B-157500, OCT. 13, 1965, 45 COMP. GEN. 180

B-157500: Oct 13, 1965

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IS EMPLOYED IN A NONAPPROPRIATED FUND ACTIVITY IS CONSIDERED TO BE IN A TERMINAL LEAVE STATUS FOR ACCEPTANCE OF CIVILIAN EMPLOYMENT WITHIN THE MEANING OF THE ACT OF NOVEMBER 21. COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - ELECTION OF STATUS UNDER THE DUAL COMPENSATION ACT - SAVINGS PROVISION INELIGIBILITY A MEMBER OF THE UNIFORMED SERVICES WHO WAS IN A TERMINAL LEAVE STATUS AND HOLDING A NONAPPROPRIATED FUND ACTIVITY POSITION ON NOVEMBER 24. - THE DATE HE WOULD HAVE BEEN MANDATORILY RETIRED UNDER 10 U.S.C. 3921. - IS CONSIDERED TO BE IN AN ACTIVE DUTY STATUS THROUGH NOVEMBER 30. SUCH OFFICER IS NOT ENTITLED TO THE SAVINGS PROVISIONS IN SECTION 201 (F) OF THE DUAL COMPENSATION ACT OF 1964.

B-157500, OCT. 13, 1965, 45 COMP. GEN. 180

LEAVES OF ABSECE - MILITARY PERSONNEL - TERMINAL LEAVE - CIVILIAN EMPLOYMENT AN OFFICER OF THE UNIFORMED SERVICES WHO, WHILE RECEIVING PAY FOR UNUSED LEAVE PRIOR TO INVOLUNTARY RETIREMENT UNDER 10 U.S.C. 3921, IS EMPLOYED IN A NONAPPROPRIATED FUND ACTIVITY IS CONSIDERED TO BE IN A TERMINAL LEAVE STATUS FOR ACCEPTANCE OF CIVILIAN EMPLOYMENT WITHIN THE MEANING OF THE ACT OF NOVEMBER 21, 1945, 5 U.S.C. 61A-1 (A), WHICH NOT ONLY SUPERSEDED SEC. 1222, REVISED STATUTE, REQUIRING TERMINATION OF MILITARY COMMISSIONS UPON ACCEPTANCE OF A CIVIL OFFICE, BUT ALSO SUPERSEDED THE DUAL COMPENSATION STATUTES. COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - ELECTION OF STATUS UNDER THE DUAL COMPENSATION ACT - SAVINGS PROVISION INELIGIBILITY A MEMBER OF THE UNIFORMED SERVICES WHO WAS IN A TERMINAL LEAVE STATUS AND HOLDING A NONAPPROPRIATED FUND ACTIVITY POSITION ON NOVEMBER 24, 1964--- THE DATE HE WOULD HAVE BEEN MANDATORILY RETIRED UNDER 10 U.S.C. 3921--- BUT FOR THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 5 U.S.C. 47A, MAKING HIS RETIREMENT EFFECTIVE DECEMBER 1, 1964--- IS CONSIDERED TO BE IN AN ACTIVE DUTY STATUS THROUGH NOVEMBER 30, 1964, RATHER THAN IN A RETIRED STATUS AND, THEREFORE, SUCH OFFICER IS NOT ENTITLED TO THE SAVINGS PROVISIONS IN SECTION 201 (F) OF THE DUAL COMPENSATION ACT OF 1964, 5 U.S.C. 3102 (F), WHICH PERMITS CONTINUATION OF EXEMPTIONS FOR MEMBERS WHO WERE RETIRED AND NOT SUBJECT TO THE DUAL COMPENSATION LIMITATIONS ON NOVEMBER 30, 1964, THE DAY PRIOR TO THE EFFECTIVE DATE OF THE 1964 ACT.

TO LIEUTENANT COLONEL H. W. HASSERMAN, DEPARTMENT OF THE ARMY, OCTOBER 13, 1965:

REFERENCE IS MADE TO YOUR LETTER OF JULY 9, 1965, REQUESTING A DECISION CONCERNING THE AMOUNT OF RETIRED PAY PROPERLY PAYABLE TO COLONEL BENJAMIN W. SAUREL, O 42 482, USA (RETIRED), IN THE CIRCUMSTANCES RELATED BELOW. YOUR REQUEST FOR DECISION HAS BEEN ALLOCATED D.O. NUMBER A-865 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

COLONEL SAUREL RETIRED DECEMBER 1, 1964, UNDER THE PROVISIONS OF 10 U.S.C. 3921. HE WAS CREDITED WITH 27 YEARS, 2 MONTHS AND 20 DAYS SERVICE FOR BASIC PAY PURPOSES AND 30 YEARS, 0 MONTHS AND 30 DAYS FOR MANDATORY RETIREMENT, COMPUTED UNDER THE PROVISIONS OF 10 U.S.C. 3927 THROUGH NOVEMBER 24, 1964.

HE WAS IN A LEAVE STATUS FOR THE PERIOD NOVEMBER 2 THROUGH 30, 1964, AND WAS PAID FOR 44 DAYS ACCRUED LEAVE AT RETIREMENT. HE WAS EMPLOYED BEGINNING NOVEMBER 2, 1964, AS ASSISTANT DIVISION DIRECTOR OF THE INDUSTRIAL RELATIONS DIVISION, NAVY SHIP'S STORE OFFICE, BROOKLYN, NEW YORK, A NONAPPROPRIATED FUND ACTIVITY. AUTHORITY TO EMPLOY THE OFFICER IN THIS POSITION AS AN EXCEPTION TO MEMORANDUM, DEPUTY SECRETARY OF DEFENSE, DATED AUGUST 27, 1964, WAS GRANTED BY THE NAVY DEPARTMENT BY LETTER OF OCTOBER 21, 1964.

YOUR FIRST TWO QUESTIONS ARE WHETHER

A. EMPLOYMENT BY A NONAPPROPRIATED FUND ACTIVITY WHILE ON ACTIVE DUTY WOULD BE CONSIDERED AS HOLDING A "CIVIL OFFICE" WITHIN THE MEANING OF TITLE 10, U.S. CODE, SECTION 3544, THUS CAUSING THE OFFICER'S APPOINTMENT IN THE ARMY TO TERMINATE UPON HIS ACCEPTANCE OF SUCH OFFICE OR EXERCISE OF ITS FUNCTION; AND, (WHETHER)

B. COLONEL SAUREL WOULD BE CONSIDERED IN A "TERMINAL LEAVE" STATUS DURING THE PERIOD 2 NOVEMBER 1964 THROUGH 30 NOVEMBER 1964 WITHIN THE MEANING OF PUBLIC LAW 226, APPROVED 21 NOVEMBER 1945, WHICH SUPERSEDES THE PROVISIONS OF TITLE 10, U.S. CODE, SECTION 3544, IF THE ANSWER TO QUESTION "A" IS YES.

THE ACT OF NOVEMBER 21, 1945, CH. 489, 59 STAT. 584, 5 U.S.C. 61A-1 (A), PROVIDES THAT ANY PERSON PERFORMING ACTIVE SERVICE IN THE ARMED FORCES MAY, WHILE ON TERMINAL LEAVE PENDING SEPARATION FROM OR RELEASE FROM ACTIVE DUTY IN SUCH SERVICE UNDER HONORABLE CONDITIONS, ENTER OR REENTER EMPLOYMENT OF THE GOVERNMENT OF THE UNITED STATES * * * AND, IN ADDITION TO COMPENSATION FOR SUCH EMPLOYMENT, SHALL BE ENTITLED TO RECEIVE PAY AND ALLOWANCES FROM THE ARMED FORCES FOR THE UNEXPIRED PORTION OF SUCH TERMINAL LEAVE AT THE SAME RATES AND TO THE SAME EXTENT AS IF HE HAD NOT ENTERED OR REENTERED SUCH EMPLOYMENT.

IN DECISION OF MARCH 28, 1946, 25 COMP. GEN. 677, WE HELD THAT THE PROVISIONS OF THAT ACT SUPERSEDE THE PROVISIONS OF SECTION 1222, REVISED STATUTES (NOW 10 U.S.C. 3544 (B) ( TO THE EFFECT THAT THE COMMISSION OF AN OFFICER OF THE ARMY ON THE ACTIVE LIST SHALL BE VACATED UPON THE ACCEPTANCE OF ANY CIVIL OFFICE. ALSO, IT WAS HELD THAT THAT ACT SUPERSEDED THE DUAL COMPENSATION STATUTES AND THAT IT APPLIES TO MEMBERS OF THE REGULAR ARMY AS WELL AS TO MEMBERS OF THE OTHER COMPONENTS OF THE ARMED SERVICES. ACCORDINGLY, QUESTION B IS ANSWERED IN THE AFFIRMATIVE, MAKING ANY ANSWER TO QUESTION A UNNECESSARY.

YOUR THIRD QUESTION IS WHETHER COLONEL SAUREL'S RETIRED PAY WAS PROPERLY REDUCED UNDER THE PROVISIONS OF SUBSECTION 201 (A) OF THE ACT OF AUGUST 12, 1964, PUBLIC LAW 88-448, 78 STAT. 484, 5 U.S.C. 3102 (A).

SECTION 201 (A) PROVIDES IN PERTINENT PART THAT A RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORMED SERVICES SHALL RECEIVE THE FULL SALARY OF ANY CIVILIAN OFFICE WHICH HE HOLDS, BUT THAT DURING A PERIOD FOR WHICH HE RECEIVES SALARY HIS RETIRED PAY SHALL BE REDUCED TO AN ANNUAL RATE EQUAL TO THE FIRST $2,000 OF SUCH RETIRED PAY PLUS ONE-HALF OF THE REMAINDER. SUBSECTION 201 (F), 5 U.S.C. 3102 (F), PROVIDES IN MATERIAL PART THAT NOTWITHSTANDING SUBSECTION (A) OF THAT SECTION, A RETIRED OFFICER OF ANY REGULAR COMPONENT WHO WAS EMPLOYED IN A CIVILIAN OFFICE ON NOVEMBER 30, 1964, (1) IF ON THAT DATE "HE WAS EXEMPT FROM LIMITATIONS ON COMPENSATION," MAY ELECT (A) "TO REMAIN SUBJECT TO AND CONTINUE UNDER SUCH EXEMPTION" OR (B) TO BE SUBJECT TO APPLICABLE LIMITATIONS IN SUBSECTION (A); OR (2) IF, ON THAT DATE "HE WAS SUBJECT TO LIMITATIONS ON COMPENSATION," HE MAY ELECT (A) "TO REMAIN SUBJECT TO AND CONTINUE UNDER SUCH LIMITATIONS," OR (B) "TO BE SUBJECT TO APPLICABLE LIMITATIONS AND EXEMPTIONS" OF THAT SECTION. IN THE ABSENCE OF AN APPROPRIATE ELECTION WITHIN THE PRESCRIBED TIME THE RETIRED OFFICER REMAINS IN THE SAME STATUS WITH RESPECT TO LIMITATIONS ON COMPENSATION OR EXEMPTION THEREFROM THAT HE OCCUPIED ON NOVEMBER 30, 1964.

YOU SAY THAT, INASMUCH AS COLONEL SAUREL WAS NOT A "RETIRED OFFICER" ON NOVEMBER 30, 1964, A QUESTION ARISES AS TO HIS RIGHT TO MAKE AN ELECTION WITHIN THE PRESCRIBED PERIOD, OR TO REMAIN UNDER THE PRIOR DUAL COMPENSATION LAWS, WHICH WE HAVE HELD TO NOT APPLY TO EMPLOYMENT BY A NONAPPROPRIATED FUND ACTIVITY. 36 COMP. GEN. 309 (1956) AND 43 COMP. GEN. 181 (1963). SECTION 101 (3) OF PUBLIC LAW 88-448, 5 U.S.C. 3101 (3), HOWEVER, DEFINES AS INCLUDING A CIVILIAN OFFICE OR POSITION UNDER A NON- APPROPRIATED FUND INSTRUMENTALITY UNDER THE JURISDICTION OF THE ARMED FORCES, AND CONSEQUENTLY BEGINNING DECEMBER 1, 1964, EMPLOYMENT BY A NONAPPROPRIATED FUND ACTIVITY AS A "CIVILIAN POSITION" WITH RESPECT TO PERSONS SUBJECT TO THE RESTRICTIONS OF THAT ACT.

YOU SAY FURTHER THAT COLONEL SAUREL'S RETIRED PAY WAS REDUCED BEGINNING JUNE 1, 1965, IN ACCORDANCE WITH THE PROVISIONS OF SUBSECTION 201 (A) OF PUBLIC LAW 88-448. COLONEL SAUREL, HOWEVER, CONTENDS THAT, SINCE HE WAS EMPLOYED IN A CIVILIAN OFFICE PRIOR TO DECEMBER 1964 WHICH WAS NOT CONSIDERED SUBJECT TO THE DUAL COMPENSATION LAWS THEN IN EFFECT, HE SHOULD BE CONSIDERED TO REMAIN EXEMPT FROM THOSE DUAL COMPENSATION LAWS AND NOT SUBJECT TO THE PROVISIONS OF SECTION 201 (A) OF PUBLIC LAW 88-448 IN THE ABSENCE OF AN ELECTION UNDER SUBSECTION 201 (F) OF THAT LAW TO BE SUBJECT TO ITS APPLICABLE LIMITATIONS AND EXEMPTIONS.

IN SUPPORT OF HIS CONTENTION THERE WAS SUBMITTED AN UNSIGNED MEMORANDUM DATED AUGUST 1964 WHICH COLONEL SAUREL ADVISES WAS PREPARED BY THE JUDGE ADVOCATE GENERAL, FIRST U.S. ARMY, TOGETHER WITH AN ADDENDUM TO MEMORANDUM, DATED APRIL 1965, IN WHICH IT IS STATED THAT--

* * * BY COMPTROLLER GENERAL DECISION NO. B155458 DATED 5 JANUARY 1965 * * * THE RATE OF RETIRED PAY FOR OFFICERS SUBJECT TO INVOLUNTARY RETIREMENT IS COMPUTED ON THE DATE ON WHICH THEY OTHERWISE WOULD HAVE BEEN RETIRED BUT FOR THE PROVISIONS OF THAT SECTION OF THE UNIFORM RETIREMENT DATE ACT REQUIRING RETIREMENT ON THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH THEY REACHED PRESCRIBED AGE OR COMPLETED SERVICE. COLONEL S' RIGHT TO A RETIRED RATE OF PAY BASED ON THE DATE 24 NOVEMBER 1964 WAS PRESCRIBED ON 24 NOVEMBER 1964 AND HIS RETIREMENT ON 1 DECEMBER 1964 BY VIRTUE OF THE REQUIREMENT OF THE UNIFORM RETIREMENT DATE ACT DOES NOT ALTER THIS RIGHT.

IT IS FURTHER SUGGESTED THAT IN ORDER TO PROPERLY CARRY OUT THE LEGISLATIVE INTENT ESTABLISHED IN THE UNIFORM RETIREMENT DATE ACT, THE DUAL COMPENSATION LAWS AND APPLICABLE DECISION INTERPRETING THEM IN EFFECT ON NOVEMBER 24, 1964 (THE DATE THE OFFICER WOULD HAVE BEEN RETIRED BUT FOR THE UNIFORM RETIREMENT DATE ACT) MUST BE APPLIED IN DETERMINING THE RATE OF RETIRED PAY OF THE MEMBER, RATHER THAN THE DUAL COMPENSATION ACT OF 1964, PUBLIC LAW 88-448, WHICH DID NOT BECOME EFFECTIVE UNTIL DECEMBER 1, 1964.

THERE IS NOTHING IN THE LANGUAGE OF THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, CH. 209, 46 STAT. 253, 5 U.S.C. 47A, OR IN ITS LEGISLATIVE HISTORY TO SUGGEST THAT IT WAS THE INTENT OF THE CONGRESS THAT, INSOFAR AS IS MATERIAL HERE, ANYTHING OTHER THAN THE RATE OF RETIRED PAY ITSELF AS PRESCRIBED IN THE APPLICABLE RETIREMENT LAW SHOULD BE GOVERNED BY THE DATE RETIREMENT OTHERWISE WOULD HAVE OCCURRED IF THAT LAW HAD NOT BEEN ENACTED. HENCE IT IS OUR VIEW THAT THE PROVISIONS OF THAT LAW DO NOT PROVIDE ANY BASIS FOR HOLDING THAT COLONEL SAUREL'S STATUS ON NOVEMBER 24, 1964, THE DATE ON WHICH HE WOULD HAVE BEEN RETIRED EXCEPT FOR THE PROVISIONS OF THAT LAW, WAS SUCH (WITH RESPECT TO THE DUAL COMPENSATION LAWS) THAT HE SHOULD BE REGARDED AS ENTITLED TO THE BENEFITS OF THE SAVINGS PROVISIONS OF SECTION 201 (F) OF THE DUAL COMPENSATION ACT OF 1964, PUBLIC LAW 88 448. COMPARE 38 COMP. GEN. 543 (1959). ON THAT DATE COLONEL SAUREL WAS NOT IN A RETIRED STATUS, BUT IN AN ACTIVE DUTY STATUS (SEE HIRONIMUS V. DURANT, 168 F.2D 288 (1948), CERT. DEN. 335 U.S. 818 (1948).

THE PRIOR DUAL COMPENSATION LAWS WERE REPEALED BY SECTION 402 (A) OF THE DUAL COMPENSATION ACT OF 1964, PUBLIC LAW 88-448, 78 STAT. 492, AND WERE CONTINUED IN EFFECT AS TO CERTAIN PERSONS ONLY AS PROVIDED IN THAT LAW, THE PERTINENT PROVISIONS OF WHICH ARE CONTAINED IN SECTION 201 (F). PROVIDES THAT A "RETIRED OFFICER" OF ANY REGULAR COMPONENT WHO WAS EMPLOYED IN A CIVILIAN OFFICE ON NOVEMBER 30, 1964, WHO WAS EXEMPT FROM LIMITATIONS ON COMPENSATION ON THAT DAY MAY ELECT "TO REMAIN SUBJECT TO AND CONTINUE UNDER SUCH EXEMPTION.' THE EXEMPTION INVOLVED IN COLONEL SAUREL'S CASE RELATED TO EMPLOYMENT ONLY WHILE ON "TERMINAL LEAVE"--- THAT IS, WHILE ON ACTIVE DUTY RECEIVING FULL ACTIVE DUTY PAY AND ALLOWANCES. IT SEEMS CLEAR FROM THE LANGUAGE OF THE 1964 LAW THAT CONGRESS INTENDED SUCH PROVISION TO APPLY TO REGULAR OFFICERS WHO WERE IN A RETIRED STATUS ON NOVEMBER 30, 1964, AND IN THAT RETIRED STATUS WERE EXEMPT FROM ONE OR MORE OF THE DUAL COMPENSATION LAWS ON THAT DATE. IN ITS REPORT ON H.R. 7381, 88TH CONG., WHICH BECAME PUBLIC LAW 88-448, THE HOUSE COMMITTEE ON POST OFFICE AND CIVIL SERVICE (H.REPT. NO. 890, 88TH CONG., 1ST SESS. 9) SAID:

SECTION 201 (F) PROVIDES THAT A RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORMED SERVICES WHO WAS EMPLOYED IN A CIVILIAN OFFICE ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE SUBSECTION MAY ELECT TO REMAIN SUBJECT TO AND CONTINUE UNDER ANY APPLICABLE LIMITATIONS ON OR EXCEPTIONS TO THE AMOUNT OF COMPENSATION TO BE RECEIVED WHICH WERE IN EFFECT PRIOR TO SUCH EFFECTIVE DATE, OR TO BE SUBJECT TO THE APPLICABLE LIMITATIONS AND EXCEPTIONS CONTAINED IN SUBSECTIONS (A), (B), (C), AND (E) OF SECTION 201.

IT IS EXPECTED THAT VERY FEW REGULAR OFFICERS WILL BE IN A POSITION TO EXERCISE THIS OPTION BECAUSE THE ONLY REGULAR OFFICERS SERVING IN CIVILIAN POSITIONS AT THE PRESENT TIME ARE THOSE SERVING IN POSITIONS FOR WHICH SPECIFIC STATUTORY EXEMPTIONS HAVE BEEN GRANTED FROM THE DUAL OFFICE HOLDING PROHIBITIONS OF SECTION 2 OF THE ACT OF JULY 31, 1894, AS AMENDED (5 U.S.C. 62).

AN IDENTICAL EXPLANATION APPEARS IN THE REPORT OF THE SENATE COMMITTEE ON POST OFFICE AND CIVIL SERVICE (S.REPT NO. 935, 88TH CONG., 2D SESS. 5). EXAMPLES OF THE EXEMPTIONS MENTIONED WERE CONTAINED IN 5 U.S.C. 63 AND 64 (1958 ED.).

IT IS OUR VIEW THAT THE PROVISIONS OF SECTION 201 (F) OF PUBLIC LAW 88- 448 DO NOT AUTHORIZE COLONEL SAUREL TO RECEIVE HIS FULL RETIRED PAY WHILE HOLDING A CIVILIAN OFFICE IN THE UNITED STATES GOVERNMENT. ACCORDINGLY, YOUR THIRD QUESTION IS ANSWERED IN THE AFFIRMATIVE. ALSO, HIS RETIRED PAY SHOULD HAVE BEEN REDUCED UNDER THE PROVISIONS OF SUBSECTION 201 (A) OF PUBLIC LAW 88-448 EFFECTIVE DECEMBER 1, 1964, AND APPROPRIATE ADJUSTMENTS SHOULD BE MADE.