B-164757, AUG. 29, 1968

B-164757, AUG. 29, 1968

TO MR. N. R. BRENINGSTALL:

THIS IS IN REPLY TO YOUR LETTER OF JUNE 14, 1968, REQUESTING AN ADVANCE DECISION OF OUR OFFICE ON THE VOUCHER OF LIEUTENANT COLONEL FRED J. MUHL, USAF, RETIRED, A FORMER CIVILIAN EMPLOYEE OF THE INTERNAL REVENUE SERVICE (IRS) FOR REFUND OF RETIRED PAY. COLONEL MUHL IS CLAIMING $289.52, THE AMOUNT OF RETIRED PAY THAT WAS DEDUCTED FOR THE PERIOD JANUARY 15, 1968, TO FEBRUARY 13, 1968, AS A RESULT OF HIS SERVICE WITH THE IRS.

COLONEL MUHL WAS RETIRED AS A REGULAR OFFICER OF THE ARMED FORCES IN AUGUST 1966. ON JANUARY 12, 1968, HE WAS GIVEN A CAREER CONDITIONAL APPOINTMENT SEASONAL (WAE) EFFECTIVE JANUARY 15, 1968, AS A TAX EXAMINER (TRAINEE) GRADE GS-3 AT THE SOUTHEAST SERVICE CENTER, AUSTIN, TEXAS. THE FORM 50 IT WAS INDICATED THAT THE APPOINTMENT WAS SUBJECT TO COMPLETION OF A ONE-YEAR PROBATIONARY PERIOD AND THE SERVICE COUNTED TOWARD RETIREMENT. IT WAS ALSO NOTED THAT COLONEL MUHL WAS NOT ENTITLED TO HEALTH BENEFITS OR FEGLI. IN THE REMARKS COLUMN THE FOLLOWING STATEMENT APPEARS:

"YOU HAVE BEEN APPOINTED TO PERFORM WORK OF A SEASONAL NATURE. THE NUMBER OF DAYS YOU WILL BE IN PAY STATUS WILL DEPEND UPON THE WORK LOAD. (YOU WILL BE RETURNED TO NON-DUTY, NON PAY STATUS AT THE TIME YOUR SERVICES ARE NO LONGER NEEDED. WHEN ON DUTY YOUR WORK SCHEDULE WILL BE 8 HOURS PER DAY, 5 DAYS PER WEEK UNTIL YOU ARE NOTIFIED OTHERWISE. HB- INELIGIBLE. -SEE STATEMENT ON 50 DATED 25 JAN 68. HOURS OF DUTY: 7:30 A.M. TO 4:00 P.M.'

UNDER THE PROVISIONS OF 5 U.S.C. 5532, 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. HOWEVER, 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:

"SECTION 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.

"/I) THE FIRST 30-DAY PERIOD FOR WHICH HE RECEIVES PAY UNDER ONE APPOINTMENT FROM THE POSITION IN WHICH HE IS EMPLOYED, IF HE IS SERVING UNDER NOT MORE THAN ONE APPOINTMENT * * *.'

IN IMPLEMENTING THIS LAW THE CIVIL SERVICE COMMISSION HAS DEFINED THE SEVERAL TYPES OF EMPLOYMENT WHICH PROVIDE AN EXCEPTION TO THE PAY REDUCTION PROVISIONS QUOTED ABOVE IN FPM SUPPLEMENT 296-31, APPENDIX A, SUBCHAPTER S8-1, AS FOLLOWS:

"/4) TEMPORARY EMPLOYMENT MEANS SERVICE UNDER AN APPOINTMENT LIMITED TO ONE YEAR OR LESS.

"/5) PART-TIME EMPLOYMENT MEANS EMPLOYMENT ON LESS THAN A FULL-TIME BASIS UNDER A PRESCHEDULED REGULAR TOUR OF DUTY.

"/6) INTERMITTENT EMPLOYMENT MEANS EMPLOYMENT ON LESS THAN A FULL TIME BASIS WITH NO PRESCHEDULED REGULAR TOUR OF DUTY.'

THE POSITION IN QUESTION WAS FILLED BY A PERMANENT APPOINTMENT ON A FULL- TIME BASIS WITH A REGULAR SCHEDULE AND WITH NO PRESCRIBED TIME LIMIT. CONSEQUENTLY, IT HAS MANY ASPECTS OF FULL-TIME EMPLOYMENT. HOWEVER, THE WORK INVOLVED IS SEASONAL IN NATURE AS DESCRIBED IN THE APPOINTMENT SINCE IT IS CONTEMPLATED TO EXTEND ONLY FROM JANUARY TO APRIL OR MAY OF EACH YEAR DURING THE INCOME TAX RETURN FILING PERIOD. ORDINARILY SUCH A PART- TIME POSITION WOULD BE FILLED BY A TEMPORARY LIMITED APPOINTMENT (SEE FPM SEC. 316.4-1 (A) (2) (, NEVERTHELESS, THE IRS WITH THE EXPRESS APPROVAL OF THE CIVIL SERVICE COMMISSION IS AUTHORIZED TO MAKE PERMANENT APPOINTMENTS TO THESE SEASONAL POSITIONS IN ORDER TO MAINTAIN A CADRE OF TRAINED PERSONNEL THAT WILL BE AVAILABLE FROM YEAR TO YEAR DURING THE PEAK WORK PERIOD.

UNDER THE CIRCUMSTANCES IT IS CONSIDERED THAT EMPLOYMENT ON A SEASONAL BASIS WHICH IS FOR A SHORT TERM PERIOD COMES WITHIN THE LANGUAGE OF THE STATUTE PROVIDING AN EXEMPTION FOR A RETIRED OFFICER EMPLOYED ON "ANY OTHER PART-TIME BASIS.'

ACCORDINGLY, THE ATTACHED VOUCHER, WHICH IS RETURNED HEREWITH, MAY, IF OTHERWISE CORRECT, BE CERTIFIED FOR PAYMENT.