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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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 specifically 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 accept 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 service 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 “employee” 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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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 serviceconnected 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 November 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 service” 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 categories 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 interpretation 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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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 prospectively 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 regulations 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 unambiguously 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, therefore, 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 administration” 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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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 service.”); 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 member who is appointed to the civil service while on terminal leave pending retirement 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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B.

The plain language of section 6303(a) is equally clear in providing that a uniformed 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 receive.”). 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 circumstances. That alone provides sufficient authority to revisit the accrual determination.

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Furthermore, although we do not rely upon the provision to support our conclusion, 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 leaveaccrual 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 creditable 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 promulgated 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 leaveaccrual 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 determinations 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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Opinions of the Office of Legal Counsel in Volume 31

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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