B-227222, Nov 5, 1987

B-227222, Nov 5, 1987

CIVILIAN PERSONNEL - Leaves of Absence - Military Leave - Accrual - Eligibility DIGEST: A civilian Federal employee, who is a member of the reserves, is entitled to accrue and carry over 15 days of military leave each fiscal year in spite of the fact that he did not request such leave and regardless of whether he was a member of an active or inactive reserve unit. The military leave statute, 5 U.S.C. Sec. 6323 (1982), makes no distinction for accrual purposes between the employee's participation in an active or inactive reserve unit.

Galen Rex Quinn - Accrual of Military Leave:

The Associate Regional Director, United States Department of the Interior, National Park Service, Southeast Regional Office, requests a decision concerning an employee's right to accrue and carry over 15 days of unused military leave. For the reasons that follow, we hold that the employee is entitled to accrue and carry over such leave.

BACKGROUND

Mr. Galen Rex Quinn is a civilian employee of the National Park Service, Cape Lookout National Seashore, Beaufort, North Carolina. Mr. Quinn signed a Ready Reserve Service Agreement on January 30, 1984, and agreed
to serve in the United States Marine Corps Individual Ready Reserve at the
rank of Captain.
/1/ Mr. Quinn did not use any military leave in fiscal
years 1984 and 1985, and he maintains that under the provisions of 5
U.S.C. Sec. 6323 (1982), he was entitled to accrue and carry over 15 days
of military leave each fiscal year, not to exceed 30 days of military
leave.
Mr. Quinn used 15 days military leave in fiscal year 1986, and he
requested that an additional 15 days military leave be credited to his
account for fiscal year 1987.
Mr. Quinn's request was denied by his
agency on the basis that he did not request such leave in fiscal years
1984 and 1985 and on the basis that the Individual Ready Reserve is an
inactive reserve unit with no requirement whatsoever for active duty.
The
information that the Individual Ready Reserve is an inactive reserve unit
was furnished to the agency by the Adjutant's Office, Headquarters,
Atlanta Marine Reserves, 4th Force Service Support Group.

OPINION

Military leave for civilian employees of the Federal Government is
authorized by 5 U.S.C. Sec. 6323 (1982), which provides in part:

"(a)(1) *** an employee *** is entitled to leave without loss in pay,
time, or performance or efficiency rating for active duty or engaging in
field or coast defense training under section 502-505 of title 32 as a
Reserve of the armed forces or member of the National Guard.
Leave under
this subsection accrues for an employee or individual at the rate of 15
days per fiscal year and, to the extent that it is not used in a fiscal
year, accumulates for use in the succeeding fiscal year until it totals 15
days at the beginning of a fiscal year."

The military leave entitlement in 5 U.S.C. Sec. 6323(a)(1), quoted above,
only applies when an employee is on active duty for training.
Thus, there
is no authority to grant an employee military leave to attend weekend
drills even though the employee is required to be absent from work.
See
32 Comp.Gen. 363 (1953); Robert Voight, B-202654, July 31, 1981.
See also
Federal Personnel Manual Letter 630-30, April 23, 1982.

Although the employee must be on active duty in order to use military
leave, there is no such distinction made in the statutory language for
accrual.
The statutory language refers to "Reserve of the armed forces or
member of the National Guard."
The Reserve components of the armed forces
are named in 10 U.S.C. Sec. 261(a) (1982), and the definition specifically
includes the Marine Corps Reserve.

The only limiting provisions in the military leave statute which pertain
to accrual are the maximum carryover provision of 15 days and the reduced
rate of accrual for part-time career employees.
See 5 U.S.C. Sec.
6323(a)(2) (1982); 1980 U.S. Code Cong. & Ad. News 3871, 3872.
Thus, the
statute makes no distinction for accrual purposes between the employee's
participation in an active or inactive reserve unit.
See Federal Bureau
of Investigation Military Leave, B-208706, August 31, 1983, where we held
that the statutory authority for military leave made no distinction
between voluntary and required active duty for training.

We also note that the agency may have misunderstood the information
provided about Mr. Quinn's reserve status since his membership in the
Ready Reserve required that he participate in scheduled drills and serve
on active duty.
See 10 U.S.C. Sec. 270 (1982).
In fact, Mr. Quinn's
Ready Reserve Service Agreement states that he agrees to so participate.
The record fails to show why Mr. Quinn did not participate in active duty
training during fiscal years 1984 and 1985, but his reserve status at that
time would be irrelevant in view of the fact that, as previously stated,
he did not have to be in an active reserve unit in order to accrue 15 days
military leave.

Accordingly, Mr. Quinn is entitled to accrue and carry over military
leave to the extent it does not exceed 30 days in a fiscal year.

/1/ Mr. Quinn transferred to the National Guard in 1986; however, this fact is not relevant to our determination.