B-131259, APRIL 18, 1957, 36 COMP. GEN. 723

B-131259, APRIL 18, 1957, 36 COMP. GEN. 723

MILITARY PERSONNEL - RETIRED - EMPLOYED AS CONSULTANTS - NONWORKDAYS - HOLIDAYS AND WEEKENDS - RETIRED PAY ENTITLEMENT A RETIRED NAVAL OFFICER WHO IS EMPLOYED AS A TEMPORARY CONSULTANT ON A FULL-TIME 5-DAY-WEEK BASIS IS NOT CONSIDERED IN A NONPAY STATUS ON SATURDAYS AND SUNDAYS SO AS TO BE ENTITLED TO RECEIVE RETIRED PAY; HOWEVER, IN THE ABSENCE OF A PROVISION IN THE CIVILIAN EMPLOYMENT CONTRACT AUTHORIZING COMPENSATION FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED, THE OFFICER IS CONSIDERED IN A NONPAY STATUS ON HOLIDAY NONWORKDAYS FALLING WITHIN THE WORKWEEK, MONDAY THROUGH FRIDAY, AND IS ENTITLED TO RECEIVE RETIRED PAY.

TO L. A. CAMPBELL, DEPARTMENT OF THE NAVY, APRIL 18, 1957:

BY LETTER DATED MARCH 27, 1957, FILE JAG:1342.2:SH102407, THE JUDGE ADVOCATE GENERAL OF THE NAVY TRANSMITTED YOUR LETTER OF MARCH 1, 1957, WITH ENDORSEMENTS AND ENCLOSURES, REQUESTING OUR DECISION WHETHER CAPTAIN SAMUEL G. KELLY, U.S. NAVY, RETIRED, IS ENTITLED TO RETIRED PAY FOR NONWORKDAYS ( SATURDAYS, SUNDAYS, AND HOLIDAYS) WHILE EMPLOYED BY THE CORREGIDOR-1BATAAN MEMORIAL COMMISSION AS A TEMPORARY CONSULTANT.

CAPTAIN KELLY WAS TRANSFERRED TO THE RETIRED LIST ON JUNE 30, 1954, AND IS CURRENTLY OTHERWISE ENTITLED TO RETIRED PAY IN THE MONTHLY AMOUNT OF $608.40. UNDER THE PROVISIONS OF PERSONAL SERVICE CONTRACT CBMC-1, EXECUTED ON MAY 25, 1956, HE ACCEPTED EMPLOYMENT AS A CONSULTANT TO THE CORREGIDOR-1BATAAN MEMORIAL COMMISSION FOR THE PERIOD MAY 25, 1956, TO MAY 24, 1957, INCLUSIVE, AT THE DAILY RATE OF $50, WITH AN ESTIMATED TOTAL COST OF APPROXIMATELY $12,000. CONDITION 1 ON THE REVERSE SIDE OF THE CONTRACT STATES THAT UNLESS OTHERWISE PROVIDED THEREIN, EMPLOYMENT UNDER THE CONTRACT WOULD BE ON A FULL-TIME BASIS REQUIRING THAT SERVICES BE RENDERED DURING REGULAR WORKING HOURS ON ALL DAYS EXCEPT THOSE ON WHICH THE DIVISION, UNIT, SECTION, OR OFFICE IN WHICH THE SERVICES ARE PERFORMED IS CLOSED, NOT TO EXCEED, HOWEVER, 5 DAYS IN ANY CALENDAR WEEK EXCEPT UPON THE WRITTEN APPROVAL OF CERTAIN DESIGNATED OFFICIALS. THERE IS NO INDICATION IN THE CONTRACT THAT THE EMPLOYMENT IS TO BE OTHER THAN FULL TIME AND THE RECORD DISCLOSES THAT CAPTAIN KELLY HAS ACTUALLY BEEN WORKING FULL TIME EACH WEEK, MONDAY TO FRIDAY, EXCLUSIVE OF HOLIDAYS. PROVISION APPEARS IN THE CONTRACT FOR THE PAYMENT OF COMPENSATION FOR HOLIDAYS WHEN NO SERVICES MAY BE RENDERED BY CAPTAIN KELLY BECAUSE OF HIS PLACE OF EMPLOYMENT BEING CLOSED.

SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, PROHIBITS THE CONCURRENT RECEIPT OF RETIRED PAY FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER OF THE UNIFORMED SERVICES AND COMPENSATION FROM A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT AT A COMBINED RATE IN EXCESS OF $10,000 PER ANNUM. THAT SECTION OF THE STATUTE HAS NOT BEEN VIEWED BY US AS PROHIBITING THE RECEIPT OF FULL RETIRED PAY FOR ANY PERIOD WHEN THE RETIRED OFFICER IS NOT IN A PAY STATUS IN HIS CIVILIAN POSITION. HOWEVER, WE HAVE HELD THAT FULL-TIME EMPLOYEES ON A NORMAL 5-DAY WORKWEEK ARE NOT IN A NONPAY STATUS FOR THAT PURPOSE ON DAYS WHICH ARE NORMALLY NONWORKDAYS ( SATURDAYS, SUNDAYS, AND HOLIDAYS), THERE NOT BEING ON THOSE DAYS ANY ABSENCE FROM DUTY OR LOSS OF COMPENSATION. 28 COMP. GEN. 103. ON THE OTHER HAND, WE HELD IN DECISION OF OCTOBER 8, 1951, 31 COMP. GEN. 126, THAT AN INTERMITTENT CONSULTANT WITH COMPENSATION PROVIDED UPON THE BASIS OF A FIXED RATE PER DAY "FOR EACH DAY WORKED" WAS ENTITLED TO RETIRED PAY FOR SATURDAYS, SUNDAYS, AND HOLIDAYS ON WHICH NO WORK WAS PERFORMED, IT BEING CONSIDERED THAT IN THE CASE OF THE INTERMITTENT CONSULTANT COMPENSATION ACCRUED ONLY ON DAYS WHEN WORK ACTUALLY WAS PERFORMED.

BY VIRTUE OF THE PROVISION IN HIS EMPLOYMENT CONTRACT PROVIDING FOR FULL- TIME SERVICE, WHICH IN EFFECT FIXES A REGULAR TOUR OF DUTY, CAPTAIN KELLY QUALIFIES FOR LEAVE BENEFITS UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, 5 U.S.C. 2061-2066. SEE SECTION 202 OF THAT ACT, 65 STAT. 679, 5 U.S.C. 2061, CONTAINING THE PROVISIONS RESPECTING THE CLASSES OF OFFICERS AND EMPLOYEES COVERED BY THE ACT AND SEE SECTION 205 (B) OF SUCH ACT, 65 STAT. 681, 5 U.S.C. 2064 (B), WHICH PROVIDES THAT AN EMPLOYEE SHALL BE CONSIDERED TO HAVE BEEN EMPLOYED FOR A FULL BI-WEEKLY PAY PERIOD IF HE SHALL HAVE BEEN EMPLOYED DURING THE DAYS WITHIN SUCH PERIOD, EXCLUSIVE OF HOLIDAYS AND NONWORKDAYS ESTABLISHED BY STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER, WHICH FALL WITHIN HIS BASIC ADMINISTRATIVE WORKWEEK. SINCE THE OFFICER'S REGULAR TOUR OF DUTY UNDER HIS CONTRACT IS FOR 5 DAYS PER WEEK ON A FULL-TIME BASIS, CORRESPONDING TO THE NORMAL 5-DAY BASIC WORKWEEK OF CIVILIAN FULL-TIME EMPLOYEES, HE IS CONSIDERED AS BEING A FULL-TIME EMPLOYEE, NOTWITHSTANDING THE FACT THAT COMPENSATION WAS STATED UPON A DAILY RATE BASIS. THUS, HE IS ENTITLED TO HIS CIVILIAN COMPENSATION FOR DAYS OF LEAVE, WHEN EARNED, AND IS NOT CONSIDERED TO BE IN A NONPAY STATUS ON SATURDAYS AND SUNDAYS, NORMALLY NONWORKDAYS. 34 COMP. GEN. 429. MOREOVER, IN THE ABSENCE OF A CONTRACT PROVISION THEREFOR, CAPTAIN KELLY IS NOT ENTITLED TO CIVILIAN COMPENSATION FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED. 28 COMP. GEN. 727; 33 COMP. GEN. 371. ALSO, SEE, GENERALLY, SECTION 30.904 OF THE CIVIL SERVICE COMMISSION, FEDERAL PERSONNEL MANUAL. IN THIS RESPECT HE DIFFERS FROM OTHER FULL TIME EMPLOYEES. THEREFORE, HE IS TO BE CONSIDERED AS IN A NONPAY STATUS ON SUCH HOLIDAYS.

ACCORDINGLY, CAPTAIN KELLY IS NOT ENTITLED TO RETIRED PAY FOR SATURDAY AND SUNDAY NONWORKDAYS BUT IS ENTITLED THERETO FOR HOLIDAY NONWORKDAYS FALLING WITHIN HIS REGULAR WORKWEEK, MONDAY TO FRIDAY.