B-173292, OCT 1, 1971, 51 COMP GEN 189

B-173292: Oct 1, 1971

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WHICH WAS EXTENDED FOR A YEAR. WOULD IF ONLY ONE APPOINTMENT WERE INVOLVED BE ENTITLED PURSUANT TO THE DUAL COMPENSATION ACT OF 1964. TO EXEMPTION FROM REDUCTION OF RETIRED PAY FOR NO MORE THAN THE FIRST 30-DAY PERIOD FOR WHICH HE RECEIVED COMPENSATION AS AN EXPERT REGARDLESS OF THE FISCAL YEAR IN WHICH THE APPOINTMENT WAS MADE OR THE SERVICES PERFORMED. WHERE TWO OR MORE APPOINTMENTS ARE INVOLVED. THE OFFICER HAVING WORKED LESS THAN 30 DAYS UNDER BOTH APPOINTMENTS IN EACH FISCAL YEAR IS NOT SUBJECT TO A REDUCTION OF RETIRED PAY. 1971: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 19. IT IS FURTHER INDICATED THAT ON DECEMBER 9. HIS INITIAL APPOINTMENT WITH THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION WAS CONVERTED TO AN EXCEPTED APPOINTMENT NOT TO EXCEED APRIL 30.

B-173292, OCT 1, 1971, 51 COMP GEN 189

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - CONSULTANTS - REDUCTION IN RETIRED PAY A RETIRED AIR FORCE MAJOR EMPLOYED BY TWO GOVERNMENT AGENCIES AS A CIVILIAN CONSULTANT UNDER EXCEPTED APPOINTMENTS - INTERMITTENT - A 1 YEAR APPOINTMENT IN FISCAL YEAR 1969, WHICH WAS EXTENDED FOR A YEAR, AND ANOTHER APPOINTMENT IN FISCAL YEAR 1970 WITH NO TIME LIMITATION, WOULD IF ONLY ONE APPOINTMENT WERE INVOLVED BE ENTITLED PURSUANT TO THE DUAL COMPENSATION ACT OF 1964, 5 U.S.C. 5532, TO EXEMPTION FROM REDUCTION OF RETIRED PAY FOR NO MORE THAN THE FIRST 30-DAY PERIOD FOR WHICH HE RECEIVED COMPENSATION AS AN EXPERT REGARDLESS OF THE FISCAL YEAR IN WHICH THE APPOINTMENT WAS MADE OR THE SERVICES PERFORMED. HOWEVER, WHERE TWO OR MORE APPOINTMENTS ARE INVOLVED, THE EXEMPTION APPLIES TO THE FIRST 30 DAYS OF WORK IN EACH FISCAL YEAR DURING WHICH THE RETIRED OFFICER RECEIVED CIVILIAN PAY, BUT THE OFFICER HAVING WORKED LESS THAN 30 DAYS UNDER BOTH APPOINTMENTS IN EACH FISCAL YEAR IS NOT SUBJECT TO A REDUCTION OF RETIRED PAY.

TO LIEUTENANT COLONEL N. C. ALCOCK, DEPARTMENT OF THE AIR FORCE, OCTOBER 1, 1971:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 19, 1971, REQUESTING AN ADVANCE DECISION CONCERNING THE APPLICATION OF 5 U.S.C. 5532 (DUAL COMPENSATION STATUTE) IN THE CASE OF MAJOR GENERAL ARCHIE A. HOFFMAN, RETIRED. YOUR SUBMISSION HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF- 1128 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN YOUR LETTER YOU STATE THAT ON MAY 1, 1969, GENERAL HOFFMAN ACCEPTED EMPLOYMENT AS A CONSULTANT WITH THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION UNDER AN EXCEPTED APPOINTMENT - INTERMITTENT - NOT TO EXCEED APRIL 30, 1970. IT IS FURTHER INDICATED THAT ON DECEMBER 9, 1969, GENERAL HOFFMAN ACCEPTED AN EXCEPTED APPOINTMENT - INTERMITTENT - WITH THE FEDERAL AVIATION AGENCY WITH NO LIMITATION EXCEPT THE NUMBER OF DAYS THAT COULD BE WORKED IN THE SUCCEEDING 12-MONTH PERIOD. ON MAY 1, 1970, HIS INITIAL APPOINTMENT WITH THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION WAS CONVERTED TO AN EXCEPTED APPOINTMENT NOT TO EXCEED APRIL 30, 1971.

IT IS STATED THAT DURING THE PERIOD MAY 1, 1969, THROUGH FEBRUARY 1971, HE WORKED A TOTAL OF 36 DAYS UNDER THESE APPOINTMENTS. HOWEVER, HE HAS NOT WORKED 30 DAYS UNDER ANY APPOINTMENT OR MORE THAN 30 DAYS IN ANY ONE FISCAL YEAR.

YOU SPECIFICALLY REQUEST A DECISION CONCERNING THE APPLICATION OF 5 U.S.C. 5532 IN GENERAL HOFFMAN'S CASE AND WHETHER THE ANSWER WOULD BE THE SAME IF IN FACT THE APPOINTMENT DATED DECEMBER 9, 1969, WAS SPECIFICALLY TERMINATED AND A NEW APPOINTMENT MADE ON DECEMBER 9, 1970.

SECTION 5532 OF TITLE 5, U.S. CODE, PROVIDES IN PERTINENT PART AS FOLLOWS:

(B) A RETIRED OFFICER OF A REGULAR COMPONENT OF A UNIFORMED SERVICE 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 OR RETIREMENT PAY SHALL BE REDUCED TO AN ANNUAL RATE EQUAL TO THE FIRST $2,000 OF THE RETIRED OR RETIREMENT PAY PLUS ONE-HALF OF THE REMAINDER, IF ANY. IN THE OPERATION OF THE FORMULA FOR THE REDUCTION OF RETIRED OR RETIREMENT PAY UNDER THIS SUBSECTION, THE AMOUNT OF $2,000 SHALL BE INCREASED, FROM TIME TO TIME, BY APPROPRIATE PERCENTAGE, IN DIRECT PROPORTION TO EACH INCREASE IN RETIRED OR RETIREMENT PAY UNDER SECTION 1401AB) OF TITLE 10 TO REFLECT CHANGES IN THE CONSUMER PRICE INDEX.

(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.

THE EXEMPTION FROM REDUCTION IN RETIRED OR RETIREMENT PAY UNDER PARAGRAPH (2) OF THIS SUBSECTION DOES NOT APPLY LONGER THAN -

(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; AND

(II) THE FIRST PERIOD FOR WHICH HE RECEIVES PAY UNDER MORE THAN ONE APPOINTMENT, IN A FISCAL YEAR, WHICH CONSISTS IN THE AGGREGATE OF 30 DAYS, FROM ALL POSITIONS IN WHICH HE IS EMPLOYED, IF HE IS SERVING UNDER MORE THAN ONE APPOINTMENT IN THAT FISCAL YEAR.

YOU SAY THAT IT IS NOT CLEAR WHETHER CONGRESS INTENDED THAT SUBSECTION 5532(C)(2)(II) APPLIES WHEN THE MULTIPLE APPOINTMENTS ARE MADE IN THE SAME FISCAL YEAR, OR WHETHER THE EXEMPTION APPLIES TO THE FIRST PERIOD FOR WHICH PAY IS RECEIVED WHICH IS IN THE AGGREGATE OF 30 DAYS IN A FISCAL YEAR (WHETHER OR NOT THE APPOINTMENTS WERE MADE IN THE SAME FISCAL YEAR). YOU SUGGEST THAT A THIRD POSSIBLE INTERPRETATION IS THAT CONGRESS INTENDED THAT THE EXEMPTION IS EXHAUSTED WHEN THE DAYS FOR WHICH PAY IS RECEIVED REACHES AN AGGREGATE OF 30 DAYS IN A MULTIPLE EMPLOYMENT SITUATION EVEN THOUGH THAT 30-DAY AGGREGATE IS NOT REACHED IN ANY ONE FISCAL YEAR AND EVEN THOUGH THE APPOINTMENTS WERE MADE IN DIFFERENT FISCAL YEARS AND DAYS FOR WHICH PAY WAS RECEIVED DID NOT EXCEED 30 UNDER EITHER APPOINTMENT. YOU POINT OUT THAT GENERAL HOFFMAN'S APPOINTMENT TO NASA WAS IN FISCAL YEAR 1969 AND TO FAA IN FISCAL YEAR 1970; THAT HE WAS EMPLOYED ONLY 16 DAYS BY NASA AND 17 DAYS BY FAA (THROUGH DECEMBER 1970); AND THAT HE DID NOT HAVE AN AGGREGATE 30 DAYS IN FISCAL YEAR 1970 OR BEFORE MAY 19, 1971, IN FISCAL YEAR 1971.

H.R. 7381, 88TH CONGRESS, 1ST SESSION, WHICH BECAME THE DUAL COMPENSATION ACT OF 1964, AS ORIGINALLY INTRODUCED PROVIDED IN PERTINENT PART -

(C) THE REDUCTION IN RETIRED, RETIREMENT, OR RETAINER PAY REQUIRED BY SUBSECTION (A) OF THIS SECTION SHALL NOT APPLY TO EMPLOYMENT OF A RETIRED MEMBER OF A UNIFORMED SERVICE ON A TEMPORARY, PART-TIME, OR INTERMITTENT BASIS FOR THE FIRST THIRTY DAYS OF SUCH EMPLOYMENT FOR WHICH HE RECEIVES SALARY; HOWEVER, THIS SUBSECTION SHALL NOT APPLY TO MORE THAN THIRTY SUCH DAYS IN ANY FISCAL YEAR.

AS YOU POINT OUT, IF ONLY ONE CIVILIAN APPOINTMENT WERE INVOLVED THE RETIRED OFFICER WOULD BE ENTITLED, UNDER 5 U.S.C. 5532(C)(2)(I), TO EXEMPTION FROM REDUCTION FOR NO MORE THAN THE FIRST 30-DAY PERIOD FOR WHICH HE RECEIVES PAY UNDER THAT APPOINTMENT WITHOUT REGARD TO THE FISCAL YEAR WHEN THE APPOINTMENT WAS MADE OR THE FISCAL YEAR OR YEARS WHEN THE SERVICES WERE PERFORMED.

IF, HOWEVER, MORE THAN ONE CIVILIAN APPOINTMENT IS INVOLVED, AS IN GENERAL HOFFMAN'S CASE, IT BECOMES NECESSARY TO APPLY THE PROVISION IN 5 U.S.C. 5532(C)(2)(II). AS YOU INDICATE, IT IS NOT ENTIRELY CLEAR WHAT THAT PROVISION WAS INTENDED TO MEAN AND WHICH OF THE THREE POSSIBLE INTERPRETATIONS INDICATED IN YOUR LETTER SHOULD BE ADOPTED AND FOLLOWED.

IT IS OUR VIEW THAT THE REFERENCES TO "FISCAL YEAR" IN SUCH PROVISION RELATE TO THE PERIOD OR PERIODS FOR WHICH THE RETIRED OFFICER RECEIVES CIVILIAN PAY RATHER THAN THE FISCAL YEAR OR YEARS IN WHICH THE INSTRUMENTS OF CIVILIAN APPOINTMENT ARE DATED. IN OTHER WORDS, WE THINK THAT THE ACTUAL INTENT AND PURPOSE OF SUCH PROVISION IS THAT THE EXEMPTION IS TO BE APPLIED TO THE FIRST 30 DAYS OF WORK IN EACH FISCAL YEAR DURING WHICH THE RETIRED OFFICER RECEIVES CIVILIAN PAY UNDER TWO OR MORE APPOINTMENTS.

THIS VIEW SEEMS CONSISTENT WITH THE LANGUAGE OF SUBSECTION (C) AS ORIGINALLY INTRODUCED AND CAN BE RECONCILED WITH THE LANGUAGE AS ENACTED INCLUDING THE PUNCTUATION THEREOF. IT ALSO RECOGNIZES THAT THE WHOLE THRUST OF THE STATUTE IS AGAINST PERIODS OF DUAL COMPENSATION OR DAYS WHEN SERVICES ARE PERFORMED INVOLVING DUAL COMPENSATION CONSIDERATIONS AND NOT DAYS ON WHICH INSTRUMENTS OF APPOINTMENT ARE MADE OR ISSUED.

BASED ON OUR INTERPRETATION OF THE STATUTE AND THE SUMMARY YOU HAVE FURNISHED (SHOWING THAT GENERAL HOFFMAN WORKED 4 DAYS IN FISCAL YEAR 1969, 7 DAYS IN FISCAL YEAR 1970 AND 5 DAYS IN FISCAL YEAR 1971 FOR NASA, AND 8 DAYS IN FISCAL YEAR 1970 AND 12 DAYS IN 1971 FOR FAA) HIS RETIRED PAY HAS NOT BECOME SUBJECT TO ANY REDUCTION UNDER 5 U.S.C. 5532. THE ANSWER WOULD BE THE SAME IF THE APPOINTMENT DATED DECEMBER 9, 1969, HAD BEEN SPECIFICALLY TERMINATED AND A NEW APPOINTMENT HAD BEEN ISSUED EFFECTIVE DECEMBER 9, 1970.