B-243864.2, May 26, 1992, 71 Comp.Gen. 409

B-243864.2, May 26, 1992, 71 Comp.Gen. 409

MILITARY PERSONNEL - Pay - Dual compensation restrictions - Exemptions Public Law 101-86, dated August 16, 1989, suspended for an aggregate period of 6 months the dual compensation laws for regular retired officers who were given temporary appointments on or after that date to work on the 1990 census. Public Law 101-86 further provided, however, that if the appointee's retired pay was being reduced immediately before being placed in the temporary position, the 6-month exemption would not apply. Thus, a retired officer who was originally appointed to a temporary position with the Census Bureau prior to August 16, 1989, and whose retired pay was subject to reduction prior to that date, is not entitled to the exemption even though his pay erroneously was not being reduced prior to that date and his position was changed after August 16, 1989.

Major John E. Harris, USMC (Retired):

Major John E. Harris, USMC (Retired), requests reconsideration of the portion of our decision Major John D. Harris, USMC (Retired), B-243864, August 13, 1991, in which we sustained our Claims Group's finding that his employment with the Census Bureau was not exempt from the Dual Compensation Act (5 U.S.C. Sec. 5532). That decision also waived repayment of any overpayment of military retired pay for the period January 22, 1989, through December 31, 1989, pursuant to the authority granted by 10 U.S.C. Sec. 2774 so that during that period, Major Harris, in fact, suffered no reduction in his military retired pay.

On November 1, 1971, Major Harris retired from the United States Marine Corps under conditions entitling him to retired pay. On January 22, 1989, he accepted a temporary appointment with the United States Bureau of the Census for a period not to exceed January 22, 1990. On October 8, 1989, he was appointed to a different position at the Census Bureau. When Major Harris's appointment expired on January 22, 1990, he was subsequently reappointed on January 28, 1990 (not to exceed January 27, 1991).

Public Law 101-86, 103 Stat. 593 effective August 16, 1989, suspended for an aggregate period of 6 months the dual compensation laws for retired regular officers appointed to temporary positions with the Census Bureau to work on the 1990 census. To qualify for the exemption the appointment had to be made on or after the effective date of the law. Section 5 of Public Law 101-86. In addition, section 3 of the law provided that the exemption would not apply with respect to any former member "if, immediately before being placed in the temporary position," his retired pay was being reduced under the dual compensation laws.

Our Claims Group found that Major Harris was not eligible for the exemption since his initial appointment preceded the effective date of the exemption. In our prior decision we upheld our Claims Group action on the basis that Major Harris's retired pay was subject to dual compensation reduction immediately before being placed in a temporary position.

Major Harris essentially argues on reconsideration that, while his original temporary appointment was made before the effective date of Public Law 101-86, he thereafter received new appointments from the Census Bureau, and that his new appointments qualified for the exemption. also argues that, since his retired pay in fact was not being reduced by the agency during 1989, the provision in section 3 of Public Law 101-86 has no application to his case.

We need not consider whether Major Harris received new appointments after the effective date of the law because, in any event, section 3 of the law precluded him from obtaining the exemption. As we stated in our prior decision, the purpose of the exemption was to attract federal retirees to work with the Census Bureau to help complete the 1990 census. House Post Office and Civil Service Committee, H.R. Rep. No. 101-142, 101st Cong., 1st Sess. 2, reprinted in 1989 U.S. Code Cong. Ad. News 545. It was not the purpose of Public Law 101-86 to exempt retirees who were already employed at the Census Bureau before the exemption was enacted. While Major Harris suggests that such an interpretation of Public Law 101-86 is unreasonable, we see no other meaning to be given to the language of section 3.

Moreover, the fact that Major Harris's retired pay was not actually being reduced does not enlarge his rights. The relevant fact is that his retired pay should have been reduced in accordance with the dual compensation laws, but was not being reduced only because of administrative error. Under these circumstances, we must consider his eligibility for the exemption as if his retired pay were being reduced.

Accordingly, we affirm our prior decision.