B-162090, SEPTEMBER 27, 1967, 47 COMP. GEN. 185

B-162090: Sep 27, 1967

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COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - RETIRED PAY DEDUCTION FOR LESS THAN A DAY'S SALARY NOTWITHSTANDING A REGULAR OFFICER OF THE UNIFORMED SERVICES RETIRED AFTER COMPLETION OF AT LEAST 30 YEARS OF ACTIVE SERVICE IS EMPLOYED BY A NONAPPROPRIATED FUND INSTRUMENTALITY ONLY INTERMITTENTLY AS A FLIGHT INSTRUCTOR ON AN HOURLY BASIS WITH NO GUARANTEED MINIMUM. HE IS SUBJECT TO THE OPERATION OF THE DUAL COMPENSATION ACT AND PURSUANT TO 5 U.S.C. 5532. THE REDUCTION OF A FULL DAY'S RETIRED PAY IS REQUIRED IF THE OFFICER RECEIVES ANY COMPENSATION FOR THAT DAY. A FRACTIONAL PART OF A DAY'S RETIRED PAY MAY NOT BE EQUATED WITH HOURS OF WORK IN A POSITION FOR WHICH AN OFFICER IS PAID SALARY FOR LESS THAN A FULL DAY OR AT AN HOURLY RATE.

B-162090, SEPTEMBER 27, 1967, 47 COMP. GEN. 185

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - RETIRED PAY DEDUCTION FOR LESS THAN A DAY'S SALARY NOTWITHSTANDING A REGULAR OFFICER OF THE UNIFORMED SERVICES RETIRED AFTER COMPLETION OF AT LEAST 30 YEARS OF ACTIVE SERVICE IS EMPLOYED BY A NONAPPROPRIATED FUND INSTRUMENTALITY ONLY INTERMITTENTLY AS A FLIGHT INSTRUCTOR ON AN HOURLY BASIS WITH NO GUARANTEED MINIMUM, HE IS SUBJECT TO THE OPERATION OF THE DUAL COMPENSATION ACT AND PURSUANT TO 5 U.S.C. 5532, THE REDUCTION OF A FULL DAY'S RETIRED PAY IS REQUIRED IF THE OFFICER RECEIVES ANY COMPENSATION FOR THAT DAY, EVEN AS LITTLE AS PAY FOR 1 HOUR AS A FLIGHT INSTRUCTOR, FOR ABSENT RECOGNITION OF FRACTIONAL PARTS OF A DAY IN THE RETIREMENT OF MILITARY PERSONNEL, A FRACTIONAL PART OF A DAY'S RETIRED PAY MAY NOT BE EQUATED WITH HOURS OF WORK IN A POSITION FOR WHICH AN OFFICER IS PAID SALARY FOR LESS THAN A FULL DAY OR AT AN HOURLY RATE.

TO LIEUTENANT COMMANDER GARLAND CASEY, SEPTEMBER 27, 1967:

THIS REFERS TO YOUR LETTER OF JUNE 13, 1967, WITH ENCLOSURE, CONCERNING THE REDUCTION OF YOUR RETIRED PAY UNDER THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, PUB. L. 88-448, 78 STAT. 484, NOW CODIFIED IN 5 U.S.C. 5531 ET. SEQ., INCIDENT TO YOUR EMPLOYMENT WITH THE TRAVIS AIR FORCE BASE AERO CLUB.

THE INFORMATION OF RECORD SHOWS THAT AS AN OFFICER OF THE REGULAR NAVY YOU WERE TRANSFERRED TO THE RETIRED LIST ON MARCH 1, 1955, PURSUANT TO 34 U.S.C. 383 (1952 ED.), WHICH AUTHORIZED RETIREMENT AFTER COMPLETION OF AT LEAST 30 YEARS OF ACTIVE SERVICE.

ON JULY 1, 1966, YOU WERE EMPLOYED AS AERO CLUB MANAGER, TRAVIS AIR FORCE BASE, CALIFORNIA, A NON-APPROPRIATED FUND INSTRUMENTALITY UNDER THE JURISDICTION OF THE AIR FORCE. ON APRIL 30, 1967, YOU RESIGNED AS AERO CLUB MANAGER AND ON THE FOLLOWING DAY, MAY 1, 1967, YOU WERE APPOINTED BY THE AERO CLUB AS A FLIGHT INSTRUCTOR AT $5 PER HOUR ON AN INTERMITTENT BASIS, I.E., YOU ARE COMPENSATED ONLY FOR FLIGHT INSTRUCTION ON AN HOURLY BASIS WITH NO GUARANTEED MINIMUM. WE UNDERSTAND THAT YOUR COMPENSABLE HOURS OF DUTY MAY AVERAGE ABOUT 5 A DAY BUT VARY AND ARE LIMITED BY STUDENT BOOKINGS, WEATHER CONDITIONS AND A FEDERAL AERONAUTICS ADMINISTRATION LIMITATION OF 36 HOURS A WEEK.

THE DEPARTMENT OF THE NAVY REPORTS THAT BEGINNING JULY 1, 1967, YOUR RETIRED PAY WHICH GROSSES $535.72 MONTHLY (APPROXIMATELY $17.85 A DAY) WAS REDUCED BY $181.44 EACH MONTH PENDING RECEIPT OF MONTHLY EMPLOYMENT CERTIFICATIONS FROM THE AERO CLUB SHOWING THE EXACT DATES DURING THE MONTH THAT YOU WORKED AND WERE COMPENSATED. YOU THEN ARE PAID THE DIFFERENCE BETWEEN THE FULL AND THE REDUCED RETIRED PAY FOR DAYS OF THE MONTH ON WHICH YOU DID NOT WORK AND RECEIVE COMPENSATION.

YOU POINT OUT THAT BECAUSE OF THE VARIABLE CONDITIONS UNDER WHICH YOU WORK YOU LOSE A FULL DAY'S RETIREMENT PAY IF YOU RECEIVE ANY COMPENSATION AT ALL FOR THAT DAY--PERHAPS AS LITTLE AS $5. YOU, THEREFORE, ASK WHETHER THE MONEYS PAID INTO THE CENTRAL FUND BY STUDENTS FOR PAYING FLIGHT INSTRUCTORS MAY BE EXEMPTED FROM THE OPERATION OF THE DUAL COMPENSATION ACT OR AN EQUITABLE SYSTEM DEVISED UNDER WHICH A DAY'S RETIRED PAY WOULD BE DEDUCTED ONLY WHEN YOU ARE COMPENSATED FOR 8 FULL HOURS OF WORK.

THE APPLICABLE PROVISIONS OF THE U.S.C. DO NOT PERMIT MUCH FLEXIBILITY. 5 U.S.C. 5531, APPLICABLE TO YOU AS A RETIRED OFFICER, PROVIDES IN PART AS FOLLOWS:

"/2) -POSITION- MEANS A CIVILIAN OFFICE * * * (INCLUDING A TEMPORARY, PART-TIME, OR INTERMITTENT POSITION) * * * IN THE * * * EXECUTIVE * * * BRANCH OF THE GOVERNMENT * * * (INCLUDING A GOVERNMENT CORPORATION AND A NONAPPROPRIATED FUND INSTRUMENTALITY UNDER THE JURISDICTION OF THE ARMED FORCES) * * *.' 5 U.S.C. 5532 IN PERTINENT PART READS:

"/A) FOR THE PURPOSE OF THIS SECTION, -PERIOD FOR WHICH HE RECEIVES PAY- MEANS THE FULL CALENDAR PERIOD FOR WHICH A RETIRED OFFICER OF A REGULAR COMPONENT OF A UNIFORMED SERVICE RECEIVES THE PAY OF A POSITION WHEN EMPLOYED ON A FULL-TIME BASIS, BUT ONLY THE DAYS FOR WHICH HE ACTUALLY RECEIVES THAT PAY WHEN EMPLOYED ON A * * * INTERMITTENT BASIS.

"/B) A RETIRED OFFICER * * * WHO HOLDS A POSITION IS ENTITLED TO RECEIVE THE FULL PAY OF THE POSITION BUT DURING THE PERIOD FOR WHICH HE RECEIVES PAY, HIS RETIRED * * * PAY SHALL BE REDUCED TO AN ANNUAL RATE EQUAL TO THE FIRST $2,000 * * * PLUS ONE-HALF OF THE REMAINDER, IF ANY. * * "

THE QUOTED STATUTORY PROVISIONS CLEARLY REQUIRE THAT THE REDUCTION BE IN THE RETIRED PAY AS DISTINGUISHED FROM THE SALARY OF THE POSITION HELD. FURTHER, IT REQUIRES THE REDUCTION OF RETIRED PAY ON EACH DAY AN OFFICER RECEIVES THE SALARY OF THE POSITION. IN OUR DECISION 28 COMP. GEN. 381, TO WHICH YOU APPARENTLY REFER IN YOUR LETTER, WE RULED THAT WE WERE NOT AWARE OF "ANY AUTHORITY OF LAW WHEREBY A RETIRED OFFICER * * * IS ENTITLED TO PAY * * * FOR A FRACTIONAL PART OF A DAY. HISTORICALLY, THE LAW NEVER HAS RECOGNIZED FRACTIONAL PARTS OF A DAY IN MATTERS OF RETIREMENT * * * OF MILITARY PERSONNEL * * *.' SEE, ALSO, 44 COMP. GEN. 537 AT PAGES 538, 539. THUS, WE ARE UNABLE TO EQUATE A FRACTIONAL PART OF A DAY'S RETIRED PAY WITH HOURS OF WORK IN A POSITION FOR WHICH AN OFFICER IS PAID SALARY FOR LESS THAN A FULL DAY OR AT AN HOURLY RATE. AS LONG AS YOU ARE COMPENSATED FOR YOUR CIVILIAN EMPLOYMENT, YOUR CASE COMES WITHIN THE OPERATION OF THE DUAL COMPENSATION ACT.

WE INVITE YOUR ATTENTION, HOWEVER, TO SUBSECTION (D) OF 5 U.S.C. 5532 WHICH PROVIDES IN PART AS FOLLOWS:

"/D) EXCEPT AS OTHERWISE PROVIDED BY THIS SUBSECTION, THE CIVIL SERVICE COMMISSION, SUBJECT TO THE SUPERVISION AND CONTROL OF THE PRESIDENT, MAY PRESCRIBE REGULATIONS UNDER WHICH EXCEPTIONS MAY BE MADE TO THE RESTRICTIONS IN SUBSECTION (B) OF THIS SECTION WHEN APPROPRIATE AUTHORITY DETERMINES THAT THE EXCEPTIONS ARE WARRANTED BECAUSE OF SPECIAL OR EMERGENCY EMPLOYMENT NEEDS WHICH OTHERWISE CANNOT BE READILY MET. * *

SECTION 550.603, FEDERAL PERSONNEL MANUAL, SUPPLEMENT 990-1 PROVIDES AS FOLLOWS:

"PRIOR APPROVAL. WHEN A DEPARTMENT, AGENCY, OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA HAS SPECIAL OR EMERGENCY EMPLOYMENT NEEDS WHICH CANNOT BE READILY MET BECAUSE OF THE RESTRICTIONS IN SUBSECTION 201 (A) OF THE ACT, IT MAY REQUEST THE COMMISSION TO APPROVE AN EXCEPTION TO THE RESTRICTIONS. IN SUBMITTING ITS REQUEST FOR AN EXCEPTION, THE DEPARTMENT, AGENCY, OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA MUST ESTABLISH TO THE SATISFACTION OF THE COMMISSION THAT THE EMPLOYMENT NEEDS CANNOT OTHERWISE BE READILY MET.'