patible with either useful service or retention in the position;

(2) A medical condition which is defined as a disease or injury;

(3) A relationship between the service deficiency and the medical condition such that the medical condition has caused the service deficiency;

(4) The duration of the medical condition, past and expected, and a showing that the condition, in all probability, will continue for at least a year;

(5) The applicant became disabled while serving under the Civil Service Retirement System;

(6) The agency's inability to make reasonable accommodation to the employee's medical condition; and

(7) The absence of another available position, within the employing agency and commuting area, at the same grade or pay level and tenure, for which the employee is qualified for reassignment. For this part, placement in the agency is limited to those facilities in the commuting area that are serviced by the same appointing authority.

(c) Examination. OPM may offer the applicant a medical examination by a medical officer of the United States or a qualified physician or board of physicians designated by OPM, when it determines that additional medical evidence is necessary to make a decision on an application. The applicant's refusal to submit to an examination offered under these circumstances is grounds for disallowance of the application.

(d) Reexamination. (1) A disability annuitant may request reexamination under the provisions of this section at any time. A disability annuitant age 60 or over shall be reexamined only on his/her own request.

(2) Each disability annuitant who is under 60 years of age shall be reexamined annually under the direction of OPM, unless OPM determines that the disability is permanent. 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.

(3) When an examination shows that a disability annuitant has recovered,

OPM shall discontinue the annuity at the expiration of 1 year from the date of the examination. When a recovered disability annuitant is reemployed by a department or agency within 1 year from the date of examination, OPM shall discontinue the annuity from the date of reemployment.

(e) Income limitation. (1) Each disability annuitant who, on December 31 of any calendar year, is under 60 years of age shall report to OPM, in a format acceptable to OPM, on or before the following February 15, his or her income from wages and/or selfemployment for that calendar year. If the annuitant fails to submit the report, OPM may suspend annuity payments until the report is received and the annuitant's entitlement to continued annuity is determined on the basis of that report.

(2) In regard to income received prior to January 1, 1983: When, in each of two succeeding calendar years, a disability annuitant under age 60 has received income from wages and/or self-employment, equaling at least 80 percent of the current rate of basic pay of the position from which he or she retired, the annuitant's earning capacity is deemed restored. If earning capacity is restored, OPM shall discontinue payment of the annuity at the expiration of 1 year from the end of the 2-year period. When the disability annuitant is reemployed by a department or agency within this 1-year period, OPM shall discontinue payment of the annuity from the date of reemployment.

(3) In regard to income received after December 31, 1982: When, in any calendar year, a disability annuitant under age 60 has received income from wages and/or self-employment, equaling at least 80 percent of the current rate of basic pay of the position from which he or she retired, the annuitant's earning capacity is deemed restored. If earning capacity is deemed restored, OPM shall discontinue payment of the annuity 180 days from the end of the calendar year. One hundred and eighty days shall be computed on the basis that each month has 30 days. When the disability annuitant is reemployed by a department or agency within the 180-day period, OPM shall

discontinue the annuity from the date of reemployment.

(f) Reemployment. (1) A disability annuitant may be reemployed in any position for which he/she is qualified. The employing agency shall notify OPM of the reemployment, including in the notification the nature of the position, the type of appointment, and the rate of pay.

(2) When a disability annuitant whom OPM has found recovered from disability, or restored to earning capacity, is reemployed while he/she is still entitled to disability annuity, OPM shall discontinue the annuity effective on the date of reemployment.

(3) If the disability annuitant has not been found recovered from disability, or restored to earning capacity, the employing agency shall offset the pay of the disability annuitant by the amount of annuity allocable to the period of reemployment.

(4) OPM may review the notification of reemployment, and order reexamination under the provisions of § 831.502(d), as it finds appropriate. In connection with the reexamination process, the employing agency and/or the employee may submit supporting medical evidence.

(5) When a reemployed disability annuitant is found recovered from disability, or restored to earning capacity, OPM shall discontinue the annuity from the date of its administrative finding, notify the agency of its determination, and instruct the agency to cease reducing pay by the amount of annuity allocable to the period of reemployment. If the appointment is subject to retirement deductions, OPM shall instruct the agency to commence retirement deductions.

(6) A disability annuity awarded to a former National Guard Technician under the provisions of 5 U.S.C. 8337(h), in addition to being subject to the provisions of paragraphs (d) and (e) of this section, shall terminate when

(i) The annuitant is reemployed by a department or agency, or

(ii) The annuitant declines an offer of employment with a department or agency which is in the same commuting area and of the same grade as, or a

level equivalent to, the position from which the annuitant retired.

(g) Reinstatement of annuity. (1) When a recovered disability annuitant is not reemployed in a position in which he/she is subject to Civil Service Retirement coverage, and based on the results of a current examination, OPM finds that the disability has recurred, OPM shall reinstate the individual's disability annuity. The right to the reinstated annuity accrues from the date of the medical examination which demonstrated that the disability has recurred.

(2) When a disability annuitant whose earning capacity has been restored,

(i) Is not reemployed in a position in which he/she is subject to Civil Service Retirement coverage;

(ii) Has not recovered from the disability for which retired; and

(iii) Has again lost his/her earning capacity, as determined by OPM, before becoming 62 years of age; OPM shall reinstate his/her disability annuity. A reinstated annuity is payable from January 1 of the year following the calendar year in which the earning capacity was lost. Earning capacity is deemed lost if during any calendar year the individual's income from wages and/or self-employment is less than 80 percent of the current rate of pay of the position from which he/she retired.

(3) A reinstated annuity shall be of the same type as the original annuity and will be paid at the rate last payable.

(4) The reinstatement of disability annuity terminates 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.

(5) When an employee has a disability annuity reinstated, the agency shall offset the pay of the employee by the amount of annuity allocable to the period of reemployment, commencing with the date of the administrative determination of eligibility for reinstatement. Any retroactive payment of annuity for a period of employment prior to that date shall be

(a) When an employee meets the requirements for age retirement on any day within a month, he is subject to automatic separation at the end of that month. The department or agency shall notify the employee of the automatic separation at least 60 days in advance of the separation. If the department or agency fails through error to give timely notice, the employee may not be separated without his consent until the end of the month in which the notice expires.

(b)(1) The head of the agency, when in his or her judgment the public interest so requires, may exempt a law enforcement officer or firefighter from automatic separation until that employee becomes 60 years of age.

(2) The Secretary of Transportation and the Secretary of Defense, under such regulations as each may prescribe, may exempt an air traffic controller having exceptional skills and experience as a controller from automatic separation until that controller becomes 61 years of age.

(c) When a department or agency lacks authority and wishes to secure an exemption from automatic separation for one of its employees other than a Presidential appointee, beyond the age(s) provided by statute, i.e., age 60 for a law enforcement officer or firefighter, age 61 for an air traffic controller, and age 62 for an employee of the Alaska Railroad in Alaska or an employee who is a citizen of the United States employed on the Isthmus of Panama by the Panama Canal Commission, the department or agency head shall submit a recommendation to that effect to OPM.

(1) The recommendation shall contain:

(i) A statement that the employee is willing to remain in service;

(ii) A statement of facts tending to establish that his/her retention would be in the public interest;

(iii) The period for which the exemption is desired, which period may not exceed 1 year; and,

(iv) The reasons why the simpler method of retiring the employee and immediately reemploying him or her is not being used.

(2) The recommendation shall be accompanied by a medical certificate showing the physical fitness of the employee to perform his or her work.

(d) OPM may approve an exemption only before the automatic separation date applicable to the employee. For this reason, the department or agency shall forward the recommendation to OPM at least 30 days before this separation date.

[33 FR 12498, Sept. 4, 1968, as amended at 34 FR 593, Jan. 16, 1969; 48 FR 38786, Aug. 26, 1983]

§ 831.504 Retirement based on involuntary separation.

(a) General. An employee who would otherwise be eligible for retirement based on involuntary separation from the service is not entitled to an annuity under section 8336(d)(1) of title 5, United States Code, if the employee has declined a reasonable offer of another position.

(b) Criteria for reasonable offer. For the purposes of determining entitlement to annuity based on such involuntary separation, the offer of a position must meet all of the following conditions to be considered a reasonable offer:

(1) The offer must be made in writ

ing;

(2) The employee must meet established qualification requirements; and (3) The offered position must be—

(i) In the employee's agency, including an agency to which the employee with his or her function is transferred in a transfer of functions between agencies;

(ii) Within the employee's commuting area as defined in § 831.502(a) of this subpart, unless geographic mobility is a condition of the employee's employment;

(iii) of the same tenure and work schedule; and

(iv) Not lower than the equivalent of two grades or pay levels below the em

ployee's current grade or pay level, without consideration of the employee's eligibility to retain his or her current grade or pay under Part 536 of this chapter or other authority. In movements between pay schedules or pay systems, the representative rate of the grade or pay level that is two grades below that of the current position shall be compared with the representative rate of the grade or pay level of the offered position. For this purpose, "representative rate" has the meaning given that term in § 536.102 of this chapter.

[48 FR 38786, Aug. 26, 1983]

This subpart explains the annuity benefits payable in the event of the death of employees, retirees, and Members; the actions that employees, retirees, Members, and their current spouses, former spouses, and eligible children must take to qualify for survivor annuities; and the types of evidence required to demonstrate entitlement to provide survivor annuities or qualify for survivor annuities.

§ 831.602 Relation to other regulations.

(a) Subpart Q of this part contains information about former spouses' entitlement to survivor annuities based on provisions in court orders or courtapproved property settlement agreements.

(b) Subpart T of this part contains information about entitlement to lump-sum death benefits.

(c) Parts 870, 871, 872 and 873 of this chapter contain information about coverage under the Federal Employees' Group Life Insurance Program.

(d) Part 890 of this chapter contains information about coverage under the Federal Employees Health Benefits Program.

(e) Section 831.109 contains information about the administrative review

As used in this subpart

"CSRS" means subchapter III of chapter 83 of title 5, United States Code.

"Current spouse" means a living person who is married to the employee, Member, or retiree at the time of the employee's, Member's, or retiree's death.

"Current spouse annuity" means a recurring benefit under CSRS that is payable (after the employee's, Member's, or retiree's death) to a current spouse who meets the requirements of § 831.618.

"Deposit" means a deposit required by the Civil Service Retirement Spouse Equity Act of 1984, Pub. L. 98615, 98 Stat. 3195. "Deposit," as used in this subpart does not include a service credit deposit or redeposit under sections 8334(c) or (d) of title 5, United States Code.

"First regular monthly payment" means the first annuity check payable on a recurring basis (other than an estimated payment or an adjustment check) after OPM has initially adjudicated the regular rate of annuity payable under CSRS and has paid the annuity accrued since the time of retirement. The "first regular monthly payment" is generally preceded by estimated payments before the claim can be adjudicated and by an adjustment check (including the difference between the estimated rate and the initially adjudicated rate).

"Former spouse" means a living person who was married for at least 9 months to an employee, Member, or retiree who performed at least 18 months of creditable service in a position covered by CSRS and whose marriage to the employee was terminated prior to the death of the employee,

Member, or retiree. Except in §§ 831.621 and 831.622, "former spouse" includes only persons who were married to an employee or Member on or after May 7, 1985, or who were the spouse of a retiree who retired on or after May 7, 1985, regardless of the date of termination of the marriage.

"Former spouse annuity" means a recurring benefit under CSRS that is payable to a former spouse after the employee's, Member's, or retiree's death.

"Fully reduced annuity" means the recurring payments under CSRS received by a retiree who has elected the maximum allowable reduction in annuity to provide a current spouse annuity and/or a former spouse annuity or annuities.

"Insurable interest annuity" means the recurring payments under CSRS to a retiree who has elected a reduction in annuity to provide a survivor annuity to a person with an insurable interest in the retiree.

"Marriage" means a marriage recognized in law or equity under the whole law of the jurisdiction with the most significant interest in the marital status of the employee, Member, or retiree unless the law of that jurisdiction is contrary to the public policy of the United States. If a jurisdiction would recognize more than one marriage in law or equity, the Office of Personnel Management (OPM) will recognize only one marriage, but will defer to the local courts to determine which marriage should be recognized. "Member" means a Member of Con

gress.

"Net annuity" means the net annuity as defined in § 831.1703.

"Partially reduced annuity" means the recurring payments under CSRS to a retiree who has elected less than the maximum allowable reduction in annuity to provide a current spouse annuity or a former spouse annuity.

"Qualifying court order" means a court order that meets the qualifications of § 831.1704.

"Retiree" means a former employee or Member who is receiving recurring payments under CSRS based on service by the employee or Member. "Retiree," as used in this subpart, does not

include a current spouse, former spouse, child, or person with an insurable interest receiving a survivor annuity.

"Self-only annuity” means the recurring unreduced payments under CSRS to a retiree with no survivor annuity to anyone.

"Time of retirement" means the effective commencing date for a retired employee's or Member's annuity.

[50 FR 20070, May 13, 1985, as amended at 51 FR 31931, Sept. 8, 1986]

§ 831.604 Election at time of retirement of fully reduced annuity to provide a current spouse annuity.

(a) A married employee or Member retiring under CSRS will receive a fully reduced annuity to provide a current spouse annuity unless

(1) The employee or Member, with the consent of the current spouse, elects a self-only annuity, a partially reduced annuity, or a fully reduced annuity to provide a former spouse annuity, in accordance with § 831.605(b) or § 831.607; or

(2) The employee or Member elects a self-only annuity, a partially reduced annuity or a fully reduced annuity to provide a former spouse annuity, and current spousal consent is waived in accordance with § 831.608.

(b) Qualifying court orders that award former spouse annuities prevent payment of current spouse annuities to the extent necessary to comply with the court order and § 831.614.

(c) The maximum rate of a current spouse annuity is 55 percent of the rate of the retiring employee's or Member's self-only annuity if the employee or Member is retiring based on a separation from a position under CSRS on or after October 11, 1962. The maximum rate of a current spouse annuity is 50 percent of the rate of the retiring employee's or Member's self-only annuity if the employee or Member is retiring based on a separation from a position covered under CSRS between September 30, 1956, and October 11, 1962.

(d)(1) The amount of the reduction to provide a current spouse annuity equals 21⁄2 percent of the first $3600 of the designated survivor base plus 10