B-160091, OCTOBER 26, 1966, 46 COMP. GEN. 366

B-160091: Oct 26, 1966

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ELIGIBLE FOR WITHIN-GRADE INCREASES AND REASSIGNMENT TO ANY POSITION TO WHICH HIS ORIGINAL APPOINTMENT COULD HAVE BEEN MADE IS NOT A TEMPORARY EMPLOYEE WITHIN THE MEANING OF SECTION 201 (C) OF THE DUAL COMPENSATION ACT PROVIDING A 30-DAY EXEMPTION FROM REDUCTION OF RETIRED PAY WHEN A RETIRED OFFICER IS EMPLOYED ON A FULL-TIME OR PART-TIME TEMPORARY BASIS. THE RETIRED OFFICER UNDER A "TAPER" APPOINTMENT IS NOT ENTITLED TO A 30-DAY EXEMPTION IN THE REDUCTION OF HIS RETIRED PAY. IT IS STATED THAT COLONEL BURNS WAS RETIRED EFFECTIVE JANUARY 1. NOTICE OF THE EMPLOYMENT OF COLONEL BURNS WAS NOT RECEIVED IN TIME TO REDUCE HIS RETIRED PAY FOR THE MONTH OF JANUARY BUT DEDUCTIONS HAVE BEEN MADE BEGINNING WITH FEBRUARY 1.

B-160091, OCTOBER 26, 1966, 46 COMP. GEN. 366

COMPENSATION - DOUBLE - CONCURRENT MILITARY AND CIVILIAN SERVICE PAY - REDUCTION IN RETIRED PAY - EXEMPTION PERIOD. A RETIRED OFFICER OF A REGULAR COMPONENT OF THE ARMED SERVICES EMPLOYED AS A FULL-TIME CIVILIAN UNDER A "TAPER" APPOINTMENT (TEMPORARY APPOINTMENT PENDING ESTABLISHMENT OF A REGISTER) HOLDING A CONTINUED POSITION WITHOUT LIMIT AS TO DAY, MONTHS, OR EVEN YEARS, AND ELIGIBLE FOR WITHIN-GRADE INCREASES AND REASSIGNMENT TO ANY POSITION TO WHICH HIS ORIGINAL APPOINTMENT COULD HAVE BEEN MADE IS NOT A TEMPORARY EMPLOYEE WITHIN THE MEANING OF SECTION 201 (C) OF THE DUAL COMPENSATION ACT PROVIDING A 30-DAY EXEMPTION FROM REDUCTION OF RETIRED PAY WHEN A RETIRED OFFICER IS EMPLOYED ON A FULL-TIME OR PART-TIME TEMPORARY BASIS, AND TEMPORARY EMPLOYMENT LIMITED TO 1 YEAR OR LESS, THE RETIRED OFFICER UNDER A "TAPER" APPOINTMENT IS NOT ENTITLED TO A 30-DAY EXEMPTION IN THE REDUCTION OF HIS RETIRED PAY.

TO COLONEL H. W. KASSERMAN, DEPARTMENT OF THE ARMY, OCTOBER 26, 1966:

ON AUGUST 23, 1966, YOU FORWARDED THROUGH THE OFFICE OF THE CHIEF OF FINANCE, REFERENCE FINCS-E BURNS, ELMER M. 029 499 (RETIRED), A VOUCHER FOR $156.19 IN FAVOR OF COLONEL ELMER M. BURNS, A RETIRED OFFICER OF A REGULAR COMPONENT OF THE ARMED SERVICES AND PRESENTLY A CIVILIAN EMPLOYEE OF THE FEDERAL SUPPLY SERVICE, SAN FRANCISCO, WITH A REQUEST FOR OUR DECISION AS TO WHETHER PAYMENT MAY BE MADE THEREON.

IT IS STATED THAT COLONEL BURNS WAS RETIRED EFFECTIVE JANUARY 1, 1961, UNDER THE PROVISIONS OF 10 U.S.C. 3921. EFFECTIVE JANUARY 3,1966, HE ACCEPTED FULL-TIME EMPLOYMENT WITH THE FEDERAL SUPPLY SERVICE.

SECTION 201 (A) OF THE DUAL COMPENSATION ACT, PUBLIC LAW 88-448, 78 STAT. 484---REPEALED AND REENACTED AS 5 U.S.C. 5532 BY PUBLIC LAW 89 554--- PROVIDED, IN PART, THAT A RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORM SERVICE SHALL RECEIVE THE FULL SALARY OF ANY CIVILIAN POSITION WHICH HE THEREAFTER HOLDS BUT ALSO PROVIDED FOR CERTAIN DEDUCTIONS IN HIS RETIRED PAY DURING THE PERIOD FOR WHICH HE RECEIVES SUCH CIVILIAN SALARY. HOWEVER, SUBSECTION (C) OF THAT SECTION PROVIDED FURTHER THAT THE REDUCTION SET FORTH IN SUBSECTION (A) SHALL NOT APPLY TO A RETIRED OFFICER EMPLOYED ON A TEMPORARY (FULL-TIME OR PART-TIME) BASIS FOR THE FIRST 30- DAY PERIOD IN WHICH HE RECEIVES SALARY.

NOTICE OF THE EMPLOYMENT OF COLONEL BURNS WAS NOT RECEIVED IN TIME TO REDUCE HIS RETIRED PAY FOR THE MONTH OF JANUARY BUT DEDUCTIONS HAVE BEEN MADE BEGINNING WITH FEBRUARY 1, 1966, AND PARTIAL COLLECTION HAS BEEN MADE FOR THE MONTH OF JANUARY.

THE NOTIFICATION OF PERSONNEL ACTION (STANDARD FORM 50) SHOWS THAT COLONEL BURNS WAS GIVEN A ,TAPER" APPOINTMENT (TEMPORARY APPOINTMENT PENDING ESTABLISHMENT OF REGISTER) AND THE QUESTION PRESENTED IS WHETHER OR NOT HE WAS EMPLOYED ON A TEMPORARY BASIS WITHIN THE MEANING OF SUBSECTION 201 (C) OF THE CITED ACT AND THUS ENTITLED TO THE 30-DAY EXEMPTION FROM REDUCTION IN HIS RETIRED PAY. WE ASSUME THAT THE VOUCHER IN QUESTION COVERS THE AMOUNT ALREADY COLLECTED FROM COLONEL BURNS AND WHICH WILL BE FOR REPAYMENT TO HIM IF IT IS FOUND THAT THE EXEMPTION APPLIES.

AS YOU POINT OUT THE LEGISLATIVE HISTORY OF PUBLIC LAW 88-448 FURNISHES NO INDICATION OF THE INTENDED MEANING OF THE WORDS * * * EMPLOYED ON A TEMPORARY * * * BASIS" AS USED IN SUBSECTION 201 (C). APPARENTLY, THE PURPOSE OF THE 30-DAY EXEMPTION FROM RETIRED PAY GRANTED INDIVIDUALS WHO WERE SO EMPLOYED WAS TO MAKE TEMPORARY EMPLOYMENT MORE ATTRACTIVE FINANCIALLY TO MILITARY RETIREES AND THUS FACILITATE THE RECRUITING OF QUALIFIED RETIRED MILITARY PERSONNEL FOR SHORT TERM FEDERAL JOBS. SEE PAGE 17 OF THE HOUSE HEARINGS HELD JULY 11 ON H.R. 3781 AND RELATED BILLS.

ADMITTEDLY THE LANGUAGE "* * * EMPLOYED ON A TEMPORARY * * * BASIS" IS SUSCEPTIBLE TO VARYING INTERPRETATIONS. HOWEVER, WE ARE OF THE OPINION THAT THE MOST REASONABLE AND COMMONLY ACCEPTED MEANING OF TEMPORARY EMPLOYMENT IS THAT WHICH THE CIVIL SERVICE COMMISSION CURRENTLY DESCRIBES AS "TEMPORARY LIMITED EMPLOYMENT", THAT IS, EMPLOYMENT FOR A DEFINITE PERIOD OF TIME OF 1 YEAR OR LESS. SEE FPM SUPP. 990-1, BOOK III, SECTION 316.401 ON PAGE 54.

THE "TAPER" APPOINTMENT GIVEN COLONEL BURNS WAS AN APPOINTMENT TO A CONTINUING POSITION WITHOUT ANY LIMIT AS TO DAYS, MONTHS OR EVEN YEARS HE MAY SERVE IN THE POSITION. HE IS ELIGIBLE FOR WITHIN GRADE INCREASES UNDER 5 U.S.C. 5335 AND MAY BE REASSIGNED TO ANY POSITION TO WHICH HIS ORIGINAL APPOINTMENT COULD HAVE BEEN MADE. THEREFORE, OUR OPINION IS THAT COLONEL BURNS WAS NOT EMPLOYED ON A TEMPORARY BASIS WITHIN THE MEANING OF SECTION 201 (C) OF THE CONTROLLING STATUTE AND, HENCE, IS NOT ENTITLED TO THE 30-DAY EXEMPTION FROM REDUCTION IN HIS RETIRED PAY AS PROVIDED FOR THEREIN.