B-170451, SEP 29, 1970, 50 COMP GEN 226

B-170451: Sep 29, 1970

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PAY - INCREASES - COMPARABLE TO CLASSIFIED EMPLOYEES - ADJUSTMENT THE FACT THAT A REEMPLOYED CIVILIAN WHO WHILE ON MILITARY FURLOUGH SERVED ON ACTIVE MILITARY DUTY WAS ON A CIVILIAN ROLL ON APRIL 15. PROVIDES FOR AN INCREASE IN BASIC PAY FOR MILITARY PERSONNEL WHENEVER THE GENERAL SCHEDULE OF COMPENSATION FOR FEDERAL CLASSIFIED EMPLOYEES IS INCREASED. THE SECRETARY OF DEFENSE IN IMPLEMENTING THE 1970 ACT PURSUANT TO EXECUTIVE ORDER NO. 11525 PRESCRIBED THAT A MEMBER MUST HAVE BEEN ON ACTIVE DUTY ON APRIL 15. 1970: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 14. BY VIRTUE OF THE FACT THAT HE WAS EMPLOYED BY THE DEPARTMENT OF HEALTH. WAS ON THE ROLLS OF THAT DEPARTMENT ON APRIL 15.

B-170451, SEP 29, 1970, 50 COMP GEN 226

PAY - INCREASES - COMPARABLE TO CLASSIFIED EMPLOYEES - ADJUSTMENT THE FACT THAT A REEMPLOYED CIVILIAN WHO WHILE ON MILITARY FURLOUGH SERVED ON ACTIVE MILITARY DUTY WAS ON A CIVILIAN ROLL ON APRIL 15, 1970, THE DATE OF ENACTMENT OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, PUBLIC LAW 91- 231, DOES NOT ENTITLE HIM UNDER THE ACT TO A RETROACTIVE ADJUSTMENT IN BASIC PAY FOR THE ACTIVE MILITARY DUTY PERFORMED DURING THE PERIOD JANUARY 1, 1970, THROUGH MARCH 15, 1970, AS THE ACT PROVIDES COMPENSATION INCREASES FOR FEDERAL CLASSIFIED EMPLOYEES ONLY. HOWEVER, ALTHOUGH PUBLIC LAW 90-207, DECEMBER 16, 1967, PROVIDES FOR AN INCREASE IN BASIC PAY FOR MILITARY PERSONNEL WHENEVER THE GENERAL SCHEDULE OF COMPENSATION FOR FEDERAL CLASSIFIED EMPLOYEES IS INCREASED, THE SECRETARY OF DEFENSE IN IMPLEMENTING THE 1970 ACT PURSUANT TO EXECUTIVE ORDER NO. 11525 PRESCRIBED THAT A MEMBER MUST HAVE BEEN ON ACTIVE DUTY ON APRIL 15, 1970, TO BE ENTITLED TO A RETROACTIVE ADJUSTMENT IN PAY.

TO LIEUTENANT COLONEL C. R. WINDER, UNITED STATES MARINE CORPS, SEPTEMBER 29, 1970:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 14, 1970, YOUR REFERENCE CA-CRW-AJM, REQUESTING AN ADVANCE DECISION IN THE CASE OF CAPTAIN ROBERT A. JONES, 010 20 32, USMCR, AS TO WHETHER HE MAY BE PAID THE DIFFERENCE IN BASIC PAY FOR ACTIVE DUTY SERVED FROM JANUARY 1, 1970, THROUGH MARCH 15, 1970, UNDER THE RETROACTIVE PROVISIONS OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, PUBLIC LAW 91-231, APRIL 15, 1970, 5 U.S.C. 5332 NOTE, BY VIRTUE OF THE FACT THAT HE WAS EMPLOYED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE ON APRIL 5, 1970, AND WAS ON THE ROLLS OF THAT DEPARTMENT ON APRIL 15, 1970. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY THE DISBURSING BRANCH, FISCAL DIVISION, HEADQUARTERS UNITED STATES MARINE CORPS, AND HAS BEEN ASSIGNED CONTROL NUMBER DO-MC-1088 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS FROM THE ENCLOSURES ATTACHED TO YOUR LETTER THAT CAPTAIN JONES WAS ON MILITARY FURLOUGH FROM THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE AND SERVED ON ACTIVE DUTY AS A MEMBER OF THE MARINE CORPS RESERVE FROM JANUARY 1, 1970, THROUGH MARCH 15, 1970. HE RETURNED TO FEDERAL SERVICE AT THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE ON APRIL 5, 1970, AND WAS CARRIED ON THE ROLLS OF THAT DEPARTMENT ON APRIL 15, 1970. IN YOUR REQUEST FOR AN ADVANCE DECISION YOU STATE:

THE BASIS FOR DOUBT IS WHETHER SERVICE AS A CIVIL SERVICE EMPLOYEE ON 15 APRIL 1970 MAY BE CONSIDERED FOR THE PURPOSE OF CREATING A RIGHT TO RETROACTIVE BASIC PAY FOR THE PERIOD 1 JANUARY THROUGH 15 MARCH 1970 UNDER SECTION 5(A) OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970 (PUBLIC LAW 91- 231, 84 STAT. 195) AND IMPLEMENTING REGULATIONS.

THE FEDERAL EMPLOYEES SALARY ACT OF 1970 AUTHORIZES INCREASES IN RATES OF BASIC PAY, BASIC COMPENSATION, AND SALARIES OF CERTAIN CLASSES OF CIVILIAN EMPLOYEES OF THE UNITED STATES. THESE CLASSES OF OFFICERS AND EMPLOYEES ARE SPECIFICALLY LISTED IN THE ACT. THAT ACT, BY ITSELF, DOES NOT AUTHORIZE AN INCREASE IN THE BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES AND THE REGULATION TO WHICH YOU REFER, FEDERAL PERSONNEL MANUAL LETTER NO. 531-40, JUNE 23, 1970, IS APPLICABLE TO CIVILIAN EMPLOYEES OF THE GOVERNMENT, NOT MILITARY PERSONNEL.

AN INCREASE IN THE MONTHLY BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES, WHENEVER THE GENERAL SCHEDULE OF COMPENSATION FOR FEDERAL CLASSIFIED EMPLOYEES IS INCREASED, IS AUTHORIZED BY SECTION 8(A) OF THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90-207, 81 STAT. 649, 654, 37 U.S.C. 203 NOTE. SECTION 8(B)(2) OF THAT ACT PROVIDES THAT ANY SUCH INCREASE SHALL CARRY THE SAME EFFECTIVE DATE AS THAT APPLYING TO COMPENSATION ADJUSTMENTS PROVIDED GENERAL SCHEDULE EMPLOYEES. THEREFORE, WHEN THE FEDERAL EMPLOYEES SALARY ACT OF 1970 AUTHORIZED AN INCREASE IN THE RATES OF COMPENSATION FOR GENERAL SCHEDULE FEDERAL CLASSIFIED EMPLOYEES, THE PRESIDENT ISSUED EXECUTIVE ORDER NO. 11525, DATED APRIL 15, 1970, EFFECTIVE JANUARY 1, 1970, WHICH, IN SECTION 1, SET FORTH THE NEW RATES OF MONTHLY BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES. SECTION 2 OF THE SAME EXECUTIVE ORDER PROVIDES AS FOLLOWS:

(A) A PERSON WHO BECAME ENTITLED AFTER DECEMBER 31, 1969, BUT BEFORE THE DATE OF ENACTMENT OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, TO PAYMENT FOR ITEMS SUCH AS LUMP-SUM LEAVE, REENLISTMENT AND VARIABLE REENLISTMENT BONUS, CONTINUATION PAY, ANY TYPE OF SEPARATION PAY, OR SIX MONTHS' DEATH GRATUITY, SHALL NOT BE ENTITLED TO ANY INCREASE IN ANY SUCH PAYMENT BY VIRTUE OF THIS ORDER.

(B) AUTHORITY TO PRESCRIBE OTHER RULES FOR PAYMENT OF RETROACTIVE COMPENSATION SHALL BE EXERCISED FOR THE UNIFORMED SERVICES BY THE SECRETARY OF DEFENSE. ENTITLEMENT TO RETROACTIVE PAY UNDER SUCH RULES SHALL BE SUBJECT TO THE PROVISIONS OF SECTION 5 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, AND SHALL CONFORM AS NEARLY AS MAY BE PRACTICABLE TO THE PROVISIONS OF SECTION 7 OF THE ACT OF DECEMBER 16, 1967, 81 STAT. 654.

SECTION 5(A) OF THE 1970 ACT PROVIDES AS FOLLOWS:

(A) RETROACTIVE PAY, COMPENSATION, OR SALARY SHALL BE PAID BY REASON OF THIS ACT ONLY IN THE CASE OF AN INDIVIDUAL IN THE SERVICE OF THE UNITED STATES (INCLUDING SERVICE IN THE ARMED FORCES OF THE UNITED STATES) OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA ON THE DATE OF ENACTMENT OF THIS ACT, EXCEPT THAT SUCH RETROACTIVE PAY, COMPENSATION, OR SALARY SHALL BE PAID -

(1) TO AN OFFICER OR EMPLOYEE WHO RETIRED, DURING THE PERIOD BEGINNING ON THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN ON OR AFTER DECEMBER 27, 1969, AND ENDING ON THE DATE OF ENACTMENT OF THIS ACT, FOR SERVICES RENDERED DURING SUCH PERIOD; AND

(2) IN ACCORDANCE WITH SUBCHAPTER VIII OF CHAPTER 55 OF TITLE 5, U.S.C. RELATING TO SETTLEMENT OF ACCOUNTS, FOR SERVICES RENDERED, DURING THE PERIOD BEGINNING ON THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN ON OR AFTER DECEMBER 27, 1969, AND ENDING ON THE DATE OF ENACTMENT OF THIS ACT, BY AN OFFICER OR EMPLOYEE WHO DIED DURING SUCH PERIOD.

SUCH RETROACTIVE PAY, COMPENSATION, OR SALARY, SHALL NOT BE CONSIDERED AS BASIC PAY FOR THE PURPOSES OF SUBCHAPTER III OF CHAPTER 83 OF TITLE 5, U.S.C. RELATING TO CIVIL SERVICE RETIREMENT, OR ANY OTHER RETIREMENT LAW OR RETIREMENT SYSTEM, IN THE CASE OF ANY SUCH RETIRED OR DECEASED OFFICER OR EMPLOYEE.

SECTION 7 OF THE 1967 ACT PROVIDES AS FOLLOWS:

SEC 7. THIS ACT BECOMES EFFECTIVE AS OF OCTOBER 1, 1967. HOWEVER, A MEMBER, EXCEPT AS PROVIDED IN SECTION 6 OF THIS ACT, IS NOT ENTITLED TO ANY INCREASES IN HIS PAY AND ALLOWANCES UNDER SECTION 1 OR SECTION 4 FOR ANY PERIOD BEFORE THE DATE OF ENACTMENT OF THIS ACT UNLESS HE IS ON ACTIVE DUTY ON THE DATE OF ENACTMENT OF THIS ACT. ***

IN ACCORDANCE WITH SECTION 2(B) OF EXECUTIVE ORDER NO. 11525, WHICH SPECIFICALLY AUTHORIZES THE SECRETARY OF DEFENSE TO PRESCRIBE THE RULES FOR PAYMENT OF RETROACTIVE COMPENSATION FOR MEMBERS OF THE UNIFORMED SERVICES, THE DEPUTY SECRETARY OF DEFENSE IN A MEMORANDUM DATED APRIL 21, 1970, FOR THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) PRESCRIBED RULES IMPLEMENTING THAT ORDER. RULE 2 OF THE MEMORANDUM PROVIDES AS FOLLOWS:

2. A PERSON IS NOT ENTITLED TO ANY INCREASE IN HIS BASIC PAY BY VIRTUE OF THAT ORDER FOR ANY PERIOD BEFORE APRIL 15, 1970 UNLESS HE WAS ON ACTIVE DUTY ON THAT DATE. ***

IN LINE WITH THAT RULE, ENTITLEMENT TO A RETROACTIVE INCREASE IN THE BASIC PAY RECEIVED BY CAPTAIN JONES FOR ACTIVE DUTY PERFORMED BY HIM AS A MARINE CORPS RESERVE OFFICER DURING THE PERIOD JANUARY 1 TO MARCH 15, 1970, IS NOT AUTHORIZED SINCE HE WAS NOT ON ACTIVE MILITARY DUTY ON APRIL 15, 1970.