Sec. 772.307 Further appeal to the Board of Appeals and Review. 772.308 Appellate review by the Commissioners. AUTHORITY: The provisions of this Part 772 issued under 5 U.S.C. 1302, 3301, 3302, 7512, 7701, 5115, E.O. 10577; 3 CFR, 1954-1958 Comp., E.O. 10988; 3 CFR, 1959-1963 Comp. SOURCE: The provisions of this Part 772 appear at 28 F.R. 10089, Sept. 14, 1963, unless otherwise noted. Subpart A-[Reserved] Subpart B-[Reserved] Subpart C-Commission's Appellate Review of Actions Against Employees § 772.301 Coverage. (a) Agency-initiated actions. Except as otherwise provided, this subpart applies to appeals to the Commission under Subpart H of Part 315 of this chapter, Subpart B of Part 330 of this chapter, Subpart I of Part 351 of this chapter, Subpart E of Part 531 of this chapter, and Subparts B and C of Part 752 of this chapter. (b) Commission-initiated actions. Except as otherwise provided, this subpart applies to appeals to the Commission from adverse actions effected under Part 754 of this chapter. In these appeals, the Commission's Bureau of Personnel Investigations is deemed the "agency" as that term is used in this subpart. [30 F.R. 11847, Sept. 16, 1965] The Commission shall close an appeal for failure to prosecute if an appellant does not furnish required information and duly proceed with the advancement of his appeal. However, instead of closing for failure to prosecute, the Commission may adjudicate the appeal of sufficient information for that purpose is available. The Commission may reopen an appeal closed under this section only on a showing by the appellant that circumstances beyond his control prevented him from prosecuting his appeal. $ 772.303 Death of appellant. When an appeal under Subpart H of Part 315 of this chapter, Subpart I of Part 351 of this chapter, Subpart E of Part 531 of this chapter, or Subpart B or C of Part 752 of this chapter is filed properly before the death of an appellant, the Commission shall process it to completion and adjudicate it. The Commission, in recommending corrective action in the decision on such an appeal may provide for amendment of the agency's records to show retroactive restoration and the appellant's continuance on the rolls in an active duty status to the date of death. § 772.304 Evidence. (a) Coverage. This section applies only to appeals under Subpart H of Part 315 of this chapter, Subparts B and C of Part 752 of this chapter, and Part 754 of this chapter. (b) Evidence. Statements of witnesses shall be by affidavit, when practicable, and relative to the adverse decision. It is the responsibility of both parties to the appeal to submit all evidence to the Chief, Appeals Examining Office, or to the regional director, as appropriate. (c) Availability of evidence and representations. A representative of the Commission shall discuss all relevant representations and evidence with both parties and make the representations and evidence available to them for review, However, when adverse action has been taken on the basis of a reported mental condition of the appellant or another condition of such a nature that a prudent physician would hesitate to inform a person suffering from it as to its exact nature and probable outcome, the representative of the Commission shall make the medical evidence available only to a duly licensed physician designated in writing by the appellant or the appellant's representative. [28 F.R. 10089, Sept. 14, 1963, as amended at 30 F.R. 11847, Sept. 16, 1965] (a) Coverage. This section applies only to appeals under Subpart B of Part 752 of this chapter and Part 754 of this chapter. (b) Right to a hearing. An appellant is entitled to a hearing before the office of the Commission having initial jurisdiction of the appeal. That office shall inform the appellant of his right to a hearing. If the appellant does not desire a hearing, he shall so advise that office in writing. (c) Hearing procedures. (1) An appellant is entitled to appear at the hearing on his appeal personally or through or accompanied by his representative. The agency is also entitled to participate in the hearing. Both parties are entitled to produce witnesses. The Commission is not authorized to subpoena witnesses. (2) An agency shall make its employees available as witnesses at the hearing when (i) requested by the Commission after consideration of a request by the appellant or the agency and (ii) it is administratively practicable to comply with the request of the Commission. If the agency determines that it is not administratively practicable to comply with the request of the Commission, it shall submit to the Commission its written reasons for the declination. Employees of the agency shall be in a duty status during the time they are made available as witnesses. Employees of the agency shall be free from restraint, interference, coercion, discrimination, or reprisal in presenting their testimony. (3) Hearings are not open to the public or the press. Attendance at hearings is limited to persons determined by the Commission to have a direct connection with the appeal. (4) A representative of the Commission shall conduct the hearing and shall afford the parties opportunity to introduce evidence (including testimony and statements by the appellant, his representative, representatives of the agency, and witnesses), and to cross-examine witnesses. Testimony is under oath or affirmation. Rules of evidence are not applied strictly, but the representative of the Commission shall exclude irrelevant or unduly repetitious testimony. (5) The office of the Commission having initial jurisdiction of the appeal shall determine how the hearing will be reported. When the hearing is reported verbatim, that office shall make the transcript a part of the record of the proceedings and shall furnish a copy of the transcript to each party. When the hearing is not reported verbatim, the representative of the Commission who conducts the hearing shall make a suitable summary of pertinent portions of the testimony. When agreed to in writing by the parties, the summary constitutes the report of the hearing and is made a part of the record of the proceedings. Each party is entitled to be furnished a copy of the report of the hearing. If the representative of the Commission and the parties fail to agree on the summary, the parties are entitled to submit written exceptions to any part of the summary which are made a part of the record of the proceedings for consideration in deciding the appeal. [28 F.R. 10089, Sept. 14, 1963, as amended at 30 F.R. 11847, Sept. 16, 1965; 31 F.R. 6569, May 3, 1966] § 772.306 Decision on initial appeal. (a) The office of the Commission having initial jurisdiction of the appeal, after making such investigation as it considers necessary, shall issue a written decision and send copies thereof to the appellant, his representative, and the agency. The decision on each appeal covered by this part shall contain findings, recommendations for any corrective action required, and notification of the right of either party to appeal to the Board of Appeals and Review. In addition, the decision on each appeal under Subpart H, Part 315, and Subparts B and C of Part 752, and Part 754 of this chapter, shall include an analysis of the findings and a statement of the reasons for the conclusions reached. Except as provided in paragraph (b), the agency shall report, within seven calendar days after receipt of the decision, that it has carried the decision into effect or that it is appealing the decision to the Board. (b) When an employee makes a timely appeal to the Board of Appeals and Review under § 772.307 from a decision of the Appeals Examining Office affirming an adverse decision of the agency under Part 754, that decision may not be given effect until the Board of Appeals and Review has adjudicated the appeal. [30 F.R. 11847, Sept. 16, 1965, as amended at 31 F.R. 6353, Apr. 27, 1966] § 772.307 Further appeal to the Board of Appeals and Review. (a) Right of further appeal. Both parties are entitled to appeal the decision on the initial appeal issued under § 772.306 to the Board of Appeals and Review, U.S. Civil Service Commission, Washington, D.C. 20415. An appeal to the Board of Appeals and Review shall be in writing, set forth the reasons for the appeal, and be filed with the Board within 15 calendar days after receipt of the decision on the initial appeal. The Board may extend the time limit in this paragraph when a party shows that circumstances beyond the control of the party prevented the filing of the apppeal within the time limit. (b) Board procedures. The Board of Appeals and Review shall review the record of the proceedings and all relevant written representations. There is no right to a hearing before the Board. The Board may, in its discretion, afford the parties an opportunity to appear personally and present oral arguments and representations. (c) Decision of the Board. The Board of Appeals and Review shall issue a written decision and shall send copies thereof to the parties and to the employee's representative. The decision of the Board is final and there is no further right of appeal. When corrective action is recommended, the agency shall report promptly to the Board that the corrective action has been taken. (5 U.S.C. 5338) [28 F.R. 10089, Sept. 14, 1963, as amended at 32 F.R. 16477, Dec. 1, 1967] § 772.308 Appellate review by the Com 86-005-68-16 Appeal and review. 831.1112 Final decision. AUTHORITY: The provisions of this Part 831 issued under 5 U.S.C. 8347, unless otherwise noted. SOURCE: The provisions of this Part 831 appear at 28 F.R. 10090, Sept. 14, 1963, unless otherwise noted. Subpart A-Administration and § 831.101 Administration. (a) The Commission has charge of the adjudication of all claims arising under the Civil Service Retirement Act, and of all matters directly or indirectly concerned with these adjudications. (b) In the adjudication of claims arising under the Civil Service Retirement Act, the Commission shall consider and take appropriate action on counterclaims filed by the Government as set-offs against amounts in the Civil Service Retirement and Disability Fund. § 831.102 Basic records. Every Federal department, agency, corporation or branch, whether executive, legislative, or judicial, and the District of Columbia Government (included in this part collectively in the term department or agency) having employees or Members of Congress (hereinafter referred to in this part as Members) subject to the Civil Service Retirement Act, shall initiate and maintain retirement accounts for those employees and Members as prescribed in Federal Personnel Manual Supplement 831-1. (5 U.S.C. 8334) § 831.103 Evidence (a) Standard Form 2806 (Individual Retirement Record) is the basic record for action on all claims for annuity or refund, and those pertaining to deceased employees, deceased Members, or deceased annuitants. (b) When the records of the department or agency concerned are lost, destroyed, or incomplete, the department or agency shall request the General Accounting Office, through the Commission, to furnish the data that it considers necessary for a proper determination of the rights of the claimant. When an official record cannot develop the required information, the department, agency, or the Commission should request inferior or secondary evidence which is then admissible. § 831.104 Applications. Applications under the Civil Service Retirement Act shall be filed with the Commission and shall be on forms prescribed by the Commission. § 831.105 Computation of interest. (a) The computation of interest is on the basis of 30 days to the month. Interest is computed for the actual calendar time involved in each case, but whenever applicable the rule of average applies. (b) Interest is allowed on current deductions and deposits at the rate of 4 percent to December 31, 1947, and 3 percent thereafter, compounded annually, to December 31, 1956. However, if an employee or Member, before completing 5 years' civilian service, becomes separated from service or is transferred to a position in which he is not subject to the Civil Service Retirement Act, interest is allowed after December 31, 1956, at the rate of 3 percent, compounded annually, to date of final separation or transfer. (c) Interest at the rate of 3 percent, compounded annually, is allowed on voluntary contributions during periods of employment and, after the employee or Member has completed at least 5 years' civilian service, during periods of separation until beginning date of annuity or death, whichever is earlier; for refund purposes, interest terminates with the date of separation or of transfer to a position in which he is not subject to the Civil Service Retirement Act. (d) Interest at the rate of 4 percent to December 31, 1947, and at 3 percent thereafter, compounded annually, is charged on deposits from the midpoint of each service period for which deposit is involved, or from the date refund was paid, to the date of deposit or commencing date of annuity, whichever is earlier, except that interest is not charged for any period of separation from the service which began before October 1, 1956. § 831.106 Disclosure of information. (a) (1) Except as provided in this section, the Commission shall not disclose information from the files, records, reports, and other papers and documents pertaining to a claim filed with the Commission, whether potential, pending, or adjudicated. This information is deemed privileged and confidential. (2) If sufficient information is provided to assure positive identification, the Commission will confirm to any inquirer the fact that an individual is or is not on the retirement rolls and, if so, the type of annuity (employee or survivor) being paid. (3) Except as provided in subparagraphs (4) and (5) of this paragraph, the Commission will disclose information from the files, records, reports, and other papers and documents to an employee or Member or his authorized representative in matters concerning the employee or Member. The term "authorized representative" means a person who has satisfied the Commission of his authority to act. (4) When an individual contests the Commission's approval of the application of a department or agency for his retirement on a disability that is: (i) Physical in nature, as distinguished from mental; and (ii) of a type concerning which the individual could be fully informed without the probability that the knowledge may affect him adversely, he is entitled, upon written request, to a summary of the medical evidence which has been submitted to the Commission in his case. (5) When an individual's case involves a disability that is: (i) A mental condition; or a (ii) Another condition of such nature that a prudent physician would hesitate to inform an individual suffering from the condition of its exact nature and probable outcome, the Commission will make available a complete summary of the medical evidence in the case, including a copy of the resume of the reported behavior irregularities or manifestations of unsatisfactory service which is ordinarily fur nished as background factual evidence to Government mental facilities, psychiatrists, or other physicians who conduct the official retirement medical examination, for review only by a licensed physician designated in writing for that purpose by the individual. (6) During the life of an employee, Member or annuitant, the Commission will furnish the name or address of a beneficiary designated by the employee, Member, or annuitant to the designator only, at his signed, written request. (7) When an individual dies, the Commission shall disclose the information which might properly be disclosed to the individual, on proper request, to the person appointed as representative of the estate, to the person designated by the representative, or to a designated beneficiary. When a representative of the estate has not been appointed, the Commission shall recognize the individual's next of kin as the representative of the estate. (8) The Commission shall furnish, to the court only and on order of the court or subpoena duces tecum addressed to the Chairman of the Commission, copies of documents or other records which are desired by or in behalf of a party to a suit in a U.S. Court or in any other court. (9) The Commission will produce documents or records in a retirement file in a U.S. Court or other court when a process issued by the court requires it. Original records produced shall remain at all times in the custody of a representative of the Commission, and if offered or received in evidence, the representative shall request permission to substitute a copy so that the original record may remain intact in the file. (10) The Commission may furnish the address of an individual as shown by its records to a police or court official on proper request, or the submission of a certified copy of: (i) An indictment returned against the individual; or (ii) A warrant for his arrest. (11) The Commission shall disclose the amount of an individual's annuity or refund to a National, State, county, municipal, or other publicly recognized charitable or social-security administrative agency. (12) Subject to the limitation regarding name and address of a beneficiary, the Commission will furnish in response to a proper request, all records or documents officially required by any depart ment or agency of the Government, and such records, documents, or other information as Members of Congress in their capacity as such may request for their official use. (13) With the consent of an employee or Member, the Commission will disclose the amount of the annuity or refund paid to the employee or Member, and the factors used in determining the amount of the payment, to a person who makes proper inquiry. A "proper inquiry" is one that is in writing and inIcludes the name of the employee or Member and sufficient information to make positive identification of his records. The Commission may waive the requirement that the inquiry be in writing. On receipt of a proper inquiry, the Commission will ask the employee or Member whether he consents to release of the information sought and will then advise the inquirer of the decision of the employee or Member. The Commission will furnish to the employee or Member a copy of any information released. (b) On written request the Commission shall return, to the person entitled to them, certificates of discharge, adoption papers, marriage certificates, decrees of divorce, letters testamentary or of administration, birth or baptismal records, family records, personal letters, diaries, and other personal papers or articles which have been filed in a claim when they are no longer needed in the settlement of the claim. When papers returned constitute part of the material and essential evidence in a claim, the Commission shall retain in the file, photo or other copies of them or of such parts thereof as appear to have evidential value. [28 F.R. 10090, Sept. 14, 1963, as amended at 31 F.R. 2427, Feb. 4, 1967] § 831.107 Appeals. (a) Except as provided in Subpart K of this part, a department, agency, or individual whose rights or interest under the Civil Service Retirement Act are adversely affected by a final action or order of the Bureau of Retirement and Insurance may appeal to the Commission's Board of Appeals and Review from the action or order, as provided in this section. As used in this section, "days" means calendar days and not workdays. (b) The individual or his authorized representative may file the appeal with the Commission's Board of Appeals and |