B-158320, MAR. 9, 1966, 45 COMP. GEN. 559

B-158320, MAR. 9, 1966, 45 COMP. GEN. 559

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - REDUCTION IN RETIRED PAY - EXEMPTION PERIOD A RETIRED REGULAR OFFICER OF THE UNIFORMED SERVICES WHO IS EMPLOYED BY A MEMBER OF CONGRESS UNDER TWO TEMPORARY MONTHLY APPOINTMENTS NOT OCCURRING IN THE SAME FISCAL YEAR IS ENTITLED TO AN EXEMPTION FROM A REDUCTION IN RETIRED PAY FOR THE FIRST 30-DAY PERIOD FOR WHICH HE RECEIVES A SALARY WITH RESPECT TO BOTH APPOINTMENTS, SECTION 201 (C) OF THE DUAL COMPENSATION ACT, 5 U.S.C. 3102 (C), PRESCRIBING AN EXEMPTION FROM REDUCTION IN RETIRED OR RETIREMENT PAY FOR THE FIRST 30-DAY PERIOD FOR WHICH A REGULAR OFFICER RECEIVES A SALARY UNDER EACH TEMPORARY, PART-TIME, OR INTERMITTENT APPOINTMENT, WHEN THE APPOINTMENTS ARE NOT MADE DURING THE SAME FISCAL YEAR, AND 5 U.S.C. 84 PROVIDING A 30-DAY BASIS FOR THE PAYMENT OF RETIRED PAY, NO AMOUNT IS REQUIRED TO BE WITHHELD FOR THE RETIRED PAY OF THE OFFICER.

TO N. R. BRENINGSTALL, DEPARTMENT OF THE AIR FORCE, MARCH 9, 1966:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT ON A VOUCHER IN THE AMOUNT OF $8.86--- METHOD OF COMPUTATION IS NOT SHOWN--- IN FAVOR OF COLONEL JAMES L. WEBSTER, 2997A, USAF, RETIRED, REPRESENTING WITHHELD RETIRED PAY. YOUR REQUEST WAS FORWARDED HERE BY HEADQUARTERS, UNITED STATES AIR FORCE, WITH LETTER DATED JANUARY 10, 1966, REFERENCE AFAAFBA, AS AIR FORCE REQUEST NO. DO-AF-887, APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BY SPECIAL ORDERS NO. AB-3175, DATED MAY 15, 1961, COLONEL WEBSTER WAS RETIRED IN THE GRADE OF LIEUTENANT COLONEL UNDER THE PROVISIONS OF 10 U.S.C. 8911, EFFECTIVE JULY 31, 1961, AND ADVANCED TO THE GRADE OF COLONEL PURSUANT TO 10 U.S.C. 8963.

DURING THE PERIOD FROM FEBRUARY 1 THROUGH 28, 1965, COLONEL WEBSTER WAS TEMPORARILY EMPLOYED BY HONORABLE ROGER C. B. MORTON, MEMBER OF CONGRESS, IN THE DISBURSING OFFICE, CLERK OF THE HOUSE OF REPRESENTATIVES, WASHINGTON, D.C., AT THE GROSS SALARY RATE OF $1,015.21 PER MONTH. HE WAS AGAIN TEMPORARILY EMPLOYED BY CONGRESSMAN MORTON IN THE SAME OFFICE DURING THE PERIOD FROM JULY 1 THROUGH 31, 1965, AT A SALARY RATE OF $614.65 PER MONTH.

THE EMPLOYMENT INVOLVED APPEARS TO BE WITHIN THE DEFINITION OF "CIVILIAN OFFICE" CONTAINED IN SECTION 101 (3) OF THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, PUBLIC LAW 88-448, 78 STAT. 484, 5 U.S.C. 3101 (3). THEREFORE THE AMOUNT SHOWN ABOVE WAS WITHHELD FROM COLONEL WEBSTER'S RETIRED PAY FOR THE MONTH OF JULY 1965. SINCE THE EXEMPTION FROM REDUCTION AUTHORIZED BY SECTION 201 (C) OF THE ACT, 5 U.S.C. 3102 (C), DOES NOT EXPRESSLY PROVIDE FOR NOR PROHIBIT AN EXEMPTION FOR EACH OF THE FIRST 30-DAY PERIODS FOR WHICH A RETIRED REGULAR OFFICER RECEIVES SALARY UNDER MULTIPLE TEMPORARY APPOINTMENTS WHICH DO NOT OCCUR IN THE SAME FISCAL YEAR YOU QUESTION HOW THE EXEMPTION OR EXEMPTIONS SHALL BE APPLIED UNDER THE FACTS IN THIS CASE.

SECTION 201 (C) OF THE DUAL COMPENSATION ACT PROVIDES:

(C) THE REDUCTION IN RETIRED OR RETIREMENT PAY REQUIRED BY SUBSECTION (A) OF THIS SECTION SHALL NOT APPLY TO A RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORMED SERVICES EMPLOYED ON A TEMPORARY (FULL-TIME OR PART-TIME) BASIS ANY OTHER PART-TIME BASIS, OR ANY INTERMITTENT BASIS, FOR THE FIRST THIRTY-DAY PERIOD FOR WHICH HE RECEIVES SALARY. THE EXEMPTION FROM REDUCTION IN RETIRED OR RETIREMENT PAY PROVIDED BY THIS SUBSECTION SHALL NOT APPLY TO A PERIOD LONGER THAN---

(1) THE FIRST THIRTY-DAY PERIOD FOR WHICH HE RECEIVES SALARY UNDER ANY ONE APPOINTMENT FROM THE CIVILIAN OFFICE IN WHICH HE IS EMPLOYED, IF HE IS SERVING UNDER NOT MORE THAN ONE APPOINTMENT, AND

(2) THE FIRST PERIOD FOR WHICH HE RECEIVES SALARY UNDER MORE THAN ONE APPOINTMENT, IN ANY FISCAL YEAR, WHICH CONSISTS IN THE AGGREGATE OF THIRTY DAYS, FROM ALL CIVILIAN OFFICERS IN WHICH HE IS EMPLOYED, IF HE IS SERVING UNDER MORE THAN ONE APPOINTMENT IN SUCH FISCAL YEAR.

IT IS STATED ON PAGE 5 OF S.REPT. NO. 935 ACCOMPANYING H.R. 7381, WHICH BECAME PUBLIC LAW 88-448 THAT

SECTION 201 (C) EXCEPTS FROM THE REDUCTION IN RETIRED OR RETIREMENT PAY REQUIRED BY SUBSECTION (A) THE FIRST 30 DAYS OF A TEMPORARY, PART TIME, OR INTERMITTENT APPOINTMENT IF SERVING UNDER ONE APPOINTMENT, OR NOT TO EXCEED A TOTAL OF 30 DAYS DURING ANY FISCAL YEAR IN CASE THE EMPLOYEE IS SERVING UNDER MORE THAN ONE APPOINTMENT.

THUS A RETIRED REGULAR OFFICER IS ENTITLED TO AN EXEMPTION FROM REDUCTION IN RETIRED PAY FOR THE FIRST 30-DAY PERIOD FOR WHICH HE RECEIVES A SALARY UNDER EACH TEMPORARY, PART-TIME OR INTERMITTENT APPOINTMENT IF SUCH SINGLE APPOINTMENTS ARE NOT MADE DURING THE SAME FISCAL YEAR. IN THIS CASE COLONEL WEBSTER WAS GIVEN TWO DIFFERENT APPOINTMENTS IN DIFFERENT FISCAL YEARS AND HE IS ENTITLED TO THE 30 DAY EXEMPTION PROVIDED BY SECTION 201 (C) WITH RESPECT TO BOTH APPOINTMENTS. SINCE PAYMENT OF RETIRED PAY IS MADE ON A 30-DAY BASIS FOR THE MONTH OF JULY (5 U.S.C. 84), NO AMOUNT SHOULD HAVE BEEN WITHHELD FROM HIS RETIRED PAY.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID, IF OTHERWISE CORRECT.