B-164701, SEPTEMBER 24, 1968, 48 COMP. GEN. 152

B-164701, SEPTEMBER 24, 1968, 48 COMP. GEN. 152

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - LEAVE WITHOUT PAY FROM CIVILIAN EMPLOYMENT A RETIRED REGULAR AIR FORCE OFFICER EMPLOYED AS A CIVILIAN WITH THE FEDERAL GOVERNMENT AND SUBJECT TO RETIRED PAY REDUCTION PURSUANT TO 5 U.S.C. 5532, WHO IS IN A LEAVE-WITHOUT-PAY (LWOP) STATUS FOR A 12-DAY PERIOD--- MONDAY, AUGUST 7 THROUGH FRIDAY, AUGUST 18, 1967--- IS ENTITLED TO FULL MILITARY RETIRED PAY FOR THE SATURDAY AND SUNDAY OCCURRING WITHIN THE LWOP PERIOD DURING WHICH THE OFFICER IS NOT ENTITLED TO CIVILIAN COMPENSATION. HOWEVER, THE OFFICER'S RETIRED PAY IS SUBJECT TO REDUCTION FOR THE SATURDAYS AND SUNDAYS, AUGUST 5, 6, 19, AND 20, 1967, OCCURRING BEFORE AND AFTER THE LWOP PERIOD, DAYS THAT STAND ALONE AND DO NOT INVOLVE ANY LOSS OF CIVILIAN COMPENSATION AND WHICH FALL WITHIN "THE FULL CALENDAR PERIOD" OF PERMANENT CIVILIAN EMPLOYMENT PRESCRIBED BY 5 U.S.C. 5532 (B). COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - LEAVE WITHOUT PAY FROM CIVILIAN EMPLOYMENT A RETIRED REGULAR AIR FORCE OFFICER EMPLOYED AS A CIVILIAN FOR THE "FULL CALENDAR PERIOD" MAY 7, 1966, TO APRIL 14, 1967, DURING WHICH TIME HE IS SUBJECT TO A REDUCTION IN RETIRED PAY PURSUANT TO 5 U.S.C. 5532, WHO IS IN A LEAVE-WITHOUT-PAY (LWOP) STATUS 1 HOUR ON FRIDAY, OCTOBER 28, AND ON THE FOLLOWING MONDAY, OCTOBER 31, IS NOT ENTITLED TO FULL RETIRED PAY FOR THE INTERVENING SATURDAY AND SUNDAY, THE OFFICER HAVING RECEIVED 7 HOURS CIVILIAN COMPENSATION FOR FRIDAY IS CONSIDERED TO HAVE BEEN IN RECEIPT OF CIVILIAN COMPENSATION FOR THE DAY, THUS SUBJECTING HIM TO REDUCTION IN RETIRED PAY PURSUANT TO 5 U.S.C. 5532 (B), AND HIS LWOP STATUS COMMENCING THE FOLLOWING MONDAY, HE IS NOT ENTITLED TO FULL RETIRED PAY FOR THE SATURDAY AND SUNDAY THAT DO NOT FALL WITHIN A LWOP PERIOD. PAY - RETIRED - THIRTY-FIRST DAY OF THE MONTH - LEAVE-WITHOUT-PAY FROM CIVILIAN EMPLOYMENT A LEAVE-WITHOUT-PAY (LWOP) STATUS ON THE 31ST DAY OF OCTOBER 1967 DOES NOT ENTITLE A RETIRED REGULAR AIR FORCE OFFICER EMPLOYED AS A CIVILIAN AND SUBJECT TO A REDUCTION IN RETIRED PAY PURSUANT TO 5 U.S.C. 5532, TO AN ADDITIONAL AMOUNT OF RETIRED PAY. MILITARY RETIRED PAY ACCRUES ON A MONTHLY BASIS, COMPUTED AS IF EACH MONTH HAD 30 DAYS AND NO RETIRED PAY ACCRUES ON THE 31ST DAY OF ANY MONTH. THEREFORE, THE OFFICER ACCRUED A FULL MONTH'S RETIRED PAY FOR THE MONTH OF OCTOBER, WHETHER OR NOT HE WAS IN A LWOP STATUS FROM HIS CIVILIAN FEDERAL POSITION ON THE 31ST OF OCTOBER. COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - LEAVE WITHOUT PAY FROM CIVILIAN EMPLOYMENT UNDER THE RULE THAT THE RETIRED PAY OF A RETIRED REGULAR OFFICER IS NOT SUBJECT TO REDUCTION UNDER 5 U.S.C. 5532 FOR ABSENCES FROM HIS FEDERAL CIVILIAN POSITION ON THE SATURDAYS AND SUNDAYS THAT OCCUR WITHIN A LEAVE- WITHOUT-PAY (LWOP) PERIOD, NO LOSS OF COMPENSATION BEING INVOLVED, A RETIRED REGULAR AIR FORCE OFFICER WHO IS ABSENT IN A LWOP STATUS ON FOUR SEPARATE OCCASIONS FROM THE CIVILIAN POSITION HE OCCUPIED FROM MAY 7, 1966, THROUGH APRIL 13, 1967--- CONSIDERED A "FULL CALENDAR PERIOD" WITHIN THE PHRASE CONTAINED IN 5 U.S.C. 5532 (A/--- IS ONLY ENTITLED TO FULL RETIRED PAY FOR THE SATURDAY AND SUNDAY THAT OCCURRED WITHIN ONE OF THE LWOP PERIODS, AND NO ADJUSTMENT OF RETIRED PAY IS REQUIRED FOR THE SATURDAYS AND SUNDAYS THAT OCCURRED BEFORE AND AFTER THE OTHER LWOP PERIODS.

TO LIEUTENANT COLONEL J. R. KELLIHER, DEPARTMENT OF THE AIR FORCE, SEPTEMBER 24, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 4, 1968, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT ON TWO VOUCHERS (ENCLOSURES 1 AND 6 RECEIVED WITH YOUR LETTER) COVERING PROPOSED ADJUSTMENTS IN THE RETIRED PAY OF TWO RETIRED AIR FORCE OFFICERS DURING PERIODS THEY WERE IN A LEAVE-WITHOUT-PAY STATUS FROM THEIR CIVILIAN FEDERAL EMPLOYMENT THE SUBMISSION WAS ASSIGNED AIR FORCE REQUEST NO. DO AF -1005 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

RETIREMENT ORDERS DATED JUNE 16, 1967, SHOW THAT LIEUTENANT COLONEL JAMES H. MARTIN, JR., UNITED STATES AIR FORCE, FR 5 1093, WAS RETIRED AS AN OFFICER OF THE REGULAR AIR FORCE EFFECTIVE JULY 1, 1967. IT APPEARS THAT ON JULY 5, 1967, HE BECAME A PERMANENT CIVILIAN FEDERAL EMPLOYEE THEREBY BRINGING HIS MILITARY RETIRED PAY STATUS WITHIN THE PURVIEW OF THE REDUCTION IN RETIRED PAY PROVISIONS CONTAINED IN 5 U.S.C. 5532. YOUR LETTER INDICATES THAT HE IS CURRENTLY SO EMPLOYED.

IT IS REPORTED THAT HE WAS IN A LEAVE-WITHOUT-PAY STATUS FROM MONDAY, AUGUST 7 TO FRIDAY, AUGUST 18, 1967, INCLUSIVE. THIS PERIOD OF LEAVE WITHOUT PAY AS A CIVILIAN FEDERAL EMPLOYEE CONSISTED OF 10 REGULAR WORKDAYS, MONDAY, AUGUST 7 THROUGH FRIDAY, AUGUST 18, AND TWO INTERVENING NONWORKDAYS, SATURDAY AND SUNDAY, AUGUST 12 AND 13, 1967, RESPECTIVELY. IT IS FURTHER REPORTED THAT HIS MILITARY RETIRED PAY ACCOUNT HAS BEEN ADJUSTED SO AS TO ALLOW HIM FULL MILITARY RETIRED PAY (NO REDUCTION UNDER 5 U.S.C. 5532) FOR THE ENTIRE 12-DAY PERIOD AUGUST 7 TO 18, 1967, INCLUSIVE.

IT IS STATED THAT COLONEL MARTIN CLAIMS THAT SINCE HIS LAST REGULAR WORKDAY OF DUTY AS A CIVILIAN FEDERAL EMPLOYEE PRECEDING THE PERIOD OF HIS LEAVE WITHOUT PAY WAS FRIDAY, AUGUST 4, 1967, AND HIS NEXT REGULAR WORKDAY OF DUTY WAS MONDAY, AUGUST 21 "HE SHOULD RECEIVE AN ADDITIONAL REFUND FOR THE SATURDAYS AND SUNDAYS BEFORE AND AFTER HIS LWOP PERIOD.' THE FIRST VOUCHER (ENCLOSURE NO. 1) IS STATED IN HIS FAVOR IN THE AMOUNT OF $31.48, REPRESENTING REFUND OF RETIRED PAY (DIFFERENCE BETWEEN THE AMOUNT OF REDUCED RETIRED PAY AND THE FULL AMOUNT OF RETIRED PAY DUE HIM IF THE REDUCTION PROVISIONS OF 5 U.S.C. 5532 ARE NOT APPLICABLE) FOR FOUR NONWORKDAYS, NAMELY, SATURDAY AND SUNDAY, AUGUST 5 AND 6, AND SATURDAY AND SUNDAY, AUGUST 19 AND 20, 1967.

IN CONNECTION WITH COLONEL MARTIN'S CONTENTION YOU MAKE REFERENCE TO THE DECISION OF THIS OFFICE DATED NOVEMBER 5, 1964, 44 COMP. GEN. 266. THAT DECISION WAS RENDERED IN RESPONSE TO SEVERAL QUESTIONS PRESENTED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 349 CONCERNING THE IMPLEMENTATION OF THE DUAL COMPENSATION ACT APPROVED AUGUST 19, 1964, PUBLIC LAW 88-448, 78 STAT. 484, WHICH BECAME EFFECTIVE DECEMBER 1, 1964. THE PERTINENT PROVISIONS OF THAT ACT ARE NOW CODIFIED IN SECTIONS 5531 AND 5532, TITLE 5, UNITED STATES CODE (SEE PUBLIC LAW 89- 554, SEPTEMBER 6, 1966, 80 STAT. 482, 483).

QUESTION 2 PRESENTED IN COMMITTEE ACTION NO. 349 WAS AS FOLLOWS:

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?

THE QUOTATION WHICH FOLLOWS WAS THE ANSWER MADE TO THAT QUESTION (SEE 44 COMP. GEN. AT PAGES 268 AND 269):

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.

YOU STATE (IN PARAGRAPH 4 OF YOUR LETTER) THAT:

* * * THE IMPLICATION IN THIS DECISION IS THAT ONLY THOSE DAYS FOR WHICH A FULL-TIME CIVILIAN EMPLOYEE IS NORMALLY PAID AND FOR WHICH HE LOSES PAY BECAUSE OF HIS LWOP STATUS ARE DAYS OF FULL ENTITLEMENT TO RETIRED PAY. WE QUESTION, HOWEVER, WHETHER THE PRINCIPLE CITED IN THIS DECISION WAS INTENDED TO APPLY IN CASES OF NON-WORK DAYS WHICH FALL ENTIRELY WITHIN AN EXTENDED PERIOD OF LWOP.

WITH RESPECT TO THE ISSUE THUS RAISED YOU CALL SPECIFIC ATTENTION TO DECISION OF AUGUST 19, 1948, 28 COMP. GEN. 103, A CASE INVOLVING THE DUAL COMPENSATION RESTRICTIONS PRESCRIBED IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, 5 U.S.C. 59A (NOW 5 U.S.C. 5533). IN THAT CASE A RETIRED COMMISSIONED OFFICER OF THE ARMY OF THE UNITED STATES WAS ENGAGED IN 1946 AS A FULL-TIME CIVILIAN FEDERAL EMPLOYEE. RESIGNED EFFECTIVE NOVEMBER 21, 1947. HE WAS REPORTED AS HAVING BEEN ON LEAVE WITHOUT PAY FROM HIS FEDERAL CIVILIAN EMPLOYMENT ON SEVERAL OCCASIONS AND THE QUESTION AROSE AS TO THE CORRECT MANNER OF ADJUSTING HIS RETIRED PAY ACCOUNT WHERE, FOR EXAMPLE, HE HAD BEEN IN A LEAVE-WITHOUT-PAY STATUS FROM MONDAY, MAY 5, 1947, CONTINUOUSLY THROUGH MONDAY, MAY 12, 1947, AND ALSO WHERE HE HAD BEEN ON LEAVE WITHOUT PAY FOR ONE DAY ONLY ON FRIDAY, OCTOBER 24, 1947.

IT WAS POINTED OUT IN THE DECISION OF AUGUST 19, 1948, THAT SHORTLY AFTER ENACTMENT OF SECTION 212 OF THE 1932 LAW "THE RULE WAS ESTABLISHED" THAT SUCH STATUTORY PROVISIONS "DID NOT PRECLUDE A PERMANENT FULL-TIME EMPLOYEE FROM RECEIVING HIS RETIRED PAY WITHOUT DEDUCTION FOR PERIODS OF ABSENCE FROM HIS CIVILIAN POSITION IN A NON PAY STATUS"; THAT SUCH RULE HAS REFERENCE ONLY TO THOSE CASES "WHERE AN EMPLOYEE, BECAUSE OF HIS ABSENCE FROM DUTY ON A DAY WHEN HE OTHERWISE IS REQUIRED TO WORK, IS CARRIED IN A NON-PAY STATUS FOR THAT DAY"; AND THAT THE BASIS FOR SUCH RULE IS THAT "SINCE UNDER THOSE CIRCUMSTANCES, THE COMPENSATION PRESCRIBED FOR THE CIVILIAN POSITION ACTUALLY IS REDUCED BY THE LOSS OF CIVILIAN PAY ON ACCOUNT OF ABSENCE FROM DUTY, THERE IS NO LEGAL OBJECTION TO THE RECEIPT OF RETIRED PAY FOR SUCH DAY.'

IT WAS FURTHER POINTED OUT IN THAT SAME DECISION THAT:

* * * WHILE SATURDAYS AND SUNDAYS GENERALLY ARE NOT INCLUDED IN THE SALARY COMPUTATION, THEY ARE NOT DAYS OF ABSENCE IN A NON-PAY STATUS SUCH AS CONTEMPLATED BY THE RULE FIRST STATED ABOVE. IN OTHER WORDS, THERE GENERALLY IS NO ABSENCE FROM DUTY ON THOSE DAYS AND NEITHER IS THERE ANY LOSS OF COMPENSATION. FURTHERMORE, THERE CAN BE LITTLE DOUBT BUT THAT A CIVILIAN EMPLOYEE APPOINTED ON OTHER THAN AN INTERMITTENT BASIS IS, IN FACT, THE INCUMBENT OF THE POSITION TO WHICH APPOINTED FOR THE DURATION OF HIS TENURE OF EMPLOYMENT, INCLUDING ALL NON-WORK DAYS OCCURRING WITHIN SUCH PERIOD. HENCE, SATURDAYS AND SUNDAYS, STANDING ALONE, ARE NOT WITHIN THE ABOVE-MENTIONED RULE AUTHORIZING PAYMENT OF RETIRED PAY ON DAYS OF ABSENCE IN A NON-PAY STATUS.

AS QUOTED IN YOUR LETTER, IT WAS HELD IN THE DECISION OF AUGUST 19, 1948:

HOWEVER, WHERE SUCH DAYS FALL ENTIRELY WITHIN A PERIOD OF LEAVE WITHOUT PAY AND BECOME, AS IT WERE, AN INTEGRAL PORTION OF THE PERIOD OF LEAVE WITHOUT PAY, RETIRED PAY IS AUTHORIZED THEREFOR IN THE SAME MANNER AS IS AUTHORIZED FOR THE ASSOCIATED DAYS FOR LEAVE WITHOUT PAY. ON THE OTHER HAND, WHERE THE SATURDAYS AND SUNDAYS ARE NOT WITHIN A PERIOD OF LEAVE WITHOUT PAY, THAT IS, WHERE THEY MERELY PRECEDE OR FOLLOW ABSENCE FROM DUTY WITHOUT PAY, OR IN THE SITUATION WHERE THE SATURDAYS AND SUNDAYS FALL WITHIN THE PERIOD OF EMPLOYMENT AND ARE NOT CONNECTED WITH PERIODS OF ABSENCE WITHOUT PAY, NO RETIRED PAY IS AUTHORIZED. APPLYING SUCH RULE TO THE SITUATION PRESENTED IN YOUR LETTER WHERE, IN ONE INSTANCE, LEAVE WITHOUT PAY IS AUTHORIZED FROM MONDAY THROUGH THE NEXT FOLLOWING MONDAY AND, IN THE OTHER INSTANCE, LEAVE WITHOUT PAY IS AUTHORIZED FOR FRIDAY ONLY, IT IS SEEN THAT, IN THE FIRST CASE, RETIRED PAY IS PAYABLE FOR THE ENTIRE PERIOD, WHEREAS, IN THE SECOND CASE, RETIRED PAY IS PAYABLE FOR FRIDAY ONLY.

DECISIONS OF MARCH 8, 1955, 34 COMP. GEN. 429, AND APRIL 18, 1957, 36 COMP. GEN. 723, CITED IN YOUR LETTER, ARE TO THE SAME EFFECT REFLECTING THE CONCLUSIONS REACHED IN THE DECISION OF AUGUST 19, 1948, 28 COMP. GEN. 103.

YOUR QUESTION AS TO COLONEL MARTIN'S CLAIM FOR PAYMENT OF FULL RETIRED PAY FOR SATURDAYS AND SUNDAYS, AUGUST 5 AND 6 AND AUGUST 19 AND 20, 1967, IS AS FOLLOWS:

MAY THE RULE OF 28 COMP GEN 103 APPLIED IN THE CITED DECISIONS UNDER THE PRIOR ACT BE APPLIED UNDER THE CURRENT LAW AS TO NON-WORK DAYS OF 5, 6, 12, 13, 19 AND 20 AUGUST 1967 (SATURDAYS AND SUNDAYS WHICH OCCUR, BEFORE, WITHIN AND AFTER PERIODS OF LWOP TIME/?

WITH CERTAIN EXCEPTIONS WHICH DO NOT SEEM TO BE APPLICABLE IN THE PRESENT INSTANCE THE PAY PERIOD OF A PERMANENT CIVILIAN EMPLOYEE OF THE FEDERAL GOVERNMENT COVERS, GENERALLY, TWO ADMINISTRATIVE WORKWEEKS. EACH BASIC WORKWEEK CONSISTS OF 40 HOURS WORK SCHEDULED ON 5 DAYS, MONDAY THROUGH FRIDAY, INCLUSIVE, WITH SATURDAY AND SUNDAY AS NONWORKDAYS. SEE 5 U.S.C. 5504 (A), (B), AND 6101.

SUBSECTION (A) OF SECTION 5532, TITLE 5, U.S. CODE, PROVIDES:

(A) FOR THE PURPOSE OF THIS SECTION "PERIOD FOR WHICH HE RECEIVES PAY" MEANS THE FULL CALENDAR PERIOD FOR WHICH A RETIRED OFFICER OF A REGULAR COMPONENT OF A UNIFORMED SERVICE RECEIVES THE PAY OF A POSITION WHEN EMPLOYED ON A FULL-TIME BASIS, BUT ONLY THE DAYS FOR WHICH HE ACTUALLY RECEIVES THAT PAY WHEN EMPLOYED ON A PART-TIME OR INTERMITTENT BASIS.

SUBSECTION (B) OF SECTION 5532 PROVIDES IN PART:

(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. * * *

UNDER THE SPECIFIC STATUTORY PROVISIONS ABOVE QUOTED, THE RETIRED PAY OF A RETIRED OFFICER OF A REGULAR COMPONENT OF A UNIFORMED SERVICE WHO HOLDS A CIVILIAN POSITION IN THE FEDERAL GOVERNMENT IS REQUIRED TO BE REDUCED IN ACCORDANCE WITH THE FORMULA THEREIN PRESCRIBED "DURING THE PERIOD FOR WHICH HE RECEIVES PAY.' WHEN SUCH AN OFFICER IS EMPLOYED ON A FULL-TIME BASIS THE REDUCTION IN HIS RETIRED PAY IS REQUIRED TO BE MADE FOR "THE FULL CALENDAR PERIOD" FOR WHICH HE RECEIVES THE PAY OF SUCH CIVILIAN EMPLOYMENT.

NO REDUCTION IN RETIRED PAY IS REQUIRED AS TO ANY "CALENDAR PERIOD" DURING WHICH BY REASON OF ABSENCE IN A LEAVE-WITHOUT-PAY STATUS FROM HIS CIVILIAN FEDERAL POSITION THE RETIRED OFFICER CONCERNED IS NOT ENTITLED TO RECEIVE CIVILIAN PAY. SATURDAY AND SUNDAY NONWORKDAYS AND HOLIDAYS THAT DO NOT INVOLVE ANY LOSS OF CIVILIAN PAY AND WHICH FALL WITHIN "THE FULL CALENDAR PERIOD" OF PERMANENT CIVILIAN FEDERAL EMPLOYMENT ARE DAYS FOR WHICH SUCH RETIRED OFFICER'S RETIRED PAY IS REQUIRED TO BE REDUCED AS PRESCRIBED IN SECTION 5532 (B).

IT WILL BE SEEN, THEREFORE, THAT THE RULE STATED IN THE DECISION OF AUGUST 19, 1948, 28 COMP. GEN. 103, WAS NOT MODIFIED OR AFFECTED IN ANY WAY BY THE ANSWER TO QUESTION 2 IN THE DECISION OF NOVEMBER 5, 1964, 44 COMP. GEN. 266. APPLYING THAT RULE TO THE FACTS AND CIRCUMSTANCES PRESENTED IN COLONEL MARTIN'S CASE THE CONCLUSION IS REQUIRED THAT HE IS NOT ENTITLED TO PAYMENT OF FULL RETIRED PAY FOR THE SATURDAYS AND SUNDAYS (CIVILIAN NONWORKDAYS) AUGUST 5 AND 6, AND AUGUST 19 AND 20, 1967, PRECEDING AND FOLLOWING, RESPECTIVELY, THE 12 CALENDAR DAY PERIOD THAT HE WAS ON LEAVE WITHOUT PAY AUGUST 7 TO 18, 1967, INCLUSIVE. THE QUESTION RELATING TO COLONEL MARTIN IS ANSWERED ACCORDINGLY.

THE OTHER OFFICER REFERRED TO IN YOUR LETTER IS MAJOR ELLIS C. BAKER, JR., USAF, RETIRED, FR 1 5468, WHO WAS RETIRED AS A REGULAR AIR FORCE OFFICER EFFECTIVE APRIL 1, 1964. HE ENTERED CIVILIAN FEDERAL EMPLOYMENT ON A FULL-TIME BASIS ON MAY 7, 1966, AND HE RESIGNED FROM SUCH EMPLOYMENT EFFECTIVE APRIL 14, 1967. CONSEQUENTLY, THE PHRASE "THE FULL CALENDAR PERIOD" CONTAINED IN 5 U.S.C. 5532 (A) HAS REFERENCE, IN HIS CASE, TO THE FULL CALENDAR PERIOD COMMENCING MAY 7, 1966, AND ENDING APRIL 13, 1967. IT IS STATED THAT MAJOR BAKER WAS IN A LEAVE-WITHOUT-PAY STATUS DURING THE FOLLOWING PERIODS: 28 OCTOBER (1 HOUR) THROUGH 6 NOVEMBER 1966 (INCLUDING 31 OCTOBER, MONDAY, SATURDAYS AND SUNDAYS, 29-30 OCTOBER AND 5-6 NOVEMBER 1966); 10 JANUARY (2 HOURS) THROUGH 13 JANUARY 1967 (4 HOURS); 7 FEBRUARY THROUGH 12 FEBRUARY 1967 (4 HOURS ON 10 FEBRUARY AND INCLUDING SATURDAY AND SUNDAY, 11-12 FEBRUARY); AND 11 MARCH THROUGH 24 MARCH 1967 (2 HOURS) INCLUDING SATURDAYS AND SUNDAYS 11-12 MARCH AND 18-19 MARCH.

IT IS FURTHER REPORTED THAT HE HAS BEEN ALLOWED FULL RETIRED PAY FOR THE FOLLOWING DAYS WHEN, IT IS SAID, HE WAS IN A LEAVE-WITHOUT-PAY STATUS FROM HIS CIVILIAN FEDERAL POSITION: SATURDAY AND SUNDAY, OCTOBER 29 AND 30, 1966; TUESDAY THROUGH FRIDAY, NOVEMBER 1 TO 4, 1966; WEDNESDAY AND THURSDAY, JANUARY 11 AND 12, 1967; TUESDAY THROUGH THURSDAY, FEBRUARY 7, 8, AND 9, 1967; MONDAY THROUGH FRIDAY, MARCH 13 TO 17, 1967; AND MONDAY THROUGH THURSDAY, MARCH 20 TO 23, 1967.

IN THE CIRCUMSTANCES ABOVE SHOWN YOU PRESENT THE FOLLOWING THREE QUESTIONS RELATING TO MAJOR BAKER:

(1) MAY THE RULE OF 28 COMP GEN 103 APPLIED IN THE CITED DECISIONS UNDER THE PRIOR ACT BE APPLIED UNDER THE CURRENT LAW AS TO NON-WORK DAYS OF 29- 30 OCTOBER, 5-6 NOVEMBER 1966, 14-15 JANUARY, 11-12 FEBRUARY, 11-12 MARCH, 18-19 MARCH AND 25-26 MARCH 1967 (SATURDAYS AND SUNDAYS WHICH OCCUR BEFORE, WITHIN AND AFTER PERIODS OF FULL OR PARTIAL LWOP TIME/?

(2) WHETHER OR NOT THE FACT THAT FRIDAY, 28 OCTOBER, TUESDAY, 10 JANUARY, FRIDAY, 13 JANUARY, FRIDAY, 10 FEBRUARY, AND FRIDAY, 24 MARCH ARE PARTIAL LWOP DATES ONLY (WHICH BY B-155248 ARE DAYS OF REDUCED RETIRED PAY BECAUSE CIVILIAN PAY WAS RECEIVED FOR PART OF THE DAY) AFFECTS THE APPLICATION OF THE RULE STATED IN 28 COMP GEN 103 (IF OTHERWISE DECIDED TO BE APPLICABLE ON SATURDAYS AND SUNDAYS/?

(3) WOULD MEMBER BE ENTITLED TO A FULL DAY OF RETIRED PAY FOR LWOP STATUS ON 31 ST DAY OF OCTOBER (MONDAY/?

MAJOR BAKER WAS ON LEAVE WITHOUT PAY FOR 1 HOUR ONLY ON FRIDAY, OCTOBER 28, 1966. IT IS PRESUMED THAT HE RECEIVED HIS FULL CIVILIAN SALARY FOR THAT DAY LESS 1 HOUR'S PAY. HENCE, HE MAY NOT BE CONSIDERED AS NOT HAVING BEEN IN RECEIPT OF CIVILIAN PAY ON FRIDAY, OCTOBER 28, 1966, SO AS TO BE EXEMPTED FROM THE REDUCTION IN RETIRED PAY PRESCRIBED IN 5 U.S.C. 5532 (B). INASMUCH AS HE WAS IN RECEIPT OF CIVILIAN PAY ON FRIDAY, OCTOBER 28, 1966, AND THEREFORE SUBJECT TO REDUCTION OF RETIRED PAY FOR THAT DAY HIS LEAVE-WITHOUT-PAY STATUS FOR PURPOSES OF BEING EXEMPT FROM THE REDUCTION IN RETIRED PAY PROVISIONS OF 5 U.S.C. 5532 (B) MUST BE VIEWED AS HAVING COMMENCED NOT EARLIER THAN MONDAY, OCTOBER 31, 1966. ACCORDINGLY, HE WAS NOT ENTITLED TO RECEIVE FULL RETIRED PAY FOR SATURDAY AND SUNDAY, OCTOBER 29 AND 30, 1966, AND THE REFUND STATED TO HAVE BEEN MADE TO HIM REPRESENTING THE DIFFERENCE BETWEEN FULL AND REDUCED RETIRED PAY FOR THOSE 2 DAYS WAS IMPROPER.

MILITARY RETIRED PAY ACCRUES ON A MONTHLY BASIS. NOTE 10 U.S.C. 1401, 3991 AND 8991. MONTHLY COMPENSATION (INCLUDING RETIRED PAY) IS COMPUTED AS IF EACH MONTH HAD 30 DAYS. NO COMPENSATION (AND NO RETIRED PAY) ACCRUES ON THE 31ST DAY OF ANY MONTH. SINCE A FULL MONTH'S RETIRED PAY (AT THE REDUCED RATE PRESCRIBED IN 5 U.S.C. 5532 (B) ( ACCRUED TO MAJOR BAKER FOR THE MONTH OF OCTOBER 1966, NO ADDITIONAL AMOUNT OF RETIRED PAY IS DUE HIM FOR OCTOBER 31, 1966, IRRESPECTIVE OF WHETHER HE WAS OR WAS NOT IN A LEAVE-WITHOUT-PAY STATUS FROM HIS CIVILIAN FEDERAL POSITION ON THAT DATE.

UNDER THE RULES ABOVE OUTLINED, MAJOR BAKER IS NOT ENTITLED TO FULL (NONREDUCED) RETIRED PAY FOR SATURDAY AND SUNDAY, NOVEMBER 5 AND 6, 1966; SATURDAY AND SUNDAY, JANUARY 14 AND 15, 1967; SATURDAY AND SUNDAY, FEBRUARY 11 AND 12, 1967; SATURDAY AND SUNDAY, MARCH 11 AND 12, 1967; OR SATURDAY AND SUNDAY, MARCH 25 AND 26, 1967. HE IS ENTITLED, HOWEVER, TO FULL RETIRED PAY FOR SATURDAY AND SUNDAY, MARCH 18 AND 19, 1967. THE THREE QUESTIONS RELATING TO MAJOR BAKER ARE ANSWERED ACCORDINGLY.

THE PAYMENT PROPOSED ON THE VOUCHERS SUBMITTED WOULD NOT BE PROPER AND THE VOUCHERS THEREFORE WILL BE RETAINED HERE.