U.S. Code
»
Title 5
» Part PART III— EMPLOYEES › Subpart Subpart D— Pay and Allowances › Chapter CHAPTER 55— PAY ADMINISTRATION › Subchapter SUBCHAPTER IV— DUAL PAY AND DUAL EMPLOYMENT
5 U.S.C. § 5538
Nonreduction in pay while serving in the uniformed services or National Guard
(a) An employee who is absent from a position of employment with the Federal Government in order to perform active duty in the uniformed services pursuant to a call or order to active duty under section 12304b of title 10 or a provision of law referred to in section 101(a)(13)(B) of title 10 shall be entitled, while serving on active duty, to receive, for each pay period described in subsection (b), an amount equal to the amount by which—(1) the amount of basic pay which would otherwise have been payable to such employee for such pay period if such employee’s civilian employment with the Government had not been interrupted by that service, exceeds (if at all)(2) the amount of pay and allowances which (as determined under subsection (d))—(A) is payable to such employee for that service; and(B) is allocable to such pay period.(b) Amounts under this section shall be payable with respect to each pay period (which would otherwise apply if the employee’s civilian employment had not been interrupted)—(1) during which such employee is entitled to re-employment rights under chapter 43 of title 38 with respect to the position from which such employee is absent (as referred to in subsection (a)); and(2) for which such employee does not otherwise receive basic pay (including by taking any annual, military, or other paid leave) to which such employee is entitled by virtue of such employee’s civilian employment with the Government.(c) Any amount payable under this section to an employee shall be paid—(1) by such employee’s employing agency;(2) from the appropriation or fund which would be used to pay the employee if such employee were in a pay status; and(3) to the extent practicable, at the same time and in the same manner as would basic pay if such employee’s civilian employment had not been interrupted.(d) The Office of Personnel Management shall, in consultation with Secretary of Defense, prescribe any regulations necessary to carry out the preceding provisions of this section.(e)(1) The head of each agency referred to in section 2302(a)(2)(C)(ii) shall, in consultation with the Office, prescribe procedures to ensure that the rights under this section apply to the employees of such agency.(2) The Administrator of the Federal Aviation Administration shall, in consultation with the Office, prescribe procedures to ensure that the rights under this section apply to the employees of that agency.(f) For purposes of this section—(1) the terms “employee”, “Federal Government”, and “uniformed services” have the same respective meanings as given those terms in section 4303 of title 38;(2) the term “employing agency”, as used with respect to an employee entitled to any payments under this section, means the agency or other entity of the Government (including an agency referred to in section 2302(a)(2)(C)(ii)) with respect to which such employee has reemployment rights under chapter 43 of title 38; and(3) the term “basic pay” includes any amount payable under section 5304.(Added Pub. L. 111–8, div. D, title VII, § 751(a), Mar. 11, 2009, 123 Stat. 693; amended Pub. L. 111–117, div. C, title VII, § 745(a), Dec. 16, 2009, 123 Stat. 3219; Pub. L. 115–232, div. A, title VI, § 605, Aug. 13, 2018, 132 Stat. 1795.)Editorial NotesAmendments2018—Subsec. (a). Pub. L. 115–232 inserted “section 12304b of title 10 or” after “under” in introductory provisions.
2009—Subsec. (b). Pub. L. 111–117 added subsec. (b) and struck out former subsec. (b), which read as follows:
“(b)(1) Amounts under this section shall be payable with respect to each pay period (which would otherwise apply if the employee’s civilian employment had not been interrupted)—
“(A) during which such employee is entitled to reemployment rights under chapter 43 of title 38 with respect to the position from which such employee is absent (as referred to in subsection (a)); and
“(B) for which such employee does not otherwise receive basic pay (including by taking any annual, military, or other paid leave) to which such employee is entitled by virtue of such employee’s civilian employment with the Government.
“(2) For purposes of this section, the period during which an employee is entitled to reemployment rights under chapter 43 of title 38—
“(A) shall be determined disregarding the provisions of section 4312(d) of title 38; and
“(B) shall include any period of time specified in section 4312(e) of title 38 within which an employee may report or apply for employment or reemployment following completion of service on active duty to which called or ordered as described in subsection (a).”
Statutory Notes and Related SubsidiariesEffective Date of 2009 AmendmentPub. L. 111–117, div. C, title VII, § 745(b), Dec. 16, 2009, 123 Stat. 3219, provided that: “The amendments made by this section [amending this section] shall take effect on the first day of the first applicable pay period beginning on or after the date of the enactment of this Act [Dec. 16, 2009].”
Effective DatePub. L. 111–8, div. D, title VII, § 751(c), Mar. 11, 2009, 123 Stat. 695, provided that: “The amendments made by this section [enacting this section] shall apply with respect to pay periods (as described in section 5538(b) of title 5, United States Code, as amended by this section) beginning on or after the date of enactment of this Act [Mar. 11, 2009].”
Notes of Decisions
O'Farrell v. Dep't of Def., 882 F.3d 1080 (Fed. Cir. 2018).
“5 U.S.C. § 5538 (a). II. Factual Background and Procedural History Mr.”
Feliciano v. Dep't Of Transp., 605 U.S. 38 (2025).
· cites it 8× “Feliciano argued that two statutes entitled him to differential pay: 5 U. S. C. §5538 (a) and 10 U. S. C. §101 (a)(13)(B).”
Downey v. United States (Fed. Cl. 2020).
· cites it 18× “) Jurisdiction; 5 U.S.C. § 5538 ; Differential ) Pay. THE UNITED STATES, ) ) Defendant.”
Armando Santiago v. Dep't of Vets. Affairs (MSPB 2023).
· cites it 10× “2 for review, and REVERSE the portion of the initial decision that found the appellant was entitled to differential pay under 5 U.S.C. § 5538 (a). The initial decision is otherwise AFFIRMED.”
Joshua Marquiz v. Dep't of Def. (MSPB 2016).
· cites it 8× “¶2 Based on the initial decision, which now becomes the final decision of the Board, the parties’ obligations are set out below: 2 ¶3 The agency must pay the appellant the appropriate amount of differential pay under 5 U.S.C. § 5538 (a) during each pay period described in…”
Kluge v. Dhs (Fed. Cir. 2023).
· cites it 8× “37 plus interest under 5 U.S.C. § 5538 . We affirm. I. BACKGROUND Mr.”
Platero v. United States (Fed. Cl. 2026).
· cites it 8× “Plaintiffs seek to recover reservist differential pay under 5 U.S.C § 5538 and to receive interest on their unpaid wages under 5 U.”
Nordby v. Ssa (Fed. Cir. 2023).
· cites it 7× “Federal employees who are absent from civilian posi- tions due to military responsibilities and who meet the re- quirements listed in 5 U.S.C. § 5538 (a) are entitled to differential pay to account for the difference between their military and civilian compensation.”
Michael Sopko v. Dep't of Vets. Affairs, 2026 MSPB 1 (MSPB 2026).
· cites it 10× “For the reasons discussed below, we GRANT the petition for review, REVERSE the initial decision as to the appellant’s entitlement to differential pay under 5 U.S.C. § 5538 (a), and ORDER corrective action under that provision.”
Adams v. Dhs (Fed. Cir. 2021).
· cites it 6× “Under 5 U.S.C. § 5538 (a), federal employees who are absent from civilian positions due to certain military re- sponsibilities may qualify to receive the difference between their military pay and what they would have been paid in their civilian employment during the time of…”
— 5 U.S.C. § 5538(a) — 1 case
Platero v. United States (Fed. Cl. 2026).
“Plaintiffs seek to recover reservist differential pay under 5 U.S.C § 5538 and to receive interest on their unpaid wages under 5 U.”
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