B-168364, JANUARY 20, 1970, 49 COMP. GEN. 444

B-168364, JANUARY 20, 1970, 49 COMP. GEN. 444

MILITARY PERSONNEL -- RETIRED -- CIVILIAN SERVICE -- CONCURRENT MILITARY DUTY A RETIRED REGULAR NAVAL OFFICER SERVING IN A CIVILIAN POSITION SUBJECT TO A RETIRED PAY REDUCTION UNDER 5 U.S.C. 5532, AND INELIGIBLE FOR THE MILITARY LEAVE GRANTED RESERVISTS AND NATIONAL GUARD MEMBERS PURSUANT TO 5 U.S.C. 6323(A), WHEN ORDERED TO 2 WEEKS OF ACTIVE NAVAL DUTY IS ENTITLED TO RECEIVE A LUMP-SUM PAYMENT FOR ANNUAL LEAVE OR TO ELECT TO HAVE THE LEAVE REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM ACTIVE DUTY IN ACCORDANCE WITH 5 U.S.C. 5552, WHICH AUTHORIZES ACTIVE DUTY IN THE ARMED FORCES FOR CIVILIAN EMPLOYEES WITHOUT SEPARATION. IF THE RETIRED OFFICER ELECTS A LUMP-SUM LEAVE PAYMENT, SHOULD HE RETURN TO HIS CIVILIAN POSITION PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY THE PAYMENT, HE WILL BE SUBJECT TO THE SAME ADJUSTMENT REQUIRED IN THE CASE OF REEMPLOYMENT FOLLOWING A SEPARATION--THE REFUND OF AN AMOUNT EQUAL TO THE UNEXPIRED PERIOD.

TO THE SECRETARY OF THE NAVY, JANUARY 20, 1970:

THIS IS IN REPLY TO LETTER FROM YOUR OFFICE DATED NOVEMBER 12, 1969, REQUESTING OUR DECISION AS TO WHETHER A CIVILIAN EMPLOYEE, WHO IS A RETIRED REGULAR NAVAL OFFICER, IS ENTITLED TO PAID LEAVE OR WHETHER HE MUST BE REGARDED AS SEPARATED FROM HIS CIVILIAN POSITION SHOULD HE ACCEPT AN ANTICIPATED OFFER OF 2 WEEKS' ACTIVE NAVAL DUTY WITH ACCOMPANYING ACTIVE DUTY PAY. THE EMPLOYEE IN QUESTION IS SERVING IN AN EXCEPTED APPOINTMENT UNDER SCHEDULE A, CIVIL SERVICE REGULATIONS, AND HIS RETIRED PAY IS COMPUTED IN ACCORDANCE WITH 5 U.S.C. 5532(B).

SECTION 5532 OF TITLE 5, U.S.C. WHICH IS A CODIFICATION OF SECTION 201(A) OF THE DUAL COMPENSATION ACT, PUBLIC LAW 88-448, APPROVED AUGUST 19, 1964, PROVIDES IN 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.

THE PROVISION CITED ABOVE PRESCRIBES THE AMOUNT OF MILITARY RETIRED PAY TO WHICH A RETIRED REGULAR OFFICER SHALL BE ENTITLED WHILE HOLDING A CIVILIAN GOVERNMENT POSITION. HOWEVER, NEITHER THE QUOTED LANGUAGE NOR ANY OTHER PROVISION CONTAINED IN SECTION 5532 IS DIRECTED TO THE QUESTION OF THE CONCURRENT ENTITLEMENT TO ACTIVE DUTY MILITARY PAY AND CIVILIAN COMPENSATION SHOULD A RETIRED REGULAR OFFICER WHO HOLDS A GOVERNMENT CIVILIAN POSITION SUBSEQUENTLY BE ORDERED TO PERFORM ACTIVE MILITARY SERVICE. MOREOVER, WE HAVE FOUND NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT REFERRING TO THIS SITUATION.

AS POINTED OUT IN OUR DECISION 46 COMP. GEN. 400 (1966), THE QUESTION WHETHER A PERSON IN THE ACTIVE MILITARY SERVICE MAY BE EMPLOYED IN A CIVILIAN CAPACITY IN THE FEDERAL GOVERNMENT AND BE PAID FROM APPROPRIATED FUNDS FOR THE CIVILIAN POSITION HAS BEEN CONSIDERED MANY TIMES AND IT HAS CONSISTENTLY BEEN HELD THAT, IN THE ABSENCE OF A STATUTE EXPRESSLY SO PROVIDING, ONLY THE PAY AND ALLOWANCES THAT ACCRUE UNDER THE LAWS AND REGULATIONS APPLICABLE TO THE MILITARY SERVICE CONCERNED ARE PROPERLY PAYABLE. THIS HOLDING IS PREDICATED UPON AN INCOMPATIBILITY, ACTUAL OR POTENTIAL, BETWEEN THE TWO POSITIONS. IN SUCH DECISION WE CONCLUDED THAT THE ENACTMENT OF THE DUAL COMPENSATION ACT DID NOT CHANGE THIS LONGSTANDING RULE.

AS YOU POINT OUT IN YOUR LETTER, THE EMPLOYEE IN QUESTION IS NOT A RESERVIST OR MEMBER OF THE NATIONAL GUARD AND, THEREFORE, THE PROVISIONS OF 5 U.S.C. 6323(A) FOR GRANTING 15 DAYS MILITARY LEAVE, ETC., HAVE NO APPLICATION TO HIM.

THE ONLY STATUTORY PROVISION THAT HAS COME TO OUR ATTENTION BEARING UPON THE QUESTION PRESENTED IS 5 U.S.C. 5552 WHICH READS AS FOLLOWS:

AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE OR AN INDIVIDUAL EMPLOYED BY A TERRITORY OR POSSESSION OF THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA WHO ENTERS ON ACTIVE DUTY IN THE ARMED FORCES IS ENTITLED TO--

(1) RECEIVE, IN ADDITION TO HIS PAY AND ALLOWANCES FROM THE ARMED FORCES, A LUMP-SUM PAYMENT FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE IN ACCORDANCE WITH SECTION 5551 OF THIS TITLE; OR

(2) ELECT TO HAVE THE LEAVE REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM ACTIVE DUTY.

UNDER THE QUOTED STATUTE A FEDERAL CIVILIAN EMPLOYEE WHO ENTERS ON ACTIVE DUTY IN THE ARMED FORCES IS ENTITLED EITHER TO RECEIVE A LUMP SUM PAYMENT FOR ANNUAL LEAVE IN ACCORDANCE WITH, AND SUBJECT TO, THE LIMITATIONS IN 5 U.S.C. 5551 OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM ACTIVE DUTY. IT DOES NOT AUTHORIZE THE GRANTING OF SUCH LEAVE IN KIND WHILE ON ACTIVE DUTY. FINALLY, IT SHOULD BE POINTED OUT THAT REGARDLESS OF THE ALTERNATIVE BENEFIT ELECTED BY THE EMPLOYEE WHEN ENTERING ON ACTIVE DUTY, THERE IS NO REQUIREMENT UNDER 5 U.S.C. 5552 THAT HE BE SEPARATED. CF. 32 COMP. GEN. 76 (1952).

5 U.S.C. 6306 PROVIDES THAT UPON REEMPLOYMENT OF AN INDIVIDUAL PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY A LUMP-SUM LEAVE PAYMENT HE SHALL REFUND AN AMOUNT EQUAL TO THE PAY FOR THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF THE LUMP-SUM PERIOD. WE BELIEVE THE APPLICATION OF THAT REQUIREMENT TO THE CASE OF A PERSON RESTORED TO HIS POSITION AFTER A FURLOUGH WHILE ON ACTIVE MILITARY SERVICE IS WITHIN THE INTENT AND SPIRIT OF SUCH STATUTE. THUS, WHEN AN EMPLOYEE IS RESTORED TO HIS CIVILIAN POSITION FOLLOWING A FURLOUGH WHILE SERVING ON ACTIVE MILITARY DUTY PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY THE LUMP- SUM PAYMENT, THE SAME ADJUSTMENTS ARE REQUIRED AS IN THE CASE OF REEMPLOYMENT--FOLLOWING A SEPARATION--PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY THE LUMP-SUM PAYMENT.