B-230370.2, Feb 28, 1992

B-230370.2, Feb 28, 1992

DIGEST: A retired Army officer employed as a teacher under the Defense Department Overseas Teachers Pay and Personnel Practices Act is considered a full- time employee during the school year for purposes of the Dual Compensation Act, 5 U.S.C. Sec. 5532, and therefore, the period in which he receives salary due to his civilian position is the full calendar period of each pay period, not actual days worked.

Carl J. Odekirk, USA (retired):

Lieutenant Colonel Carl J. Odekirk, USA (Retired) has requested reconsideration of our decision Lieutenant Colonel Carl J. Odekirk, U.S. Army (Retired), B-230370, March 18, 1991 wherein we found that the Dual Compensation Act, particularly 5 U.S.C. Sec. 5532, required reduction of his military retired pay during recess periods within the school year (but not summer recess) when he was employed as a teacher under the Overseas Teachers Act, 20 U.S.C. Secs. 901-907.

Under 5 U.S.C. Sec. 5532(a), the retired pay of a part-time employee is subject to reduction only on days that the employee actually receives civilian compensation, while the pay of a full-time employee is subject to reduction during the entire pay period. The reconsideration request objects to our finding that LTC Odekirk was a full-time employee and repeats arguments suggesting that he was a part time employee which arguments we considered during our initial consideration of this matter.

As noted in our prior decision, our review of the Overseas Teachers Act and its legislative history indicated that one of the purposes of the Act was to eliminate the problem of forcing teachers either to use annual leave or to receive no pay for the Thanksgiving, Christmas and Easter and other administratively authorized nonwork periods. Until the Act, teachers were not paid for these periods. Section 6(b) of the Act, now codified at 20 U.S.C. Sec. 904(b), rectified the problem by providing that leave is not available for Saturdays, Sundays, regularly scheduled holidays and other administratively authorized nonwork days. See also S. Rep. 141, 86th Cong., 1st Sess. 2-3 (1959). It is clear that administratively authorized nonwork days are considered by law to be part of the overall compensation, whether or not they are counted in the 190 working days of the school year specified by DoD Directive 1400.13.

LTC Odekirk has also requested that our office consider his request for waiver under 10 U.S.C. Sec. 2774 which was denied by the Defense Finance and Accounting Service because it was filed more than 3 years after the debt was discovered. LTC Odekirk was advised of the erroneous payments on September 10, l985; however, he did not request waiver until January 24, l990. LTC Odekirk states that he did not request waiver because he was awaiting a final determination regarding recess periods for holidays and a final calculation of the exact amount of the indebtness. Since the final calculation was not forwarded to him until August 13, l987, he argues his filing on January 24, 1990 was made within the required 3 years.

The waiver statute requires that waiver requests be filed within in 3 years of the time the debt is discovered. 10 U.S.C. Sec. 2774(b)(2). have held that the 3 years time limit commences when the debt is discovered and not when a final or exact amount of the debt is established. Major Robert D. Gentile, USA, B-244217, Dec. 19, 1991. Accordingly, the request for waiver is denied.

To: Director, Claims Group, GGD - Sharon S. Green

From: General Counsel - James F. Hinchman

Subject: Carl J. Odekirk, USA (Retired)-- Waiver-- Z-2916444, B-230370.2

Returned is your file Z-2916444 and a copy of our decision Carl J. Odekirk, USA (Retired) B-230370.2 of today's date in which we conclude that the member is not entitled to waiver of his indebtedness under 10 U.S.C. Sec. 2774.