B-198070, APRIL 1, 1980, 59 COMP.GEN. 365
Highlights
AS A MEMBER OF THE WASHINGTON AIR NATIONAL GUARD IS REQUIRED TO PERFORM ANNUAL TRAINING.". HE IS NOT ENTITLED TO MILITARY LEAVE SINCE LEGISLATIVE HISTORY OF THE MILITARY LEAVE ACT INDICATES THAT PART-TIME EMPLOYEES ARE TO BE EXCLUDED FROM BENEFITS. 1980: THE ISSUE PRESENTED IN THIS CASE UPON A REQUEST FOR AN ADVANCE DECISION FROM THE AUTHORIZED CERTIFYING OFFICER OF THE WATER AND POWER RESOURCES SERVICE OF THE DEPARTMENT OF THE INTERIOR IS WHETHER MILITARY LEAVE MAY BE GRANTED TO A PART-TIME CAREER EMPLOYEE. THE ANSWER IS NO. THE PURPOSE OF THE PROVISION QUOTED ABOVE WAS EXPLAINED AS FOLLOWS: THIS BILL CLARIFIES WHICH TYPE OF EMPLOYEES ARE ENTITLED TO MILITARY LEAVE. WERE NOT ENTITLED TO SUCH LEAVE.
B-198070, APRIL 1, 1980, 59 COMP.GEN. 365
FEDERAL EMPLOYEES PART-TIME CAREER EMPLOYMENT ACT - MILITARY LEAVE - ENTITLEMENT AN EMPLOYEE HOLDING AN APPOINTMENT IN THE CIVIL SERVICE AS A PART TIME CAREER EMPLOYEE PURSUANT TO THE FEDERAL EMPLOYEES PART-TIME CAREER EMPLOYMENT ACT, 5 U.S.C. 3401-3408(SUPP. II, 1978), AND AS A MEMBER OF THE WASHINGTON AIR NATIONAL GUARD IS REQUIRED TO PERFORM ANNUAL TRAINING." HE IS NOT ENTITLED TO MILITARY LEAVE SINCE LEGISLATIVE HISTORY OF THE MILITARY LEAVE ACT INDICATES THAT PART-TIME EMPLOYEES ARE TO BE EXCLUDED FROM BENEFITS.
MATTER OF: WILLIAM P. WISINGER, APRIL 1, 1980:
THE ISSUE PRESENTED IN THIS CASE UPON A REQUEST FOR AN ADVANCE DECISION FROM THE AUTHORIZED CERTIFYING OFFICER OF THE WATER AND POWER RESOURCES SERVICE OF THE DEPARTMENT OF THE INTERIOR IS WHETHER MILITARY LEAVE MAY BE GRANTED TO A PART-TIME CAREER EMPLOYEE. THE ANSWER IS NO.
IT HAS LONG BEEN A POSITION OF THIS OFFICE THAT THE BENEFITS OF THE MILITARY LEAVE ACT DO NOT EXTEND TO PART-TIME EMPLOYEES OF THE FEDERAL GOVERNMENT. IN OUR DECISION 35 COMP.GEN. 5(1955) WE DETERMINED THAT STATEMENTS IN THE LEGISLATIVE HISTORY OF THE LAWS AUTHORIZING MILITARY LEAVE PRECLUDED EXTENDING SUCH LEAVE TO PART-TIME EMPLOYEES. SECTION 4 OF THE ACT OF JULY 1, 1947, 61 STAT. 239, SPECIFICALLY PROVIDED THAT THE WORDS "OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA" AS USED IN THE MILITARY LEAVE STATUTES "SHALL BE CONSTRUED TO MEAN ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, PERMANENT OR TEMPORARY INDEFINITE, WITHOUT REGARD TO CLASSIFICATION OR TERMINOLOGY PECULIAR TO THE FEDERAL CIVIL SERVICE SYSTEM."
ON PAGE 2 OF SENATE REPORT NO. 327, 80TH CONGRESS, TO ACCOMPANY H.R. 1845 WHICH BECAME THE ACT OF JULY 1, 1947, THE PURPOSE OF THE PROVISION QUOTED ABOVE WAS EXPLAINED AS FOLLOWS:
THIS BILL CLARIFIES WHICH TYPE OF EMPLOYEES ARE ENTITLED TO MILITARY LEAVE. IN THE PAST, TEMPORARY INDEFINITE EMPLOYEES, WHO MIGHT WORK FOR MANY YEARS FOR THE GOVERNMENT, WERE NOT ENTITLED TO SUCH LEAVE. THIS BILL PERMITS PERMANENT AND TEMPORARY INDEFINITE EMPLOYEES TO RECEIVE MILITARY LEAVE. IT EXCLUDES, HOWEVER, THE PURELY TEMPORARY EMPLOYEES, WHO ARE THOSE EMPLOYED FOR A DEFINITE TOUR OF DUTY FOR PERIODS OF LESS THAN 1 YEAR, AND PART TIME OR INTERMITTENT EMPLOYEES.
THEREFORE, THE CONGRESS INDICATED THAT THE STATUTE WAS NOT INTENDED TO COVER PART-TIME OR INTERMITTENT EMPLOYEES AND THAT THE ADDITION OF THE WORDS "PERMANENT OR TEMPORARY INDEFINITE" SHOULD NOT BE CONSTRUED TO THAT EFFECT. WHERE THE CONGRESS INTENDED PART-TIME EMPLOYEES TO RECEIVE MILITARY LEAVE, IT HAS SO PROVIDED BY SPECIFIC LEGISLATION. SEE THE ACT OF JUNE 22, 1956, 70 STAT. 331, WHICH AUTHORIZED MILITARY LEAVE FOR SUBSTITUTE POSTAL EMPLOYEES. (REPEALED BY PUBLIC LAW 91-375, 6(C)(18)(B), AUG. 12, 1970, 84 STAT. 776, 5 U.S.C. 6323 NOTE.) IN THE CONSIDERATION OF THE 1956 LAW, A PROVISION WHICH WOULD HAVE ESTABLISHED MILITARY LEAVE GENERALLY FOR PART-TIME EMPLOYEES WITH REGULARLY SCHEDULED TOURS OF DUTY WAS REJECTED. SEE THE HEARINGS ON H.R. 3747 BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, JUNE 7, 1956, AT PAGES 11-17.
THEREFORE, THE CONGRESS, IN RESTRICTING ELIGIBILITY FOR MILITARY LEAVE TO "PERMANENT OR TEMPORARY INDEFINITE" EMPLOYEES (5 U.S.C. 6323(A)), EXCLUDES FROM ELIGIBILITY EMPLOYEES HAVING PART-TIME, INTERMITTENT, AND TEMPORARY APPOINTMENTS FOR PERIODS OF LESS THAN 1 YEAR.
THE FEDERAL EMPLOYEES PART-TIME CAREER EMPLOYMENT ACT OF 1978 OCTOBER 10, 1978, PUBLIC LAW 95-437, 92 STAT. 1056, EXTENDED TO PART TIME CAREER EMPLOYEES THE BENEFITS OF THE CIVIL SERVICE RETIREMENT SYSTEM, 5 U.S.C. 8347(G)(SUPP. II, 1978), FEDERAL EMPLOYEES GROUP LIFE INSURANCE, 5 U.S.C. 8716(B)(SUPP. II, 1978), AND THE HEALTH BENEFITS PROGRAM, 5 U.S.C. 8913(B)(SUPP. II, 1978). HOWEVER, THERE WAS NO AMENDMENT EXTENDING TO PART-TIME EMPLOYEES THE BENEFITS OF MILITARY LEAVE. THE LANGUAGE OF 5 U.S.C. 6323 HAS REMAINED ESSENTIALLY THE SAME SINCE OUR DECISION IN 35 COMP.GEN. 5.
IN VIEW OF THE ABOVE, MR. WISINGER MAY NOT BE GRANTED MILITARY LEAVE.