B-134171, NOVEMBER 8, 1957, 37 COMP. GEN. 313

B-134171, NOVEMBER 8, 1957, 37 COMP. GEN. 313

LEAVES OF ABSENCE - CIVILIAN EMPLOYEES ON MILITARY DUTY - RESERVE AND NATIONAL GUARD GENERAL SERVICE ALTHOUGH GOVERNMENT EMPLOYEES WHO ARE MEMBERS OF A RESERVE COMPONENT OF THE ARMED FORCES, INCLUDING THE NATIONAL GUARD, WERE ENTITLED TO MILITARY LEAVE ONLY FOR "DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION" PRIOR TO JANUARY 1, 1953, THE EFFECTIVE DATE OF SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, WHICH BROADENED THE KIND OF SERVICE TO INCLUDE "ACTIVE DUTY FOR TRAINING OR ACTIVE DUTY," UNDER SECTION 29 (A) OF THE ACT OF AUGUST 10, 1956, 5 U.S.C. 30R, EMPLOYEES ARE ENTITLED TO 15 DAYS MILITARY LEAVE FOR ACTIVE DUTY FOR ANY PURPOSE--- TRAINING OR OTHERWISE--- BUT NOT FOR MORE THAN 15 DAYS IN ANY CALENDAR YEAR, AND WHERE THE PERIOD OF ACTIVE DUTY IS LONGER THAN 15 DAYS ANY 15- DAY PERIOD MAY BE ADMINISTRATIVELY DESIGNATED AS MILITARY LEAVE.

TO THE SECRETARY OF COMMERCE, NOVEMBER 8, 1957:

ON OCTOBER 18, 1957, THE ACTING ASSISTANT SECRETARY FOR ADMINISTRATION REQUESTED OUR ADVICE ON CERTAIN POINTS RELATING TO MILITARY LEAVE FOR GOVERNMENT EMPLOYEES AS PROVIDED IN SECTION 29A OF THE ACT APPROVED AUGUST 10, 1956 (70A STAT. 632; 5 U.S.C. 30R). THE CASE OF MR. RONALD S. KINTISCH, AN EMPLOYEE OF YOUR DEPARTMENT WHO, AS A MEMBER OF THE UNITED STATES ARMY RESERVE, HAS BEEN ORDERED TO ACTIVE DUTY FOR TRAINING DURING THE PERIOD OCTOBER 6, 1957, TO APRIL 5, 1958, WAS REFERRED TO AS BEING IN POINT AND THE FOLLOWING SPECIFIC QUESTIONS WERE ASKED:

1. (1) MAY AN EMPLOYEE BE GRANTED 15 DAYS OF MILITARY LEAVE WHEN HE IS ORDERED BY APPROPRIATE AUTHORITY TO PERFORM "ACTIVE DUTY FOR TRAINING" IN A RESERVE COMPONENT OF THE ARMED FORCES OR AS A MEMBER OF A STATE NATIONAL GUARD? (B) IF THE EMPLOYEE IS ENTITLED TO MILITARY LEAVE, IS IT REQUIRED THAT THE FIRST 15 DAYS OF THE PERIOD OF ACTIVE DUTY FOR TRAINING BE CONSIDERED AS MILITARY LEAVE, WHERE THE TOTAL TRAINING PERIOD EXCEEDS THAT AMOUNT, OR MAY ANY 15-DAY PERIOD BE ADMINISTRATIVELY FIXED AS THE MILITARY LEAVE PERIOD?

2. INASMUCH AS SECTION 29 (A) OF THE ACT OF AUGUST 10, 1956 PROVIDES THAT AN EMPLOYEE IS ENTITLED TO LEAVE OF ABSENCE WITHOUT LOSS OF PAY WHEN HE IS ON "ACTIVE DUTY," WOULD AN EMPLOYEE BE ENTITLED TO MILITARY LEAVE IF HIS ORDERS MERELY SPECIFY THAT HE WILL BE ON ACTIVE DUTY WITHOUT INDICATING THAT SUCH DUTY IS FOR TRAINING PURPOSES? * * *

3.IF THE DECISION OF YOUR OFFICE IS THAT EMPLOYEES ARE ENTITLED TO MILITARY LEAVE ONLY WHEN THEY ARE PERFORMING TRAINING DUTY, WOULD THE FOLLOWING INSTRUCTION ON THE GRANTING OF MILITARY LEAVE BE CONSISTENT WITH THE APPLICABLE PROVISIONS OF LAW AND THE DECISIONS OF YOUR OFFICE:

"MILITARY LEAVE WILL BE GRANTED ONLY WHEN THE ORDERS ISSUED TO THE EMPLOYEE STATE SPECIFICALLY THAT THE DUTY TO BE PERFORMED IS FOR TRAINING PURPOSES. ORDERS STATING THAT THE EMPLOYEE IS ,ORDERED TO ACTIVE DUTY FOR TRAINING" WILL SATISFACTORILY MEET THIS REQUIREMENT.'

SECTION 29 (A) OF THE ACT OF AUGUST 10, 1956, PROVIDES THAT:

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.

THIS SECTION, CODIFIED IN 5 U.S.C. 30R, REPLACED SECTION 371 OF TITLE 10, U.S.C. (ACT OF MAY 12, 1917, 40 STAT. 72, AS AMENDED BY THE ACT OF JULY 1, 1947, 61 STAT. 238, AND BY SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 506). PRIOR TO JANUARY 1, 1953, THE EFFECTIVE DATE OF THE 1952 AMENDMENT, GOVERNMENT EMPLOYEE RESERVISTS WERE ENTITLED TO MILITARY LEAVE WITH PAY FROM THEIR CIVILIAN JOBS, NOT TO EXCEED 15 DAYS IN ANY CALENDAR YEAR, ONLY WHEN ORDERED TO "DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION. (SEE 19 COMP. GEN. 513, AND 20 ID. 158.) THE 1952 ACT, HOWEVER, BROADENED THE PROVISIONS OF SECTION 371 TO INCLUDE "ACTIVE DUTY FOR TRAINING, OR ACTIVE DUTY.' THE 1956 ACT FURTHER CHANGED THE LANGUAGE TO PROVIDE ENTITLEMENT "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.'

TITLES 10 AND 32 OF THE U.S.C. WHICH WERE ENACTED INTO POSITIVE LAW BY SECTIONS 1 AND 2, RESPECTIVELY, OF THE 1956 ACT, CONTAIN THE AUTHORITY FOR ORDERING MEMBERS OF THE RESERVE COMPONENTS TO ACTIVE DUTY. THE TERM "ACTIVE DUTY," WHICH PRESUMABLY IS THE "ACTIVE DUTY" REFERRED TO IN SECTION 29 (A) OF THE ACT, IS DEFINED IN THOSE TITLES (10 U.S.C. 101 (22); 32 U.S.C. 101 (11) ( AS FOLLOWS:

" ACTIVE DUTY" MEANS FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES. IT INCLUDES (SUCH FEDERAL DUTY AS) DUTY ON THE ACTIVE LIST, FULL-TIME TRAINING DUTY, ANNUAL TRAINING DUTY, AND ATTENDANCE, WHILE IN THE ACTIVE MILITARY SERVICE, AT A SCHOOL DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED. (PHRASE IN PARENTHESES ABOVE IS INCLUDED ONLY IN TITLE 32.)

IN VIEW OF THE CHANGES IN THE STATUTES, IT IS CLEAR THAT OUR DECISIONS BASED ON THE PREVIOUS STATUTES, SO FAR AS THEY HELD THAT MILITARY LEAVE RIGHTS OF GOVERNMENT EMPLOYEE-MEMBERS OF THE RESERVE AND NATIONAL GUARD DID NOT EXTEND TO INSTANCES WHEN THEY WERE ORDERED TO ACTIVE DUTY FOR GENERAL SERVICE, ARE NOT FOR APPLICATION UNDER THE PRESENT STATUTE. RESPONSE TO THE ASSISTANT SECRETARY'S QUESTIONS NUMBERED 1 (A) AND 2, THEREFORE, OUR VIEW IS THAT, UNDER SECTION 29 (A) OF THE ACT OF AUGUST 10, 1956, AN EMPLOYEE IS ENTITLED TO LEAVE OF ABSENCE WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING FOR EACH DAY, BUT NOT FOR MORE THAN 15 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 (FOR A SIMILAR VIEW REGARDING THE EFFECT OF THE 1952 AMENDMENT, SEE B-122020, JUNE 1, 1955, AND B-133972, OCTOBER 17, 1957 37 COMP. GEN. 255.)

CONCERNING QUESTION NO. 1 (B), WE DO NOT INTERPRET THE GOVERNING STATUTES AS REQUIRING THAT THE FIRST 15 DAYS OF A LONGER PERIOD OF ACTIVE DUTY BE CONSIDERED AS MILITARY LEAVE. IF CIRCUMSTANCES IN ANY PARTICULAR CASE WARRANT IT, ANY OTHER 15-DAY PERIOD DURING THE LONGER ACTIVE DUTY PERIOD MAY BE DESIGNATED AS MILITARY LEAVE BY THE ADMINISTRATIVE OFFICE INSTEAD OF THE FIRST 15 DAYS, SO LONG AS THE INTENT OF THE STATUTE IS OTHERWISE OBSERVED. IN THAT CONNECTION, SEE, GENERALLY, 27 COMP. GEN. 245, 251 AND 29 ID. 269.

SINCE THE ANSWERS TO THE OTHER QUESTIONS HAVE BEEN IN THE AFFIRMATIVE, NO REPLY IS REQUIRED TO THE THIRD QUESTION PRESENTED.