---
kind: "section"
citation: "5 U.S.C. § 5538"
title: "5"
title_heading: "Government Organization and Employees"
number: "5538"
heading: "Nonreduction in pay while serving in the uniformed services or National Guard"
release: "119-102"
date: "2026-07-12"
url: "https://uscodex.org/usc/5/5538"
units:
  - "Part III — Employees"
  - "Subpart D — Pay and Allowances"
  - "Chapter 55 — Pay Administration"
  - "Subchapter IV — Dual Pay and Dual Employment"
---

# §5538. Nonreduction in pay while serving in the uniformed services or National Guard

- (a) An [employee](/usc/5/4701.md?p=a-2) who is absent from a [position](/usc/5/5102.md?p=a-3) of employment with the Federal [Government](/usc/5/4101.md?p=3) in order to perform active duty in the uniformed [services](/usc/5/8401.md?p=26) pursuant to a call or order to active duty under [section 12304b of title 10](/usc/10/12304b.md) or a provision of law referred to in [section 101(a)(13)(B) of title 10](/usc/10/101.md?p=a-13-B) shall be entitled, while serving on active duty, to receive, for each [pay](/usc/5/7511.md?p=a-4) period described in [subsection (b)](#b), an amount equal to the amount by which—
  - (1) the amount of [basic pay](/usc/5/8401.md?p=4) which would otherwise have been payable to such [employee](/usc/5/4701.md?p=a-2) for such [pay](/usc/5/7511.md?p=a-4) period if such [employee](/usc/5/4701.md?p=a-2)’s civilian employment with the [Government](/usc/5/4101.md?p=3) had not been interrupted by that [service](/usc/5/8401.md?p=26), exceeds (if at all)
  - (2) the amount of [pay](/usc/5/7511.md?p=a-4) and allowances which (as determined under [subsection (d)](#d))—
    - (A) is payable to such [employee](/usc/5/4701.md?p=a-2) for that [service](/usc/5/8401.md?p=26); and
    - (B) is allocable to such [pay](/usc/5/7511.md?p=a-4) period.
- (b) Amounts under this section shall be payable with respect to each [pay](/usc/5/7511.md?p=a-4) period (which would otherwise apply if the [employee](/usc/5/4701.md?p=a-2)’s civilian employment had not been interrupted)—
  - (1) during which such [employee](/usc/5/4701.md?p=a-2) is entitled to re-employment rights under [chapter 43](/usc/38/chptIII/ch43.md) of title 38 with respect to the [position](/usc/5/5102.md?p=a-3) from which such [employee](/usc/5/4701.md?p=a-2) is absent (as referred to in [subsection (a)](#a)); and
  - (2) for which such [employee](/usc/5/4701.md?p=a-2) does not otherwise receive [basic pay](/usc/5/8401.md?p=4) (including by taking any annual, military, or other paid leave) to which such [employee](/usc/5/4701.md?p=a-2) is entitled by virtue of such [employee](/usc/5/4701.md?p=a-2)’s civilian employment with the [Government](/usc/5/4101.md?p=3).
- (c) Any amount payable under this section to an [employee](/usc/5/4701.md?p=a-2) shall be paid—
  - (1) by such [employee](/usc/5/4701.md?p=a-2)’s employing [agency](/usc/5/3132.md?p=a-1);
  - (2) from the appropriation or [fund](/usc/5/8401.md?p=6) which would be used to [pay](/usc/5/7511.md?p=a-4) the [employee](/usc/5/4701.md?p=a-2) if such [employee](/usc/5/4701.md?p=a-2) were in a [pay](/usc/5/7511.md?p=a-4) status; and
  - (3) to the extent practicable, at the same time and in the same manner as would [basic pay](/usc/5/8401.md?p=4) if such [employee](/usc/5/4701.md?p=a-2)’s civilian employment had not been interrupted.
- (d) The [Office](/usc/5/5402.md?p=3) of Personnel Management shall, in consultation with [Secretary](/usc/5/9901.md?p=2) of Defense, prescribe any regulations necessary to carry out the preceding provisions of this section.
- (e)
  - (1) The head of each [agency](/usc/5/3132.md?p=a-1) referred to in [section 2302(a)(2)(C)(ii)](/usc/5/2302.md?p=a-2-C-ii) shall, in consultation with the [Office](/usc/5/5402.md?p=3), prescribe procedures to ensure that the rights under this section apply to the [employees](/usc/5/4701.md?p=a-2) of such [agency](/usc/5/3132.md?p=a-1).
  - (2) The [Administrator](/usc/5/9801.md?p=2) of the Federal Aviation [Administration](/usc/5/9801.md?p=1) shall, in consultation with the [Office](/usc/5/5402.md?p=3), prescribe procedures to ensure that the rights under this section apply to the [employees](/usc/5/4701.md?p=a-2) of that [agency](/usc/5/3132.md?p=a-1).
- (f) For purposes of this section—
  - (1) the terms “[employee](/usc/5/4701.md?p=a-2)”, “Federal [Government](/usc/5/4101.md?p=3)”, and “uniformed [services](/usc/5/8401.md?p=26)” have the same respective meanings as given those terms in [section 4303 of title 38](/usc/38/4303.md);
  - (2) the term “employing [agency](/usc/5/3132.md?p=a-1)”, as used with respect to an [employee](/usc/5/4701.md?p=a-2) entitled to any payments under this section, means the [agency](/usc/5/3132.md?p=a-1) or other entity of the [Government](/usc/5/4101.md?p=3) (including an [agency](/usc/5/3132.md?p=a-1) referred to in [section 2302(a)(2)(C)(ii)](/usc/5/2302.md?p=a-2-C-ii)) with respect to which such [employee](/usc/5/4701.md?p=a-2) has reemployment rights under [chapter 43](/usc/38/chptIII/ch43.md) of title 38; and
  - (3) the term “[basic pay](/usc/5/8401.md?p=4)” includes any amount payable under section 5304.

## Source credit

(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.)

## Notes

### Editorial Notes

### Amendments

2018—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 Subsidiaries

### Effective Date of 2009 Amendment

Pub. 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 Date

Pub. 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].”