B-120722, OCT 18, 1954

B-120722: Oct 18, 1954

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DEPARTMENT OF THE NAVY: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 15. MAY BE PAID TWO DAYS' RETIRED PAY FOR WHICH HE WAS CHECKED DURING THE MONTHS OF JULY AND AUGUST 1953. IT APPEARS THAT REAR ADMIRAL SCHUYLER WAS EMPLOYED ON AN INTERMITTENT BASIS BY THE FEDERAL CIVIL DEFENSE ADMINISTRATION AT A DAILY FEE OF $50 WHILE HE WAS IN A RETIRED PAY STATUS. THAT DURING THE MONTHS OF JULY AND AUGUST 1953 HE WAS EMPLOYED AND PAID FOR 12 DAYS' AND 5 DAYS' SERVICES. THAT HIS RETIRED PAY WAS CHECKED FOR THE NUMBER OF DAYS IN EACH CASE THAT HE WORKED IN A CIVILIAN CAPACITY. THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES. PART-TIME OR INTERMITTENT BASIS AND WHO ARE PAID UPON A TIME BASIS.

B-120722, OCT 18, 1954

PRECIS-UNAVAILABLE

COMMANDER E.J. BEASLEY, DEPARTMENT OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 15, 1954, X:EJB:ER L16 4/1, TRANSMITTED HERE BY LETTER OF JULY 12, 1954, FROM THE OFFICE OF THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE NAVY, REQUESTING A DECISION AS TO WHETHER REAR ADMIRAL GARRETT B. SCHUYLER, USN (RETIRED), MAY BE PAID TWO DAYS' RETIRED PAY FOR WHICH HE WAS CHECKED DURING THE MONTHS OF JULY AND AUGUST 1953.

IT APPEARS THAT REAR ADMIRAL SCHUYLER WAS EMPLOYED ON AN INTERMITTENT BASIS BY THE FEDERAL CIVIL DEFENSE ADMINISTRATION AT A DAILY FEE OF $50 WHILE HE WAS IN A RETIRED PAY STATUS; THAT DURING THE MONTHS OF JULY AND AUGUST 1953 HE WAS EMPLOYED AND PAID FOR 12 DAYS' AND 5 DAYS' SERVICES, RESPECTIVELY, BY THAT ADMINISTRATION, HAVING WORKED ON THE 31ST DAY OF EACH OF THOSE MONTHS; THAT HIS RETIRED PAY WAS CHECKED FOR THE NUMBER OF DAYS IN EACH CASE THAT HE WORKED IN A CIVILIAN CAPACITY; AND THAT HE HAS PROTESTED THE CHECK AGE OF TWO DAYS OF HIS RETIRED PAY INCIDENT TO PAYMENT FOR WORK DONE FOR THE FEDERAL CIVIL DEFENSE ADMINISTRATION ON JULY 31 AND ON AUGUST 31, 1953.

SECTION 212(A) OF THE ECONOMY ACT, APPROVED JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, PROVIDES AS FOLLOWS:

"(A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE, AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM 'RETIRED PAY' SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF."

SUCH SECTION HAS BEEN HELD TO APPLY TO RETIRED MILITARY AND NAVAL OFFICERS, NOT OTHERWISE EXCEPTED THEREFROM, WHO SERVE UNDER THE FEDERAL GOVERNMENT ON A TEMPORARY, PART-TIME OR INTERMITTENT BASIS AND WHO ARE PAID UPON A TIME BASIS. THE RESTRICTION THAT WHERE THE RETIRED PAY EXCEEDS THE RATE OF $3,000 PER ANNUM, THE RETIRED PERSON HOLDING A POSITION IN THE FEDERAL GOVERNMENT SHALL ELECT WHETHER HE WISHES TO RECEIVE THE PAY OF THE CIVILIAN POSITION OR THE RETIRED PAY HAS BEEN HELD TO BE APPLICABLE ONLY ON SUCH DAYS AS THE RETIRED MEMBER IS IN RECEIPT OF COMPENSATION FOR HIS CIVILIAN POSITION. 28 COMP. GEN. 381; 31 COMP. GEN. 126. WHILE THE METHOD PRESCRIBED BY LAW (5 U.S.C. 84 AND 10 U.S.C. 865) FOR REDUCING THE MONTHLY PAY (INCLUDING RETIRED PAY) FOR MILITARY AND NAVAL PERSONNEL TO A DAILY BASIS DISREGARDS THE NUMBER OF DAYS IN A PARTICULAR MONTH, THE LANGUAGE AS WELL AS THE PURPOSE AND INTENT OF SECTION 212(A), 47 STAT. 406, ABOVE QUOTED, REQUIRE THE CONCLUSION THAT WHERE THE RETIRED MEMBER ELECTS TO RETAIN ONE DAY'S PAY FOR THE CIVILIAN POSITION, HE RELINQUISHES THE AMOUNT OF ONE DAY'S RETIRED PAY, REGARDLESS OF WHETHER THE DAY INVOLVED FALLS ON THE 31ST OF A PARTICULAR MONTH, THE 28TH DAY OF FEBRUARY OF A YEAR OTHER THAN A LEAP YEAR, OR ANY OTHER DAY. OTHERWISE, HE WOULD BE REGARDED AS RECEIVING 3 DAYS' RETIRED PAY FOR FEBRUARY 28TH AND WOULD FORFEIT 3 DAYS' RETIRED PAY IF HE WORKED THAT ONE DAY IN THE CIVILIAN POSITION. THE STATUTE CERTAINLY DID NOT INTEND THAT. ALSO, THAT THE STATUTE FOR REDUCING MONTHLY PAY TO A DAILY BASIS TAKES THE 31ST INTO ACCOUNT IS SHOWN BY THE EXPRESS PROVISION THAT FOR ONE DAY'S UNAUTHORIZED ABSENCE ON THE 31ST DAY OF ANY CALENDAR MONTH ONE DAY'S PAY SHALL BE FORFEITED.

ACCORDINGLY, THE QUESTION SUBMITTED IS ANSWERED IN THE NEGATIVE.