B-216641, DEC 17, 1984, 64 COMP.GEN. 154

B-216641, DEC 17, 1984, 64 COMP.GEN. 154

LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - CHARGING CIVILIAN EMPLOYEES WHO ARE RESERVISTS OF THE UNIFORMED SERVICE OR ARE NATIONAL GUARDSMEN WHO PERFORM ACTIVE DUTY FOR TRAINING ARE CHARGED MILITARY LEAVE ON A CALENDAR-DAY BASIS, AND THERE IS NO AUTHORITY FOR ALLOWING THE CHARGING OF MILITARY LEAVE IN INCREMENTS OF LESS THAN 1 DAY, REGARDLESS OF THE TYPE OF SCHEDULE THE EMPLOYEE MAY WORK.

MATTER OF: NATIONAL GUARD TECHNICIANS-- MILITARY LEAVE, DECEMBER 17, 1984:

THIS ACTION IS IN RESPONSE TO A REQUEST FOR CLARIFICATION OF THE PROVISIONS FOR CHARGING OF MILITARY LEAVE FOR TECHNICIAN EMPLOYEES OF THE NATIONAL GUARD. /1/ THE TECHNICIANS ARE CURRENTLY CHARGED LEAVE ON A CALENDAR-DAY BASIS, REGARDLESS OF THE NUMBER OF SCHEDULED HOURS IN THEIR WORKDAY.

MILITARY LEAVE FOR RESERVISTS OF THE UNIFORMED SERVICES AND NATIONAL GUARDSMEN WHO ARE CIVILIAN EMPLOYEES OF THE FEDERAL GOVERNMENT OR THE DISTRICT OF COLUMBIA IS PROVIDED BY STATUTE. SEE 5 U.S.C. SEC. 6323. RESERVISTS AND GUARDSMEN ARE ENTITLED TO LEAVE WITHOUT LOSS OF PAY, TIME OR PERFORMANCE OR EFFICIENCY RATING FOR UP TO 15 DAYS IN A FISCAL YEAR, FOR TRAINING. 5 U.S.C. SEC. 6323(A). IF CALLED UPON TO PROVIDE MILITARY AID TO ENFORCE THE LAW, THEY ARE ENTITLED TO ADDITIONAL MILITARY LEAVE, NOT TO EXCEED 22 DAYS, FOR SUCH SERVICE. 5 U.S.C. SEC. 6323(B).

THE NATIONAL GUARD BUREAU ASKS WHETHER ITS CURRENT PROCEDURE OF CHARGING MILITARY LEAVE FOR ACTIVE DUTY FOR TRAINING, ON A CALENDAR-DAY BASIS, IS PROPER. WE HOLD THAT MILITARY LEAVE CHARGED PURSUANT TO 5 U.S.C. SEC. 6323(A) IS PROPERLY BEING CHARGED ON A CALENDAR-DAY BASIS.

THE QUESTION ARISES FROM THE DIFFERENCES IN THE CHARGING OF LEAVE THAT OCCUR WHEN THE EMPLOYEES WORKING ON COMPRESSED SCHEDULES PERFORM MILITARY DUTY. FOR EXAMPLE, IF A TECHNICIAN WHO WORKS A 4-DAY, 10-HOUR WORKWEEK, TUESDAY THROUGH FRIDAY, GOES ON MILITARY DUTY FOR 15 DAYS BEGINNING ON A SATURDAY AND ENDING ON SATURDAY OF THE SECOND WEEK, HE IS CHARGED 11 DAYS OF MILITARY LEAVE. SINCE THE FIRST 3 DAYS AND THE LAST SATURDAY ARE NOT HIS WORKDAYS, AND ARE AT THE BEGINNING AND END OF HIS TOUR, THEY ARE NOT CHARGED AS MILITARY LEAVE DAYS. HOWEVER, IF A TECHNICIAN WORKED A 5-DAY, 8-HOUR WORKWEEK, MONDAY THROUGH FRIDAY, AND PERFORMED THE SAME MILITARY DUTY, HE WOULD BE CHARGED 12 DAYS BECAUSE ONLY THE FIRST 2 DAYS OF HIS DUTY WOULD BE NONWORKDAYS AT THE BEGINNING OF HIS TOUR.

THE WORK "DAYS" AS USED IN STATUTES GENERALLY HAS BEEN REGARDED AS REFERRING TO "CALENDAR DAYS," IN THE ABSENCE OF A CLEAR INTENT TO THE CONTRARY. IN THE APPLICABLE STATUTE, 5 U.S.C. SEC. 6323(A), THERE IS NO INDICATION THAT CONGRESS INTENDED "DAYS" TO MEAN ANYTHING OTHER THAN CALENDAR DAYS.

WE HAVE CONSISTENTLY HELD THAT MILITARY LEAVE MAY NOT BE COMPUTED IN HOURLY INCREMENTS, AND IT SHOULD BE COMPUTED ON A CALENDAR-DAY BASIS INSTEAD OF A WORKDAY BASIS EXCEPT FOR THE DAYS AT THE BEGINNING OF THE ACTIVE DUTY PERIOD. WE ARE AWARE OF NO AUTHORITY FOR ALLOWING THE CHARGING OF MILITARY LEAVE IN INCREMENTS OF LESS THAN 1 DAY. SEE 52 COMP.GEN. 471 (1973); 27 COMP.GEN. 245 (1947); AND GEORGE MCMILLIAN, B-211249, SEPTEMBER 20, 1983.

UNTIL CONGRESS ENACTS LEGISLATION WHICH WOULD ALLOW THE CHARGING OF MILITARY LEAVE ON A BASIS OTHER THAN A CALENDAR-DAY BASIS, THE NATIONAL GUARD BUREAU SHOULD CONTINUE ITS CURRENT PROCEDURE OF CHARGING MILITARY LEAVE ON A CALENDAR-DAY BASIS, DESPITE DISPARATE RESULTS BASED UPON THE TYPE OF SCHEDULE WORKED BY THE EMPLOYEE.

/1/ THE QUESTION WAS PRESENTED TO US BY THOMAS L. LINK, DIRECTOR OF PERSONNEL, NATIONAL GUARD BUREAU, DEPARTMENTS OF THE ARMY AND AIR FORCE, FALLS CHURCH, VIRGINIA.