B-155248, NOVEMBER 5, 1964, 44 COMP. GEN. 266

B-155248, NOVEMBER 5, 1964, 44 COMP. GEN. 266

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - MAXIMUM LIMITATION - CALENDAR YEAR BASIS. COMPENSATION - DOUBLE CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - LEAVE-WITHOUT PAY FROM CIVILIAN EMPLOYMENT. COMPENSATION - DOUBLE - EXEMPTIONS - DUAL COMPENSATION ACT - TEMPORARY, PART-TIME, ETC. EMPLOYMENT A RETIRED REGULAR OFFICER OF THE UNIFORMED SERVICES WHO EARNS A COMBINATION OF ANNUAL CIVILIAN AND RETIRED PAY AT A RATE IN EXCESS OF THE $10,000 LIMITATION PRESCRIBED IN SECTION 212 OF THE ECONOMY ACT, 5 U.S.C. 59A, PRIOR TO DECEMBER 1, 1964, THE EFFECTIVE DATE OF THE DUAL COMPENSATION ACT, WHICH REPEALED SECTION 212, IS SUBJECT TO AN APPROPRIATE REDUCTION IN HIS RETIRED PAY FOR THE PERIOD JANUARY 1 TO NOVEMBER 30, 1964, AND AS IT IS IMPOSSIBLE TO GIVE LITERAL EFFECT TO THE SCHUYLER (148 CT.CL. 479) AND DELLINGER (157 CT.CL. 471) CASES ESTABLISHING THE RULE THAT A CALENDAR YEAR IS THE APPROPRIATE PERIOD FOR APPLYING THE REQUIRED REDUCTION, AN ADJUSTMENT IN HARMONY WITH THOSE CASES WOULD BE TO APPLY THE CIVILIAN EMPLOYMENT INCOME RECEIVED THROUGH NOVEMBER 30, 1964, PLUS RETIRED PAY ENTITLEMENT THROUGH THAT DATE TO ELEVEN-TWELFTHS OF THE $10,000 LIMITATION AUTHORIZED TO BE EARNED IN A CALENDAR YEAR. WHEN A RETIRED REGULAR OFFICER WHOSE RETIRED PAY UNDER SECTION 201 (A) OF THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, IS SUBJECT TO A REDUCTION BY REASON OF FULL-TIME CIVILIAN EMPLOYMENT IS IN A LEAVE WITHOUT -PAY STATUS FROM HIS CIVILIAN POSITION, NO DEDUCTION IN HIS RETIRED PAY IS REQUIRED FOR ANY DAY THE OFFICER IS IN A LEAVE-WITHOUT PAY STATUS FOR THE ENTIRE DAY AND RECEIVES NO PAY FOR THAT DAY, THE LEAVE-WITHOUT-PAY PERIOD NOT HAVING CONSTITUTED A FACTOR FOR CONSIDERATION IN DETERMINING THE APPLICABILITY OF THE DUAL COMPENSATION LIMITATION PRESCRIBED IN SECTION 212 OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A, AND NOTHING IN THE LEGISLATIVE HISTORY OF THE 1964 ACT EVIDENCING INTENT TO WITHHOLD RETIRED OR RETIREMENT PAY FOR ANY PERIOD AN OFFICER OR EMPLOYEE ON A FULL-TIME BASIS IS IN A NONPAY STATUS IN HIS CIVILIAN EMPLOYMENT. WHEN A RETIRED REGULAR OFFICER IS EMPLOYED TEMPORARILY BEFORE DECEMBER 1, 1964, THE EFFECTIVE DATE OF THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, AND THE EMPLOYMENT EXTENDS BEYOND THAT DATE, THE BEGINNING DATE FOR THE COMPUTATION OF THE FIRST 30-DAY EXEMPTION PERIOD OF EMPLOYMENT PROVIDED UNDER SECTION 201 (C) OF THE ACT FROM REDUCTION IN RETIRED OR RETIREMENT PAY APPLIES TO THE FIRST 30 DAYS FOR WHICH THE EMPLOYEE RECEIVES SALARY AFTER NOVEMBER 30, 1964.

TO THE SECRETARY OF DEFENSE, NOVEMBER 5, 1964:

REFERENCE IS MADE TO LETTER OF THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), DATED SEPTEMBER 22, 1964, REQUESTING A DECISION ONCERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE IMPLEMENTATION OF THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, PUBLIC LAW 88-448, 78 STAT. 484. THE QUESTIONS ARE CONTAINED IN COMMITTEE ACTION NO. 349 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AS FOLLOWS:

1. A RETIRED REGULAR OFFICER IS NOW SUBJECT TO DUAL COMPENSATION UNDER 5 U.S.C. 59A. HE ELECTS COVERAGE UNDER PUBLIC LAW 88-448. HOW IS THE COMBINED CIVILIAN AND RETIRED PAY INCOME TO BE COMPUTED FOR THE PURPOSE OF THE $10,000 CALENDAR YEAR 1964 INCOME LIMITATION UNDER THE PRIOR LAW:

A. BY USING THE FULL CIVILIAN EMPLOYMENT INCOME FOR 1964, INCLUDING THAT FOR DECEMBER, COMBINED WITH RETIRED PAY FOR 1964, INCLUDING THAT FOR DECEMBER COMPUTED BEFORE APPLYING THE REDUCTION REQUIRED BY SECTION 201 (A), PL 88-448?

B. BY USING THE CIVILIAN EMPLOYMENT INCOME RECEIVED ONLY THROUGH NOVEMBER 1964, COMBINED WITH RETIRED PAY ENTITLEMENT THROUGH NOVEMBER 1964 ONLY?

C. BY USING THE FULL CIVILIAN EMPLOYMENT INCOME FOR 1964 (INCLUDING THAT FOR DECEMBER) COMBINED WITH RETIRED PAY FOR 1964, BUT INCLUDING FOR DECEMBER ONLY THE REDUCED RETIRED PAY RECEIVED AFTER APPLYING THE REDUCTION FORMULA REQUIRED BY SECTION 201 (A), PL 88-448?

D. BY ANY OTHER FORMULA?

2. IS A RETIRED REGULAR OFFICER WHO IS ENTITLED TO REDUCED RETIRED PAY UNDER PL 88-448, BY REASON OF FULL TIME CIVILIAN EMPLOYMENT, ENTITLED TO FULL RETIRED PAY FOR DAYS HE IS IN A LEAVE-WITHOUT-PAY STATUS FROM HIS CIVILIAN POSITION?

3. WHAT IS THE BEGINNING DATE FOR COMPUTATION OF THE FIRST 30-DAY PERIOD OF EMPLOYMENT UNDER SECTION 201 (C), PL 88-448, WHEN A RETIRED REGULAR OFFICER IS EMPLOYED TEMPORARILY BEFORE 1 DECEMBER 1964 AND SUCH EMPLOYMENT EXTENDS BEYOND THAT DATE?

UNDER THE PROVISIONS OF SUBSECTION 403 (A) OF PUBLIC LAW 88-448, SUBSECTIONS 201 (A) AND (F) OF THE ACT WILL BECOME EFFECTIVE ON DECEMBER 1, 1964. PURSUANT TO THE PROVISIONS THEREOF A RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORMED SERVICES WILL HAVE UNTIL MARCH 1, 1965, TO MAKE AN ELECTION FOR COVERAGE UNDER PUBLIC LAW 88-448. IF TIMELY FILED, SUCH ELECTION IS EFFECTIVE FROM DECEMBER 1, 1964 (SEE B-155184, OCTOBER 5, 1964, 44 COMP. GEN. 186), AND IS IRREVOCABLE.

IN CONSTRUING THE $10,000 LIMITATION PROVISIONS OF SECTION 212 (A) OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A--- REPEALED AS OF DECEMBER 1, 1964, BY SUBSECTIONS 402 (A) (20) AND 403 (A) OF PUBLIC LAW 88-448, 78 STAT. 494 AND 496, RESPECTIVELY--- OUR DECISIONS CONSISTENTLY HAVE HELD THAT IT IS THE ANNUAL RATE OF CIVILIAN COMPENSATION AND RETIRED PAY THAT CONTROLS IN DETERMINING THE AMOUNT TO BE WITHHELD FROM CURRENT PAYMENTS OF RETIRED PAY IRRESPECTIVE OF THE TOTAL AMOUNT OF CIVILIAN COMPENSATION AND RETIRED PAY RECEIVED OR EXPECTED DURING THE CALENDAR YEAR OR FRACTION THEREOF. CONSEQUENTLY, AN APPROPRIATE REDUCTION IS REQUIRED TO BE MADE UNDER SECTION 212 (A) IN ANY CASE INVOLVING A COMBINATION OF ANNUAL CIVILIAN COMPENSATION AND RETIRED PAY AT A RATE IN EXCESS OF $10,000 FOR THE PERIOD FROM JANUARY 1 TO NOVEMBER 30, 1964, INCLUSIVE.

THE CASES OF SCHUYLER V. UNITED STATES, 148 CT.CL. 479 (1960), AND DELLINGER V. UNITED STATES, 157 CT.CL. 471 (1962), ESTABLISHED THE RULE THAT THE APPROPRIATE PERIOD OF TIME INTENDED TO BE USED FOR THE PURPOSE OF APPLYING THE PROVISIONS OF SUBSECTION 212 (B) OF THE ECONOMY ACT, 5 U.S.C. 59A (B), IS A CALENDAR YEAR. IN OUR DECISION DATED AUGUST 2, 1962, B- 149203, 42 COMP. GEN. 71, WE STATED THAT WE HAD DECIDED TO ACCEPT AND FOLLOW THE COURT'S DECISIONS IN THE SCHUYLER AND DELLINGER CASES AS A PRECEDENT FOR RETROACTIVE PAYMENT OF RETIRED PAY (IN ADDITION TO CIVILIAN COMPENSATION) IN THOSE CASES WHERE THE RETIRED OFFICER CONCERNED IS DETERMINED TO BE ENTITLED TO AN AMOUNT OF RETIRED PAY WITHHELD FROM HIM DURING A CALENDAR YEAR BECAUSE THE TOTAL AMOUNT RECEIVED FOR THAT YEAR, AS COMPENSATION FOR SERVICE AS A CIVILIAN OFFICER OR EMPLOYEE AND RETIRED PAY AS A COMMISSIONED OFFICER OF THE ARMED FORCES, AMOUNTED TO LESS THAN $10,000.

SINCE SECTION 212 OF THE ECONOMY ACT WILL NOT BE IN EFFECT AT THE END OF THE CALENDAR YEAR 1964, IT IS NOT POSSIBLE TO GIVE LITERAL EFFECT TO THE SCHUYLER AND DELLINGER CASES. IN SUCH CIRCUMSTANCES IT APPEARS PROPER TO PERMIT AN ADJUSTMENT UNDER SECTION 212 (B) AS OF NOVEMBER 30, 1964, WHICH WILL BE IN HARMONY WITH THOSE CASES VIZ., BY APPLYING THE CIVILIAN EMPLOYMENT INCOME RECEIVED THROUGH NOVEMBER 30, 1964, PLUS RETIRED PAY ENTITLEMENT THROUGH THAT DATE, TO ELEVEN TWELFTHS OF THE LIMITATION AUTHORIZED TO BE EARNED IN A CALENDAR YEAR (ELEVEN-TWELFTHS OF $10,000). QUESTION 1 IS ANSWERED ACCORDINGLY.

SUBSECTION 201 (A) OF PUBLIC LAW 88-448 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

EXCEPT AS PROVIDED BY SUBSECTIONS (B), (C), AND (E), OF THIS SECTION, A RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORMED SERVICES SHALL RECEIVE THE FULL SALARY OF ANY CIVILIAN OFFICE WHICH HE HOLDS, BUT DURING A PERIOD FOR WHICH HE RECEIVES SALARY, HIS RETIRED OR RETIREMENT PAY SHALL BE REDUCED TO AN ANNUAL RATE EQUAL TO THE FIRST $2,000 OF SUCH PAY PLUS ONE-HALF OF THE REMAINDER, IF ANY. * * *

SUBSECTION 201 (C) OF THE ACT PROVIDES AS FOLLOWS:

THE REDUCTION IN RETIRED OR RETIREMENT PAY REQUIRED BY SUBSECTION (A) OF THIS SECTION SHALL NOT APPLY TO A RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORMED SERVICES EMPLOYED ON A TEMPORARY (FULL-TIME OR PART-TIME) BASIS, ANY OTHER PART-TIME BASIS, OR ANY INTERMITTENT BASIS, FOR THE FIRST THIRTY-DAY PERIOD FOR WHICH HE RECEIVES SALARY. THE EXEMPTION FROM REDUCTION IN RETIRED OR RETIREMENT PAY PROVIDED BY THIS SUBSECTION SHALL NOT APPLY TO A PERIOD LONGER THAN---

(1) THE FIRST THIRTY-DAY PERIOD FOR WHICH HE RECEIVES SALARY UNDER ANY ONE APPOINTMENT FROM THE CIVILIAN OFFICE IN WHICH HE IS EMPLOYED, IF HE IS SERVING UNDER NOT MORE THAN ONE APPOINTMENT, AND

(2) THE FIRST PERIOD FOR WHICH HE RECEIVES SALARY UNDER MORE THAN ONE APPOINTMENT, IN ANY FISCAL YEAR, WHICH CONSISTS IN THE AGGREGATE OF THIRTY DAYS, FROM ALL CIVILIAN OFFICES IN WHICH HE IS EMPLOYED, IF HE IS SERVING UNDER MORE THAN ONE APPOINTMENT IN SUCH FISCAL YEAR.

FOR THE PURPOSES OF SUBSECTIONS 201 (A) AND (C), SUBSECTION 201 (D) DEFINES THE TERM "PERIOD FOR WHICH HE RECEIVES SALARY" TO MEAN "THE FULL CALENDAR PERIOD FOR WHICH HE RECEIVES SALARY WHEN EMPLOYED ON A FULL-TIME BASIS BUT ONLY THE DAYS FOR WHICH HE ACTUALLY RECEIVES SALARY WHEN EMPLOYED ON A PART-TIME OR INTERMITTENT BASIS.'

CONCERNING QUESTION 2, IT HAS BEEN CONSIDERED THAT A PERIOD DURING WHICH A CIVILIAN OFFICER OR EMPLOYEE IS IN A NONPAY STATUS IN HIS CIVILIAN OFFICE OR POSITION DOES NOT CONSTITUTE A FACTOR FOR CONSIDERATION IN DETERMINING THE APPLICABILITY OF THE DUAL COMPENSATION LIMITATION PRESCRIBED BY SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932. SEE 12 COMP. GEN. 448; 15 ID. 706, 709. WHILE IT IS POSSIBLE TO CONSTRUE SUBSECTIONS 201 (A) AND (D) OF PUBLIC LAW 88 448 AS REQUIRING A DIFFERENT CONCLUSION, IT IS OUR VIEW THAT THE STATUTORY PROVISIONS SHOULD BE SO CONSTRUED ONLY IF THE LEGISLATIVE HISTORY THEREOF IS SO CLEAR TO THAT EFFECT AS TO LEAVE NO ROOM FOR DOUBT CONCERNING THE LEGISLATIVE INTENT. IT IS UNDERSTOOD THAT IN USING THE WORDS "THE FULL CALENDAR PERIOD" THE PERSONS WHO DRAFTED THE THEN PROPOSED LEGISLATION HAD IN MIND THE INCLUSION OF SATURDAYS AND SUNDAYS. SINCE WE HAVE BEEN UNABLE TO FIND ANY SPECIFIC EVIDENCE IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 88-448, OR OTHERWISE, OF AN INTENT BY CONGRESS TO WITHHOLD RETIRED OR RETIREMENT PAY FOR ANY PERIOD AN OFFICER OR EMPLOYEE ON A FULL-TIME BASIS IS IN A NONPAY STATUS ON WORKDAYS IN HIS CIVILIAN OFFICE OR POSITION, THE CONCLUSION APPEARS WARRANTED THAT NO DEDUCTION IN RETIRED PAY OR RETIREMENT PAY IS REQUIRED UNDER SUBSECTION 201 (A) FOR ANY DAY ON WHICH A FULL-TIME EMPLOYEE IS IN A LEAVE-WITHOUT-PAY STATUS (FOR THE ENTIRE DAY) AND THEREFORE RECEIVES NO SALARY FOR THAT DAY. QUESTION 2 IS ANSWERED ACCORDINGLY.

IN VIEW OF THE FACT THAT THE REDUCTION EXEMPTION PROVISION OF SECTION 201 (C) OF PUBLIC LAW 88-448 IS EFFECTIVE DECEMBER 1, 1964, IT WOULD SEEM THAT IF A RETIRED OFFICER OF A REGULAR COMPONENT IS TO RECEIVE THE FULL BENEFIT OF THAT EXEMPTION FOR THE "FIRST THIRTY-DAY PERIOD FOR WHICH HE RECEIVES SALARY," THE PERIOD FOR WHICH HE RECEIVES SALARY MUST BE CONSIDERED AS COMMENCING NOT EARLIER THAN THE EFFECTIVE DATE OF SUCH EXEMPTION. SINCE WE BELIEVE THAT THE CONGRESS INTENDED THAT ALL OFFICERS COVERED BY SECTION 201 (A) SHOULD RECEIVE EQUAL TREATMENT IN THIS RESPECT, QUESTION 3 IS ANSWERED BY SAYING THAT THE 30-DAY EXEMPTION FROM REDUCTION IN RETIRED OR RETIREMENT PAY PROVIDED BY SUBSECTION 201 (C) APPLIES TO THE FIRST 30 DAYS FOR WHICH THE EMPLOYEE RECEIVES SALARY AFTER NOVEMBER 30, 1964.