B-162225, SEP. 18, 1967

B-162225: Sep 18, 1967

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RETIRED WARRANT OFFICER WHO WAS EMPLOYED AS AN INTERMITTENT EMPLOYEE BUT WHO ONLY WORKED ONE WEEK ON AN IRREGULAR BASIS AND THEN ON FULL TIME BASIS FOR A MONTH PRECEDING CHANGE OF APPOINTMENT TO CAREER CONDITIONAL MAY NOT HAVE THE INTERMITTENT CHARACTER OF THE EMPLOYMENT CONSIDERED TO EXTEND BEYOND THE FIRST WEEK OF IRREGULAR DUTY TO QUALIFY FOR EXEMPTION FROM REDUCED RETIRED PAY PROVISIONS IN 5 U.S.C. 5532 IN THE ABSENCE OF AN ADMINISTRATIVE EXPLANATION AS TO WHY THE EMPLOYEE'S STATUS TO FULL TIME WAS NOT CHANGED WHEN THE IRREGULAR DUTY ENDED. USAF: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 10. YOUR LETTER WAS FORWARDED HERE BY THE OFFICE OF THE DIRECTORATE OF ACCOUNTING AND FINANCE UNDER DATE OF AUGUST 7.

B-162225, SEP. 18, 1967

ARMED SERVICES - RETIRED PAY - DUAL COMPENSATION - INTERMITTANT EMPLOYMENT DECISION TO AIR FORCE ACCOUNTING AND FINANCE OFFICER CONCERNING PROPRIETY OF WITHHOLDING RETIRED PAY FROM MEMBER DURING CIVILIAN INTERMITTENT EMPLOYMENT WITH FEDERAL SUPPLY SERVICE. RETIRED WARRANT OFFICER WHO WAS EMPLOYED AS AN INTERMITTENT EMPLOYEE BUT WHO ONLY WORKED ONE WEEK ON AN IRREGULAR BASIS AND THEN ON FULL TIME BASIS FOR A MONTH PRECEDING CHANGE OF APPOINTMENT TO CAREER CONDITIONAL MAY NOT HAVE THE INTERMITTENT CHARACTER OF THE EMPLOYMENT CONSIDERED TO EXTEND BEYOND THE FIRST WEEK OF IRREGULAR DUTY TO QUALIFY FOR EXEMPTION FROM REDUCED RETIRED PAY PROVISIONS IN 5 U.S.C. 5532 IN THE ABSENCE OF AN ADMINISTRATIVE EXPLANATION AS TO WHY THE EMPLOYEE'S STATUS TO FULL TIME WAS NOT CHANGED WHEN THE IRREGULAR DUTY ENDED.

TO LIEUTENANT COLONEL J. R. KELLIHER, USAF:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1967 (FILE REFERENCE ALRA-3), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $79.65 IN FAVOR OF CHIEF WARRANT OFFICER HARLIE F. WOOD, FR 952985, USAF, RETIRED, REPRESENTING RETIRED PAY WITHHELD FROM HIM DURING THE PERIOD DECEMBER 20, 1965, THROUGH JANUARY 26, 1966, UNDER SECTION 201 (A) OF THE DUAL COMPENSATION ACT, PUB. L. 88-448, 78 STAT. 484. YOUR LETTER WAS FORWARDED HERE BY THE OFFICE OF THE DIRECTORATE OF ACCOUNTING AND FINANCE UNDER DATE OF AUGUST 7, 1967, AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-956 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOUR LETTER, TOGETHER WITH ENCLOSURES, DISCLOSES THAT MR. WOOD WAS RETIRED JULY 31, 1963, AS A CHIEF WARRANT OFFICER (W-2) OF THE REGULAR AIR FORCE FOR YEARS OF SERVICE AS AUTHORIZED IN 10 U.S.C. 1293. IT APPEARS FROM THE RECORD (NOTIFICATION OF PERSONNEL ACTION--STANDARD FORM 50) THAT EFFECTIVE DECEMBER 13, 1965, HE ACCEPTED AN APPOINTMENT DESIGNATED AS A "CAREER-COND APPT (INTERMITTENT)" WITH THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, AS A WAREHOUSEMAN, WB 6987, AT $2.51 PER HOUR. THIS APPOINTMENT WAS CHANGED TO "FULL TIME" EFFECTIVE FEBRUARY 27, 1966. AMONG THE ENCLOSURES RECEIVED WITH YOUR LETTER IS A COPY OF A RECORD OF MR. WOOD'S EMPLOYMENT FROM DECEMBER 13, 1965, TO FEBRUARY 26, 1966, AS FURNISHED BY GSA, SHOWING THAT FOR THE FIRST WEEK, DECEMBER 13, 1965, TO DECEMBER 19, 1965, HE WORKED AN IRREGULAR TOUR OF DUTY NAMELY, 3 DAYS (8 HOURS EACH) AND 1 HOUR DURING ANOTHER DAY. THE EMPLOYMENT RECORD FURTHER SHOWS THAT, EXCEPT FOR SATURDAYS, SUNDAYS, AND HOLIDAYS, COMMENCING DECEMBER 20, 1965, AND UNTIL FEBRUARY 26, 1966--THE DAY PRECEDING THE DATE HIS APPOINTMENT WAS CHANGED TO FULL TIME--HE WORKED A REGULAR TOUR OF DUTY, INCLUDING SOME OVERTIME.

YOU ASK WHETHER MR. WOOD IS ENTITLED TO A FULL 30 DAY EXEMPTION FROM DECEMBER 13, 1965, TO JANUARY 26, 1966, AS AN INTERMITTENT EMPLOYEE, OR WHETHER THE EXEMPTION APPLIES ONLY FOR THE 4 DAYS OF THE FIRST WEEK SINCE BEGINNING DECEMBER 20, 1965, HE WAS ACTUALLY EMPLOYED ON A FULL TIME BASIS.

UNDER THE PROVISIONS OF TITLE II OF THE DUAL COMPENSATION ACT, PARTS OF WHICH WERE REPEALED AND REENACTED WITHOUT SUBSTANTIAL CHANGE AS 5 U.S.C. 5532 BY THE ACT OF SEPTEMBER 6, 1966, PUB. L. 89-554, 80 STAT 482, A RETIRED OFFICER OF A REGULAR COMPONENT OF A UNIFORMED SERVICE WHO HOLDS A CIVILIAN POSITION IS ENTITLED TO RECEIVE THE FULL SALARY OF THAT POSITION BUT DURING THE PERIOD HE RECEIVES SUCH SALARY HIS RETIRED OR RETIREMENT PAY IS REQUIRED TO BE REDUCED IN ACCORDANCE WITH THE FORMULA THEREIN PRESCRIBED. WITH RESPECT TO THOSE RETIRED OFFICERS WHO ARE EMPLOYED ON A PART-TIME OR INTERMITTENT BASIS, THE LAW PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"SEC. 5532. EMPLOYMENT OF RETIRED OFFICERS OF THE UNIFORMED SERVICES; REDUCTION IN RETIRED OR RETIREMENT PAY; EXCEPTIONS.

"/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 PART-TIME OR INTERMITTENT BASIS.

"/C) THE REDUCTION IN RETIRED OR RETIREMENT PAY REQUIRED BY SUBSECTION (B) OF THIS SECTION DOES NOT APPLY TO A RETIRED OFFICER OF A REGULAR COMPONENT OF A UNIFORMED SERVICE--

"/2) EMPLOYED ON A TEMPORARY (FULL-TIME-OR PART-TIME) BASIS, ANY OTHER PART-TIME BASIS, OR AN INTERMITTENT BASIS, FOR THE FIRST 30-DAY PERIOD FOR WHICH HE RECEIVES PAY.' IN IMPLEMENTING THIS LAW, THE TERM "INTERMITTENT EMPLOYMENT" IS DEFINED IN APPENDIX A, SUBCHAPTER S8-1 (B) (6), FEDERAL PERSONNEL MANUAL, SUPPLEMENT 296-31, TO MEAN "EMPLOYMENT ON LESS THAN A FULL-TIME BASIS WITH NO PRESCHEDULED REGULAR TOUR OF DUTY.'

AS INDICATED ABOVE, DURING THE PERIOD DECEMBER 13 TO 19, 1965, MR. WOOD'S WORK SCHEDULE WAS IRREGULAR AND, HAVING PERFORMED SUCH EMPLOYMENT ON AN "INTERMITTENT BASIS," NO REDUCTION IN HIS RETIRED PAY FOR THAT PERIOD WAS REQUIRED AS PROVIDED IN 5 U.S.C. 5532 (C) (2). HOWEVER, COMMENCING DECEMBER 20, 1965, AND EXTENDING THROUGH JANUARY 26, 1966--THE EXPIRATION OF THE FIRST 30-DAY PERIOD FOR WHICH HE RECEIVED SALARY--THE RECORD SHOWS THAT MR. WOOD, IN FACT, WORKED A REGULAR FULL TIME SCHEDULED TOUR OF DUTY.

BASED UPON THE CIRCUMSTANCES RELATED, THE REASONABLE PRESUMPTION IS THAT THE INTERMITTENT CHARACTER OF THE EMPLOYMENT DID NOT EXTEND BEYOND DECEMBER 19, 1965, AND THAT FOR PURPOSES OF 5 U.S.C. 5532 (C) (2) THE EMPLOYMENT THEREAFTER SHOULD BE REGARDED AS FULL TIME.

THUS IN THE ABSENCE OF AN ADMINISTRATIVE EXPLANATION SATISFACTORILY OVERCOMING SUCH PRESUMPTION AND ESTABLISHING WHY IT WAS NECESSARY IN THE GOVERNMENT'S INTEREST NOT TO FORMALLY CHANGE THE EMPLOYEE'S EMPLOYMENT STATUS TO FULL TIME AS OF DECEMBER 20, 1965, MR. WOOD WOULD NOT QUALIFY FOR THE EXEMPTION FOR ANY PERIOD BEYOUND DECEMBER 19, 1965.

ACCORDINGLY, PAYMENT ON THE VOUCHER IS NOT AUTHORIZED AND THE VOUCHER AND SUPPORTING PAPERS WILL BE RETAINED HERE.