrawn
when the agency reports to OPM that
it has reassigned an applicant or an
employee has refused a reassignment
to a vacant position, or the agency reports to OPM that it has successfully
accommodated the medical condition
in the employee’s current position.
Placement consideration is limited
only by agency authority and can
occur after OPM’s allowance of the application up to the date of separation
for disability retirement. The employing agency must notify OPM immediately if any of these events occur.
(e) After OPM allows a disability retirement application and the employee
is separated, the application cannot be

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withdrawn. However, an individual entitled to a disability annuity may decline to accept all or any part of the
annuity under the waiver provisions of
5 U.S.C. 8345(d) or request to be found
medically recovered under § 831.1208(e)
of this part.
§ 831.1208 Termination of disability
annuity because of recovery.
(a) Each annuitant receiving disability annuity from the Fund shall be
examined under the direction of OPM
at the end of 1 year from the date of
disability retirement and annually
thereafter until the annuitant becomes
60 years of age unless the disability is
found by OPM to be permanent in character. OPM may order a medical or
other examination at any time to determine the facts relative to the nature
and degree of disability of the annuitant. Failure to submit to reexamination shall result in suspension of annuity.
(b) A disability annuitant may request medical reevaluation under the
provisions of this section at any time.
OPM will reevaluate the medical condition of disability annuitants age 60 or
over only on their own request.
(c) Recovery based on medical documentation. When an examination or reevaluation shows that a disability annuitant has medically recovered from
the disability, OPM will terminate the
annuity effective on the first day of the
month beginning 1 year after the date
of the medical examination showing recovery.
(d) Recovery based on reemployment
by the Federal Government. Reemployment by an agency at any time before
age 60 is evidence of recovery if the reemployment is in a permanent position
at the same or higher grade or pay
level as the position from which the
disability annuitant retired. The permanent position must be full-time unless the position the disability annuitant occupied immediately before retirement was less than full-time, in
which case the permanent position
must have a work schedule of no less
time than that of the position from
which the disability annuitant retired.
In this instance, OPM needs no medical
documentation to find the annuitant
recovered. Disability annuity pay-

ments will terminate effective on the
first day of the month following the
month in which the recovery finding is
made under this paragraph.
(e) Recovery based on a voluntary request. OPM will honor a written and
signed statement of medical recovery
voluntarily filed by a disability annuitant when the medical documentation
on file does not demonstrate that the
annuitant is mentally incompetent.
OPM needs no other documentation to
find the annuitant recovered. Disability annuity payments will terminate effective on the first day of the
month beginning 1 year after the date
of the statement. A disability annuitant can withdraw the statement only
if the withdrawal is received by OPM
before annuity payments terminate.
(f) When an agency reemploys a recovered disability annuitant at any
grade or rate of pay within the 1-year
period pending termination of the disability retirement benefit under paragraph (c), (d), or (e) of this section,
OPM will terminate the annuity effective on the date of reemployment.
§ 831.1209 Termination of disability
annuity because of restoration to
earning capacity.
(a) Restoration to earning capacity. If a
disability annuitant is under age 60 on
December 31 of any calendar year and
his or her income from wages or selfemployment or both during that calendar year equal at least 80 percent of
the current rate of basic pay of the position occupied immediately before retirement, the annuitant’s earning capacity is considered to be restored. The
disability annuity will terminate on
the June 30 after the end of the calendar year in which earning capacity is
restored. When an agency reemploys a
restored disability annuitant at any
grade or rate of pay within the 180-day
waiting period pending termination of
the disability retirement benefit, OPM
will terminate the annuity effective on
the date of reemployment.
(b) Current rate of basic pay for the position occupied immediately before retirement. (1) A disability annuitant’s income for a calendar year is compared
to the gross annual rate of basic pay in
effect on December 31 of that year for

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5 CFR Ch. I (1–1–12 Edition)

the position occupied immediately before retirement. The income for most
disability annuitants is based on the
rate for the grade and step which reflects the total amount of basic pay
(both the grade and step and any additional basic pay) in effect on the date
of separation from the agency for disability retirement. Additional basic
pay is included subject to the premium
pay restrictions of 5 U.S.C. 5545 (c)(1)
and (c)(2). A higher grade and step will
be established if it results from using
either the date of application for disability retirement or the date of reasonable accommodation, as adjusted by
any increases in basic pay that would
have been effected between each respective date and the date of final separation. Use of these two alternative
pay setting methods is subject to paragraph (b)(1) (i) and (ii) of this section.
The highest grade and step established
as a result of setting pay under the
normal method and the two alternative
methods is designated as the rate of
basic pay for the position occupied immediately before retirement and applies only to restoration to earning capacity decisions. In cases involving use
of either of the two alternative pay setting methods, the determination of the
rate of basic pay for the position occupied immediately before retirement is
made by the employing agency at the
time the disability retirement is allowed. OPM must review the rate so determined to establish whether the correct rate has been established, and will
inform the employee of the proper rate
at the time the disability annuity is
awarded. This rate of basic pay becomes the basis for all future earning
capacity determinations.
(i) The ‘‘date of application for disability retirement’’ is the date the application is signed by the authorized
official of the employing agency immediately before forwarding the application to OPM.
(ii) The ‘‘date of reasonable accommodation’’ is the date of the employing
agency’s notice of reasonable accommodation to an employee’s medical
condition (as a result of its review of
medical documentation) which results
in a reduction in the rate of basic pay.
The use of the date of reasonable accommodation to establish the rate of

basic pay for the position held at retirement is subject to the following
conditions:
(A) The date of the employing agency’s notice to provide accommodation
is no more than 1 year before the date
the disability retirement application is
signed by the authorized official in the
employing agency immediately before
forwarding it to OPM; and
(B) A complete record of the date of
the personnel decision, the medical
documentation substantiating the existence of the medical condition, and
the justification for the accommodation is established in writing and included at the time the agency submits
the application for disability retirement. OPM will review the record to
determine whether the medical documentation demonstrates that the medical condition existed at the time of
the accommodation and warranted the
accommodation made.
(2) In the case of an annuitant whose
basic pay rate on the date determined
under paragraph (b)(1) of this section
did not match a specific grade and step
in a pay schedule:
(i) For those retiring from a merit
pay position, a position for which a
special pay rate is authorized (except
as provided in paragraph (b)(2)(ii) of
this section), or any other position in
which the rate of basic pay is not equal
to a grade and step in a pay schedule,
the grade and step will be established
for this purpose at the lowest step in
the pay schedule grade that is equal to
or greater than the actual rate of basic
pay payable. This rule will not be applied when the rate exceeds that of the
schedule applicable to the organization
from which the individual retired,
when there is no existing apposite
schedule with grades and steps, or in
other organizations which are excluded
from coverage of schedules with grades
and steps, as in the case of pay systems
using pay bands.
(ii) For those retiring with a retained
rate of basic pay or from a position for
which a special pay rate is in effect but
whose rate of basic pay exceeds the
highest rate payable in the pay schedule grade applicable to the position
held, the grade and step is established
for this purpose in the grade in the
schedule that is closest to the grade of

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the position held and within which the
amount of the retained pay falls. The
step is established for this purpose at
the lowest step in that grade which
equals or exceeds the actual rate of pay
payable.
(iii) When the pay system under
which an annuitant retired has been either modified or eliminated since the
individual retired, the individual will
be treated as if he or she had been employed at their retirement grade and
step at the time of the system change,
and will be deemed to have been placed
under the new system using whatever
rules would have been applicable at
that time. This will only apply when a
pay system has been abolished or modified, and not when the grade and step
of a position has been modified subsequent to retirement by reclassification
or other action, in which case the
grade and step in effect at the time of
retirement will control.
(iv) If using the above rules it is not
possible to set a grade and step for
computing the current rate of pay,
then if possible the current rate of pay
will be set using the relative position
in the range of pay applicable to the
position from which the individual retired. For example, if at the time of retirement the rate of pay was $75,000 in
a range from $70,000 to $90,000, for all
future determinations, the current rate
of pay would be 25% up the new pay
range from the bottom. If the new
range was $96,000 to $120,000, then the
new current rate of pay would be
$102,000 ($96,000 plus 0.25 times $24,000
($120,000 minus $96,000)).
(v) In those cases, such as of some
former Congressional staff employees
and others whose pay is not set under
a formal system, where none of the
above guidelines will yield a current
rate of pay, OPM will ascertain the
current rate of pay after consultation
with the former employing organization, or successor organization.
(3) For annuitants retiring from the
United States Postal Service, only
cost-of-living allowances subject to
civil service retirement deductions are
included in determining the current
rate of basic pay of the position held at
retirement.
(c) Income. Earning capacity for the
purposes of this section is dem-

onstrated by an annuitant’s ability to
earn post-retirement income in a calendar year through personal work efforts or services. The total amount of
income from all sources is used to determine earning capacity. This includes income received as gross wages
from one or more employers, net earnings from one or more self-employment
endeavors, and deferred income that is
earned in a calendar year. In determining an annuitant’s income for a
calendar year, the following considerations apply:
(1) There are two sources of income:
wages and self-employment income. All
income which is subject to Federal employment taxes (i.e., social security or
Medicare taxes) or self-employment
taxes constitutes earned income. In addition, any other income as described
in this section also constitutes earned
income. The determination of whether
a disability annuitant earns wages as
an employee of an organization or
earns income as a self-employed person
is based on the usual common law rules
applicable in determining the existence
of an employer-employee relationship.
Whether the relationship exists under
the usual common law rules will be determined by OPM after the examination of the particular facts of each
case.
(2) Income earned from one source is
not offset by losses from another
source. Income earned as wages is not
reduced by a net loss from self-employment. The net income from each selfemployment endeavor is calculated
separately, and the income earned as
net earnings from one self-employment
endeavor is not reduced by a net loss
from another self-employment endeavor. The net incomes from each separate
self-employment endeavor are added
together to determine the total
amount of income from self-employment for a calendar year.
(3) Only income earned from personal
work efforts or services is considered in
determining earning capacity. All
forms of non-work-related unearned income are excluded. Paragraph (f) of
this section includes a representative
list of the types of unearned income
that are not considered.
(4) Income earned in a calendar year
may only be reduced by certain self-

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employment business expenses, as provided in paragraph (e) of this section;
job-connected expenses incurred because of the disabling condition, as
provided in paragraph (g) of this section; and the return from investment
allowance, as provided in paragraph (h)
of this section. Once earned, income
cannot be reduced by any other means.
Thus, income cannot be lowered by
such means as leave buy-back provisions, conversion of wages for paid
time to leave without pay or a similar
non-paid status, reductions in wages
attributable to cash shortages or product losses, etc.
(5) For determining annual income
from wages or self-employment or
both, income is earned in the calendar
year the annuitant actually renders
the personal work effort or service and
either actually or constructively receives the remuneration, except as provided under paragraph (c)(7) of this section. For this purpose, income paid on
a regular basis (i.e., on a weekly, biweekly, monthly or similar pay period
basis) will be deemed earned in the
year in which payment is made in the
regular course of business.
(6) Deferred income is included as income in the calendar year in which it
is constructively received. Income is
constructively received when it is credited, set apart, or otherwise made
available so that the annuitant may
draw upon it at any time, or could
draw upon it during the calendar year
if the annuitant had given notice of the
intent to do so. Deferred income includes all earnings, whether in the
form of cash or property or applied to
provide a benefit for the employee,
which are subject to the disability annuitant’s designation or assignment.
Usually, the earnings are set aside by a
salary-reduction agreement, a deferred
compensation arrangement, or the designation of specific earnings amounts
towards the purchase of non-taxable
employee fringe benefits. Thus, any
earnings for which the individual has
the opportunity to adjust the amount
of income received in a calendar year
by controlling the remuneration of voluntarily giving up the right to control
the remuneration, regardless of whether a written instrument exists, are income for earning capacity purposes.

(7) The Internal Revenue Code provides exceptions to the general rule on
constructive receipt for certain deferred compensation plans which, by
their design, defer receipt of income for
Federal employment tax purposes as of
the later of when services are performed or when there is no substantial
risk of forfeiture of the rights to such
amount. Even though these special deferred compensation plans defer the
constructive receipt of the income for
tax purposes to future years beyond
the year in which the income is actually earned, the income reflects earning capacity. Therefore, employer contributions and employee payments to
these special deferred compensation
plans are considered income in the calendar year in which the services are
performed, even though the Internal
Revenue Code may exclude these contributions and payments from income
for tax purposes.
(d) Wages. For purposes of earning capacity
determinations,
the
term
‘‘wages’’ means the gross amount of all
remuneration for services performed by
an employee for his or her employer,
unless specifically excluded herein, before any deductions or withholdings.
(1) The name by which the remuneration for services is designated is immaterial. Remuneration includes but is
not limited to one-time or recurring—
(i) Base salary or pay; tips; commissions; professional fees; honoraria; bonuses and gift certificates of any type;
golden parachute payments; payments
for any non-work periods, such as vacation, holiday, or sick pay; pay advances; overtime pay; severance pay;
dismissal pay; termination pay; and
back pay;
(ii) Deferred income, within the
meaning of paragraphs (c) (6) and (7) of
this section, or other employer contributions or payments in an arrangement in which the employee has the
opportunity (whether exercised or not)
to adjust income by recovering the
contributions or payments during the
calendar year in which earned, for general discretionary income purposes;
(iii) Non-cash wages or payment of
in-kind benefits, such as shares of
stock in the business, real or personal
property, stock in trade, inventory

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items, goods, lodging, food, and clothing. The valuation for all non-cash
wages or other in-kind benefits is determined in a manner consistent with
the fair value standards that appear in
the Social Security Administration’s
regulations at 20 CFR 404.1041(d).
(2) Any amount offset or deducted
under 5 U.S.C. 8344 is treated as wages
if the annuity continues while the annuitant is reemployed by the Federal
Government.
(3) As a general rule, remuneration as
wages does not include any contribution, payment, benefits furnished, or
service provided by an employer in any
of the following areas:
(i) The general retirement system established by the employer for its employees, usually either a qualified pension, profit-sharing, stock bonus plan,
or a qualified annuity contract plan;
(ii) Medical or hospitalization health
benefit plans;
(iii) Life insurance plans;
(iv) Sickness or accident disability
pay beyond 6 months of illness, or
workers’ compensation payments;
(v) The value of meals and lodgings
provided at the convenience of the employer;
(vi) Moving expenses;
(vii) Educational assistance programs;
(viii) Dependent care assistance programs;
(ix) Scholarships and fellowship
grants;
(x) De minimis fringe benefits, such
as items of merchandise given by the
employer at holidays which are not
readily convertible into cash and courtesy discounts on company products offered not as remuneration for services
performed but as a means of promoting
good will;
(xi) Qualified group legal services
plans;
(xii) Uniforms and tools supplied by
the employer, including employer-provided allowances for such items, for the
exclusive use by the employee on the
job; and
(xiii) Amounts that an employer pays
the individual specifically, either as
advances or reimbursements, for traveling or other ordinary and necessary
expenses incurred, or reasonably ex-

pected to be incurred in the employer’s
business.
(4) However, there are two exceptions
to this general rule:
(i) When it is provided under circumstances in which either a salary reduction or deferral agreement is used
(whether evidenced by a written instrument or otherwise); or
(ii) When the employee had the opportunity (whether exercised or not) to
elect to receive the cash value, whether
in the form of money or personal or
real property, of the employer-provided
amount or service.
(e) Self-employment income. (1) Selfemployment income is the remuneration that is received as an independent
contractor, either as
(i) A sole proprietor of a business or
farm;
(ii) A professional in one’s own practice; or
(iii) A member of a partnership or
corporation, as these terms are defined
by the Internal Revenue Code, and regardless of whether the business entity
is operated for profit.
(2) The term ‘‘net earnings’’ from
self-employment in a business enterprise means the gross revenue to the
business endeavor from all sources before
any
other
deductions
or
withholdings, minus
(i) Allowable business expenses, as
provided in paragraph (e)(3) of this section;
(ii) Any job-connected disability expenses, as provided in paragraph (g) of
this section; and
(iii) Any return from investment allowance, as provided in paragraph (h)
of this section.
(3) Certain expenses of a self-employed business entity may be offset
from the gross revenue from all sources
of that self-employed business in determining the amount of net earnings for
a particular calendar year. Expenses
which may be deducted are only those
items and costs which are permitted by
the Internal Revenue Code for income
tax purposes as ordinary and necessary
to the operation of the business. However, expenses incurred on behalf of the
disability annuitant may not be deducted, regardless of whether they are
permitted by the Internal Revenue
Code. These expenses that are incurred

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§ 831.1209

5 CFR Ch. I (1–1–12 Edition)

but cannot be deducted include the
costs for wages paid to the individual,
interest earnings, guaranteed payments, dividends, employee benefits,
pension plans, and salary reduction or
deferral plans. Also, self-employed disability annuitants may not deduct the
costs of other withdrawals or expenses
which are not used solely for business
purposes. Examples of items that cannot be deducted if used at all for personal use by the self-employed disability annuitant include personal
property items, such as automobiles
and boats; real property, such as vacation property or residences; and memberships, dues, or fees for professional
associations or public or private organizations or clubs.
(4) Fees paid to an annuitant as a director of a corporation are a part of net
earnings from self-employment.
(f) Income not included. Other types of
income not considered in determining
earning capacity include—
(1) Investment income, such as interest or dividends from savings accounts,
stocks, personal loans or home mortgages held, unless the disability annuitant receives the return from capital
investment in the course of his or her
trade or business;
(2) Capital gains from sales of real or
personal property that the disability
annuitant owns, unless received in the
course of his or her trade or business:
(3) Rents or royalties, unless received
in the course of his or her trade or
business;
(4) Distributions from pension plans,
annuity plans, Individual Retirement
Accounts (IRA’s), Simplified Employee
Benefit-IRA’s (SEP-IRA’s), Keogh Accounts, employee stock ownership
plans, profit sharing plans, or deferred
income payments that are received by
the annuitant in any year after the calendar year in which the funds were
contributed to the plan;
(5) Income earned before the commencing date of civil service retirement annuity payments;
(6) Scholarships or fellowships;
(7) Proceeds from life insurance, inheritances, estates, trusts, endowments, gifts, prizes, awards, gambling
or lottery winnings, and amounts received in court actions whether by ver-

dict or settlement, unless received in
the course of their trade or business;
(8)
Unemployment
compensation
under State or Federal law, supplemental unemployment benefits, or
workers’ compensation:
(9) Alimony, child support, or separate maintenance payments received;
(10) Pay for jury duty; and
(11) Entitlement payments from
other Federal agencies, such as benefits from the Social Security Administration or the Veterans Administration, Railroad Retirement System retirement pay, or military retirement
pay.
(g) Job-connected expenses incurred because of the disabling condition may be
deducted from income. (1) Job-connected
expenses deductible from income for
purposes of determining earning capacity are those expenses that are primarily for and essential to the annuitant’s occupation or business and are
directly connected with or result from
the disability for which the disability
annuity was allowed.
(2) The determination of whether a
job-connected expense may be deducted
from income is governed by the following considerations:
(i) The expense must be directly attributable to the disability and must
be one which would not have been incurred in the absence of the annuitant
working in his or her business or occupation. Expenses incurred for the preservation of the annuitant’s health, alleviation of his or her physical or mental discomfort, or other expenses of an
employed person cannot be deducted.
(ii) The disability must be of such severity that it requires the annuitant to
use special means of transportation,
services, or equipment to perform the
duties of the occupation or business.
Examples of such disabilities include
blindness, paraplegia, multiple sclerosis, and cerebral hemorrhage. Claims
involving transportation or equipment
may be deducted only in the amount
normally allowed for business expenses
or as depreciation by the Internal Revenue Service for Federal income tax
purposes.
(iii) Claims involving services performed by a family member or other
individual directly employed by the annuitant may be deducted only if a true

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§ 831.1210

employer-employee relationship exists
between the annuitant and the employed individual, and the amount
claimed as an expense does not exceed
the local market rate of payment to individuals who provide similar services.
It is the responsibility of the annuitant
to provide evidence demonstrating that
an employer-employee relationship exists, and what the local market rate is
for such services. For the purpose of
this paragraph, to establish that a true
employer-employee relationship exists,
the annuitant must provide evidence
that all statutorily mandated employment requirements are met, including
(but not limited to) income tax
withholdings, FICA tax deductions and
payments, and unemployment insurance. If the annuitant fails to provide
evidence of the local market rate for
such services, payments may be deducted only if the amount claimed does
not exceed the Federal minimum hourly rate in effect on December 31 of the
calendar year in which claimed. Absent
evidence that it is customary and regular practice in the local labor market
to work more hours per week, payment
may not be deducted for services provided by an individual in excess of 40
hours a week.
(3) A job-connected expense can be
deducted only in the calendar year in
which paid.
(4) Claims for items used for both
personal and job-related purposes may
be deducted only by the prorated
amount attributable to the job-related
use.
(5) A job-connected expense may not
be deducted from income from self-employment if the expense has already
been deducted as a business expense.
(6) It is the responsibility of the annuitant claiming job-connected expense to provide adequate documentation to substantiate the amount
claimed. Adequate documentation will
generally include the following information:
(i) Written recommendation of a physician, vocational rehabilitation specialist, occupational health resource
specialist, or other similar professional
specialist that the retiree should use
the transportation, services, or equipment;

(ii) A description of the item and an
explanation of its use by the annuitant
in the performance of his or her occupation or business;
(iii) A copy of the receipt of purchase, bill of sale, or leasing agreement
for the item claimed with the date, duration of the agreement, and agreed
upon price clearly specified;
(iv) A complete supporting explanation of how the amount claimed for
the job-connected expense has been calculated; and
(v) An explanation of the circumstances and calculation of the prorated cost of the item if used for both
personal and business use.
(h) Return from investment allowance.
A disability annuitant may reduce the
net earnings from a self-employed business endeavor (adjusted for any interest paid on borrowed capital) by 6 percent of his or her capital investment in
that business, owned or borrowed. The
capital investment’s value is its fairmarket value as of December 31 of the
year for which the income is being reported.
(i) Requirement to report income. All
disability annuitants who, on December 31 of any calendar year, are under
age 60 must report to OPM their income from wages or self-employment
or both for that calendar year. Each
year as early as possible, OPM will
send a form to annuitants to use in reporting their income from the previous
calendar year. The form specifies the
date by which OPM must receive the
report. OPM will determine entitlement to continued annuity on the basis
of the report. If an annuitant fails to
submit the report, OPM may stop annuity payments until it receives the report.
§ 831.1210 Annuity rights after a disability annuity terminates.
(a) An individual is entitled to an immediate annuity when the disability
annuity stops because of recovery or
restoration to earning capacity if the
individual is not reemployed in a position subject to civil service retirement
coverage and—
(1) Is at least age 50 when the disability annuity stops and had 20 or
more years of service at the time of retirement for disability; or

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§ 831.1211

5 CFR Ch. I (1–1–12 Edition)

(2) Had 25 or more years of service at
the time of retirement for disability
regardless of age.
(b) An individual whose annuity
stops because of recovery or restoration to earning capacity and who is not
eligible for an immediate annuity
under paragraph (a) of this section, is
eligible for a deferred annuity upon
reaching age 62.
(c) The disability annuity of an individual whose annuity stopped because
of recovery or restoration to earning
capacity may be reinstated under
§ 831.1212 of this part.
§ 831.1211 Reinstatement of disability
annuity.
(a) When a disability annuity stops,
the individual must again prove that
he or she meets the eligibility requirements in order to have the annuity reinstated.
(b) When a recovered disability annuitant under age 62 whose annuity was
terminated because he or she was found
recovered on the basis of medical evidence (§ 831.1208(b)), is not reemployed
in a position subject to civil service retirement coverage, and, based on the
results of a current medical examination, OPM finds that the individual’s
medical condition has worsened since
the finding of recovery and that the
original disability on which retirement
was based has recurred, OPM will reinstate the disability annuity. The right
to the reinstated annuity begins with
the date of the medical examination
showing that the disability recurred.
(c) OPM will reinstate the disability
annuity of a recovered disability annuitant under age 62 whose annuity was
terminated because he or she was found
recovered on the basis of Federal reemployment (§ 831.1208(c)) when—
(1) The results of a current medical
examination show that the disabling
medical condition that was the basis of
the disability retirement continues to
exist; and
(2) Within 1 year after the date of reemployment, this medical condition
has again caused the individual to be
unable to provide useful and efficient
service, and the employee has been—
(i) Separated and not reemployed in a
position subject to civil service retirement coverage; or

(ii) Placed in a position that results
in a reduction in grade or pay below
the grade from which the individual retired, or in a change to a non-permanent position. The right to the reinstated annuity begins with the date of
the medical examination showing that
the disabling medical condition continues to exist, but not earlier than the
first day after separation, or the effective date of the placement in the position which results in a reduction in
grade or pay or change to a non-permanent position.
(d) When a recovered disability annuitant under age 62 whose annuity was
terminated because he or she was found
recovered on the basis of a voluntary
request (§ 831.1208(e)), is not reemployed
in a position subject to civil service retirement coverage, and, based on the
results of a current medical examination, OPM finds that the disability has
recurred, OPM will reinstate the disability annuity. The right to the reinstated annuity begins with the date of
the medical examination showing that
the disability recurred, but not earlier
than 1 year before the date the request
for reinstatement is received by OPM.
(e) When a disability annuitant
whose earning capacity has been restored but who is not reemployed in a
position in which he or she is subject
to civil service retirement coverage,
and who (except in the case of a National Guard technician whose annuity
was awarded under 5 U.S.C. 8337(h)),
has not recovered from the disability
for which retired, loses his or her earning capacity, as determined by OPM,
before reaching age 62, OPM will reinstate the disability annuity. The reinstated annuity is payable from January 1 of the year following the calendar
year in which earning capacity was
lost. Earning capacity is lost if, during
any calendar year, the individual’s income from wages or self-employment
or both is less than 80 percent of the
current rate of basic pay of the position held at retirement.
(f) A reinstated annuity is the same
type as the original annuity and is paid
at the rate of annuity to which the annuitant was entitled on the date his or
her disability annuity was last discontinued.

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Office of Personnel Management

§ 831.1303

(g) Reinstatement of the disability
annuity ends the right to any other annuity based on the same service, unless
the annuitant makes a written election
to receive the other annuity instead of
the disability annuity.
(h) When OPM reinstates an employee’s disability annuity, the agency
must offset the employee’s pay by the
amount of annuity allocable to the period of employment, unless the annuitant is exempted from this requirement under the provisions of 5 U.S.C.
8344(i). The offset begins on the date of
OPM’s determination of eligibility for
reinstatement. OPM must reduce any
retroactive payment of annuity for a
period of employment with an agency
before that date by the amount of pay
earned during that period.
(i) When an individual’s annuity is
terminated upon reemployment (subject to subchapter III of chapter 83,
title 5, United States Code), OPM must
determine the individual’s future annuity rights under the law in effect at the
date of his or her subsequent separation. If, upon separation from such reemployment, the individual does not
meet the eligibility requirements
under subchapter III of chapter 83, title
5, United States Code, for title to annuity based on such separation, OPM will
resume payment of the terminated annuity at the rate last payable, unless
payment is otherwise barred.
[58 FR 12498, Sept. 4, 1968. Redesignated at 59
FR 27214, May 26, 1994]

§ 831.1212 Administrative review of
OPM decisions.
The right to administrative review of
an initial decision of OPM is set forth
in § 831.109 of this part. The right to appeal a final decision of OPM to the
Merit Systems Protection Board is set
forth in § 831.110 of this part.
[58 FR 12498, Sept. 4, 1968. Redesignated at 59
FR 27214, May 26, 1994]

Subpart M—Collection of Debts
SOURCE: 50 FR 34664, Aug. 27, 1985, unless
otherwise noted.

§ 831.1301 Purpose.
This subpart prescribes procedures to
be followed by the Office of Personnel

Management (OPM) , which are consistent with the Federal Claims Collection Standards (FCCS) (Chapter II of
title 4, Code of Federal Regulations), in
the collection of debts owed to the
Civil Service Retirement and Disability Fund.
§ 831.1302

Scope.

This subpart covers the collection of
debts due the Civil Service Retirement
and Disability Fund, with the exception of the collection of court-imposed
judgments, amounts referred to the Department of Justice because of fraud,
and amounts collected from back pay
awards in accordance with § 550.805(e)(2)
of this chapter.
§ 831.1303

Definitions.

In this subpart—
Additional charges means interest,
penalties, and/or administrative costs
owed on a debt.
Annuitant means a retired employee
or Member of Congress, spouse, widower, or child receiving recurring benefits under the provisions of subchapter
III, chapter 83, of title 5, United States
Code.
Compromise is an adjustment of the
total amount of the debt to be collected based upon the considerations
established by the FCCS (4 CFR part
103).
Consumer reporting agency has the
same meaning provided in 31 U.S.C.
3701(a)(3).
Debt means a payment of benefits to
an individual in the absence of entitlement or in excess of the amount to
which an individual is properly entitled.
Delinquent has the same meaning provided in 4 CFR 101.2(b).
FCCS means the Federal Claims Collection Standards (Chapter II of title 4,
Code of Federal Regulations).
Offset means to withhold the amount
of a debt, or a portion of that amount,
from one or more payments due the
debtor. Offset also means the amount
withheld in this manner.
Reconsideration means the process of
reexamining an individual’s liability
for a debt based on—
(1) Proper application of law and regulation; and

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§ 843.503

5 CFR Ch. I (1–1–12 Edition)

§ 843.503 Commencing
nating dates.

and

termi-

(a) An annuity under this subpart
commences on the day after the retiree
dies.
(b) An annuity under this subpart
terminates on the last day of the
month before the insurable interest
beneficiary dies.
(c) A survivor annuity accrues on a
daily basis, one-thirtieth of the monthly rate constituting the daily rate. An
annuity does not accrue for the 31st
day of any month, except in the initial
month if the survivor’s (of a deceased
employee) annuity commences on the
31st day. For accrual purposes, the last
day of a 28-day month constitutes 3
days and the last day of a 29-day month
constitutes 2 days.
§ 843.504

Rate of annuity.

The amount of an annuity under this
subpart is 55 percent of the retiree’s
annuity after the insurable interest reduction.

PART 844—FEDERAL EMPLOYEES’
RETIREMENT SYSTEM—DISABILITY
RETIREMENT
Subpart A—General Provisions
Sec.
844.101 Purpose.
844.102 Definitions.
844.103 Eligibility.
844.104 Administrative review of OPM decisions.
844.105 Relationship to workers’ compensation.
844.106 Disability annuities which include
credit for service with a nonappropriated
fund instrumentality.

Subpart B—Applications for Disability
Retirement
844.201 General requirements.
844.202 Agency-filed disability retirement
applications.
844.203 Supporting documentation.

Subpart C—Computation of Disability
Annuity
844.301 Commencing date of disability annuity.
844.302 Computation of disability annuity
before age 62.
844.303 Minimum disability annuity.

844.304 Computation of disability annuity
for those otherwise eligible to retire.
844.305 Redetermination of disability annuity at age 62.

Subpart D—Termination and Reinstatement
of Disability Annuity
844.401 Recovery from disability.
844.402 Restoration of earning capacity.
844.403 Annuity rights after a disability annuity terminates.
844.404 Reinstatement of disability annuity.
AUTHORITY: 5 U.S.C. 8461.
Section 844.201 also issued under 5 U.S.C.
1104.
SOURCE: 55 FR 6598, Feb. 26, 1990, unless
otherwise noted.

Subpart A—General Provisions
§ 844.101 Purpose.
This part establishes the requirements under the Federal Employees’
Retirement System (FERS) for eligibility to receive a disability annuity,
application procedures for disability
annuities, rules for computing a disability annuity, and the conditions and
procedures under which a disability annuity is terminated and reinstated.
§ 844.102 Definitions.
In this part:
Accommodation means a reasonable
adjustment made to an employee’s job
or work environment that enables the
employee to perform the duties of the
position. Accommodation may include
modifying the worksite; adjusting the
work schedule; restructuring the job;
obtaining or modifying equipment or
devices; providing interpreters, readers, or personal assistants; and retraining the employee.
Basic pay means the pay an employee
receives that is subject to deductions
under FERS.
Commuting area has the meaning
given the term ‘‘local commuting
area’’ in § 351.203 of this chapter.
Disabled and disability means unable
or inability, because of disease or injury, to render useful and efficient
service in the employee’s current position.
FERS means the Federal Employees’
Retirement System established under
chapter 84 of title 5, United States
Code.

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Office of Personnel Management

§ 844.103

Medical condition means a health impairment resulting from a disease or
injury, including a psychiatric disease.
This is the same definition of ‘‘medical
condition’’ that is found in § 339.104 of
this chapter.
Medical documentation means a statement from a licensed physician, which
may be supplemented by a statement
from another appropriate practitioner,
that provides information OPM considers necessary to determine an individual’s entitlement to benefits under
this part. Such a statement must meet
the criteria set forth in § 339.104 of this
chapter.
Military reserve technician has the
same meaning given this term in 5
U.S.C. 8401(30).
OPM means the Office of Personnel
Management.
Permanent position means an appointment without time limitation.
Physician and practitioner have the
same meaning given these terms in
§ 339.104 of this chapter.
Qualified for reassignment means able
to meet the minimum requirements for
the grade and series of the vacant position in question.
Same grade or pay level means, in regard to a vacant position within the
same pay as the position the employee
currently occupies, the same grade and
an equivalent amount of basic pay. A
position under a different pay system
or schedule is at the same pay level if
the representative rate, as defined in
§ 532.401 of this chapter, equals the representative rate of the employee’s current position.
Useful and efficient service means acceptable performance of the critical or
essential elements of the position; and
satisfactory conduct and attendance.
Vacant position means an unoccupied
position of the same grade or pay level
and tenure for which the employee is
qualified for reassignment that is located in the same commuting area and,
except in the case of a military reserve
technician, is serviced by the same appointing authority of the employing
agency. The vacant position must be
full time, unless the employee’s current position is less than full time, in
which case the vacant position must
have a work schedule of no less time
than that of the current position. In

the case of an employee of the United
States Postal Service, a vacant position does not include a position in a
different craft or a position to which
reassignment would be inconsistent
with the terms of a collective bargaining agreement covering the employee.
§ 844.103

Eligibility.

(a) Except as provided in paragraph
(c) of this section, an individual must
meet the following requirements in
order to receive a disability annuity:
(1) The individual must have completed at least 18 months of civilian
service that is creditable under FERS,
as defined in § 842.304 of this chapter;
(2) The individual must, while employed in a position subject to FERS,
have become disabled because of a medical condition, resulting in a deficiency
in performance, conduct, or attendance, or if there is no such deficiency,
the disabling medical condition must
be incompatible with either useful and
efficient service or retention in the position;
(3) The disabling medical condition
must be expected to continue for at
least 1 year from the date the application for disability retirement is filed;
(4) Accommodation of the disabling
medical condition in the position held
must be unreasonable; and
(5) The individual must not have declined an offer of reassignment to a vacant position.
(b) The employing agency must consider a disability applicant for reassignment to any vacant position. The
agency must certify to the Office of
Personnel Management (OPM) either
that there is no vacant position or
that, although it made no offer of reassignment, it considered the individual
for a vacant position. If an agency offers a reassignment and the individual
declines the offer, the individual may
appeal the agency’s determination that
the individual is not disabled for the
position in question to the Merit Systems Protection Board under 5 U.S.C.
7701.
(c)(1) Paragraphs (a)(2) through (a)(4)
of this section do not apply to a military reserve technician who retires
under 5 U.S.C. 8456.

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§ 844.104

5 CFR Ch. I (1–1–12 Edition)

(2) An individual who separates from
employment as a military reserve technician under circumstances set forth in
5 U.S.C. 8456(a)(1) after reaching age 50
and completing 25 years of service is
not entitled to a disability annuity
under this part, but is entitled to an
annuity under § 842.210 of this chapter.
(3) A former military reserve technician is not entitled to an annuity
under 5 U.S.C. 8456 based on service as
a technician if the technician is subsequently appointed to another position
in the Federal Government.
§ 844.104 Administrative
OPM decisions.

review

of

Any individual whose rights or interests under FERS are affected by an initial decision of OPM may request OPM
to review its decision under § 841.306.
§ 844.105 Relationship
compensation.

to

workers’

(a) Except as provided in paragraph
(b) of this section, an individual who is
eligible for both an annuity under part
842 or 844 of this chapter and compensation for injury or disability under subchapter I of chapter 81 of title 5, United
States Code (other than a scheduled
award under 5 U.S.C. 8107(c)), covering
the same period of time must elect to
receive either the annuity or compensation.
(b) Notwithstanding the provisions of
paragraph (a) of this section, an individual may concurrently receive an annuity based on the individual’s service
under part 842 or 844 of this chapter and
a benefit under subchapter I of chapter
81 of title 5, United States Code, on account of the death of another individual. An individual may also receive
an annuity under part 843 of this chapter and compensation for injury or disability to himself or herself under such
subchapter I covering the same period
of time.
(c) An individual who elects to receive compensation payments under
paragraph (a) of this section and who
has not received a refund of contributions under § 843.202 retains the right to
elect to receive an annuity under part
842 or 844, as the case may be, in the
event that the individual’s compensation payments cease or are reduced.

§ 844.106 Disability annuities which include credit for service with a nonappropriated fund instrumentality.
A disability annuity that includes
credit for service with a nonappropriated fund instrumentality performed after December 31, 1965, based
on an election under 5 CFR part 847,
subpart D, is computed under 5 CFR
part 847, subpart F.
[68 FR 2178, Jan. 16, 2003]

Subpart B—Applications for
Disability Retirement
§ 844.201 General requirements.
(a)(1) Except as provided in paragraphs (a)(3) and (a)(4) of this section,
an application for disability retirement
is timely only if it is filed with the employing agency before the employee or
Member separates from service, or with
the former employing agency or OPM
within 1 year thereafter.
(2) An application for disability retirement that is filed with OPM, an
employing agency or former employing
agency by personal delivery is considered filed on the date on which OPM,
the employing agency or former employing agency receives it. The date of
filing by facsimile is the date of the
facsimile. The date of filing by mail is
determined by the postmark date; if no
legible postmark date appears on the
mailing, the application is presumed to
have been mailed 5 days before its receipt, excluding days on which OPM,
the employing agency or former employing agency, as appropriate, is
closed for business. The date of filing
by commercial overnight delivery is
the date the application is given to the
overnight delivery service.
(3) An application for disability retirement that is filed with OPM or the
applicant’s former employing agency
within 1 year after the employee’s separation, and that is incompletely executed or submitted in a letter or other
form not prescribed by OPM, is deemed
timely filed. OPM will not adjudicate
the application or make payment until
the application is filed on a form prescribed by OPM.
(4) OPM may waive the 1-year time
limit if the employee or Member is
mentally incompetent on the date of

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Office of Personnel Management

§ 844.202

separation or within 1 year thereafter,
in which case the individual or his or
her representative must file the application with the former employing
agency or OPM within 1 year after the
date the individual regains competency
or a court appoints a fiduciary, whichever is earlier.
(b)(1) Before payment of a disability
annuity under this part can be authorized, the applicant must provide OPM
with:
(i) Satisfactory evidence that the applicant has filed an application for disability insurance benefits under section 223 of the Social Security Act; or
(ii) An official statement from the
Social Security Administration that
the individual is not insured for disability insurance benefits as defined in
section 223(c)(1) of the Social Security
Act.
(2) A disability retirement application under this part will be dismissed
when OPM is notified by the Social Security Administration that the application referred to in paragraph (b)(1)(i)
of this section has been withdrawn. All
rights to an annuity under this part
terminate upon withdrawal of an application for social security disability
benefits.
(c) An agency may consider the existence of a pending disability retirement
application when deciding whether and
when to take other personnel actions.
An employee’s filing for disability retirement does not require the agency
to delay any appropriate personnel action.
[55 FR 6598, Feb. 26, 1990, as amended at 63
FR 17050, Apr. 8, 1998]

§ 844.202 Agency-filed disability retirement applications.
(a) Basis for filing an application for an
employee. An agency must file an application for disability retirement of an
employee who has 18 months of Federal
civilian service when all of the following conditions are met:
(1) The agency has issued a decision
to remove the employee;
(2) The agency concludes, after its review of medical documentation, that
the cause for unacceptable performance, attendance, or conduct is disease
or injury;

(3) The employee is institutionalized,
or the agency concludes, based on a review of medical and other information,
that the employee is incapable of making a decision to file an application for
disability retirement;
(4) The employee has no personal representative or guardian; and
(5) The employee has no immediate
family member who is willing to file an
application on his or her behalf.
(b) Agency procedures. (1) When an
agency issues a decision to remove an
employee and not all of the conditions
described in paragraph (a) of this section have been satisfied, but the removal is based on reasons apparently
caused by a medical condition, the
agency must advise the employee in
writing of his or her possible eligibility
for disability retirement and of the
time limit for filing an application.
(2) If all of the conditions described
in paragraph (a) of this section have
been met, the agency must inform the
employee in writing at the same time
it informs the employee of its removal
decision, or at any time before the separation is effected, that:
(i) The agency is submitting a disability retirement application on the
employee’s behalf to OPM;
(ii) The employee may review any
medical information in accordance
with § 294.106(d) of this chapter; and
(iii) The action does not affect the
employee’s right to submit a voluntary
application for disability retirement or
any other retirement benefit to which
the employee is entitled under FERS.
(3) When an agency submits an application for disability retirement to
OPM on behalf of an employee, it must
provide OPM with copies of the decision to remove the employee, the medical documentation, and any other documents needed to show that the cause
for removal results from a medical condition. Following separation, the agency must provide OPM with a copy of
the documentation of the separation.
(c) OPM procedures. (1) OPM will not
act on any application for disability retirement filed by an agency on behalf
of an employee until it receives the appropriate documentation of the separation. When OPM receives a complete
application for disability retirement
under this section, it will notify the

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§ 844.203

5 CFR Ch. I (1–1–12 Edition)

former employee that it has received
the application and that he or she may
submit medical documentation. OPM
will determine entitlement to disability benefits under § 844.203.
(2) OPM will cancel any disability retirement when a final decision of an
administrative authority or court reverses the removal action and orders
the reinstatement of an employee to
the agency rolls.
§ 844.203 Supporting documentation.
(a) An individual or agency filing an
application for disability retirement is
responsible for providing OPM with the
evidence described in § 844.201(b)(1), as
well as whatever documentation OPM
requires in order to determine whether
the individual meets the eligibility requirements set forth in § 844.103. The
documentation must be provided in a
form prescribed by OPM. Failure to
submit the documentation required is
grounds for dismissing the application.
It is also the responsibility of the disability annuitant to obtain and submit
evidence OPM requires to show continuing entitlement to disability benefits. Unless OPM orders an examination by a physician of its choice under
paragraph (b) of this section, the cost
of providing medical documentation
rests with the applicant or disability
annuitant.
(b) OPM may offer the applicant a
medical examination when it determines that an independent evaluation
of medical evidence is needed in order
to make a decision regarding an application for a disability annuity or a disability annuitant’s entitlement to continuing benefits. The medical examination will be conducted by a medical officer of the United States or a qualified
physician or board of physicians designated by OPM. The applicant’s refusal to submit to an examination is
grounds for dismissal of the application
or termination of payments to an annuitant.
(c)(1) OPM will review the documentation submitted under paragraph
(a) of this section to determine whether the individual has met the eligibility requirements set forth in
§ 844.103. OPM will issue its decision in
writing to the individual and to the
employing agency. The decision will

include a statement of OPM’s findings
and conclusions and an explanation of
the applicant’s right to request reconsideration or MSPB review under
§ 844.104.
(2) OPM may rescind a decision to
allow an application for disability retirement at any time if OPM determines that the original decision was
erroneous due to fraud, misstatement
of fact, or upon the acquisition of additional medical or other documentation.
OPM will provide the individual and
the employing agency with written notification of the rescission, including a
statement of OPM’s findings and conclusions and an explanation of the individual’s right to request reconsideration or MSPB review under § 844.104.
(d) Subject to 5 U.S.C. 552a, any supporting documentation provided to
OPM under this section may be shared
with the Social Security Administration and the Office of Workers’ Compensation Programs of the U.S. Department of Labor.

Subpart C—Computation of
Disability Annuity
§ 844.301 Commencing
ability annuity.

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dis-

A disability annuity under this part
commences on the day after the employee separates or the day after pay
ceases and the employee meets the requirements for title to an annuity.
§ 844.302 Computation of disability annuity before age 62.
(a) For the purposes of this subpart,
the ‘‘adjusted social security disability
benefit’’ is the benefit to which an annuitant is entitled under section 223 of
the Social Security Act:
(1) For the month in which the annuity under this part commences, or is
reinstated under § 844.405, or, if later,
the first month for which the annuitant is entitled to both an annuity
under this part and a social security
disability benefit;
(2) Including, where appropriate, a reduction under section 224 of the Social
Security Act, based on the amount of
the disability annuity under this subpart without regard to paragraphs
(b)(2) and (c)(2) of this section; and

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Office of Personnel Management

§ 844.401

(3) Adjusted by each cost-of-living increase effective under 5 U.S.C. 8462(b)
beginning with the later of the month
after the 12-month period referred to in
paragraph (b)(1) of this section, or the
first month for which the annuitant is
entitled to both an annuity under this
part and a social security disability
benefit.
(b)(1) Except as otherwise provided in
this part, the annuity payable under
this subpart until the end of the 12th
month beginning after the annuity
commences (or is reinstated under
§ 844.405) is equal to 60 percent of the
annuitant’s average pay.
(2) For months for which the annuitant is also entitled to a social security disability benefit, the amount
computed under paragraph (b)(1) of this
section is reduced by 100 percent of the
annuitant’s adjusted social security
disability benefit.
(c)(1) Except as otherwise provided in
this part, the annuity under this subpart after the period described in paragraph (b)(1) of this section is equal to
40 percent of the annuitant’s average
pay.
(2) For months after the period described in paragraph (b)(1) of this section for which the annuitant is also entitled to a social security disability
benefit, the amount computed under
paragraph (c)(1) of this section is reduced by 60 percent of the annuitant’s
adjusted social security disability benefit.
(d) For months in which an annuity
is reduced under paragraph (b) or (c) of
this section, any reduction for survivor
benefits is made after the reduction for
social security benefits.
§ 844.303 Minimum disability annuity.
Notwithstanding any other provision
of this part, an annuity payable under
this part cannot be less than the
amount of an annuity computed under
5 U.S.C. 8415 (excluding subsection (f)
of that section) based on the annuitant’s service.
§ 844.304 Computation of disability annuity for those otherwise eligible to
retire.
(a) An individual retiring under this
part is not entitled to elect to receive
an alternative form of annuity under 5

U.S.C. 8420a, even if the individual
meets the requirements for retirement
under another part and would be entitled to elect an alternative form of annuity in connection therewith.
(b) Notwithstanding any other provision of this part, an annuity payable
under this part will be computed under
5 U.S.C. 8415 if it commences or is reinstated under § 844.405 (b) or (c) of this
part on or after:
(1) The annuitant has satisfied the
age and service requirements for retirement under 5 U.S.C. 8412 (a)
through (f); or
(2) The annuitant has reached age 62.
§ 844.305 Redetermination of disability
annuity at age 62.
Effective on and after the annuitant’s 62nd birthday, the rate of annuity payable to a disability annuitant
will be the amount of an annuity computed with respect to the annuitant
under 5 U.S.C. 8415 (including subsection (g) of that section), including
credit for all periods before the annuitant’s 62nd birthday during which he
or she was entitled to an annuity under
this part. The average pay used in computing the annuity under 5 U.S.C. 8415
is adjusted by all cost-of-living increases effective under 5 U.S.C. 8462(b)
during the period the annuitant was receiving the disability annuity under
this part.

Subpart D—Termination and
Reinstatement of Disability Annuity
§ 844.401 Recovery from disability.
(a) Each annuitant receiving disability annuity from the Fund shall be
examined under the direction of OPM
at the end of one year from the date of
disability retirement and annually
thereafter until the annuitant becomes
60 years of age unless the disability is
found by OPM to be permanent in character. OPM may order a medical or
other examination at any time to determine the facts relative to the nature
and degree of disability of the annuitant. Failure to submit to reexamination shall result in suspension of annuity.
(b) A disability annuitant may request medical reevaluation under the
provisions of this section at any time.

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§ 844.402

5 CFR Ch. I (1–1–12 Edition)

OPM may reevaluate the medical condition of disability annuitants age 60 or
over only on their own request.
(c) Recovery based on medical or other
documentation. When OPM determines
on the basis of medical documentation
or other evidence that a disability annuitant has recovered from the disability, OPM will terminate the annuity effective on the first day of the
month beginning 1 year after the date
of the medical documentation or other
evidence showing recovery. If an agency reemploys a disability annuitant
who has been found recovered at any
grade or rate of pay within the 1-year
period pending termination of the disability annuity under this paragraph,
OPM will terminate the annuity effective on the date of reemployment.
(d) Recovery based on reemployment by
the Federal Government. Reemployment
by an agency at any time before age 60
is evidence of recovery if the reemployment is under an appointment not limited to a year or less, at the same or
higher grade or pay level as the position from which the disability annuitant retired. The new position must be
full-time unless the position the disability annuitant occupied immediately before retirement was less than
full-time, in which case the new position must have a work schedule of no
less time than that of the position
from which the disability annuitant retired. In this instance, OPM needs no
medical documentation to find the annuitant recovered. Disability annuity
payments will terminate effective on
the first day of the month following
the month in which the recovery finding is made under this paragraph.
§ 844.402
ity.

Restoration of earning capac-

(a) Earning capacity determinations. If
a disability annuitant is under age 60
on December 31 of any calendar year
and his or her income from wages or
self-employment or both during that
calendar year equals at least 80 percent
of the current rate of basic pay of the
position occupied immediately before
retirement, the annuitant’s earning capacity is considered to be restored. The
disability annuity will terminate on
the June 30 after the end of the cal-

endar year in which earning capacity is
restored.
(b) Current rate of basic pay for the position occupied immediately before retirement. (1) A disability annuitant’s income for a calendar year is compared
to the gross annual rate of basic pay in
effect on December 31 of that year for
the position occupied immediately before retirement. The income limitation
for most disability annuitants is based
on the rate for the grade and step that
reflects the total amount of basic pay
(both the grade and step and any additional basic pay) in effect on the date
of separation from the agency for disability retirement. Additional basic
pay is included subject to the premium
pay restrictions of 5 U.S.C. 5545 (c)(1)
and (c)(2).
(2) In the case of an annuitant whose
basic pay rate on the date determined
under paragraph (b)(1) of this section
did not match a specific grade and step
in the pay schedule:
(i) For those retiring from a Senior
Executive Service position, a merit pay
position, a position for which a special
pay rate is authorized (except as provided in paragraph (b)(2)(ii) of this section), or any other position in which
the rate of basic pay is not equal to a
grade and step in a pay schedule, the
grade and step will be established for
this purpose at the lowest step in the
pay schedule grade that is equal to or
greater than the actual rate of basic
pay payable.
(ii) For those retiring with a retained
rate of basic pay or from a position for
which a special pay rate is in effect but
whose rate of basic pay exceeds the
highest rate payable in the pay schedule grade applicable to the position
held, the grade is established for this
purpose at the highest grade in the
schedule that is closest to the grade of
the position held and within which the
amount of the retained pay falls. The
step is established for this purpose at
the lowest step in that grade that
equals or exceeds the actual rate of pay
payable.
(3) For annuitants retiring from the
United States Postal Service, only
cost-of-living allowances subject to
FERS deductions are included in determining the current rate of basic pay of
the position held at retirement.

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Office of Personnel Management

§ 844.404

(c) Income. (1) Earning capacity for
the purposes of this section is demonstrated by an annuitant’s ability to
earn post-retirement income in exchange for personal services or a work
product, or as a profit from one or
more businesses wholly or partly
owned by the disability annuitant and
in the management of which the annuitant has an active role. Income for the
purposes of this section is not necessarily the same as income for the
purposes of the Internal Revenue Code.
(2) Income earned from one source is
not offset by losses from another
source. Income earned as wages is not
reduced by a net loss from self-employment. The net income from each selfemployment endeavor is calculated
separately, and the income earned as
net earnings from one self-employment
endeavor is not reduced by a net loss
from another self-employment endeavor. Thus, a net loss from one endeavor
is considered to be a net income of
zero, and the net incomes from each
separate self-employment endeavor are
added together to determine the total
amount of income from self-employment for a calendar year.
(3) Income is counted in the calendar
year in which it is earned, even though
receipt may be deferred.
(d) Requirement to report income. All
disability annuitants who, on December 31 of any calendar year, are under
age 60 must report to OPM their income from wages or self-employment
or both for that calendar year. Each
year as early as possible, OPM will
send a form to annuitants to use in reporting their income from the previous
calendar year. The form specifies the
date by which OPM must receive the
report. OPM will determine entitlement to continued annuity on the basis
of the report. If an annuitant fails to
submit the report, OPM may stop annuity payments until it receives the report.
§ 844.403 Annuity rights after a disability annuity terminates.
(a) When a disability annuity is terminated because of recovery or restoration of earning capacity and the individual is not employed in the Government, the individual is entitled to an
annuity:

(1) Under 5 U.S.C. 8414(b) if the individual:
(i) Is at least age 50 when the disability annuity ceases and had 20 or
more years of service at the time of retiring for disability; or
(ii) Has 25 or more years of service at
the time of retiring for disability, regardless of age; or
(2) Under 5 U.S.C. 8412(g) if the individual is at least the minimum retirement age applicable under 5 U.S.C.
8412(h) when the disability annuity
ceases and had 10 or more years of service at the time of retiring for disability.
(b) When a disability annuitant
whose annuity was terminated because
of Federal reemployment is separated
and meets the age and service requirements for immediate retirement under
5 U.S.C. 8412 or 8414, the individual is
entitled to an annuity computed under
5 U.S.C. 8415.
[55 FR 6598, Feb. 26, 1990. Redesignated at 58
FR 48273, Sept. 15, 1993]

§ 844.404 Reinstatement of disability
annuity.
(a) When a disability annuity stops,
the individual must again prove that
he or she meets the eligibility requirements in order to have the annuity reinstated.
(b) Reinstatement of annuity terminated
based on recovery. (1) When a recovered
disability annuitant under age 62
whose annuity was terminated because
he or she was found recovered on the
basis of medical evidence (§ 844.401) is
not reemployed in a position subject to
FERS, and, based on the results of a
current medical examination, OPM
finds that the disability has recurred,
OPM will reinstate the disability annuity as provided in paragraph (d) of this
section. The right to the reinstated annuity begins on the date of the medical
documentation showing that the disability has recurred, or if the medical
documentation clearly shows that the
disability recurred on an earlier date,
the annuity will be reinstated on that
earlier date.
(2) Except in the case of an individual
receiving an annuity under § 844.404(b),
OPM will, as provided in paragraph (d)
of this section, reinstate the disability
annuity of a former annuitant whose

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Pt. 845

5 CFR Ch. I (1–1–12 Edition)

annuity was terminated because he or
she was found recovered on the basis of
Federal reemployment when:
(i) The results of a current medical
examination show that the individual’s
medical condition has worsened since
the finding of recovery and that the
original disability on which retirement
was based has recurred; and
(ii) As a result, he or she has been:
(A) Separated and not reemployed in
a position subject to FERS; or
(B) Placed in a position that results
in a reduction in grade or pay below
that from which the individual retired,
or in a change to a temporary or intermittent appointment. The right to the
reinstated annuity begins on the date
the reemployment ends or the effective
date of the placement in the position
that results in a reduction in grade or
pay or change in appointment.
(c) Reinstatement of annuity terminated
because earning capacity was restored. (1)
OPM will reinstate the disability annuity as provided in paragraph (d) of this
section when a disability annuitant
whose annuity was terminated under
§ 844.402(a):
(i) Is not reemployed in a position
subject to FERS;
(ii) Has not recovered from the disability for which the individual retired
(except in the case of a military reserve technician whose annuity was
awarded under 5 U.S.C. 8456); and
(iii) Again loses earning capacity, as
determined by OPM.
(2) The reinstated annuity is payable
from January 1 of the year following
the calendar year in which earning capacity was lost. Earning capacity is
lost if, during any calendar year, the
individual’s income from wages or selfemployment or both is less than 80 percent of the current rate of basic pay of
the position held at retirement.
(d) Except as provided in §§ 844.303
and 844.304, a disability annuity reinstated under the preceding paragraphs
of this section is paid at the rate provided under § 844.302(b) until the end of
the 12th month beginning after the annuity is reinstated. Thereafter, the
rate determined under § 844.302(c) is
payable until age 62.
(e) Notwithstanding the preceding
paragraphs, an annuity may not be reinstated under this section if the indi-

vidual is receiving an annuity under
part 842 of this chapter.
[55 FR 6598, Feb. 26, 1990. Redesignated and
amended at 58 FR 48273, Sept. 15, 1993]

PART 845—FEDERAL EMPLOYEES
RETIREMENT SYSTEM—DEBT COLLECTION
Subpart A—General Provisions
Sec.
845.101 Purpose.
845.102 Definitions.
845.103 Prohibition against collection of
debts.
845.104 Status of debts.
845.105 Termination and suspension of collection actions.

Subpart B—Collection of Overpayment
Debts
845.201 Purpose.
845.202 Scope.
845.203 Definitions.
845.204 Processing.
845.205 Collection of debts.
845.206 Collection by administrative offset.
845.207 Use of consumer reporting agencies.
845.208 Referral to a collection agency.
845.209 Referral for litigation.

Subpart C—Standards for Waiver of
Overpayments
845.301 Conditions for waiver.
845.302 Fault.
845.303 Equity and good conscience.
845.304 Financial hardship.
845.305 Ordinary and necessary living expenses.
845.306 Waiver precluded.
845.307 Burdens of proof.

Subpart D—Agency Requests to OPM for
Recovery of a Debt from the Civil
Service Retirement Fund
845.401 Purpose.
845.402 Scope.
845.403 Definitions.
845.404 Conditions for requesting an offset.
845.405 Creditor agency processing for nonfraud claims.
845.406 OPM
processing
for
non-fraud
claims.
845.407 Installment withholdings.
845.408 Special processing for fraud claims.
AUTHORITY: 5 U.S.C. 8461.
SOURCE: 52 FR 5931, Feb. 27, 1987; 52 FR
23014, June 17, 1987, unless otherwise noted.

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