B-75253, AUGUST 19, 1948, 28 COMP. GEN. 103

B-75253: Aug 19, 1948

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

NOTWITHSTANDING THAT THE CIVILIAN COMPENSATION IS COMPUTED ON A FIVE-DAY BASIS. 1948: REFERENCE IS MADE TO YOUR LETTER OF APRIL 7. AS FOLLOWS: THERE IS RESPECTFULLY SUBMITTED FOR YOUR CONSIDERATION AND DECISION A QUESTION AS TO THE METHOD OF COMPUTATION TO BE USED IN DETERMINING THE AMOUNT OF RETIREMENT PAY THAT IS PAYABLE TO A RETIRED OFFICER. WHO IS AN EMPLOYEE OF THE FEDERAL GOVERNMENT AND WHO IS IN A LEAVE WITHOUT PAY STATUS FROM HIS CIVILIAN POSITION DURING PERIODS WHICH INCLUDE SATURDAYS AND SUNDAYS. THE CIRCUMSTANCES OF THE CASE GIVING RISE TO THE ABOVE-STATED QUESTION ARE AS FOLLOWS: ELMER L. HE WAS RETIRED EFFECTIVE SEPTEMBER 5. HE IS ENTITLED TO RETIREMENT PAY OF $135 MONTHLY.

B-75253, AUGUST 19, 1948, 28 COMP. GEN. 103

COMPENSATION - DOUBLE - RETIRED PERSONNEL - ADMINISTRATIVE NON-WORKDAYS THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, LIMITING TO $3,000 PER ANNUM THE COMBINED RATE OF RETIRED PAY AND CIVILIAN COMPENSATION, PRECLUDE THE PAYMENT OF FULL RETIRED PAY TO A RETIRED ARMY OFFICER IN RECEIPT OF THE CIVILIAN COMPENSATION FOR FULL TIME FEDERAL EMPLOYMENT FOR THE ADMINISTRATIVE NON-WORKDAYS OF SATURDAY AND SUNDAY, NOTWITHSTANDING THAT THE CIVILIAN COMPENSATION IS COMPUTED ON A FIVE-DAY BASIS, EXCEPT WHERE SUCH DAYS FALL ENTIRELY WITHIN A PERIOD OF LEAVE WITHOUT PAY.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, AUGUST 19, 1948:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 7, 1948, AS FOLLOWS:

THERE IS RESPECTFULLY SUBMITTED FOR YOUR CONSIDERATION AND DECISION A QUESTION AS TO THE METHOD OF COMPUTATION TO BE USED IN DETERMINING THE AMOUNT OF RETIREMENT PAY THAT IS PAYABLE TO A RETIRED OFFICER, WHO IS AN EMPLOYEE OF THE FEDERAL GOVERNMENT AND WHO IS IN A LEAVE WITHOUT PAY STATUS FROM HIS CIVILIAN POSITION DURING PERIODS WHICH INCLUDE SATURDAYS AND SUNDAYS.

THE CIRCUMSTANCES OF THE CASE GIVING RISE TO THE ABOVE-STATED QUESTION ARE AS FOLLOWS:

ELMER L. COOK, C-2, 247, 130, THE VETERAN, HAD ACTIVE SERVICE AS A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES FROM APRIL 16, 1943 TO SEPTEMBER 4, 1943. HE WAS RETIRED EFFECTIVE SEPTEMBER 5, PUBLIC NO. 18, 76TH CONGRESS, AS AMENDED. HE IS ENTITLED TO RETIREMENT PAY OF $135 MONTHLY, SUBJECT TO REDUCTION UNDER THE PROVISIONS OF SECTION 212, PUBLIC NO. 212, 72D CONGRESS, AS AMENDED BY REASON OF BEING A FEDERAL EMPLOYEE.

THE VETERAN WAS EMPLOYED BY THE VETERANS ADMINISTRATION EFFECTIVE JANUARY 15, 1946 AT A SALARY OF $1,704 PER ANNUM. HIS SALARY WAS INCREASED TO $1,902 PER ANNUM EFFECTIVE JUNE 16, 1946, TO $2,168.28 PER ANNUM EFFECTIVE JULY 1, 1946 AND $2,432.52 PER ANNUM EFFECTIVE JULY 13, 1947. HE RESIGNED EFFECTIVE NOVEMBER 20, 1947. A REPORT HAS BEEN RECEIVED SHOWING THAT THIS VETERAN WAS IN A LEAVE WITHOUT PAY STATUS ON NUMEROUS OCCASIONS DURING THE SALARY YEAR 1947, AND CLAIM HAS BEEN MADE FOR ADJUSTMENT OF THE RETIRED PAY ACCOUNT TO ALLOW THE FULL AMOUNT OF RETIREMENT PAY FOR PERIODS OF LEAVE WITHOUT PAY.

IT IS UNDERSTOOD FROM THE CONSTRUCTION PLACED UPON THE EXISTING SALARY LEGISLATION IN 26 COMP. GEN. 888, 889, THAT FOR SALARY PURPOSES, PAY IS COMPUTED ON A BIWEEKLY BASIS OF FIVE DAYS PER WEEK, NO ACCOUNT BEING TAKEN OF SATURDAYS OR SUNDAYS UNLESS WORK WAS ACTUALLY PERFORMED ON THOSE DAYS, WHEREAS FOR RETIREMENT PAY PURPOSES THE STANDARD 30 MONTH IS THE BASIS OF CALCULATION. BY REASON OF THIS VARIATION THERE ARISES A QUESTION AS TO THE CORRECT MANNER OF ADJUSTING THE RETIRED PAY ACCOUNT WHERE LEAVE WITHOUT PAY IS TAKEN AS IN THIS CASE, FOR EXAMPLE, FROM MONDAY, MAY 5, 1947, CONTINUOUSLY THROUGH MONDAY, MAY 12, 1947, OR WHERE LEAVE WITHOUT PAY IS TAKEN ON A FRIDAY ONLY, AS WAS DONE OCTOBER 24, 1947.

THE SPECIFIC QUESTION IS WHETHER IN THOSE INSTANCES WHERE IT IS KNOWN THAT THE TOTAL OF RETIREMENT PAY AND SALARY PAYABLE DURING A YEAR WILL NOT EXCEED $3,000 THE RETIREMENT PAY OF VETERANS WHO ARE EMPLOYED IN CIVILIAN POSITIONS ON A FIVE-DAY 40 HOUR PER WEEK BASIS MAY BE ADJUSTED TO ALLOW THE FULL RATE OF RETIREMENT PAY FOR SATURDAYS AND SUNDAYS WHICH EITHER FALL WITHIN OR FOLLOW A PERIOD OF LEAVE WITHOUT PAY. IN OTHER WORDS, MAY SATURDAYS AND SUNDAYS, WHICH ARE NOT TAKEN INTO ACCOUNT IN COMPUTING THE CIVILIAN SALARIES, BE REGARDED AS LEAVE WITHOUT PAY PERIODS FOR THE PURPOSE OF INCREASING THE AMOUNT OF RETIREMENT PAY ALLOWABLE, NOTWITHSTANDING THE FACT THAT THE EMPLOYEES ARE NOT REQUIRED TO WORK ON SUCH DAYS AND THAT THE AMOUNT OF SALARY PAYABLE TO THEM IS NOT REDUCED BY THEIR ABSENCE FROM DUTY ON SUCH DAYS.

IN DECISION B-56206, (26 C.G. 160) DATED SEPTEMBER 9, 1946, PRIOR DECISIONS TO THE EFFECT THAT A RETIRED OFFICER WHILE IN A NONPAY STATUS IN HIS CIVILIAN OFFICE OR POSITION IS ENTITLED TO THE FULL AMOUNT OF HIS RETIRED PAY, WERE REVIEWED AND CONFIRMED.

WHILE THEORETICALLY CIVILIAN EMPLOYEES OF THE FEDERAL GOVERNMENT WHO WORK A 40-HOUR FIVE-DAY WEEK APPARENTLY ARE IN A NONPAY STATUS ON SATURDAY AND SUNDAY, AS A PRACTICAL MATTER THIS TYPE OF EMPLOYMENT AT THE PRESENT TIME APPEARS TO BE MORE OR LESS GENERALLY REGARDED AS FULL TIME EMPLOYMENT. SUCH BEING THE CASE, IT MIGHT BE ARGUED THAT THE PRESENT CASE FALLS WITHIN THE EXCEPTION TO THE GENERAL RULE STATED ABOVE. HOWEVER, SINCE THE QUESTION IS NOT FREE FROM DOUBT AND SINCE THE AMOUNT OF MONEY THAT IS PAYABLE IS DEPENDENT UPON THE ANSWER TO THIS QUESTION, A DECISION IS RESPECTFULLY REQUESTED.

SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, PROVIDES:

(A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37, AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM "RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

SHORTLY AFTER THE SAID PROVISIONS WERE ENACTED INTO LAW, THE RULE WAS ESTABLISHED THAT THEY DID NOT PRECLUDE A PERMANENT FULL-TIME EMPLOYEE FROM RECEIVING HIS RETIRED PAY WITHOUT DEDUCTION FOR PERIODS OF ABSENCE FROM HIS CIVILIAN POSITION IN A NON-PAY STATUS. 26 COMP. GEN. 160, AND CASES THEREIN CITED. HOWEVER, THAT RULE HAS REFERENCE ONLY TO THOSE CASES WHERE AN EMPLOYEE, BECAUSE OF HIS ABSENCE FROM DUTY ON A DAY WHEN HE OTHERWISE IS REQUIRED TO WORK, IS CARRIED IN A NON-PAY STATUS FOR THAT DAY. THE BASIS FOR SUCH RULE IS THAT, SINCE UNDER THOSE CIRCUMSTANCES, THE COMPENSATION PRESCRIBED FOR CIVILIAN POSITION ACTUALLY IS REDUCED BY THE LOSS OF CIVILIAN PAY ON ACCOUNT OF ABSENCE FROM DUTY, THERE IS NO LEGAL OBJECTION TO THE RECEIPT OF RETIRED PAY FOR SUCH DAY. ALSO, IT HAS BEEN HELD THAT CERTAIN INTERMITTENT EMPLOYEES COMING WITHIN THE PURVIEW OF SECTION 212, SUPRA, ARE ENTITLED TO THEIR FULL RETIRED PAY ON THOSE DAYS ON WHICH THEY PERFORM NO SERVICES AND RECEIVE NO COMPENSATION FROM THEIR CIVILIAN POSITIONS. SEE 26 COMP. GEN. 160, SUPRA. THE CONCLUSION REACHED IN THAT DECISION WAS BASED UPON THE PREMISE THAT A RETIRED OFFICER EMPLOYED ON AN INTERMITTENT BASIS IS NOT TO BE REGARDED AS THE INCUMBENT OF THE POSITION TO WHICH APPOINTED EXCEPT ON THOSE DAYS WHEN HE FILLS THE POSITION.

AS STATED IN YOUR LETTER, WHILE SATURDAYS AND SUNDAYS GENERALLY ARE NOT INCLUDED IN THE SALARY COMPUTATION, THEY ARE NOT DAYS OF ABSENCE IN A NON- PAY STATUS SUCH AS CONTEMPLATED BY THE RULE FIRST STATED ABOVE. IN OTHER WORDS, THERE GENERALLY IS NO ABSENCE FROM DUTY ON THOSE DAYS AND NEITHER IS THERE ANY LOSS OF COMPENSATION. FURTHERMORE, THERE CAN BE LITTLE DOUBT BUT THAT A CIVILIAN EMPLOYEE APPOINTED ON OTHER THAN AN INTERMITTENT BASIS IS, IN FACT, THE INCUMBENT OF THE POSITION TO WHICH APPOINTED FOR THE DURATION OF HIS TENURE OF EMPLOYMENT, INCLUDING ALL NON-WORK DAYS OCCURRING WITHIN SUCH PERIOD. HENCE, SATURDAYS AND SUNDAYS, STANDING ALONE, ARE NOT WITHIN THE ABOVE-MENTIONED RULE AUTHORIZING PAYMENT OF RETIRED PAY ON DAYS OF ABSENCE IN A NON-PAY STATUS.

HOWEVER, WHERE SUCH DAYS FALL ENTIRELY WITHIN A PERIOD OF LEAVE WITHOUT PAY AND BECOME, AS IT WERE, AN INTEGRAL PORTION OF THE PERIOD OF LEAVE WITHOUT PAY, RETIRED PAY IS AUTHORIZED THEREFOR IN THE SAME MANNER AS IS AUTHORIZED FOR THE ASSOCIATED DAYS OF LEAVE WITHOUT PAY. ON THE OTHER/HAND, WHERE THE SATURDAYS AND SUNDAYS ARE NOT WITHIN A PERIOD OF LEAVE WITHOUT PAY, THAT IS, WHERE THEY MERELY PRECEDE OR FOLLOW ABSENCE FROM DUTY WITHOUT PAY, OR IN THE SITUATION WHERE THE SATURDAYS AND SUNDAYS FALL WITHIN THE PERIOD OF EMPLOYMENT AND ARE NOT CONNECTED WITH PERIODS OF ABSENCE WITHOUT PAY, NO RETIRED PAY IS AUTHORIZED. APPLYING SUCH RULE TO THE SITUATION PRESENTED IN YOUR LETTER WHERE, IN ONE INSTANCE, LEAVE WITHOUT PAY IS AUTHORIZED FROM MONDAY THROUGH THE NEXT FOLLOWING MONDAY AND, IN THE OTHER INSTANCE, LEAVE WITHOUT PAY IS AUTHORIZED FOR FRIDAY ONLY, IT IS SEEN THAT, IN THE FIRST CASE, RETIRED PAY IS PAYABLE FOR THE ENTIRE PERIOD, WHEREAS, IN THE SECOND CASE, RETIRED PAY IS PAYABLE FOR FRIDAY ONLY.