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B-134171, MARCH 19, 1958, 37 COMP. GEN. 608

B-134171 Mar 19, 1958
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THE TYPES OF MILITARY DUTY FOR WHICH CIVILIAN EMPLOYEES ARE TO BE GIVEN MILITARY LEAVE CONFORM TO THE TYPES OF DUTY IN THE ARMED FORCES RESERVE ACT OF 1942. - RATHER THAN ON THE DATE ORDERS TO DUTY WERE ISSUED. THESE DECISIONS SHOULD NOT BE CONSTRUED AS PRECLUDING MILITARY LEAVE IN ALL CASES WHERE EMPLOYEES ARE IN A LEAVE-WITHOUT-PAY STATUS IMMEDIATELY PRIOR TO OR AFTER MILITARY DUTY WITHOUT REGARD TO OTHER FACTS SUCH AS WHETHER THE LOSS OF CIVILIAN PAY IS THE RESULT OF MILITARY LEAVE AND WHETHER AT THE TIME LEAVE WITHOUT PAY IS REQUESTED. MILITARY LEAVE FOR CIVILIAN EMPLOYEES UNDER 5 U.S.C. 30R IS NOT RELATED TO THE EMPLOYEES' RIGHT TO RESTORATION OR REEMPLOYMENT NOR IS IT CONTINGENT UPON A RETURN TO A CIVILIAN PAY STATUS.

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B-134171, MARCH 19, 1958, 37 COMP. GEN. 608

LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - ADDITIONAL DUTY UNDER SECTION 29 OF THE ACT OF AUGUST 10, 1956, 5 U.S.C. 30R, THE TYPES OF MILITARY DUTY FOR WHICH CIVILIAN EMPLOYEES ARE TO BE GIVEN MILITARY LEAVE CONFORM TO THE TYPES OF DUTY IN THE ARMED FORCES RESERVE ACT OF 1942, AND, THEREFORE, ELIGIBILITY FOR MILITARY LEAVE FOR THE ADDITIONAL TYPES OF DUTY MAY BE REGARDED AS EXTENDING BACK TO JANUARY 1, 1953--- THE EFFECTIVE DATE OF THE ARMED FORCES RESERVE ACT OF 1952. MILITARY LEAVE BENEFITS UNDER SECTION 29 (A) OF THE ACT OF AUGUST 10, 1956, 5 U.S.C. 30R (A), DEPEND ON THE PERFORMANCE OF MILITARY DUTY AFTER JANUARY 1, 1953--- THE EFFECTIVE DATE OF THE ARMED FORCES RESERVE ACT OF 1952--- RATHER THAN ON THE DATE ORDERS TO DUTY WERE ISSUED. ALTHOUGH IT HAS BEEN HELD IN SEVERAL DECISIONS THAT ENTITLEMENT OF CIVILIAN EMPLOYEES TO MILITARY LEAVE DEPENDS ON THE EMPLOYEE BEING IN A PAY STATUS IMMEDIATELY PRIOR TO OR IMMEDIATELY AFTER MILITARY DUTY, THESE DECISIONS SHOULD NOT BE CONSTRUED AS PRECLUDING MILITARY LEAVE IN ALL CASES WHERE EMPLOYEES ARE IN A LEAVE-WITHOUT-PAY STATUS IMMEDIATELY PRIOR TO OR AFTER MILITARY DUTY WITHOUT REGARD TO OTHER FACTS SUCH AS WHETHER THE LOSS OF CIVILIAN PAY IS THE RESULT OF MILITARY LEAVE AND WHETHER AT THE TIME LEAVE WITHOUT PAY IS REQUESTED, THE EMPLOYEE HAS RECEIVED DEFINITE MILITARY ORDERS TO REPORT ON A CERTAIN OR APPROXIMATE DATE. MILITARY LEAVE FOR CIVILIAN EMPLOYEES UNDER 5 U.S.C. 30R IS NOT RELATED TO THE EMPLOYEES' RIGHT TO RESTORATION OR REEMPLOYMENT NOR IS IT CONTINGENT UPON A RETURN TO A CIVILIAN PAY STATUS. AN EMPLOYEE WHO IS ALSO A MEMBER OF A COMPONENT OF THE ARMED FORCES RESERVES AND WHO RESIGNS PRIOR TO ENTERING THE MILITARY SERVICE HAS TERMINATED HIS CIVILIAN STATUS AND WOULD NOT BE ENTITLED TO MILITARY LEAVE UNDER 5 U.S.C. 30R NOTWITHSTANDING THAT THE MEMBER MAY HAVE A RIGHT TO RESTORATION OR REEMPLOYMENT. ALTHOUGH THE GRANTING OF MILITARY LEAVE TO A CIVILIAN EMPLOYEE UNDER 5 U.S.C. 30R RETROACTIVELY AFTER THE EMPLOYEE HAS BEEN SEPARATED FOR MILITARY SERVICE IS ESSENTIALLY AN ADMINISTRATIVE MATTER, IT IS NOT NECESSARY TO RESTORE THE EMPLOYEE TO THE ROLLS; HOWEVER, IT IS RECOMMENDED THAT THE EMPLOYEE'S PERSONNEL RECORD REFLECT THE TRUE STATUS AT ALL TIMES.

TO THE SECRETARY OF COMMERCE, MARCH 19, 1958:

ON JANUARY 17, THE ASSISTANT SECRETARY OF COMMERCE REQUESTED OUR DECISION ON SEVERAL QUESTIONS AND SPECIFIC CASES CONCERNING OUR DECISION OF NOVEMBER 8, 1957 (B-134171, 37 COMP. GEN. 313), REGARDING THE ELIGIBILITY OF EMPLOYEES FOR MILITARY LEAVE WHEN THEY ARE ORDERED TO ACTIVE DUTY AS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES.

THE FIRST QUESTION IS:

1. ARE EMPLOYEES ENTITLED TO MILITARY LEAVE IF THEY ENTERED A RESERVE COMPONENT, OR WERE SERVING THEREIN, ONLY ON OR AFTER AUGUST 10, 1956, OR DOES THEIR ELIGIBILITY EXTEND BACK TO JANUARY 1, 1953, THE EFFECTIVE DATE OF THE ARMED FORCES RESERVE ACT OF 1952 (66 STAT. 506/? * *

IN OUR DECISION OF NOVEMBER 8, 1957, WE HELD THAT UNDER THE PRESENT STATUTE (ACT OF AUGUST 10, 1956, AS CODIFIED IN 5 U.S.C. 30R), GOVERNMENT EMPLOYEES ARE ENTITLED TO LEAVE OF ABSENCE WITHOUT LOSS OF PAY, TIME OR EFFICIENCY RATING FOR "EACH DAY, BUT NOT FOR MORE THAN 15 CALENDAR DAYS IN ANY CALENDAR YEAR, IN WHICH HE SERVES ON ACTIVE DUTY FOR ANY PURPOSE--- TRAINING OR OTHERWISE--- AS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES, INCLUDING THE NATIONAL GUARD.' IN PREVIOUS DECISIONS (B-122020, JUNE 1, 1955, AND B-133972, OCTOBER 17, 1957, 37 COMP. GEN. 255), WE HELD, IN EFFECT, THAT THIS BROADENED ENTITLEMENT--- AS DISTINGUISHED FROM THE RIGHT UNDER EARLIER STATUTES TO MILITARY LEAVE ONLY FOR "DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION"--- WAS CREATED BY THE ARMED FORCES RESERVE ACT OF 1952 (66 STAT. 506), 10 U.S.C. 3686, WHICH BECAME EFFECTIVE ON JANUARY 1, 1953. THE CASES ON WHICH THOSE DECISIONS WERE BASED INVOLVED EMPLOYEES WHO HAD BEEN ORDERED TO ACTIVE DUTY BEGINNING AFTER JANUARY 1, 1953, AND, FOR INDIVIDUALS IN THAT CATEGORY, THE 1956 ACT MERELY RESTATED A RIGHT ALREADY IN EXISTENCE. THUS, IN GENERAL, THE RIGHT TO MILITARY LEAVE FOR "ACTIVE DUTY" IN THE BROADER SENSE EXTENDS BACK OT JANUARY 1, 1953, RATHER THAN TO AUGUST 10, 1956, THE EFFECTIVE DATE OF THE MOST RECENT ACT.

THE SECOND QUESTION IS STATED AS FOLLOWS:

2. IN ADDITION TO THE FOREGOING SITUATIONS INVOLVING EMPLOYEES OF THE DEPARTMENT WHO ARE SERVING OR HAVE SERVED IN THE MILITARY SERVICE SINCE JANUARY 1, 1953, THERE IS ONE OTHER TYPE OF SITUATION ON WHICH WE SHOULD LIKE TO REQUEST YOUR DECISION. THIS CONCERNS EMPLOYEES SERVING UNDER A PERMANENT OR TEMPORARY INDEFINITE APPOINTMENT WHO ENTERED A RESERVE COMPONENT OF THE ARMED FORCES PRIOR TO JANUARY 1, 1953, THE EFFECTIVE DATE OF THE ARMED SERVICES RESERVE ACT OF 1952, AND WHO SERVED THEREIN FOR A PERIOD OF TIME FOLLOWING JANUARY 1, 1953. IN SUCH CASES, THE EMPLOYEES WERE SEPARATED FOR MILITARY DUTY, IN ACCORDANCE WITH THE PROCEDURE IN EFFECT IN THE DEPARTMENT. THEY WERE PAID FOR ANNUAL LEAVE TO THEIR CREDIT IN A LUMP-SUM OR, AT THEIR REQUEST, SUCH LEAVE WAS HELD FOR THEM PENDING THEIR RETURN TO DUTY. THEIR RESTORATION TO DUTY WOULD HAVE BEEN EFFECTED IN ACCORDANCE WITH PART 35 OF CHAPTER Z1 OF THE FEDERAL PERSONNEL MANUAL.

THE STATUTE PROVIDING FOR MILITARY LEAVE IN EFFECT WHEN THE ARMED FORCES RESERVE ACT OF 1952 WAS ENACTED WAS THE ACT OF MAY 12, 1917 (40 STAT. 72), AS AMENDED BY THE ACT OF JULY 1, 1947 (61 STAT. 238). SECTION 804 (A) OF THE 1952 ACT (66 STAT. 506) FURTHER AMENDED THE BASIC STATUTE BY, SO FAR AS IS PERTINENT HERE, INSERTING THE PORTION ITALICIZED IN THE AMENDED PROVISION (10 U.S.C. 371) QUOTED BELOW:

ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO SHALL BE MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY, TIME OR EFFICIENCY RATING, ON ALL DAYS DURING WHICH THEY SHALL BE ORDERED TO ACTIVE DUTY FOR TRAINING, OR ACTIVE DUTY, OR TO DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR. ( ITALICS SUPPLIED.)

SECTION 802 OF THE 1952 ACT, 50 U.S.C. 901, NOTE, READS:

EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED, THIS ACT SHALL BECOME EFFECTIVE ON THE FIRST DAY OF THE SIXTH MONTH FOLLOWING THE MONTH OF ENACTMENT.

THE DATE OF ENACTMENT WAS JULY 9, 1952, THUS RENDERING JANUARY 1, 1953, AS THE EFFECTIVE DATE.

THE QUESTION TO BE DECIDED IS WHETHER THE PHRASE "ON ALL DAYS DURING WHICH THEY SHALL BE ERED," CONSTRUED TOGETHER WITH SECTION 802 ABOVE, REFERS EXCLUSIVELY TO NEW ORDERS ISSUED FOR EXECUTION ON OR AFTER JANUARY 1, 1953, OR WHETHER THE PHRASE REFERS ALSO TO ORDERS WHICH, ALTHOUGH ISSUED AND PARTIALLY EXECUTED PRIOR TO JANUARY 1, 1953, REMAINED PARTIALLY UNEXECUTED ON THAT DATE. IN OTHER WORDS, IS THE TERM "ORDERED" INTENDED TO MEAN ONLY THE ACT OF ISSUING ORDERS, OR THE ACT OF BEGINNING COMPLIANCE WITH ORDERS REGARDLESS OF WHEN ISSUED OR, MORE BROADLY, THE CONTINUING ACTION OF COMPLYING WITH ORDERS REGARDLESS OF WHEN ISSUED?

AT THIS POINT, WE MUST NOTE THAT THE PHRASE NOW IN QUESTION WAS, BY SECTION 29 (A) OF THE ACT OF AUGUST 10, 1956 (70A STAT. 632), 5 U.S.C. 30R (A), ELIMINATED AND REPLACED BY A DIFFERENT BUT CORRESPONDING PHRASE IN THE PRESENTLY EFFECTIVE PROVISION OF LAW ON THE SUBJECT (5 U.S.C. 30R) AS FOLLOWS:

EACH RESERVE OF THE ARMED FORCES OR MEMBER OF THE NATIONAL GUARD WHO IS AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA, PERMANENT OR TEMPORARY INDEFINITE, WITHOUT REGARD TO CLASSIFICATION OR TERMINOLOGY PECULIAR TO THE CIVIL SERVICE SYSTEM, IS ENTITLED TO LEAVE OF ABSENCE FROM HIS DUTIES, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING FOR EACH DAY, BUT NOT MORE THAN 15 DAYS IN ANY CALENDAR YEAR, IN WHICH HE IS ON ACTIVE DUTY, OR IS ENGAGED IN FIELD OR COAST DEFENSE TRAINING UNDER SECTIONS 502-505 OF TITLE 32. ( ITALICS SUPPLIED.)

WE SHOULD NOTE, ALSO, THAT THE LEGISLATIVE PURPOSE AS SET OUT IN SECTION 49 (A) OF THE 1956 ACT, 70A STAT. 640, WAS "TO RESTATE, WITHOUT SUBSTANTIVE CHANGE, THE LAW REPLACED" BY SECTION 29 (A) QUOTED ABOVE. THEREFORE, WE MUST REGARD THE PHRASE "ON ALL DAYS DURING WHICH THEY SHALL BE ORDERED TO ACTIVE DUTY" AS HAVING THE SAME MEANING AS THE PHRASE "EACH DAY * * * IN WHICH HE IS ON ACTIVE DUTY.'

VIEWED IN THIS LIGHT, WE CONCLUDE THAT CONGRESS, IN ENACTING THE 1952 ACT, RECOGNIZED THE CONTINUING EFFECT OF MILITARY ORDERS ONCE ISSUED AND, SO FAR AS INSURING AGAINST A LOSS OF CIVILIAN PAY IS CONCERNED, DID NOT INTEND ANY DISTINCTION BETWEEN EMPLOYEES SERVING ON ACTIVE MILITARY DUTY AFTER JANUARY 1, 1953, IN COMPLIANCE WITH ORDERS ISSUED PRIOR TO THAT DATE AND EMPLOYEES SERVING DURING THE SAME PERIOD IN COMPLIANCE WITH ORDERS ISSUED AFTER THAT DATE. LOGICALLY, THE DATES OF ACTUAL SERVICE IN RELATION TO THE EFFECTIVE DATE OF THE ACT ARE CONTROLLING RATHER THAN THE BEGINNING DATE ALONE OR THE DATE THE ORDERS MAY HAVE BEEN ISSUED. FACT, TO CONSTRUE THE WORD ,ORDERED" AS REFERRING TO A SPECIFIC INSTANT IN TIME SEEMS WHOLLY INCONSISTENT WITH THE OTHER WORDS OF THE PHRASE--- "ON ALL DAYS DURING WHICH"--- NECESSARILY CONNOTING CONTINUITY AND DURATION OF A PERIOD OF TIME. PAYMENTS SHOULD NOT BE MADE, HOWEVER, WHEN THE EMPLOYEES WERE ORDERED TO ACTIVE DUTY PRIOR TO JANUARY 1, 1953, AND WERE SEPARATED FROM THE SERVICE, AND (1) WHO WERE NOT RELIEVED FROM ACTIVE DUTY WITHIN FOUR YEARS FROM THE DATE OF ENTERING UPON ACTIVE MILITARY DUTY, OR (2) WHO HAVE NOT BEEN RESTORED TO DUTY. IF EITHER TYPE OF CLAIM IS RECEIVED IT WOULD BE APPROPRIATE THAT THE CASE BE PRESENTED HERE WITH A FULL STATEMENT OF THE FACTS. SEE 50 U.S.C. 459 (C) AND (G) (2) CONCERNING PERSONS WHO ARE RELIEVED FROM ACTIVE DUTY WITHIN FOUR YEARS AND WHO ARE CONSIDERED, UPON RESTORATION, AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING THEIR MILITARY SERVICE.

THE THIRD QUESTION PRESENTED IS AS FOLLOWS:

3. IN REGARD TO AN EMPLOYEE'S WORK OR PAY STATUS IMMEDIATELY PRIOR TO ENTRY INTO THE MILITARY SERVICE, PREVIOUS DECISIONS OF YOUR OFFICE (11 COMP. GEN. 469; 32 ID. 204), HAVE HELD THAT AN EMPLOYEE IS NOT ELIGIBLE FOR MILITARY LEAVE UNLESS HE IS IN A PAY STATUS AT THE TIME OF GOING ON MILITARY TRAINING DUTY. WE NOTE THAT THE DECISION IN 11 COMP. GEN. 469 PERTAINED TO THE CASE OF AN EMPLOYEE WHO WAS ON LEAVE WITHOUT PAY FOR A PERIOD IN EXCESS OF TWO MONTHS PRIOR TO THE DATE OF BEING ORDERED TO MILITARY DUTY, AND THERE IS NO INDICATION THAT THE LEAVE WITHOUT PAY WOULD HAVE TERMINATED ON THE DAY PRECEDING SUCH MILITARY DUTY.

WITH RESPECT TO THE CURRENT SITUATION, HOWEVER, WE FIND THAT EMPLOYEES ARE CALLED TO MILITARY SERVICE AFTER RELATIVELY BRIEF PERIODS OF CIVILIAN SERVICE, AND THEY EITHER HAVE ACCUMULATED NO ANNUAL LEAVE OR ONLY A SMALL AMOUNT. IF THEY FIND IT NECESSARY TO TAKE CARE OF PERSONAL MATTERS PRIOR TO ENTERING MILITARY SERVICE, THEY ARE REQUIRED TO TAKE LEAVE WITHOUT PAY. WHILE EMPLOYEES WHO HAVE ACCUMULATED SOME ANNUAL LEAVE MAY BE GRANTED LEAVE WITHOUT PAY FOLLOWED BY THE ANNUAL LEAVE WHICH THEY HAVE ACCRUED AND THUS BE IN A PAY STATUS IMMEDIATELY PRIOR TO THE DATE OF ENTERING ON MILITARY DUTY (32 COMP. GEN. 204), WE FEEL THAT THIS INVOLVES UNNECESSARY ADMINISTRATIVE ACTIVITY. IT SEEMS APPARENT THAT EMPLOYEES WHO APPLY FOR LEAVE WITHOUT PAY COVERING A DEFINITE PERIOD WHICH ENDS ON A DATE PRIOR TO ENTRANCE ON MILITARY DUTY WOULD BE IN A CIVILIAN DUTY STATUS FOLLOWING SUCH LEAVE WITHOUT PAY BUT FOR THE FACT THAT THEY ARE ON ACTIVE MILITARY DUTY. UNDER SUCH CIRCUMSTANCES, IT SEEMS REASONABLE TO CONCLUDE THAT AN EMPLOYEE WOULD BE ON "LEAVE OF ABSENCE FROM HIS DUTIES" FOR THE PERFORMANCE OF MILITARY DUTY. WE SHOULD LIKE TO INQUIRE, THEREFORE, WHETHER THE CIRCUMSTANCES DESCRIBED ABOVE WOULD WARRANT ANY CHANGE FROM YOUR PREVIOUS DECISIONS IN 11 COMP. GEN. 469 AND 32 ID. 204, THAT AN EMPLOYEE MUST BE IN A PAY STATUS IMMEDIATELY PRIOR TO ENTRANCE INTO THE MILITARY SERVICE IN ORDER TO BE ENTITLED TO MILITARY LEAVE.

WE HAVE HELD IN INDIVIDUAL CASES THAT A PAY STATUS EITHER IMMEDIATELY PRIOR TO THE BEGINNING OF MILITARY DUTY (11 COMP. GEN. 469) OR A RETURN TO A PAY STATUS IMMEDIATELY AFTERWARDS (29 COMP. GEN. 269; 32 ID. 204) IS A REQUISITE TO ENTITLEMENT TO MILITARY LEAVE WITH PAY SINCE, OTHERWISE, NO CIVILIAN PAY WOULD HAVE BEEN LOST (SEE ALSO 12 COMP. GEN. 241 AND 17 ID. 174). THOSE DECISIONS SHOULD NOT BE CONSTRUED, HOWEVER, AS LAYING DOWN A FIRM RULE THAT A LEAVE-WITHOUT-PAY STATUS IMMEDIATELY PRIOR TO OR IMMEDIATELY AFTER ACTIVE MILITARY DUTY WOULD IN ALL CIRCUMSTANCES PRECLUDE PAYMENT FOR MILITARY LEAVE. THOSE DECISIONS, EACH BASED ON AN INDIVIDUAL SET OF FACTS, GOVERN IN THE TYPES OF CASES REPRESENTED BUT, AS SUGGESTED IN THE ASSISTANT SECRETARY'S LETTER, THERE MAY BE OTHERS IN WHICH LEAVE OF ABSENCE WITHOUT PAY BEFORE OR AFTER MILITARY DUTY WOULD HAVE NO EFFECT ON THE EMPLOYEE'S ENTITLEMENT TO MILITARY LEAVE.

THE GRANTING OF LEAVE WITHOUT PAY TO AN EMPLOYEE IS A MATTER WITHIN ADMINISTRATIVE DISCRETION AND AUTHORITY. THE TEST OF WHETHER AN EMPLOYEE MAY BE GRANTED MILITARY LEAVE SHOULD NOT BE MERELY HIS LEAVE OR PAY STATUS IMMEDIATELY PRIOR TO OR AFTER MILITARY DUTY WITHOUT REGARD TO OTHER FACTS. RATHER, THE TEST SHOULD BE WHETHER, BUT FOR THE ACTIVE DUTY, THE EMPLOYEE WOULD HAVE BEEN IN A CIVILIAN PAY STATUS (17 COMP. GEN. 174). FOR EXAMPLE, THE EMPLOYEE INVOLVED IN THE CASE ON WHICH THE DECISION IN 11 COMP. GEN. 469 IS BASED, WAS IN A LEAVE WITHOUT-PAY STATUS FOR SEVERAL MONTHS BECAUSE OF THE SEASONAL ELIMINATION OF HIS WORK, BEGINNING BEFORE THE EMPLOYEE RECEIVED ORDERS FOR MILITARY DUTY AND CONTINUING UNTIL AFTER HIS MILITARY DUTY HAD BEEN COMPLETED. OBVIOUSLY, THERE HAD BEEN NO LOSS OF CIVILIAN PAY AS A RESULT OF HIS MILITARY SERVICE. ON THE OTHER HAND, IF AN EMPLOYEE, WHO IS ABOUT TO BEGIN MILITARY SERVICE, IS GRANTED A REASONABLE LEAVE OF ABSENCE WITHOUT PAY IN ORDER TO ATTEND TO PERSONAL AFFAIRS, THE PRESUMPTION IS THAT, BUT FOR THE CIRCUMSTANCE OF MILITARY SERVICE, HE WOULD HAVE BEEN IN A CIVILIAN PAY STATUS IMMEDIATELY PRIOR TO AND AT LEAST DURING THE FIRST 15 DAYS OF MILITARY SERVICE.

SINCE CIRCUMSTANCES MAY BE DIFFERENT IN EACH CASE, IT IS INADVISABLE AND PERHAPS IMPOSSIBLE TO ESTABLISH POSITIVE CRITERIA FOR MEASURING THE REASONABLENESS OF THE REQUIREMENT FOR OR THE LENGTH OF A PERIOD OF LEAVE WITHOUT PAY SO FAR AS IT MAY AFFECT ENTITLEMENT TO MILITARY LEAVE. THIS IS A MATTER WHICH PROPERLY IS FOR ADMINISTRATIVE DETERMINATION BASED ON THE FACTS AND CIRCUMSTANCES. WE MAY SUGGEST, HOWEVER, THAT ONE IMPORTANT CONSIDERATION IN MAKING SUCH A DETERMINATION IS WHETHER THE EMPLOYEE, AT THE TIME LEAVE WITHOUT PAY IS REQUESTED, HAS RECEIVED DEFINITE MILITARY ORDERS TO REPORT ON A CERTAIN OR APPROXIMATE DATE IN THE FUTURE.

THE FOURTH QUESTION IS PRESENTED IN THREE PARTS:

4. WE ARE IN DOUBT AS TO WHETHER ENTITLEMENT TO 15 DAYS OF MILITARY LEAVE IS DEPENDENT ON (1) A RETURN TO ACTIVE DUTY AND PAY IN A CIVILIAN POSITION UNDER THE FEDERAL GOVERNMENT, OR (2) THE EMPLOYEE'S EXERCISE OF RESTORATION RIGHTS UNDER THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT?

A. WHERE AN EMPLOYEE RESIGNS INSTEAD OF BEING SEPARATED OR FURLOUGHED FOR MILITARY DUTY, IS HE ENTITLED TO BE PAID FOR MILITARY LEAVE IF HE HAS RESTORATION RIGHTS UNDER THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT? B. WITH RESPECT TO EMPLOYEES WHO ARE LEGALLY ENTITLED TO BE PAID FOR 15 DAYS OF MILITARY LEAVE, IN ACCORDANCE WITH YOUR ANSWERS TO THE CASES DESCRIBED ABOVE, IS IT REQUIRED THAT THE ACTION FOR " SEPARATION-1MILITARY SERVICE" BE CANCELED AND THE EMPLOYEE RESTORED TO THE ROLLS, OR MAY HE BE PAID FOR MILITARY LEAVE WITHOUT THE PROCESSING OF PERSONNEL ACTIONS INCIDENT TO RESTORATION TO THE ROLLS AND SEPARATION AFTER EXPIRATION OF THE 15-DAY PERIOD?

C. IN CONNECTION WITH YOUR ANSWER TO QUESTION 4B, IF THE EMPLOYEE IS RESTORED TO THE ROLLS FOR PAYMENT OF MILITARY LEAVE, DOES THIS EFFECT HIS ACCRUAL OF ANNUAL LEAVE, REQUIRING THAT HE RECEIVE AN ADDITIONAL AMOUNT FOR LUMP-SUM LEAVE OR THAT THE ANNUAL LEAVE HELD TO HIS CREDIT PURSUANT TO THE ACT OF APRIL 7, 1942 (5 U.S.C. 61A) BE INCREASED?

GENERALLY, WE FIND NO BASIS FOR RELATING MILITARY LEAVE TO AN EMPLOYEE'S RESTORATION OR REEMPLOYMENT RIGHTS. LIKEWISE, WE FIND NO REQUIREMENT IN THE STATUTES THAT ENTITLEMENT IS CONTINGENT UPON A RETURN TO A CIVILIAN PAY STATUS. APPROPRIATE EVIDENCE OF ACTIVE MILITARY SERVICE, HOWEVER, SHOULD BE FURNISHED BY THE EMPLOYEE TO THE ADMINISTRATIVE OFFICE CONCERNED WITHIN A REASONABLE TIME AFTER SEPARATION OR FURLOUGH FOR THE ACTIVE DUTY OR, IN THE CASES WHERE RETROACTIVE PAYMENTS ARE NECESSARY, PRIOR TO PAYMENT.

IN RESPONSE TO QUESTION 4A, AN EMPLOYEE-RESERVIST WHO RESIGNS PRIOR TO HIS ENTERING MILITARY SERVICE TERMINATES HIS EMPLOYMENT AND, THEREFORE, HE WOULD NOT BE ENTITLED TO MILITARY LEAVE FOR ANY PORTION OF THE SERVICE PERIOD, NOTWITHSTANDING SUCH RIGHT HE MAY HAVE TO RESTORATION OR REEMPLOYMENT AFTERWARDS. SEE GENERALLY 27 COMP. GEN. 245.

WE HAVE NOTED THE SPECIFIC REFERENCE IN QUESTION 4 TO THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT; HOWEVER, THAT ACT APPEARS UNRELATED TO THE MILITARY LEAVE HEREIN DISCUSSED, EXCEPT SO FAR AS IT RELATES TO QUESTION AND ANSWER NO. 2.

CONCERNING QUESTION 4B, WHILE AN EMPLOYEE'S PERIOD OF " SEPARATION 1MILITARY SERVICE" NORMALLY SHOULD EXCLUDE MILITARY LEAVE, THE PROBLEM PRESENTED IS ESSENTIALLY ADMINISTRATIVE. PAYMENT FOR MILITARY LEAVE GRANTED RETROACTIVELY DOES NOT OF ITSELF REQUIRE THE FORMALITY OF RETURNING THE EMPLOYEE TO THE ROLLS, SO FAR AS OUR OFFICE IS CONCERNED. WE STRONGLY RECOMMEND THE PRACTICE, HOWEVER, IN ORDER THAT THE EMPLOYEE'S PERSONNEL RECORD WILL REFLECT HIS TRUE STATUS AT ALL TIMES.

IN ANSWER TO QUESTION 4C, AN EMPLOYEE WHO IS ENTITLED TO MILITARY LEAVE IS ENTITLED ALSO TO PAYMENT OR CREDIT, IF OTHERWISE PROPER, OF THE ANNUAL AND SICK LEAVE WHICH OTHERWISE WOULD HAVE ACCRUED DURING THE 15-DAY PERIOD, REGARDLESS OF WHETHER HE IS TECHNICALLY RESTORED TO THE ROLLS FOR RECORD PURPOSES.

CONCERNING THE INDIVIDUALS WHOSE CASES ARE SUBMITTED AS TYPICAL, ENTITLEMENT TO MILITARY LEAVE SHOULD BE DETERMINED IN EACH CASE IN ACCORDANCE WITH THE ABOVE DISCUSSION.

THE ENCLOSURES WITH THE ASSISTANT SECRETARY'S LETTER ARE RETURNED HEREWITH.

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