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B-226546,B-226791 1 (1988-06-03)

handle is hein.gao/gaobadnck0001 and id is 1 raw text is: IThe Comptroller General of the United States Washington, D.C. 20548 Decision Lieutenant Colonel Ralph E. Marker, Jr., USA Matterof- (Retired), and others--Dual Compensation Restrictions File: B-226546, B-226791 Date: June 3, 1988 DIGEST 1. In Denkler v. United States, 782 F.2d 1003 (Fed. Cir. 1986), the Court of Appeals for the Federal Circuit held that military retirees were exempt from the restrictions of 5 U.S.C. §§ 5531 and 5532 when employed by the Board of Governors of the Federal Reserve System. The Comptroller General will follow the court's judgment, and overrules the prior contrary administrative decision in Lieutenant Colonel Robert E. Frazier, USA (Retired), 63 Comp. Gen. 123 (1983). Military retirees employed by the Federal Reserve Board who were not plaintiffs in the Denkler litigation may be allowed refunds of amounts previously deducted from their retired pay, subject to the 6-year limitation period prescribed by 31 U.S.C. S 3702(b). 2. A retired Army officer employed in a civilian posi- tion with the Office of Civilian Radioactive Waste Management, Department of Energy, is not exempt from the dual compensation restrictions of 5 U.S.C. S§ 5531 and 5532 on the basis of the court's decision in Denkler v. United States, 782 F.2d 1003 (Fed. Cir. 1986), to the effect that positions with the Federal Reserve Board are not covered by those restrictions because the Board is a non- appropriated fund instrumentality. The Department of Energy collects fees from corporations which generate nuclear waste, and it uses those funds to pay the salaries of the employees of the Office of Civilian Radioactive Waste Management. However, the funds are required by law to be deposited in the Treasury and are spent by the Department of Energy under statutory authority constituting a continuing appropriation; therefore, they are considered appropriated funds; and the Office of Civilian Radioactive Waste Management is not a non-appropriated fund instrumen- tality for purposes of the dual compensation restrictions. QAAZ-' 356

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