Law Review 1164
Does my Active Duty Time Count for Federal Civilian Leave Accrual Purposes?
By Captain Samuel F. Wright, JAGC, USN (Ret.)
3.1—Reserve Retirement and Civilian Employment (Federal)
Q: I recently retired from the Army Reserve (became a “gray area retiree”) at age 52, with 30 years of commissioned service. I was born October 11, 1959, and I earned my commission in June 1981, at the age of 21. After commissioning, I served on active duty for five years, and then I left active duty and affiliated with the Army Reserve. I have an additional four years of active duty in the Army Reserve, including a year in Iraq in 2005-06 and a year in Afghanistan in 2009-10.
I recently took a federal civilian job for the first time in my life. Federal civilian employees with less than three years of federal service earn four hours of annual leave per pay period. Employees with 3-15 years of service earn six hours of annual leave per pay period. Employees with more than 15 years of service earn eight hours of annual leave per pay period.
I think that my nine years of active duty should count in determining my leave category. Thus, I should have nine years of service and should receive six hours of annual leave per pay period. After I work for this agency for six years, I should start earning eight hours of annual leave per pay period. Right?
The personnel office at this particular federal agency says that I am not entitled to any credit for my military time because I am a military retiree. Thus, I am receiving only four hours of annual leave per pay period. What do you think?
A: I think that the personnel office is wrong, and I will explain. First, here is the pertinent section of the United States Code:
(2) three-fourths day for each full biweekly pay period, except that the accrual for the last full biweekly pay period in the year is one and one-fourth days, for an employee with 3 but less than 15 years of service; and
In determining years of service, an employee is entitled to credit for all service of a type that would be creditable under section 8332, regardless of whether or not the employee is covered by subchapter III of chapter 83, and for all service which is creditable by virtue of subsection (e). However, an employee who is a retired member of a uniformed service as defined by section 3501 of this title is entitled to credit for active military service only if—
The determination of years of service may be made on the basis of an affidavit of the employee. Leave provided by this subchapter accrues to an employee who is not paid on the basis of biweekly pay periods on the same basis as it would accrue if the employee were paid on the basis of biweekly pay periods.
Title 5, United States Code, section 6303(a).
As a “gray area retiree” you are not “an employee who is a retired member of a uniformed service as defined by section 3501 of this title.” Thus, the exclusion of military service time does not apply to you until you turn 60 and start receiving your Army Reserve retired pay. The title 5 definition of “a retired member of a uniformed service” is as follows: “a member or former member of a uniformed service who is entitled, under statute, to retired, retirement, or retainer pay on account of his service as such member.” 5 U.S.C. 3501(a)(2) (emphasis supplied).
When you turn 60 and become eligible for your retired pay, you will lose the credit, for leave accrual purposes, for your active duty time. Thus, if you are still working for the Federal Government as a civilian on your 60th birthday, you may drop from earning eight hours of annual leave per pay period to just six, from that point forward.
Q: I have heard that my Afghanistan active duty in 2009-10 may qualify me to start drawing my Army Reserve retired pay some months prior to my 60th birthday on October 11, 2017. How does that work? If I start drawing my retired pay on my 59th birthday, based on a year in Afghanistan, will I then lose leave accrual credit for my military service on my 59th birthday?
A: The National Defense Authorization Act (NDAA) for Fiscal Year 2008 amended the reserve retirement chapter to provide for earlier receipt of retired pay (prior to the individual’s 60th birthday) in some circumstances. Here is the pertinent language as amended: “In the case of a person who as a member of the Ready Reserve serves on active duty or performs active service described in subparagraph (B) [contingency service] after the date of enactment of the National Defense Authorization Act for Fiscal Year 2008 [January 28, 2008], the eligibility age for purposes of subsection (a)(1) shall be reduced below 60 years of age by three months for each aggregate of 90 days on which such person performs in any fiscal year after such date, subject to subparagraph (C). A day of duty may be included in only one aggregate of 90 days for purposes of this subparagraph.” 10 U.S.C. 12731(f)(2)(A) (emphasis supplied).
Let us say that your year of contingency service (Afghanistan) after January 28, 2008 was from January 15, 2009 to January 14, 2010. Because of the “within a fiscal year” requirement, that year of active duty gives you nine months (not 12 months) reduction of the start-date for your receipt of your reserve retirement. Thus, it appears that you will start drawing your reserve retired pay when you are 59 years and three months old. Thus, it appears that you qualify for the retired pay starting on January 11, 2017 (nine months before your 60th birthday).
For title 10 purposes, you are not considered a retiree until you turn 60, although you start drawing the retired pay nine months earlier. But it could be argued that for purposes of 5 U.S.C. 3501(a)(2) you are a “retiree” when you start drawing the retired pay, on January 11, 2017. This is an issue of first impression, because the provision for early receipt of reserve retired pay only goes back to January 28, 2008.