B-136412, JAN. 26, 1968

B-136412, JAN. 26, 1968

LEAVES OF ABSENCE - ANNUAL - ACCRUAL - MILITARY SERVICE CREDIT DECISION TO CHAIRMAN CSC AS TO WHETHER AN EMPLOYEE WHO IS A RETIRED SERVICEMAN IS PRECLUDED FROM COUNTING ACTIVE MILITARY SERVICE AS PART OF CIVILIAN SERVICE IN DETERMINING ANNUAL LEAVE-EARNING CATEGORY. EMPLOYEES WHO ARE ENTITLED TO RETIRED PAY AS MEMBERS OF THE UNIFORMED SERVICES ON ACCOUNT OF ACTIVE MILITARY SERVICE INTERVENING BETWEEN TWO PERIODS OF CIVILIAN SERVICE EXCEPT THOSE MEMBERS WHOSE SPECIAL RETIREMENT BENEFITS COME UNDER 5 U.S.C. 6303 MAY NOT HAVE ANY PART OF THE MILITARY SERVICE COUNTED FOR ANNUAL LEAVE ACCRUAL PURPOSES IN VIEW OF THE CONGRESSIONAL INTENT INDICATED IN THE LEGISLATIVE HISTORY OF THE DUAL COMPENSATION ACT THAT RETIRED MEMBERS WHO OBTAIN CIVILIAN EMPLOYMENT WHILE RECEIVING RETIREMENT BENEFITS IN THEIR CIVILIAN POSITION ON THE BASIS OF TIME IN THE UNIFORMED SERVICES. 5 U.S.C. 8332 (G) IS NOT APPLICABLE FOR LEAVE ACCRUAL PURPOSES TO EMPLOYEES REEMPLOYED AFTER MILITARY SERVICE.

TO MR. MACY:

WE REFER TO YOUR LETTER OF DECEMBER 11, 1967, REQUESTING OUR ADVICE UPON THE QUESTION WHETHER AN EMPLOYEE WHO IS A RETIRED SERVICEMAN AND WHO IS PRECLUDED FROM COUNTING ACTIVE MILITARY SERVICE FOR ANNUAL LEAVE ACCRUAL PURPOSES UNDER 5 U.S.C. 6303 (A) IS ENTITLED TO COUNT UP TO FIVE YEARS OF A PERIOD DURING WHICH HE IS IN THE ACTIVE MILITARY SERVICE AS A PART OF HIS "CIVILIAN SERVICE" IN DETERMINING HIS ANNUAL LEAVE-EARNING CATEGORY UNDER THE AUTHORITY OF 5 U.S.C. 8332 (G).

5 U.S.C. 8332 (G) IS AS FOLLOWS:

"AN EMPLOYEE WHO DURING THE PERIOD OF A WAR, OR OF A NATIONAL EMERGENCY AS PROCLAIMED BY THE PRESIDENT OR DECLARED BY CONGRESS, LEAVES HIS POSITION TO ENTER THE MILITARY SERVICE IS DEEMED, FOR THE PURPOSE OF THIS SUBCHAPTER, AS NOT SEPARATED FROM HIS CIVILIAN POSITION BECAUSE OF THAT MILITARY SERVICE, UNLESS HE APPLIES FOR AND RECEIVES A LUMP-SUM CREDIT UNDER THIS SUBCHAPTER. HOWEVER, THE EMPLOYEE IS DEEMED AS NOT RETAINING HIS CIVILIAN POSITION AFTER DECEMBER 31, 1956, OR AFTER THE EXPIRATION OF 5 YEARS OF THAT MILITARY SERVICE, WHICHEVER IS LATER.'

5 U.S.C. 6303 (A) IS IN PART AS FOLLOWS:

SEC. 6303. ANNUAL LEAVE; ACCRUAL

* * * * * * * "IN DETERMINING YEARS OF SERVICE, AN EMPLOYEE IS ENTITLED TO CREDIT FOR ALL SERVICE CREDITABLE UNDER SECTION 8332 OF THIS TITLE FOR THE PURPOSE OF AN ANNUITY UNDER SUBCHAPTER III OF CHAPTER 83 OF THIS TITLE. HOWEVER, AN EMPLOYEE WHO IS A RETIRED MEMBER OF A UNIFORMED SERVICE AS DEFINED BY SECTION 3501 OF THIS TITLE IS ENTITLED TO CREDIT FOR ACTIVE MILITARY SERVICE ONLY IF---

"/A) HIS RETIREMENT WAS BASED ON DISABILITY---

"/I) RESULTING FROM INJURY OR DISEASE RECEIVED IN LINE OF DUTY AS A DIRECT RESULT OF ARMED CONFLICT; OR

"/II) CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR AS DEFINED BY SECTIONS 101 AND 301 OF TITLE 38;

"/B) THAT SERVICE WAS PERFORMED IN THE ARMED FORCES DURING A WAR, OR IN A CAMPAIGN OR EXPEDITION FOR WHICH A CAMPAIGN BADGE HAS BEEN AUTHORIZED; OR

"/C) ON NOVEMBER 30, 1964, HE WAS EMPLOYED IN A POSITION TO WHICH THIS SUBCHAPTER APPLIES AND THEREAFTER HE CONTINUED TO BE SO EMPLOYED WITHOUT A BREAK IN SERVICE OF MORE THAN 30 DAYS. * * *"

WE NOTE THAT IN THE CODIFICATION OF TITLE 5 U.S.C. THE PROVISIONS IN SECTION 8332 (G) WERE DERIVED FROM SECTION 3 (D) OF THE CIVIL SERVICE RETIREMENT ACT AS AMENDED JULY 31, 1956, 5 U.S.C. 2253 (D) (1964 ED.) WHEREAS THE LANGUAGE QUOTED FROM SECTION 6303 (A) WAS DERIVED FROM A LATER STATUTE -- SECTION 203 OF THE DUAL COMPENSATION ACT, PUBLIC LAW 88-448, APPROVED AUGUST 19, 1964.

IN OUR DECISION OF MARCH 9, 1965, B-156095, 44 COMP. GEN. 534, WE CONCLUDED;

"THUS IT IS OUR VIEW THAT AFTER THE EFFECTIVE DATE (DECEMBER 1, 1964) OF SECTION 203 OF PUB.L. 88-448, ACTIVE SERVICE RENDERED IN ANY OF THE UNIFORMED SERVICES, THE PUBLIC HEALTH SERVICE OR THE COAST AND GEODETIC SURVEY BY A RETIRED MEMBER OR MEMBERS OF THOSE SERVICES IS NOT CREDITABLE FOR PURPOSES OF THE ANNUAL AND SICK LEAVE ACT OF 1951, REGARDLESS OF THE TIME WHEN SUCH SERVICE WAS RENDERED UNLESS SUCH SERVICE IS COVERED BY ONE OF THE THREE EXCEPTIONS SPECIFICALLY ENUMERATED IN THE SAID SECTION 203.'

AS POINTED OUT IN THE MARCH 9 DECISION, THE LEGISLATIVE HISTORY OF THE DUAL COMPENSATION ACT, PUBLIC LAW 88-448, CLEARLY INDICATES THE CONGRESS INTENDED, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED THEREIN, THAT RETIRED MEMBERS OF THE UNIFORMED SERVICES WHO OBTAIN CIVILIAN EMPLOYMENT WHILE CONTINUING TO ENJOY RETIREMENT BENEFITS BASED UPON THEIR CAREERS IN THE UNIFORMED SERVICES MAY NOT BE GRANTED BENEFITS IN THEIR CIVILIAN POSITIONS ON THE BASIS OF THE TIME SERVED IN SUCH UNIFORMED SERVICES. ACCORDINGLY, OUR VIEW IS THAT FOR ANNUAL LEAVE ACCRUAL PURPOSES NO PART OF A PERIOD OF MILITARY SERVICE INTERVENING BETWEEN TWO PERIODS OF CIVILIAN SERVICE MAY BE COUNTED BY ANY EMPLOYEE WHO IS ENTITLED TO RETIRED PAY AS A MEMBER OF A UNIFORMED SERVICE EXCEPT AS EXPRESSLY PROVIDED BY 5 U.S.C. 6303 (A). WHILE THE MARCH 9 DECISION DID NOT SPECIFICALLY MENTION 5 U.S.C. 8332 (G), WE DO NOT CONSIDER THAT SECTION 8332 (G) HAS ANY APPLICATION FOR LEAVE ACCRUAL PURPOSES TO RETIRED MEMBERS OF THE UNIFORMED SERVICES WHO FOLLOWING THEIR RETIREMENT ARE REEMPLOYED IN CIVILIAN POSITIONS. THEREFORE, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.