B-159532, SEPTEMBER 8, 1966, 46 COMP. GEN. 200

B-159532, SEPTEMBER 8, 1966, 46 COMP. GEN. 200

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - NIGHT DIFFERENTIAL. AS THE ADDITIONAL COMPENSATION OF 10 PERCENT RECEIVED FOR NIGHT WORK DOES NOT CONSTITUTE A PART OF THE BASIC COMPENSATION OF CIVILIAN EMPLOYEES OF THE GOVERNMENT, IN APPLYING THE DUAL COMPENSATION LIMITATION IN SECTION 212 OF THE ECONOMY ACT OF 1932, AS AMENDED, THE NIGHT DIFFERENTIAL PAID TO POSTAL EMPLOYEES PURSUANT TO 39 U.S.C. 3574, AND TO CLASSIFIED EMPLOYEES UNDER SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, IS NOT FOR CONSIDERATION IN MAKING THE ADJUSTMENT REQUIRED BY SECTION 212 IN THE RETIRED PAY OF MEMBERS OF THE UNIFORMED SERVICES WHO HOLD CIVILIAN POSITIONS. COMPENSATION - DOUBLE CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - WAGE BOARD EMPLOYEES. WHEN RETIRED MEMBERS OF THE UNIFORMED SERVICES ARE EMPLOYED IN PREVAILING RATE POSITIONS, THE ADDITIONAL COMPENSATION THEY RECEIVE FOR NIGHT WORK IS CONSIDERED PART OF THEIR BASE PAY AND, THEREFORE, IS FOR INCLUSION IN MAKING THE ADJUSTMENT OF RETIRED PAY REQUIRED BY THE DUAL COMPENSATION LIMITATION PRESCRIBED IN SECTION 212 OF THE ECONOMY ACT OF 1932, AS AMENDED. COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - PREMIUM PAY. THE ANNUAL PREMIUM PAY ALLOWED FIREFIGHTERS UNDER SECTION 401 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, IN LIEU OF OTHER EXTRA COMPENSATION FOR OVERTIME, NIGHT OR HOLIDAY DUTY IS NOT REGARDED AS BASIC COMPENSATION AND, THEREFORE, IS NOT FOR INCLUSION IN APPLYING THE DUAL COMPENSATION LIMITATION IN SECTION 212 OF THE ECONOMY ACT OF 1932, AS AMENDED, WHEN MAKING THE REQUIRED ADJUSTMENT IN THE RETIRED PAY OF MEMBERS OF THE UNIFORMED SERVICES EMPLOYED AS CIVILIAN FIREFIGHTERS.

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, SEPTEMBER 8, 1966:

THIS REFERS TO YOUR LETTER OF MAY 24, 1966, FILE XO:HA:WR 7220, TRANSMITTED THROUGH THE COMMANDING OFFICER, U.S. NAVY FINANCE CENTER AND THE COMPTROLLER OF THE NAVY, IN WHICH YOU REQUEST OUR DECISION AS TO WHETHER THE NIGHT DIFFERENTIAL PAY OF POSTAL AND CLASSIFIED EMPLOYEES AND THE ANNUAL PREMIUM PAY OF FIREFIGHTERS SHOULD BE CONSIDERED AS A PART OF THEIR BASIC COMPENSATION IN APPLYING SECTION 212 OF THE ECONOMY ACT OF 1932, AS AMENDED, 5 U.S.C. 59/A) (1958 ED.).

THE CITED SECTION PROVIDED 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 ANY OF THE SERVICES MENTIONED IN TITLE 37, 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 $10,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $10,000 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.

WE HAVE HELD THAT THE WORDS "ANNUAL RATE OF COMPENSATION" APPEARING IN THE QUOTED SECTION OF THE ECONOMY ACT OF 1932, AS AMENDED, REFER TO BASIC COMPENSATION. SEE 22 COMP. GEN. 795; 37 ID. 739; 42 ID. 67. IN 22 COMP. GEN. 627, 631, WE STATED THAT THE 10 PERCENT EXTRA PAY FOR NIGHT WORK OF POSTAL EMPLOYEES, AUTHORIZED AT THAT TIME BY THE ACT OF MAY 24, 1928, 45 STAT. 725, AS AMENDED, 39 U.S.C. 828, WAS NOT REGARDED AS A PART OF THE BASE PAY OF THE EMPLOYEES FOR RETIREMENT DEDUCTIONS OR OTHERWISE. POINTED OUT IN 25 COMP. GEN. 102, 109, THAT SINCE SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298, 5 U.S.C. 921, PROVIDED THAT THE NIGHT DIFFERENTIAL WAS NOT TO BE INCLUDED IN COMPUTING NIGHT OVERTIME "* * * IT IS QUITE EVIDENT THAT THE CONGRESS INTENDED THE ADDITIONAL COMPENSATION OF 10 PERCENT FOR NIGHT WORK TO BE REGARDED AS NOT A PART OF THE BASIC COMPENSATION OF THE EMPLOYEES;, ALSO SEE, GENERALLY, 29 COMP. GEN. 271.

AS TO THE ANNUAL PREMIUM PAY ALLOWED TO FIREFIGHTERS UNDER SECTION 401 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS ADDED BY SECTION 208/A), PUBLIC LAW 763, 83D CONG; 68 STAT. 1111, 5 U.S.C. 926, WE ARE IN AGREEMENT WITH YOUR VIEW THAT SUCH PAY---WHICH IS IN LIEU OF OTHER EXTRA COMPENSATION FOR OVERTIME, NIGHT OR HOLIDAY DUTY---IS NOT TO BE REGARDED AS BASIC COMPENSATION.

THEREFORE, AND NOTWITHSTANDING THE VIEW STATED IN THE DECISION OF FEBRUARY 18, 1936, 15 COMP. GEN. 706, THAT THE NIGHT DIFFERENTIAL PAID TO POSTAL EMPLOYEES UNDER THE ACT OF MAY 24, 1928, ABOVE, CONSTITUTED A FACTOR IN ESTABLISHING "THE RATE OF COMPENSATION" UNDER SECTION 212 OF THE ECONOMY ACT, IT IS OUR VIEW THAT THE NIGHT DIFFERENTIAL PAID TO EMPLOYEES OF THE POSTAL SERVICE UNDER SECTION 604 OF THE ACT OF JUNE 10, 1955, 69 STAT. 126, AS NOW CODIFIED IN 39 U.S.C. 3574, DOES NOT CONSTITUTE A PART OF THE BASIC COMPENSATION OF SUCH EMPLOYEES AND SHOULD NOT BE SO CONSIDERED IN APPLYING SECTION 212 OF THE ECONOMY ACT. THE SAME RULE APPLIES TO THE NIGHT DIFFERENTIAL RECEIVED BY EMPLOYEES UNDER SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND TO THE ANNUAL PREMIUM COMPENSATION PAID TO FIREFIGHTERS UNDER SECTION 401 OF THAT ACT. HOWEVER, AS TO EMPLOYEES OCCUPYING PREVAILING RATE POSITIONS THE RULE IS OTHERWISE; THAT IS, THE NIGHT DIFFERENTIAL IS HELD TO BE BASE PAY AND, THEREFORE, IS FOR CONSIDERATION IN SUCH CASES IN APPLYING THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT. SEE 34 COMP. GEN. 708, 713.