B-120421, MARCH 8, 1955, 34 COMP. GEN. 429

B-120421: Mar 8, 1955

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COMPENSATION - DOUBLE - CONCURRENT RETIRED AND CIVILIAN SERVICE PAY - CONSULTANT - NON-WORKDAYS RETIRED ARMY OFFICER WHO IS EMPLOYED AS CONSULTANT ON "WHEN-ACTUALLY EMPLOYED" BASIS WITH A REGULAR FIXED TOUR OF DUTY OF FIVE DAYS PER WEEK WHICH QUALIFIED HIM FOR LEAVE BENEFITS UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951 IS CONSIDERED AS HAVING A FULL-TIME CIVILIAN EMPLOYMENT STATUS NOTWITHSTANDING COMPENSATION WAS STATED ON A DAILY RATE BASIS. HE IS PRECLUDED BY THE DUAL COMPENSATION LIMITATION OF SECTION 212 OF THE ECONOMY ACT OF 1932 FROM RECEIVING RETIRED PAY FOR NON-WORK DAYS. 1955: REFERENCE IS MADE TO YOUR LETTER OF MAY 6. THE 12 DAYS WERE THOSE DURING THAT MONTH WHEN THE OFFICER WAS NOT ACTUALLY EMPLOYED AS A CIVILIAN CONSULTANT UNDER HIS APPOINTMENT AS " EXPERT WITH HEADQUARTERS.

B-120421, MARCH 8, 1955, 34 COMP. GEN. 429

COMPENSATION - DOUBLE - CONCURRENT RETIRED AND CIVILIAN SERVICE PAY - CONSULTANT - NON-WORKDAYS RETIRED ARMY OFFICER WHO IS EMPLOYED AS CONSULTANT ON "WHEN-ACTUALLY EMPLOYED" BASIS WITH A REGULAR FIXED TOUR OF DUTY OF FIVE DAYS PER WEEK WHICH QUALIFIED HIM FOR LEAVE BENEFITS UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951 IS CONSIDERED AS HAVING A FULL-TIME CIVILIAN EMPLOYMENT STATUS NOTWITHSTANDING COMPENSATION WAS STATED ON A DAILY RATE BASIS, AND, THEREFORE, HE IS PRECLUDED BY THE DUAL COMPENSATION LIMITATION OF SECTION 212 OF THE ECONOMY ACT OF 1932 FROM RECEIVING RETIRED PAY FOR NON-WORK DAYS--- SATURDAYS, SUNDAYS, AND HOLIDAYS--- DURING HIS CIVILIAN SERVICE.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO COLONEL CLYDE W. O-HERN, DEPARTMENT OF THE AIR FORCE, MARCH 8, 1955:

REFERENCE IS MADE TO YOUR LETTER OF MAY 6, 1954, FORWARDED HERE BY LETTER DATED JUNE 10, 1954, FROM THE OFFICE, DIRECTOR OF FINANCE, DEPARTMENT OF THE AIR FORCE, REQUESTING DECISION WHETHER PAYMENT PROPERLY MAY BE MADE ON A VOUCHER IN FAVOR OF BRIGADIER GENERAL GILBERT HAYDEN, USAF, RETIRED, COVERING RETIREMENT PAY FOR 12 DAYS DURING THE MONTH OF DECEMBER 1953. THE 12 DAYS WERE THOSE DURING THAT MONTH WHEN THE OFFICER WAS NOT ACTUALLY EMPLOYED AS A CIVILIAN CONSULTANT UNDER HIS APPOINTMENT AS " EXPERT WITH HEADQUARTERS, AIR RESEARCH AND DEVELOPMENT COMMAND, BALTIMORE, MARYLAND.'

GENERAL HAYDEN'S TOUR OF DUTY IN HIS CIVILIAN CAPACITY IS SUMMARIZED IN YOUR LETTER AS FOLLOWS:

THE FOLLOWING IS A REVIEW OF THE TOUR OF DUTY OF GENERAL HAYDEN AS EXPERT WITH HEADQUARTERS, AIR RESEARCH AND DEVELOPMENT COMMAND, BALTIMORE, MARYLAND:

A. SF 50 DATED 19 JUNE 1953, EFFECTIVE DATE OF EMPLOYMENT--- 19 JUNE 1953; SALARY $50.00 PER DAY; NATURE OF ACTION--- " EXCEPTED APPOINTMENT WHEN ACTUALLY EMPLOYED NTE 12 DAYS IN FY 53"; CIVIL SERVICE OR OTHER LEGAL AUTHORITY--- " SEC. 15, P.L. 600, 79TH CONGRESS AND CURRENT APPROPRIATION ACT; " STATEMENT UNDER REMARKS--- " REGULAR TOUR OF DUTY 5 DAYS PER WEEK.'

B. GENERAL HAYDEN WORKED AND WAS PAID CONSULTANT SALARY FOR 8 1/2 DAYS DURING THE MONTH OF JUNE 1953. RETIREMENT PAY WAS PAID FOR 21 DAYS.

C. SF 50 DATED 1 JULY 1952 EXTENDED THE "EXCEPTED APPOINTMENT--- WHEN ACTUALLY EMPLOYED--- NTE 30 DAYS IN FY 54; " EFFECTIVE DATE 1 JULY 1953, STATEMENT IN REMARKS," REGULAR TOUR OF DUTY--- 5 DAYS PER WEEK.' NATURE OF ACTION OF AFOREMENTIONED SF 50 WAS CORRECTED ON 23 JULY TO READ " EXCEPTED APPOINTMENT--- WHEN ACTUALLY EMPLOYED--- NTE 90 DAYS IN FY 54.'

D. IN JULY 1953, HE WORKED AND WAS PAID FOR 24 DAYS INCLUDING THE 30TH AND 31ST. HE WAS PAID RETIREMENT PAY FOR 7 DAYS, NO CHARGE HAVING BEEN MADE FOR THE 31ST.

E. IN AUGUST 1953, HE WORKED AND WAS PAID FOR 17 DAYS; RETIREMENT PAY WAS PAID FOR 13 DAYS.

F. REPORT RECEIVED FROM ARDC FOR THE MONTH OF SEPTEMBER STATED GENERAL HAYDEN WORKED AND WAS PAID FOR 22 DAYS, WHICH INCLUDED THE 7TH OF SEPTEMBER ( LABOR DAY). CLARIFICATION WAS REQUESTED FROM ARDCIN VIEW OF THE FACT THAT GENERAL HAYDEN HAD ADVISED THIS OFFICE HE HAD NOT WORKED ON THE 7TH DAY OF SEPTEMBER. REPLY RECEIVED FROM ARDC AS FOLLOWS: " REPORT OF GENERAL HAYDEN'S EMPLOYMENT DURING SEPTEMBER INCLUDED LABOR DAY THE SEVENTH, INASMUCH AS HE WAS APPOINTED ON A REGULAR TOUR OF DUTY OF 5 DAYS WEEKLY, SUBJECT TO LEAVE AND HOLIDAY BENEFITS.'

G. GENERAL HAYDEN WORKED ON 1, 2 AND 3 OCTOBER AND WAS ON LEAVE WITHOUT PAY STATUS THE REMAINDER OF THE MONTH OF OCTOBER, AND 29 DAYS DURING THE MONTH OF NOVEMBER; HE WORKED ON 30 NOVEMBER, CHARGE FOR WHICH IS BEING MADE FROM HIS DECEMBER PAY ON AFOREMENTIONED ATTACHED VOUCHER.

H. REPORT RECEIVED FROM ARDC ON 18 JANUARY 1954 OF GENERAL HAYDEN'S EMPLOYMENT DURING THE MONTH OF DECEMBER IS AS FOLLOWS: " SUBJECT WORKED 8 HOURS DAILY ON 1, 2, 3, 4, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 21, AND 22 DECEMBER. HE WAS IN ANNUAL LEAVE STATUS ON 23 DECEMBER, FOR WHICH PAYMENT WAS MADE. HE WORKED 4 HOURS ON 24 DECEMBER. HE WAS GRANTED 4 HOURS ABSENCE ON 24 DECEMBER AND 8 HOURS ABSENCE ON 25 DECEMBER WITHOUT CHARGE TO LEAVE, DUE TO DAY AND A HALF HOLIDAY, AND RECEIVED REGULAR PAYMENT. GENERAL HAYDEN'S GROSS SALARY WAS $1,475.00 AND NET $1,209.20. THESE FIGURES REPRESENT LUMP SUM PAYMENT FOR 64 HOURS OF ACCRUED ANNUAL LEAVE. OFFICIAL HOLIDAYS OF 4 HOURS ON 31 DECEMBER 1953 AND 8 HOURS ON 1 JANUARY 1954, INCLUDED IN THE TERMINAL LEAVE PERIOD, WERE GRANTED WITHOUT CHARGE TO ANNUAL LEAVE.' ( GROSS AMOUNT GIVEN ABOVE INCLUDED PAY FOR 30 NOVEMBER 1953).

I. SF 50 DATED 23 DECEMBER 1953 TERMINATED GENERAL HAYDEN'S EMPLOYMENT EFFECTIVE 25 DECEMBER 1953.

THE PAYMENT PROPOSED ON THE SUBMITTED VOUCHER, STATED IN THE SUM OF $236.38, APPEARS TO BE INTENDED AS RETIRED PAY (AT THE MONTHLY RATE OF $644.67) FOR DECEMBER 5, 6, 12, 19, 20, 23, 25, 26, 27, 28, 29, AND 30, 1953, LESS RETIRED PAY FOR ONE DAY NOVEMBER 30, 1953, ON WHICH THE OFFICE WORKED AND FOR WHICH HE PREVIOUSLY HAD RECEIVED BOTH CIVILIAN COMPENSATION AND RETIRED PAY.

YOUR LETTER STATES THAT GENERAL HAYDEN WAS RETIRED UPON HIS OWN APPLICATION EFFECTIVE FEBRUARY 29, 1952, UNDER THE PROVISIONS OF SECTION 1243 OF THE REVISED STATUTES (10 U.S.C. 943), AFTER MORE THAN 31 YEARS OF ACTIVE SERVICE. SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, PROHIBITS THE CONCURRENT RECEIPT OF RETIRED PAY FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER OF THE UNIFORMED SERVICES AND COMPENSATION FROM A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT AT A COMBINED RATE IN EXCESS OF $3,000 PER ANNUM. THAT SECTION OF THE STATUTE HAS NOT BEEN VIEWED BY US AS PROHIBITING THE RECEIPT OF FULL RETIRED PAY FOR ANY PERIOD WHEN THE RETIRED OFFICER IS NOT IN A PAY STATUS IN HIS CIVILIAN POSITION. HOWEVER, WE HAVE HELD THAT FULL-TIME EMPLOYEES ON A NORMAL FIVE-DAY WORKWEEK ARE NOT IN NON-PAY STATUS FOR THAT PURPOSE ON DAYS WHICH ARE NORMALLY NON-WORK DAYS ( SATURDAYS, SUNDAYS, AND HOLIDAYS), THERE NOT BEING ON THOSE DAYS ANY ABSENCE FROM DUTY OR LOSS OF COMPENSATION. 28 COMP. GEN. 103. ON THE OTHER HAND, WE HELD IN DECISION OF OCTOBER 8, 1951, 31 COMP. GEN. 126, THAT AN INTERMITTENT EMPLOYEE WITH COMPENSATION PROVIDED UPON THE BASIS OF A FIXED RATE PER DAY "FOR EACH DAY WORKED" WAS ENTITLED TO RETIRED PAY FOR SATURDAYS, SUNDAYS, AND HOLIDAYS ON WHICH NO WORK WAS PERFORMED, EVEN THOUGH THE RECORD SHOWED ALMOST CONTINUOUS EMPLOYMENT IN A CIVILIAN CAPACITY ON THE REMAINING DAYS OF THE WEEK ON A WORK SCHEDULE APPROXIMATING THAT OF FULL-TIME EMPLOYEES, IT BEING CONSIDERED THAT THE CIVILIAN COMPENSATION WAS INTENDED FOR ACCRUAL UPON A DAILY BASIS AND IN FACT ACCRUED ONLY ON DAYS WHEN WORK ACTUALLY WAS PERFORMED. COMPENSATION WAS PROVIDED SIMILARLY IN GENERAL HAYDEN'S CASE AT A DAILY RATE OF $50 "WHEN ACTUALLY EMPLOYED.' HOWEVER, FURTHER PROVISION IN HIS APPOINTMENT FIXED A " REGULAR TOUR OF DUTY 5 DAYS PER WEEK.'

BY VIRTUE OF THE PROVISION IN HIS APPOINTMENT FIXING A REGULAR TOUR OF DUTY, GENERAL HAYDEN QUALIFIED FOR LEAVE BENEFITS UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, 5 U.S.C. 2061-2066. SEE SECTION 202 OF THAT ACT, 65 STAT. 679, 5 U.S.C. 2061, CONTAINING THE PROVISIONS RESPECTING THE CLASSES OF OFFICERS AND EMPLOYEES COVERED BY THE ACT AND SEE SECTION 205 (B) OF SUCH ACT, 65 STAT. 681, 5 U.S.C. 2064 (B), WHICH PROVIDES THAT AN EMPLOYEE SHALL BE CONSIDERED TO HAVE BEEN EMPLOYED FOR A FULL BIWEEKLY PAY PERIOD IF HE SHALL HAVE BEEN EMPLOYED DURING THE DAYS WITHIN SUCH PERIOD, EXCLUSIVE OF HOLIDAYS AND NON-WORK DAYS ESTABLISHED BY STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER, WHICH FALL WITHIN HIS BASIC ADMINISTRATIVE WORKWEEK. SINCE THE OFFICER'S REGULAR TOUR OF DUTY UNDER HIS APPOINTMENT WAS FOR FIVE DAYS PER WEEK, CORRESPONDING TO THE NORMAL FIVE-DAY BASIC WORK-WEEK OF FULL TIME CIVILIAN EMPLOYEES, HIS CIVILIAN STATUS UNDER SUCH AN APPOINTMENT IS CONSIDERED AS HAVING BEEN OF A FULL-TIME EMPLOYMENT NATURE, NOTWITHSTANDING THE FACT THAT COMPENSATION WAS STATED UPON A DAILY RATE BASIS. THUS, HE WAS ENTITLED TO HIS CIVILIAN PAY FOR DAYS OF LEAVE, WHEN EARNED, AND HE WAS NOT IN A NON-PAY STATUS ON SATURDAYS, SUNDAYS, AND HOLIDAYS, NORMALLY NON-WORK DAYS, AND SO IS NOT PROPERLY ENTITLED TO RETIRED PAY FOR THOSE DAYS. 28 COMP. GEN. 103. CONSEQUENTLY, PAYMENT OF RETIRED PAY WOULD BE IMPROPER FOR DECEMBER 5, 6, 12, 19, 20, 23 AND 25, 1953, THE OFFICER BEING CONSIDERED AS HAVING BEEN IN A PAY STATUS ON THOSE DAYS IN HIS CIVILIAN CAPACITY.

GENERAL HAYDEN'S CIVILIAN EMPLOYMENT WAS TERMINATED ON DECEMBER 25, 1953. WITH RESPECT TO THE PERIOD AFTER DECEMBER 25, 1953, NO QUESTION OF CONCURRENT SALARY RECEIPT APPEARS TO BE INVOLVED, EVEN THOUGH THE OFFICER RECEIVED A LUMP-SUM LEAVE PAYMENT, SINCE IT IS PROVIDED IN SECTION 1 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, 5 U.S.C. 61B, THAT THE LUMP- SUM LEAVE PAYMENT AUTHORIZED UPON SEPARATION FROM THE SERVICE SHALL NOT BE REGARDED, EXCEPT FOR PURPOSES OF TAXATION, AS SALARY OR COMPENSATION. CONSEQUENTLY, HIS CIVILIAN EMPLOYMENT DID NOT EFFECT HIS RETIRED PAY FOR THE PERIOD DECEMBER 26 TO 31, 1953. HOWEVER, IT IS INDICATED THAT DURING THE PERIOD JUNE 19 TO NOVEMBER 30, 1953, HE WAS PAID RETIRED PAY FOR A NUMBER OF DAYS WHEN HE WAS NOT IN THE NON-PAY STATUS REQUISITE FOR SUCH PAYMENTS. THE PAYMENTS THUS MADE EXCEED, IN THEIR AGGREGATE, THE RETIRED PAY ACCRUING FOR THE PERIOD DECEMBER 26 TO 31, 1953. ACCORDINGLY, PAYMENT ON THE SUBMITTED VOUCHER IS NOT AUTHORIZED, WHICH VOUCHER WILL BE RETAINED IN OUR FILES.