B-230370 Mar 18, 1991

B-230370 Mar 18, 1991

MILITARY PERSONNEL - Pay - Dual compensation restrictions - Retirement pay - Reduction - Amount determination

DIGEST

Lieutenant Colonel Carl J. Odekirk, U.S. Army (Retired) - Dual Compensation:

A Special Disbursing Agent at the United States Army Finance and Accounting Center (Finance Center) requests an advance decision on the application of the dual compensation law, 5 U.S.C. Sec.5532, to pay earned during the school year by a retired regular officer holding a position under the Defense Department Overseas Teachers Pay and Personnel Practices Act (Overseas Teachers Act). /1/ The question is whether such a teacher is considered a part-time or full-time employee for the purpose of retired pay reduction under the law. Such employee is a full-time employee except during the period of summer recess.

BACKGROUND

Lieutenant Colonel (LTC) Carl J. Odekirk was retired as a regular officer of the Army effective July 1, 1978. He entered into employment as a teacher with the Department of Defense Dependent School, Lajes Field, Azores, Portugal effective September 16, 1983, but notification of his employment was not received at the Finance Center until September 1985. LTC Odekirk has been advised of an indebtedness of $21,581.73 for the period prior to the Finance Center's receipt of notification of his employment.

The Finance Center reduced his retired pay in accordance with 5 U.S.C. Sec.5532 during each of the 21 biweekly pay periods of the year when LTC Odekirk was employed as a teacher, which included Thanksgiving, winter and spring recesses, but not the summer recess. LTC Odekirk disputes this application of the law stating his retired pay should not be reduced during non-teaching days, such as weekends, federal holidays and the recesses noted above.

ANALYSIS AND CONCLUSION

A retired regular officer such as LTC Odekirk who holds a position with the government is subject to a reduction in retired pay for the full calendar period in which he receives pay from a civilian position when he is employed on a full-time basis. A reduction in retired pay occurs only on the days for which he actually receives that pay when he is employed on a part-time or intermittent basis.

The authority for the employment of overseas teachers is the Overseas Teachers Act, 20 U.S.C. Sec.901 et seq. The regulation implementing the act is Department of Defense Directive 1400.13, which specifies that a teacher's school year consists of 190 working days including not less than 175 days of classroom instruction without a change in school year salary. The annual salary is paid over 21 biweekly pay periods. Thus, teachers receive their salary for the school year, but are not paid during the summer recess period. The school year includes recess periods such as the day after Thanksgiving, and winter and spring recesses. These periods are considered administrative nonwork days and are not charges to leave and no reductions are made on their account in the amount of biweekly pay. U.S.C. Sec.904(b).

An overseas teacher is not considered to be in the regular full-time employ of the United States for the purpose of receiving compensation during the summer recess for service on an advisory council under 20 U.S.C. Sec.929(d). H.S. Shutleff, B-215834, Jan. 28, 1985. However, we believe an overseas teacher is employed full-time during the 21 pay periods for which compensation is received. The work is, in fact, full time and teachers are paid, like other full-time government employees, for administrative non-workdays.

Thus, LTC Odekirk's teaching position should be considered a full time position for the period of the 21 biweekly pay periods in the school year and reductions under the dual compensation act assessed accordingly. During the summer recess period when he does not receive pay the reductions should not be assessed.

/1/ This request was submitted with the approval of the Department of Defense Military Pay and Allowance Committee under Control No. DO-A 1479.