BNUMBER:  B-270139
DATE:  November 9, 1995
TITLE:  [Letter]

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B-270139

November 9, 1995

The Honorable Ronald D. Coleman
Member, United States 
  House of Representatives
Federal Building, Suite 723
700 East San Antonio Street
El Paso, TX  79901

Dear Mr. Coleman:

This responds to your July 27, 1995, letter, with enclosures, on 
behalf of Mr. Richard E. Montgomery, who is a former Department of 
Defense civilian employee.  Mr. Montgomery disputes the Office of 
Personnel Management's (OPM) determination that he is not eligible to 
enroll in the Retired Federal Employees Health Benefits Program.  
Since OPM has the statutory authority to administer this program, we 
may not disturb OPM's determination.  5 U.S.C.  8913.  See Kenneth J. 
Emanuel, Esq., B-251775, Apr. 29, 1993; B-247499, Mar. 18, 1992; Lee 
R. McClure, 63 Comp. Gen. 546 (1984).  However, the following 
information is provided for your assistance.

According to the material you provided, the Department involuntarily 
separated Mr. Montgomery from the federal service (the Department of 
the Army) on September 30, 1993, after 10 years, 7 months and 7 days 
of federal employment.  At that time, he elected to continue his 
Federal Employees Health Benefit Plan coverage under a provision that 
allows any employee separated from the federal service to continue 
coverage for a period not to exceed 18 months.  See 5 U.S.C.  8905a 
(1988).  Employees who elect this coverage must pay both the employee 
and the agency portions of the insurance premiums, which Mr. 
Montgomery did.  5 U.S.C.  8905a(d)(1)(A).

Subsequently, in June 1994, Mr. Montgomery turned 62 and became 
eligible to receive a deferred annuity.  He then tried to convert this 
temporary coverage into permanent coverage under the Retired Federal 
Employees Health Benefits Program.  However, OPM denied his request.  
Mr. Montgomery then requested reconsideration of that decision and, 
upon review, OPM affirmed its decision.  The basis for this 
determination, according to the information provided to Mr. Montgomery 
by OPM, is that under 5 U.S.C.  8905(b), only employees who are 
eligible for an immediate annuity at the time of their separation are 
eligible to convert their health insurance coverage to the retirement 
plan, and Mr. Montgomery did not have enough years of service to 
qualify for an immediate annuity upon his separation.

Before his separation, an employee from the employee benefits section 
of the Army wrote Mr. Montgomery a note stating that if he elected to 
continue his coverage under the provision just described until he was 
eligible for his annuity, he then would be able to convert this 
temporary coverage to permanent coverage under the retired employee's 
plan.  For the reasons stated above, this proved to be erroneous 
advice.[1]

We trust this is responsive to your inquiry.

/s/Seymour Efros
for Robert P. Murphy
General Counsel

B-270139

DIGEST

Through his United States Representative, a former Department of 
Defense civilian employee requests our review of a determination by 
the Office of Personnel Management (OPM) that he is not eligible to 
enroll in the Retired Federal Employees Health Benefits Program.  In a 
letter response, the Representative is advised that, because OPM has 
the statutory authority to administer the health benefits program, 
this Office will not disturb its determination.

1. Based on this erroneous advice, Mr. Montgomery states that he 
declined the opportunity to accept a separation incentive to 
voluntarily separate and instead, waited to be involuntarily separated 
through a reduction-in-force (RIF).  However, he did not lose any 
money as a result of this error because he should have received the 
same amount of severance pay as a result of the RIF that he would have 
received as a separation incentive, which is 1 week's pay for each 
year of service for the first 10 years and 2 weeks pay for each year 
thereafter.  Compare, 5 U.S.C.  5595 (severance pay) and 5 U.S.C.  
5597 (separation incentives for Department of Defense employees).