      Rate of Accrual of Annual Leave by a Civilian Employee
           Appointed While on Terminal Leave Pending
         Retirement From One of the Uniformed Services
A member of a uniformed service appointed to a civilian position while on terminal leave pending
  retirement from the service is entitled to credit for his years of active military service only for the
  duration of his terminal leave.
Once the employee retires from the uniformed service, he no longer is entitled to credit for his years of
  active military service unless he satisfies certain statutory exceptions detailed in 5 U.S.C. § 6303(a)
  or (e). The employee’s leave-accrual rate must be recalculated upon his retirement to reflect his
  reduced years of creditable service.

                                                                                     October 16, 2007

                  MEMORANDUM OPINION FOR THE GENERAL COUNSEL
                           DEPARTMENT OF DEFENSE

   “Terminal leave” is “a term of art originating during World War II” meaning “a
leave of absence granted at the end of one’s period of service.” Terry v. United
States, 97 F. Supp. 804, 806 (Ct. Cl. 1951). Members of the uniformed services
who are on terminal leave pending retirement from active duty and who accept
civilian employment with the federal government are entitled to receive the pay of
both positions “for the unexpired portion of the terminal leave.” 5 U.S.C. § 5534a
(2000).
   You have asked us whether a member of a uniformed service who is appointed to
a civilian position while on terminal leave pending retirement is entitled to credit for
his years of active military service for the purpose of determining the rate at which
he accrues annual leave under section 203 of the Annual and Sick Leave Act, Pub.
L. No. 82-233, 65 Stat. 672, 679–80 (1951) (codified as amended at 5 U.S.C. § 6303
(2000 & Supp. V 2005)). 1 We conclude that such a member is entitled to credit for
his years of active military service only for the duration of his terminal leave. Once
the employee retires from the uniformed service, he no longer is entitled to credit for
his years of active military service unless he satisfies certain statutory exceptions,
see id. §§ 6303(a)(A)–(C), (e), and the employee’s leave-accrual rate must be
recalculated upon his retirement to reflect his reduced years of creditable service.


    1
      In considering this question, we have had the benefit of the views of the Department of Defense
and the Office of Personnel Management. See Letter for Steven G. Bradbury, Acting Assistant Attorney
General, Office of Legal Counsel, from Daniel J. Dell’Orto, Principal Deputy General Counsel,
Department of Defense (June 26, 2006). The Office of Personnel Management has informed us that its
views are expressed in its April 2005 letter to your office. See Letter for Daniel J. Dell’Orto, Principal
Deputy General Counsel, Department of Defense, from Mark A. Robbins, General Counsel, Office of
Personnel Management (Apr. 14, 2005). This opinion memorializes advice that we provided to you
informally in November 2006.




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                   Rate of Accrual of Annual Leave by a Civilian Employee


                                                 I.

    As a general matter, a member of a uniformed service “whose pay or allowance
is fixed by statute or regulation may not receive additional pay or allowance for
the disbursement of public money or for any other service or duty, unless specifi-
cally authorized by law,” 5 U.S.C. § 5536 (2000). 2 Section 203 of the Dual
Compensation Act, Pub. L. No. 88-448, 78 Stat. 484, 487 (1964), however,
authorizes a member of a uniformed service on terminal leave pending retirement
from active service to accept civilian employment and to receive the pay of both
positions:

        A member of a uniformed service who has performed active service
        and who is on terminal leave pending separation from, or release
        from active duty in, that service under honorable conditions may ac-
        cept a civilian office or position in the Government of the United
        States, its territories or possessions, or the government of the District
        of Columbia, and he is entitled to receive the pay of that office or
        position in addition to pay and allowances from the uniformed ser-
        vice for the unexpired portion of the terminal leave.

5 U.S.C. § 5534a. It is well settled, and both the Department of Defense (“DoD”)
and the Office of Personnel Management (“OPM”) agree, that a member of a
uniformed service on terminal leave is still on active duty and has not yet been
“release[d]” from the service. See 10 U.S.C. § 701(e) (2000) (“Leave taken before
discharge is considered to be active service.”); Madsen v. United States, 841 F.2d
1011, 1013 (10th Cir. 1987) (“Terminal leave, or leave taken prior to discharge, is
statutorily defined as active duty service.”).
   The “pay” for a civilian position to which a service member on terminal leave
is entitled necessarily includes annual leave with pay. See Matter of Office of
Technology Assessment Authority for Incentive Awards Program, 67 Comp. Gen.
418, 420 (1988). 3 Section 6303 of title 5, United States Code, governs a civilian
employee’s entitlement to annual leave. 4 Section 6303(a) provides that “[a]n


    2
      The uniformed services are statutorily defined to include the Armed Forces (the Army, Navy, Air
Force, Marine Corps, and Coast Guard, see 10 U.S.C. § 101(a)(4) (2000)), and the commissioned
officer corps of the National Oceanic and Atmospheric Administration and the Public Health Service,
see 5 U.S.C. § 2101(2), (3) (2000). See 10 U.S.C. § 101(a)(5) (2000) (same).
    3
      Although the Executive Branch is not bound by the legal opinions of the Comptroller General,
this office considers them useful sources in resolving appropriation issues. See, e.g., Submission of
Aviation Insurance Program Claims to Binding Arbitration, 20 Op. O.L.C. 341, 343 n.3 (1996).
    4
      For the purposes of section 6303, section 6301 defines an “employee” to include both an “em-
ployee” within the meaning of 5 U.S.C. § 2105 (2000) (“employee” includes any individual who is
appointed by, among others, the President or Congress, performs a “Federal function under authority of
law or an Executive act” and is subject to the supervision of an appointing authority) as well as “an
individual first employed by the government of the District of Columbia before October 1, 1987.” Id.




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                     Opinions of the Office of Legal Counsel in Volume 31


employee is entitled to annual leave with pay which accrues” at graduated rates for
employees with specified periods of creditable service: four hours of leave per
biweekly pay period for employees with less than three years of creditable service,
six hours per pay period for those with “3 but less than 15 years of service,” and
eight hours for more years of service.” The change in an employee’s rate of
accrual of annual leave “takes effect at the beginning of the pay period after the
pay period . . . in which the employee completed the prescribed period of service.”
5 U.S.C. § 6303(c).
    “In determining years of service” an employee is to be credited with, section
6303(a) directs that “an employee is entitled to credit for all service of a type that
would be creditable” under two provisions of title 5, sections 8332 and 6303(e).
5 U.S.C. § 6303(a). Section 8332 counts active military service as creditable service,
subject to a number of detailed conditions and exceptions. 5 U.S.C. § 8332(c)(1)(A)
& (B) (2000). Specifically, if an employee “is awarded retired pay based on any
period of military service,” the employee’s military service will generally not be
counted “unless the retired pay is awarded” either based upon certain service-
connected disabilities or pursuant to certain provisions of title 10 of the United States
Code (specifically, 10 U.S.C. §§ 12731–12741 (2000 & Supp. IV 2004)) governing
retired pay for non-regular service. 5 U.S.C. § 8332(c)(2).
    Section 6303(a) contains a similar exclusion limiting the credit that a civilian
employee who is a retired member of a uniformed service may receive for his years
of active military service. A civilian employee retired from a uniformed service “is
entitled to credit for active military service only if” one of three conditions is met:
(1) “his retirement was based on disability” received in the line of duty “as a direct
result of armed conflict” or caused by “an instrumentality of war and incurred in
[the] line of duty during a period of war,” 5 U.S.C. § 6303(a)(A); (2) his service
“was performed in the armed forces during a war, or in a campaign or expedition for
which a campaign badge has been authorized,” id. § 6303(a)(B); or (3) “on Novem-
ber 30, 1964, he was employed in a position to which this subchapter applies and
thereafter continued to be so employed without a break in service of more than 30
days,” id. § 6303(a)(C). Section 3501 defines “retired member of a uniformed ser-
vice” to mean “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
a member.” 5 U.S.C. § 3501(2) (2000). Thus, with limited exceptions, title 5
prohibits a retired uniformed service member from receiving credit for his military
service for purposes of calculating his annual leave while he is entitled to receive
retirement pay. See id. §§ 3501(2), 6303(a), & 8332(c)(2).


§ 6301(1), (2) (2000). The definition of “employee” in section 6301 affirmatively excludes 13 catego-
ries of positions, such as, for example, “an employee of either House of Congress or of the two
Houses,” id. § 6301(vi), and “an officer in the executive branch or in the government of the District of
Columbia who is designated by the President, except a postmaster, United States attorney, or United
States marshal,” id. § 6301(xi).




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                     Rate of Accrual of Annual Leave by a Civilian Employee


   Section 202(a)(1) of the Federal Workforce Flexibility Act of 2004, Pub. L. No.
108-411, 118 Stat. 2305, 2312 (adding 5 U.S.C. § 6303(e)), provides one such
exception. That provision required OPM to promulgate regulations that would
permit the head of an appointing agency to credit a new civilian employee for past
uniformed service notwithstanding section 6303(a), so long as the employee’s
duties while in the uniformed service “directly relate to the duties” of the civilian
appointment and, in the judgment of the head of the appointing agency, granting
credit for such years of service “is necessary in order to achieve an important
agency mission or performance goal.” 5 U.S.C. § 6303(e)(1)(A)(i), (B). Under
OPM’s regulations, the head of an agency may “provide credit for active duty
uniformed service that otherwise would not be creditable under 5 U.S.C. 6303(a)”
upon determining that the employee’s skills and experience are “[e]ssential to the
new position,” “were acquired through performance in a position in the uniformed
services having duties that directly relate to the duties of the position,” and are
“[n]ecessary to achieve an important agency mission or performance goal.” 5 C.F.R.
§ 630.205(b)(1) & (2) (2007).

                                                     II.

   OPM interprets section 6303(a) to require an agency to credit the employee for
his years of active military service until his retirement. OPM further reads section
6303(a) to require that the employee continue to receive that credit even after he
has retired from the uniformed service. OPM reasons that the agency has no
specific statutory authority to adjust the leave-accrual rate downward after an
employee retires from a uniformed service and, therefore, there is no legal basis
authorizing the recalculation of the leave accrual rate upon retirement from the
military. 5
   DoD contends that a uniformed service member who is appointed to a civilian
position while on terminal leave should be treated as if he has already retired, and
should not be entitled to credit for his years of active military service, either at the
time he is appointed to a civilian position or afterwards. DoD bases its interpreta-
tion of section 6303(a) on its understanding of the purposes of section 5534a,

    5
      OPM’s interpretation does not appear in regulations promulgated pursuant to notice and comment
procedures, nor does it appear in any decision issued pursuant to formal adjudication procedures. OPM
has previously articulated this interpretation in informal decisions resolving claims brought by
employees who were hired while on terminal leave. See, e.g., In re Passey, No. 04-0023 (Jan. 11, 2006)
(concluding that claimant is “entitled to credit for his entire period of military service in determining
his leave accrual rate at the time of his initial civilian appointment” and that his “military retirement . . .
does not disturb, set aside, or subject his leave accrual rate to recalculation for the period of his current
civilian appointment”). OPM’s interpretation also previously appeared in OPM’s Guide to Processing
Personnel Actions Operating Manual (“OPM Manual”) ch. 6, subch. 1, at 1–2 (2007) (available at
http://www.opm.gov/feddata/gppa/gppa.asp, last visited ca. 2007) (defining “Service Computation
Date,” which agency must set “at appointment” for the purpose of determining the rate at which an
employee accrues annual leave).




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                  Opinions of the Office of Legal Counsel in Volume 31


which DoD says was intended to permit members of the military to be hired as
civilian employees by the government in order to retain personnel with valuable
skills, but was not intended to create a windfall of compensation for retiring
members of the military.
    While your opinion request was pending, Congress resolved the issue prospec-
tively in section 1101 of the John Warner National Defense Authorization Act for
FY 2007 (“the Warner Act”), Pub. L. No. 109-364, 120 Stat. 2083, 2407 (Oct. 17,
2006). That provision amends 5 U.S.C. § 5534a to provide that a uniformed
service member who is appointed to a civilian position while on terminal leave is
“entitled to accrue annual leave with pay in the manner specified in section
6303(a) of this title for a retired member of a uniformed service.” (Emphasis
added.) Going forward, any member appointed to a civilian position thus will be
entitled to credit for his years of active military service only if he either satisfies
the requirements of section 6303(a)(A)–(C) or receives credit under the regula-
tions implementing section 6303(e). You have asked us to resolve the issue under
the prior law to determine whether DoD may adjust the leave-accrual rate of
retired uniformed service members who were appointed to civilian positions
before the effective date of the new law.

                                          III.

   In resolving this issue, we will apply the principles set forth in Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See
Proposed Agency Interpretation of “Federal Means-Tested Public Benefits”
Under Personal Responsibility and Work Opportunity Reconciliation Act of 1996,
21 Op. O.L.C. 21, 21–23 (1997); Memorandum for James W. Carroll, Jr., Deputy
General Counsel, Department of the Treasury, from Noel J. Francisco, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Validity of Regulation
Interpreting Federal Alcohol Administration Act to Prohibit Slotting Fees in
Connection with Alcohol Sales at 3 (Mar. 11, 2005). Under Chevron, we first ask
“whether Congress had directly spoken to the precise question at issue.” 467 U.S.
at 842. This matter presents two distinct statutory questions: (1) whether a service
member who is appointed to a civilian position is entitled to credit for his years of
active service in determining his leave-accrual rate while he continues on terminal
leave; and (2) whether such an employee continues to be entitled to credit for his
years of active service even after he retires from uniformed service. If Congress
has addressed these questions directly, then we “must give effect to the unambigu-
ously expressed intent of Congress.” Id. at 842–43. If “the statute is silent or
ambiguous with respect to the specific issue[s],” however, then we proceed to
consider whether Congress has delegated to OPM the authority to administer the




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                    Rate of Accrual of Annual Leave by a Civilian Employee


statute and “whether the agency’s answer is based on a permissible construction of
the statute.” Id. at 843. 6
    We resolve both issues at step one of the Chevron inquiry. We conclude that
OPM’s interpretation with respect to the first issue—that a service member
appointed to a civilian position while on terminal leave from a uniformed service
is entitled to credit for his years of active military service until his retirement—is
not only a permissible construction of 5 U.S.C. §§ 5534a and 6303(a), but it is
required by the plain terms of those two provisions. We also conclude, however,
that OPM’s interpretation with respect to the second issue—that such an employee
is entitled to credit for his years of active service even after retirement from
uniformed service—conflicts with the plain terms of section 6303(a) and, there-
fore, is not a permissible construction of that provision.

                                                  A.

   In determining whether Congress has addressed these issues, we begin with the
text of the statute. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002).
Congress “says in a statute what it means and means in a statute what it says there.
When the words of a statute are unambiguous, then, this first canon is also the last:
‘judicial inquiry is complete.’” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–
54 (1992) (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)); accord The
Food and Drug Administration’s Discretion to Approve Methods of Detection and
to Define the Term “No Residue” Pursuant to the Federal Food, Drug, and
Cosmetic Act, 19 Op. O.L.C. 247, 263 (1995) (applying Chevron principles in
analyzing whether agency interpretation of statute was lawful).
   Under the express terms of section 5534a as it stood before the effective date of
section 1101 of the Warner Act, a uniformed service member on terminal leave
appointed to a civilian position would be “entitled” to receive both his military pay
and allowances and the pay of his civilian position, including annual leave, “for
the unexpired portion of the terminal leave.” Under section 6303(a), a civilian
employee likewise would be “entitled” to receive annual leave accruing at a rate
determined by his years of “service of a type that would be creditable under
[5 U.S.C. §] 8332 . . . and for all service which is creditable by virtue of []section
[6303](e).” The years of creditable service to which a uniformed service member


    6
      Congress has vested OPM with authority to “prescribe regulations necessary for the administra-
tion” of the Annual and Sick Leave Act. 5 U.S.C. § 6311 (2000). The Director of OPM also is
responsible, as a general matter, for “securing accuracy, uniformity, and justice in the function of the
Office,” id. § 1103(a)(1) (2000), and for “executing, administering, and enforcing” the “civil service
rules and regulations of the President and the Office and the laws governing the civil service,” id.
§ 1103(a)(5)(A). See generally Contreras v. United States, 215 F.3d 1267, 1274 (Fed. Cir. 2000)
(holding that OPM has authority under the Annual and Sick Leave Act to “fill gaps in the statutory
scheme left by Congress if it does so in a manner that is consistent with the policies reflected in the
statutory program”).




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                  Opinions of the Office of Legal Counsel in Volume 31


on terminal leave is entitled under section 6303(a) include years of active military
service. Honorable active military service is service “of a type” creditable for the
purpose of determining the amount of an annuity under section 8332(c)(1) and,
therefore, is creditable service for the purpose of determining an employee’s rate
of accrual of annual leave under section 6303(a). See 5 U.S.C. § 8331(13) (2000)
(credit for “military service” includes “honorable active service”); 10 U.S.C.
§ 101(d)(3) (2000) (“active service” includes “service on active duty or full-time
National Guard duty”); id. § 101(d)(1) & (5) (further defining “active duty” and
“full-time National Guard duty”). As noted above, a uniformed service member on
terminal leave remains on active duty and has not yet retired. See 10 U.S.C.
§ 701(e) (2000) (“Leave taken before discharge is considered to be active ser-
vice.”); Madsen, 841 F.2d at 1013 (time on terminal leave is “undisputed active
duty status”). Accordingly, such a member is not subject to the exclusion from
credit because he is not retired and, therefore, he need not qualify under the
exceptions in section 6303(a)(A)–(C) to receive credit for his years of active
service. Rather, he continues to be entitled to credit for his years of active military
service under sections 6303(a) and 8332(c)(1) for the purpose of accruing annual
leave.
   DoD contends that these provisions are best interpreted to provide that a mem-
ber who is appointed to the civil service while on terminal leave pending retire-
ment is not entitled to accrue more than four hours of annual leave, because,
before retirement, his military service cannot be considered creditable service for
purposes of 5 U.S.C. § 6303(a). According to DoD, because the purpose of section
5534a was only to enable departing members of the uniformed services to take
positions with the federal government while on terminal leave, and was not to
provide members of the armed forces on terminal leave with a windfall of annual
leave to which they would not otherwise be entitled, section 6303(a) should be
read to preclude a member on terminal leave from receiving credit for his years of
active military service in calculating the rate at which he accrues annual leave in
his civilian position. Even if that is a correct statement of the statutory purpose, “it
is ultimately the provisions of our laws rather than the principal concerns of . . .
legislators” that determine a statute’s meaning. Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 79 (1998). Where, as here, “the statutory language is
clear and unambiguous, we need neither accept nor reject a particular ‘plausible’
explanation for why Congress would have written a statute.” Barnhart, 534 U.S. at
460–61. Rather, “deference to the supremacy of the Legislature, as well as
recognition that Congressmen typically vote on the language of a bill, generally
requires us to assume that ‘the legislative purpose is expressed by the ordinary
meaning of the words used.’” United States v. Locke, 471 U.S. 84, 95 (1985)
(quoting Richards v. United States, 369 U.S. 1, 9 (1962)).




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                Rate of Accrual of Annual Leave by a Civilian Employee


                                         B.

    The plain language of section 6303(a) is equally clear in providing that a uni-
formed service member appointed to a civilian position while on terminal leave
generally loses his entitlement to receive credit for his prior active service upon
retirement. Once a member of a uniformed service transitions from “terminal
leave” (an active-duty status) to “retired,” he “is retired” within the meaning of
sections 3501(2) and 6303(a). From then on, such an employee is “entitled” to
receive credit for his years of active military service only to the extent that either
his prior active military service falls into one of the three express exceptions in
5 U.S.C. § 6303(a)(A)–(C) or the head of the agency grants him credit under
5 U.S.C. § 6303(e) for service that otherwise would not be creditable. See also id.
§ 8332(c)(2) (employee “awarded retired pay based on any period of military
service” is not entitled to credit for any period of military service unless retired
pay is awarded based upon certain types of service-connected disabilities or
pursuant to the provisions for certain non-regular service at 10 U.S.C. §§ 12731–
12741). OPM’s interpretation of section 6303(a), however, would require agencies
to continue to credit an employee who was appointed while on terminal leave for
his years of active military service even after he has retired and regardless of
whether he satisfies one of the three statutory exceptions set forth in section
6303(a).
    OPM contends that it is foreclosed from adjusting an employee’s years of credit
downward after his retirement from active military service because nothing in
section 6303 authorizes the reduction of the employee’s leave accrual rate based
on the employee’s subsequent retirement from the military. We disagree. OPM’s
interpretation is inconsistent with the plain terms of title 5 of the United States
Code, which establish the only basis for an employee’s entitlement to pay,
including annual leave. “Title 5 of the United States Code and its implementing
regulations set forth in meticulous detail the compensation that attaches to
positions in the government service. . . . These provisions are the exclusive source
of employees’ compensation rights.” Kizas v. Webster, 707 F.2d 524, 536 (D.C.
Cir. 1983) (emphasis in original); see also Schism v. United States, 316 F.3d 1259,
1268 (Fed. Cir. 2002) (“Congress—and only Congress—can authorize the benefits
that a retired federal employee, whether civilian or military, is entitled to re-
ceive.”). Indeed, section 5536 expressly provides that an employee “whose pay or
allowance is fixed by statute or regulation may not receive additional pay or
allowance for the disbursement of public money . . . unless specifically authorized
by law.” 5 U.S.C. § 5536 (emphases added). Far from having “specifically
authorized” former service members to continue to receive credit for their service
after retirement, Congress has expressly barred giving credit under such circum-
stances. That alone provides sufficient authority to revisit the accrual determina-
tion.




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    Furthermore, although we do not rely upon the provision to support our conclu-
sion, section 6303(c) reasonably may be construed to authorize an employer to
revisit a military retiree’s leave-accrual rate. That provision states that “[a] change
in the rate of accrual of annual leave by an employee under this section takes
effect at the beginning of the pay period after the period . . . in which the employee
completed the prescribed period of service.” 5 U.S.C. § 6303(c). We believe that
the phrase “completed the prescribed period of service” may be construed to apply
to the retiree’s completion of his military service. Take, for example, a member of
a uniformed service appointed as a civilian employee while on terminal leave who
has 20 years of active military service and no other creditable service: Before the
end of his terminal leave and his retirement, such an employee is entitled to accrue
annual leave at a rate of eight hours per biweekly pay period. After retirement
from the uniformed service, however, he would be entitled to zero years of
creditable service under section 6303(a). Because the employee would have
completed “less than three” years of creditable service, he would be entitled to
accrue annual leave at a rate of only four hours per biweekly pay period. It would
be reasonable to read section 6303(c) to provide that the “change in the rate of
accrual” resulting from his retirement from the uniformed service would be put
into effect for the biweekly pay period following the member’s retirement from
the uniformed service.
    Even if section 6303(c) does not itself authorize an agency to reduce the leave-
accrual rate of an employee, but instead permits an agency only to increase an
employee’s leave-accrual rate when he has completed additional years of credita-
ble service, nothing in section 6303(c) indicates that it is the exclusive means by
which an agency may adjust an employee’s leave-accrual rate. Certainly, section
6303(c) does not negate an agency’s authority to carry into effect the clear
command in section 6303(a) that only certain retired members of the uniformed
services are entitled to credit for prior active military service following retirement.
Section 6303(c)’s explicit direction with respect to increasing an employee’s
leave-accrual rate does not, under the circumstances, support the inference that
Congress implicitly prohibited a reduction in an employee’s leave-accrual rate.
Congress knew how to prohibit an agency from reducing the creditable service of
a civilian employee after his appointment date, yet it did so only for certain types
of service that otherwise would not be creditable under section 6303(a). See
5 U.S.C. § 6303(e)(2)(B) (once an agency, acting pursuant to regulations promul-
gated under section 6303(e)(1), gives employee credit for years of service which
would not otherwise be creditable under section 6303(a), such service “shall not
thereafter cease to be so creditable, unless the employee fails to complete a full
year of continuous service with the agency”). The omission of similar language
here is telling. See Russello v. United States, 464 U.S. 16, 23 (1983) (“Where
Congress includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress acts




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                 Rate of Accrual of Annual Leave by a Civilian Employee


intentionally and purposely in the disparate inclusion or exclusion.”) (internal
quotation omitted).
    Moreover, we understand that OPM, in other contexts, has instructed agencies
to adjust an employee’s leave-accrual rate even where section 6303 provides no
express authority to make such an adjustment. For example, following the
reasoning in decisions of the Comptroller General, OPM has instructed federal
agencies to readjust the leave-accrual rate of an employee appointed to a civilian
position while on the Temporary Disability Retired List (“TDRL”). See OPM
Manual ch. 6, subch. 2, 2-2(d); In re Cejka, 63 Comp. Gen. 210, 213 (1984).
    The Comptroller General’s decision in Cejka supports the conclusion that an
agency must carry into effect the clear command of section 6303(a) that a retired
service member is no longer entitled to credit for his years of active military
service. In Cejka, the Comptroller General concluded that an employee who was
appointed to a civilian position while on the TDRL was not entitled to be credited
for his years of active military service “so long as his name is carried on that
[TDRL] list.” Id. at 213. The Comptroller General stated that “the basis for
crediting annual leave at one of the rates specified in [5 U.S.C. § 6303](a)(1)–(3),
is predicated on the employee’s accumulation of the specified number of years of
creditable service,” and “[t]he rate to be applied to ‘each full biweekly pay period’
is determined at the beginning of each upcoming biweekly pay period.” Id. at 213–
14. So long as Cejka was on the TDRL, he was “only entitled to” credit for his
active military service effective as of “the date of removal of his name from that
list.” Id. at 213. During “any biweekly pay period of Federal employment while
[Cejka] is in a military retired status . . . he may not be credited with his military
service time,” because as a member on the TDRL, he was entitled to credit for his
years of active military service under section 6303(a) only if he could satisfy one
of the exceptions in section 6303(a)(A)–(C). Id. Cejka did not satisfy any of those
exceptions. Therefore, the Comptroller General concluded that section 6303(a)
required that Cejka’s annual leave accrual rate be adjusted and that “annual leave
credited to his account . . . in excess of th[e] rate [to which he is entitled], is to be
subtracted from his leave balance.” Id. The reasoning of Cejka, which we find
persuasive, see supra note 3, indicates that recalculation of an employee’s leave-
accrual rate is warranted where an employee moves between a creditable and a
non-creditable military status.
    We are not persuaded that the only relevant time for considering whether a
person is retired for the purposes of section 6303(a) is the time of appointment.
The plain language of section 6303 establishes that leave-accrual rate determina-
tions may be made after the time of appointment, such as when the employee
completes additional years of service. 5 U.S.C. § 6303(a), (c). OPM’s practice
following Cejka, as evidenced in its decisions and in the former OPM Manual, see
supra note 5, likewise demonstrates that leave-accrual rate determinations may be
reevaluated after an employee’s initial appointment.




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                                                 IV.

   For the foregoing reasons, we conclude that, for appointments made before the
effective date of section 1101 of the Warner Act, a member of a uniformed service
appointed to a civilian position while on terminal leave is entitled under section
6303(a) to credit for his years of active military service in determining the rate at
which he accrues annual leave, but only while he continues on active duty. Once
the member retires from the uniformed service, he is entitled to credit for his years
of active military service on the same basis as any other retired member, namely
only if he satisfies one of the exceptions in section 6303(a)(A)–(C) or receives
credit from the head of the appointing agency pursuant to section 6303(e). 7

                                                         JOHN P. ELWOOD
                                                   Deputy Assistant Attorney General
                                                       Office of Legal Counsel




    7
      We do not address the separate issue of agencies’ discretion to waive the recovery of annual leave
erroneously granted to employees as an “erroneous payment of pay . . . the collection of which would
be against equity and good conscience and not in the best interests of the United States.” 5 U.S.C.
§ 5584(a) (2000); id. § 5584(a)(2) (granting authority to head of agency to waive recovery of erroneous
payment of up to $1,500); Office of Management & Budget, Determination with Respect to Transfer of
Functions Pursuant to Public Law 104-316 (Dec. 17, 1996) (delegating to agency heads authority
under 5 U.S.C. § 5584(a)(1) to waive recovery of erroneous payment of more than $1,500).




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