B-156095, MAR. 9, 1965, 44 COMP. GEN. 534

B-156095: Mar 9, 1965

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WHICH FOR CERTAIN PERIODS WAS CONSIDERED CIVILIAN SERVICE. OR THE COAST AND GEODETIC SURVEY WHO ACCEPT CIVILIAN POSITIONS MAY NOT HAVE ACTIVE MILITARY SERVICE CREDITED FOR ANNUAL LEAVE ACCRUAL PURPOSES. UNLESS SUCH SERVICE IS COVERED BY ONE OF THE THREE EXCEPTIONS SPECIFICALLY ENUMERATED IN SECTION 203. HAS THE SAME MEANING AS THE TERM "MILITARY SERVICE" WHICH IS DEFINED IN SECTION 1 OF THE CIVIL SERVICE RETIREMENT ACT. EXCEPT THAT ACTIVE MILITARY SERVICE OF A RETIRED MEMBER OF ANY OF THE UNIFORMED SERVICES IS NOT CREDITABLE IN DETERMINING YEARS OF SERVICE FOR THE PURPOSES OF THAT SUBSECTION UNLESS THE MEMBER MEETS ONE OF THE THREE CONDITIONS SPECIFIED IN THE SECTION. " SHALL HAVE THE DEFINITIONS GIVEN THEM BY 37 U.S.C. 101.

B-156095, MAR. 9, 1965, 44 COMP. GEN. 534

LEAVES OF ABSENCE - ANNUAL - SERVICE CREDITS - MILITARY SERVICE THE TERM "ACTIVE MILITARY SERVICE" IN SECTION 203 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED BY SECTION 203 OF THE DUAL COMPENSATION ACT, 5 U.S.C. 2062, WHICH REQUIRES THE EXCLUSION OF SUCH SERVICE IN DETERMINING YEARS OF SERVICE FOR ANNUAL LEAVE ACCRUAL PURPOSES, MEANS ACTIVE SERVICE IN ANY OF THE UNIFORMED SERVICES, INCLUDING COMMISSIONED SERVICE IN THE PUBLIC HEALTH SERVICE AND THE COAST AND GEODETIC SURVEY, WHICH FOR CERTAIN PERIODS WAS CONSIDERED CIVILIAN SERVICE, IN THE ABSENCE OF ANY INDICATION OF A CONGRESSIONAL INTENT TO PLACE MEMBERS OF THE PUBLIC HEALTH SERVICE AND THE COAST AND GEODETIC SURVEY IN A PREFERRED POSITION FOR LEAVE ACCRUAL PURPOSES AND, THEREFORE, AFTER DECEMBER 1, 1964--- THE EFFECTIVE DATE OF SECTION 203 OF THE DUAL COMPENSATION ACT--- MEMBERS OR RETIRED MEMBERS OF THE UNIFORMED SERVICES, THE PUBLIC HEALTH SERVICE, OR THE COAST AND GEODETIC SURVEY WHO ACCEPT CIVILIAN POSITIONS MAY NOT HAVE ACTIVE MILITARY SERVICE CREDITED FOR ANNUAL LEAVE ACCRUAL PURPOSES, UNLESS SUCH SERVICE IS COVERED BY ONE OF THE THREE EXCEPTIONS SPECIFICALLY ENUMERATED IN SECTION 203.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 9, 1965:

YOUR LETTER OF FEBRUARY 5, 1965, ASKS OUR DECISION WHETHER THE LANGUAGE "ACTIVE MILITARY SERVICE" USED IN SECTION 203 OF THE DUAL COMPENSATION ACT APPROVED AUGUST 19, 1964, PUBLIC LAW 88-448, 78 STAT. 484, HAS THE SAME MEANING AS THE TERM "MILITARY SERVICE" WHICH IS DEFINED IN SECTION 1 OF THE CIVIL SERVICE RETIREMENT ACT, 5 U.S.C. 2251 (R).

SECTION 203 OF PUBLIC LAW 88-448, AMENDS SECTION 203 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2062 (A), TO PROVIDE THAT IN DETERMINING YEARS OF SERVICE FOR THE PURPOSES OF THAT SUBSECTION, THERE SHALL BE INCLUDED ALL SERVICE CREDITABLE UNDER THE PROVISIONS OF SECTION 3 OF THE CIVIL SERVICE RETIREMENT ACT, 5 U.S.C. 2253, FOR THE PURPOSES OF AN ANNUITY UNDER SUCH ACT, EXCEPT THAT ACTIVE MILITARY SERVICE OF A RETIRED MEMBER OF ANY OF THE UNIFORMED SERVICES IS NOT CREDITABLE IN DETERMINING YEARS OF SERVICE FOR THE PURPOSES OF THAT SUBSECTION UNLESS THE MEMBER MEETS ONE OF THE THREE CONDITIONS SPECIFIED IN THE SECTION, AS AMENDED.

SECTION 101 OF PUBLIC LAW 88-448 PROVIDES THAT CERTAIN TERMS USED IN THAT ACT SUCH AS "ACTIVE SERVICE," "UNIFORMED SERVICES," AND "ARMED FORCES," SHALL HAVE THE DEFINITIONS GIVEN THEM BY 37 U.S.C. 101. HOWEVER, THE TERM "ACTIVE MILITARY SERVICE" IS NOT MENTIONED IN SECTION 101 OF PUBLIC LAW 88 -448; NEITHER IS IT DEFINED IN 37 U.S.C. 101. THEREFORE, WE BELIEVE THAT A MEANING SHOULD BE GIVEN THE TERM "ACTIVE MILITARY SERVICE" WHICH IS REASONABLE AND COMPATIBLE WITH THE GENERAL PURPOSE AND SPIRIT OF SECTION 203 OF THE ACT, AS AMENDED BY PUBLIC LAW 88-448.

RECOGNIZING THAT AS A RESULT OF THE ENACTMENT OF PUBLIC LAW 88-448, MANY RETIRED MEMBERS OF THE UNIFORMED SERVICES WHO ARE ENTITLED TO RETIRED PAY UNDER THE LAW APPLICABLE TO THEIR RESPECTIVE UNIFORMED SERVICES WOULD ACCEPT FEDERAL CIVILIAN POSITIONS, THE CONGRESS APPARENTLY INTENDED AS A MATTER OF POLICY THAT, IN GENERAL, SUCH RETIRED MEMBERS SHOULD START ANEW AS CIVILIAN EMPLOYEES WITHOUT THE BENEFIT OF THEIR PAST UNIFORMED SERVICE BEING CREDITABLE IN THEIR NEW CIVILIAN POSITIONS. IN LINE WITH SUCH CONCEPT SECTION 203 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 WAS AMENDED BY SECTION 203 OF PUBLIC LAW 88-448 TO IMPOSE MORE RESTRICTIVE LIMITATIONS THAN THERETOFORE EXISTED UPON THE CREDITING OF MILITARY SERVICE FOR LEAVE ACCRUAL PURPOSES UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951. SEE S.REPT. NO. 935, MARCH 4, 1964, PAGES 6 AND 7, READING AS FOLLOWS:

SECTION 203 OF THE BILL AMENDS SECTIONS 203 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 TO PROVIDE A MORE RESTRICTIVE METHOD OF CREDITING ACTIVE MILITARY SERVICE OF A RETIRED MEMBER OF ANY OF THE UNIFORMED SERVICES FOR ANNUAL LEAVE ACCRUAL PURPOSES. UNDER EXISTING LAW, ALL SERVICE CREDITABLE UNDER SECTION 3 OF THE CIVIL SERVICE RETIREMENT ACT FOR PURPOSES OF ANNUITY MAY BE COUNTED IN DETERMINING ANNUAL LEAVE ACCRUALS (WHICH ARE BASED ON 13 DAYS PER YEAR UP TO 3 YEARS OF SERVICE, 20 DAYS AFTER 3 YEARS OF SERVICE UP TO 15 YEARS, AND 26 DAYS PER YEAR AFTER 15 YEARS OF SERVICE). IT IS THE CURRENT PRACTICE TO COUNT ALL MILITARY SERVICE FOR ANNUAL LEAVE ACCRUAL PURPOSES * * *.

THE AMENDMENT TO THE ANNUAL AND SICK LEAVE ACT OF 1951 MADE BY SECTION 203 OF THE BILL WILL PERMIT A RETIRED MEMBER OF THE UNIFORMED SERVICES TO COUNT, FOR ANNUAL LEAVE ACCRUAL PURPOSES, ONLY MILITARY SERVICE PERFORMED IN THE ARMED FORCES DURING ANY WAR OR IN ANY CAMPAIGN OR EXPEDITION FOR WHICH A CAMPAIGN BADGE HAS BEEN AUTHORIZED OR ALL OF HIS MILITARY SERVICE IF HIS RETIREMENT IS BASED ON DISABILITY RESULTING FROM INJURY OR DISEASE RECEIVED IN LINE OF DUTY AS A DIRECT RESULT OF ARMED CONFLICT OR BASED ON DISABILITY CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR. THE SECTION ALSO CONTAINS A SAVINGS CLAUSE TO PERMIT THOSE NOW EMPLOYED TO CONTINUE COUNTING ALL THEIR MILITARY SERVICE.

THE FOLLOWING EXPLANATION APPEARS ON PAGE 16 OF SUCH REPORT:

THE PROPOSED LAW WOULD ALSO ESTABLISH A "FRESH START" PRINCIPLE FOR RETIRED MILITARY PERSONNEL EMPLOYED IN FEDERAL CIVILIAN JOBS. SINCE PERSONS RETIRING FROM THE MILITARY SERVICE HAVE GENERALLY REALIZED RETIREMENT BENEFITS BASED ON A MILITARY CAREER, IT SEEMS DESIRABLE AND EQUITABLE FOR THEM TO START FEDERAL CIVILIAN CAREERS ON THE SAME BASIS AS OTHERS WHO ARE ALSO ENTERING THE CIVIL SERVICE FOR THE FIRST TIME. THEREFORE, THE BILL WOULD (A) REQUIRE THAT THEIR PRIOR MILITARY SERVICE NOT BE COUNTED IN COMPUTING LENGTH OF SERVICE FOR REDUCTION-IN- FORCE, LEAVE, AND RETIREMENT PURPOSES, AND (B) WITHHOLD VETERANS' PREFERENCE.

SIMILAR EXPLANATIONS APPEAR ON PAGES 10 AND 11, AND ON PAGE 20 OF H.REPT. NO. 890, NOVEMBER 7, 1963.

WHILE SERVICE AS A MEMBER OF THE PUBLIC HEALTH SERVICE PRIOR TO JULY 1, 1960, AND SERVICE AS A COMMISSIONED OFFICER IN THE COAST AND GEODETIC SURVEY PRIOR TO JULY 1, 1961, MAY GENERALLY HAVE BEEN RECOGNIZED AS CIVILIAN SERVICE FOR CIVILIAN RETIREMENT PURPOSES AND HENCE FOR LEAVE ACCRUAL PURPOSES UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, MILITARY SERVICE PRIOR TO ENACTMENT OF PUBLIC LAW 88-448 LIKEWISE WAS CREDITABLE FOR LEAVE ACCRUAL PURPOSES UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, AS CONSTRUED BY DECISIONS OF OUR OFFICE. OUR OFFICE HAS ADHERED TO THE VIEW THAT ANY MILITARY SERVICE THAT IS POTENTIALLY CREDITABLE FOR RETIREMENT PURPOSES IS CREDITABLE FOR LEAVE ACCRUAL PURPOSES UNDER THE 1951 LEAVE ACT. SEE 31 COMP. GEN. 215. THUS OUR UNDERSTANDING IS THAT PRIOR TO ENACTMENT OF PUBLIC LAW 88-448, MILITARY SERVICE AS WELL AS SERVICE IN THE COAST AND GEODETIC SURVEY AND IN THE PUBLIC HEALTH SERVICE WAS CREDITABLE FOR LEAVE ACCRUAL PURPOSES UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951.

WE DO NOT FIND ANY EVIDENCE OF A CONGRESSIONAL INTENT EITHER IN THE LANGUAGE OF SECTION 203 OR IN ITS LEGISLATIVE HISTORY TO PLACE RETIRED MEMBERS OF THE PUBLIC HEALTH SERVICE AND THE COAST AND GEODETIC SURVEY IN A PREFERRED POSITION--- SO FAR AS CONCERNS THE CREDITING OF UNIFORMED SERVICE FOR LEAVE ACCRUAL PURPOSES UNDER THE 1951 LEAVE ACT- - TO RETIRED OFFICERS OF THE OTHER UNIFORMED SERVICES. ON THE CONTRARY WE ARE OF THE OPINION, AFTER FULL CONSIDERATION OF THE LANGUAGE OF SECTION 203, ITS PURPOSE, OBJECTIVES AND ITS LEGISLATIVE HISTORY, THAT THE TERM "ACTIVE MILITARY SERVICE" IN ANY OF THE UNIFORMED SERVICES USED THEREIN IS SYNONYMOUS WITH "ACTIVE SERVICE IN ANY OF THE UNIFORMED SERVICES.'

THUS IT IS OUR VIEW THAT AFTER THE EFFECTIVE DATE (DECEMBER 1, 1964) OF SECTION 203 OF PUBLIC LAW 88-448, ACTIVE SERVICE RENDERED IN ANY OF THE UNIFORMED SERVICES, THE PUBLIC HEALTH SERVICE OR THE COAST AND GEODETIC SURVEY BY A RETIRED MEMBER OR MEMBERS OF THOSE SERVICES IS NOT CREDITABLE FOR PURPOSES OF THE ANNUAL AND SICK LEAVE ACT OF 1951, REGARDLESS OF THE TIME WHEN SUCH SERVICE WAS RENDERED UNLESS SUCH SERVICE IS COVERED BY ONE OF THE THREE EXCEPTIONS SPECIFICALLY ENUMERATED IN THE SAID SECTION 203.