eighty three thirty two allows when there is concurrent military and civilian service for a federal employee like mr miller to earn from one day of civil service credit and one day of military credit service the service of the employee may not include credit for such a period of military service of military service and that's that's the issue the military service should not be applied but there is no denial of the civilian service so in this case mr miller was denied civilian service for the periods in question and he's not seeking to have double credit he's not seeking to have his military service time applied to the civilian service time he's  concern is there is one way to really see to it's just going to go for any days of your civilian service but you want credit for that you've already gotten credit for military service rights duties and you can't get credit towards your civilian service for those same days and so what that's what that i think is one way of reading yeah and that's not i mean the statute does refer to the period of military service and so this statute does apply in situations where for example a federal employee had twenty two years military service chose to take a twenty year retirement from the i guess the difference is when there's concurrent service for instance when there is not concurrent service when there is not concurrent service time can be bought back time to say on this exclusive lee deals with circumstances in which there's not dealing with something else they're talking about using military service to work or get it right right so when there is so that i would argue that the waiver issue only comes up in cases where you're looking to apply military service credit to civilian credit which again is just not the issue in this case what is the i mean there's a lot there are different scenarios in this case you've got different time periods than supply let me just ask you about one aspect of which is do i understand your argument to be that you're not just your clients todman when we're dealing with leave with no pay it's only when he was on annual leave from civil service that's what all of this is about but not when it's leave without pay correct so i guess from first of all there is a factual dispute and i understand that right and so you know what the principle so i do think in the case well they handbook in the case of leave without pay says there needs to be a deposit that is different than the case of annual leave which will let me see if i understand that i just want to i'm not taking sides here i just want to make sure we're all understanding the way the system works sure so if i'm civil servant and i take years without and i spend it doing something in the military your view is not that i could be accruing civil service retirement right here in that period versus but aren't there circumstances in which you're on leave without pay you get back in the new by that time well so you'd be on a military furlough if you were called up on an  and in that case that's not then viewed as concurrent service i've think that's a bit dishonest because under title five you are allowed to accrue some up to six months of leave without paying toward a civil service believe so but and in the back pay analysis the board found it easier because he had mr miller had retired go through the military and the government they found it easier to just take this fifteen months and call it non pay status those for the fifteen months of concurrent serv argument ok he didn't get military service credit for of those fifteen months where he was retroactively promoted correct ok so there is there is a what  saw that mr miller had been paid for those fifteen months by the government he had put in about eighteen thousand dollars toward retirement and so instead of and so that's essentially what happened they military said really i do believe in the scenario with him not receiving any military credit for the time that civilian credit does make sense he did work for the government but it's how he wanted it sounds like if he was retroactively promoted and  been deemed to be doing military service and wiping out the civilian service then one would say although it's fiction he really was part of the military at that time he wasn't part of the isn't all credit on the military side right now even so you're not arguing that he should get both military retirement credits and civilian retirement credits no  he in fact did not get military retirement from the air here seeking this is illian retirement credit for that time travel and that for whatever reason he hasn't been able to get military retirement credit for that correct to them the military well part of the issue was that he had retired at the point both from the military and the civil service and so those retirements had to be undone and back pay for active duty was awarded and in figuring out how apportion the back pay you know what was done was to place fifteen months of the construct of service credit into a non pay military status and that was because they didn't ask him to pay back the salary d i i paid for those fifteen months that they you know he didn't get back the hundred thousand dollars he put in for retirement they thought it would be cleaner that way obviously obviously not but could it be i actually think that wouldn't be an unreasonable outcome in the situation it seems like we're dealing with in a with a very unusual circumstance obviously given this this  is a situation is i think it's clear from just our questions we're i guess the ramifications the implications of what we might say could affect millions of people that is your feelings like we're driven by seventy one months of civil service credit he was seeking to double civilian credit he was seeking to have his military time applied to basically a doubling of the civilian credit and then once he was retired on one of the exception provisions three thirty i certainly see why he was claiming the civil service and i actually think that the foresight the system the board made is almost even more telling i mean in that case the appellant actually did with the board in this case is telling mr miller to do and the word so that's that's not going to get you where you want to go so in foresight he actually waived the military retirement for the military time and said since i waived that i should be eating now entitled to the double credit and the board said no you will can never get more than one day of civil service credit for civil service time and so they say even where the military time is waived you cannot get this double your guy seventy one days of credit for civil service in addition to the seventy one days for military retirement is because he satisfy the exception set forth in three three to that was the fact that was undisputed he was saying because of this exception i fall under i should get double credit and the court said no we cannot ever allow this double credit in this concurrent situation you can't get your you can't get two days of civil service credit in zero days of a military told you that if you're reading that he regardless of whether he qualified under eight three three two c to be he would have gotten the seventy said no i mean maybe on the face of it you have an argument why you could get more credit towards the civil service retirement but we're not going to because there's a larger backdrop principle and that's double counting right there's just no chance you're going to ever be able to double count days of civil service that you you were on the books or you can get an extra day on top of every day that right civil service looks right and so it credit he's seeking he's seeking the first seventy one days in this case and that's what he spent the night so i agree the statute bars the doubling of credit it seems that every appellant who's tried to get it hasn't been going to able to regardless of whatever exceptions because that's there's been a longstanding practice to do always have an either or outcome if you get military retirement for those days of konqueror and service then o p m never ever gives those people credit towards their conference a billion retirement i don't believe so and it seems that there aren't any cases where the  code the basic civil services from the night let me i think there were so many negatives about the answers i lost it because i think it's a very important question is it your understanding that the current longstanding practice with the government is in cases where i was in the military for whatever number of years in the civil service i take two weeks of reserve every year go work in the military on an annual leave is it your understanding that consistently the current thing what happens to your case it seems like there's still so many other issues subsidiary issues that go towards resolving the issue concur service not close by subsection two you've got the first period of terminally i can understand how that proposition may get that but the second one if it's leave without pay you agree there's no entitlement here and then the third issue seems to be a different issue altogether which is he got nothing for the skiri and so it's not a matter of how we interpret this concurrent service thing it's just a matter of whether or not he should have gotten a statue a question of what the current service is a lot that is nothing you're not asking for concurrent service there you're asking for for any any service for once you're right right i do think you know i mean if it is construc you know that there is a section in the handbook that actually deals particularly with this i don't view it it's conflicting at all with the statute i view it it's basically being the general rule it says that when billy hopefully the way to work in this period  everything to be taken care of and then be nothing on the civil side that you're right i think that would be the typical way that that's how the best way it should work that that's what we would typically see yeah and so you know maybe the  months right one from the military and civilian for working as a full time employee both places right the military did not pay him for that fifteen months so only only the federal government did so with what what is the story four a allows service members on terminal leave to be in an annual leave status and so presumably to a crew credit in one one week of military one week of civilian eighty three thirty two seat she to be and it's been renumbered slightly since seltzer but he he retired and he was receiving retired pay but that is because under that second exception seltzer he he retired under chapter sixty seven of that title and this is on an eight thirty three second nine seventy seven that says petitioner argues that because he was retired under chapter sixty seven of title just incertain if you're a reservist that's the exception and subs are you are if you take military if you're on military i don't understand the exception in cell service when service i mean the exception in c is that under that's the reservists chapter title turn retirement under that system you are able to get double credit but in the general sense if you're if you take leave from the agency and you go serve from your agency and you miss we're trying not leave without pay and i think your friend can see that you're on the but from the agency that's a different situation are there any circumstances in reality where someone would take annually from the federal terminal time is a unique circumstance if you can't be employed in the civilian position if you're active duty and so the terminal week was to transition mr miller from active duty military to civilian time again he gets military credit for that and if he chooses  it asks whether a federal employee can receive double credit for his military service for reasons other than those specifically listed in c one and c two and those are the reserve retirement exception and then for terminal leave so even if even if the person is getting paid by both agencies that doesn't mean that they can count that one week or however long period for retirement credit for both the military retirement and  what is what are we talking about what is the exception for military service covered by military leave with pay from the civilian position so that subsection the child deals with the computation section military service except military service covered by military leave with pay from a civilian position and then it goes on to say shall be excluded in determining the aggregate period of service for which an annuity payable under the subchapter to the individual based but then it goes on to say if the individual isn't titled or would be entitled to monthly old age or survivor benefits so there's another calculation that takes place when someone is eligible for social security benefits to again to recalculate the annuity the government covers people but they don't double the congressional intent is the not so have double coverage so if you're getting credit for that under social security then j one excludes that aggregate period for you one doesn't apply in all of this case certainly not the way it's been briefed your honor and i don't believe mr miller is making the argument that  with that general proposition leaving aside what the facts may tell us here excuse me i win though if it's not leave without pay but some other company and only leave with pay again leaving aside these facts do you agree with her proposition that she loses under one but wins under the other no i can't say i believe that she was under both under the reading of c two there's only two exceptions applies and that's if you're getting military higher pay for a period of time so if you are on leave with pay and you count that or to military leave and you're getting military retired pay then unless it's for a service connected disability incurred combat or reservist or retirement you can't count that same period of time toward your civilian retirement so you're saying you knew it she was under you getting military credit for retirement that's not seltzer seltzer want to double counting for your honor since we want to triple counting he was getting because he fit into the exception he was getting both military and civilian leave and then he was trying as pointed out to then take the military leave and double that up on the civilian side but insults or he only served one period of time and same thing here seltzer is different i agree because he fit into than eric's option for reservist real so i'm trying to now think about this case outside of so and we know this person was being paid for both the military time and the civilian time outside of the thought path for all those different periods where he was getting paid by co why wouldn't it just naturally follow that you would get so said if you're getting retirement pay from the military you can waive that and then just get in the silly pay in the civilian retirement system that's fine you have it either or choice or for certain instances you know if you were injured in combat that's a sympathetic case and we are going to allow you to see your croup retirement in both systems in part and the daily case talks about this because you don't necessarily if you're injured in combat have the ability to come back to the agency and resume your position with them can i just just following up on that so not only is somebody getting paid if you're on and will be if you're getting paid for one period and portions of your salary for retirement so for the same period of time you're getting not getting not only getting the checks for both of what you're doing but you're also getting your retirement deducted is that when you're a military levy you are on leave without pay unless you're a reservist and you're doing the two weeks a year so that this is not a situation where you're getting paid by both agency and i think judge jan was talking about a circumstance where you're  i don't know and i'm not sure when that comes up because you're not there's a prohibition on being an active duty military and working as a civilian with the exception of being a reservist so i don't i mean this may be identical but i don't it's well how what was happening with m i mean in that instance you would be getting paid in by both the syrian and by the military i mean i think that's a different case than this one but i don't i think the record here says that mr miller was that's what we're trying to leave  may not include credit for such period of military service unless so that's almost like the different situation the situation in seltzer where you're trying to get you trying to buy yen saying i served six months in the military i want to buy credit for my civil service retirement and you're a lot you're not allowed to buy again under certain circumstances why isn't that a correct reading of the statute and not the direct reading of the because you're so only serving one one period you're not you know literally in two places at once you're either with the military say overseas or you're not in your civilian capacity even  so in that case i think that would be more akin to when you know if you have accrued leave remaining when you leave an agency they you can get paid because that's leap that you accrued i think that's that's different than the in this case certainly but there is a provision that allows you to get i believe unused sick leave the county where she or so that maybe that's more akin leave rather than leave without pay where you are sort of suspending your role as a civilian and you're going into the military and getting paid there as by the military you're not no longer being paid as a civilian you know getting benefits or civilian and so you should not get the circumstances and given this the bar on being active duty military and being in the civilian service generally can't do that i'd suggest that this is limited to the reservists here tell me about that what is the thirty one three zero one c it says an employer member applying for an annuity who otherwise meets all the conditions of receiving credit for military service but who is in receipt of retired or period he was declining to wave as far as the record shows he didn't he did not want to make an unconditional where and you try to make a conditional waiver but the question asks at appendix sixty nine are you waiving your military retired pay in order to receive credit for military service he says no and i suppose maybe if you think this is the only other document on the record yes this is the conclusive on there is a conditional waiver that he tried to submit but then he you know that that opium found that that was insufficient i think what you're on is asking about is maybe some sort of presumption that if you make a deposit that constitutes waiver and that hasn't been that was not the argument made here i don't think they're fifty eight in the record there's a letter from o p m that says it reached out to the military tired of a service center to verify that for the period of time in one thousand nine hundred four for which mr miller was retroactively put out on active duty that he was getting military retired pay for that period and the military type a center verified that all of this time is now worded as military service credit and included in your military retired pay computation p m was told by the military retiree peace center that this was indeed counted i'm not sure where mr miller is saying that it wasn't difference so he was given fifteen months less credit toward his military retirement than toward his his general service credit so and then if you look on page true seven in non pay their us was pay and that comports with his record on page one eighty two that shows his service credit for his military retirement was fifteen months less his overall service credit you look at fifty eight fifty nine which is just you and tell us and so all the records themselves actually do show that while this he was awarded full service credit he was not awarded full credit toward his retirement can i just ask that at some point you  resolve what the facts are sure so would you if you would be amenable towards discussing this and maybe you could either send a joint letter to us or individual letters i don't know new briefing no no argument just retirement or not and then there's the issue of the deposit refund there is some documentation that some amount of money was refunded it's not clear to me what that represented but that seems to be service be recognized or included in civil service retirement computations and that certainly comports with the actual language of the statute which says the service of an individual shall include credit for each period of military service performed perform before the date of separation so it appears very clear to us anyway that this statute does mandate that there can be civil service credit and military service credits co  talking about reserve time the reason why that's not relevant is because the exception deals with when you're trying to get military service credit for added to your civilian account and that's that's again not what this case is about this case is about mr millet and getting civil by close of business february fourteenth but just next wednesday and just tell us you know where you are what you've concluded or what you haven't concluded and if you are making some progress and need more time i think that was the motive as well so that's the case you just just tell us by next wednesday close of business we're getting if you think more time with productive you listed them and you're going to try to sit down and discuss those yet all i want to know is it seems to me that maybe two people sitting down together can reconcile their differences and say yet now  for example now i see why you think this is leave without pay or you can say now i see where you're getting this and so all i want is to a see if you all can reconcile that if you can't you can't and we're left with the record as it is you make your month period it's a statement that he is broke we can't know for sure and that's what we're just trying to figure out no make sure i understand what the court is expecting no are you expecting us to provide because the record  not but i mean obviously the expectation is you you might come back at the end of the period and say no we remain we are you remain where you are i'm just wondering if there's some way we're we're somebody one side is not seeing what the other side is saying and maybe they can be persuaded otherwise not but we're not asking you to add to the record we don't want to hear argument about why you continue to think you're right and you continue to think you're right we just want to forget the wednesday close of business next friday give you a week to do this close that this is some friday and if you need more time as i said just come in and ask for more time and we can do that but again we're not asking you to necessarily change your positions or whatever but there's if there are ways that you all can look at what the documentation is and come to some resolution one side is right one side is right or there's some ground in between please try to do