B-133972, JUNE 21, 1968, 47 COMP. GEN. 761

B-133972, JUNE 21, 1968, 47 COMP. GEN. 761

LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - EXCESS LEAVE THE GRANTING OF EXCUSED ABSENCE UNDER 5 U.S.C. 6323 WITHOUT LOSS OF PAY OR CHARGE TO LEAVE FOR DAYS CIVILIAN EMPLOYEES OF THE GOVERNMENT ARE ON ACTIVE DUTY AS MILITARY RESERVISTS OR AS MEMBERS OF FEDERALIZED NATIONAL GUARD UNITS MAY NOT EXCEED THE 15 DAYS IN A CALENDAR YEAR AUTHORIZED BY THE SECTION, THE AUTHORITY OF HEADS OF AGENCIES TO EXCUSE EMPLOYEES WITHOUT LOSS OF PAY OR CHARGE TO LEAVE FOR NONFEDERALIZED STATE NATIONAL GUARD DUTY NOT EXTENDING TO SECTION 6323 DUTY. THEREFORE, PROPOSED BULLETIN TO THE EFFECT THAT AN EMPLOYEE ABSENT ON MILITARY DUTY UNDER SECTION 6323 FOR EMERGENCY DUTIES SUCH AS CIVIL DISORDERS FOR MORE THAN 15 DAYS IN A CALENDAR YEAR MAY NOT BE FURTHER EXCUSED FROM HIS CIVILIAN POSITION WITHOUT LOSS OF PAY OR CHARGE TO LEAVE IS RECOMMENDED.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, JUNE 21, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 6, 1968, CONCERNING THE GRANTING OF EXCUSED ABSENCE WITHOUT LOSS OF PAY OR CHARGE TO LEAVE TO CIVILIAN EMPLOYEES OF THE GOVERNMENT FOR DAYS ON WHICH THEY ARE ABSENT FROM THEIR REGULAR DUTIES AS A RESULT OF BEING CALLED TO SHORT PERIODS OF ACTIVE DUTY AS MILITARY RESERVISTS OR AS MEMBERS OF FEDERALIZED NATIONAL GUARD UNITS IN CONNECTION WITH THE CONTROL OF CIVIL DISORDERS.

YOU PROPOSE TO ISSUE A BULLETIN TO READ IN PART AS FOLLOWS:

A FEDERAL EMPLOYEE WHO IS ORDERED INTO ACTIVE MILITARY SERVICE OF THE UNITED STATES PURSUANT TO AN EXECUTIVE ORDER FEDERALIZING HIS NATIONAL GUARD UNIT MAY BE CARRIED IN A MILITARY LEAVE STATUS FOR NOT TO EXCEED 15 CALENDAR DAYS, PROVIDED THE MILITARY LEAVE HAS NOT BEEN USED PREVIOUSLY DURING THE CURRENT CALENDAR YEAR. THESE GUARDSMEN MAY ALSO BE CARRIED IN AN ANNUAL LEAVE STATUS TO THE EXTENT OF THEIR ACCRUED ANNUAL LEAVE DURING THE PERIOD OF ACTIVE MILITARY LEAVE. IN NO CASE, HOWEVER, WOULD IT BE APPROPRIATE TO EXCUSE WITHOUT LOSS OF PAY OR CHARGE TO ANNUAL LEAVE AN EMPLOYEE WHO HAS BEEN ORDERED TO ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES. (27 COMP. GEN. 245, 251; 35 ID. 255.)

UNDER THE PROVISIONS OF 5 U.S.C. 6323, MILITARY RESERVISTS AND MEMBERS OF THE NATIONAL GUARD WHO ARE CIVILIAN EMPLOYEES OF THE FEDERAL GOVERNMENT ARE ENTITLED TO NOT IN EXCESS OF 15 DAYS OF LEAVE FOR USE WHEN THEY ARE CALLED TO ACTIVE DUTY OR REQUIRED TO PERFORM CERTAIN TRAINING DUTIES. MILITARY LEAVE GRANTED UNDER THAT SECTION WOULD EMBRACE EMERGENCY ACTIVE DUTY AS RESERVISTS OR AS MEMBERS OF FEDERALIZED NATIONAL GUARD UNITS IN CONNECTION WITH THE CONTROL OF CIVIL DISORDERS. IN ADDITION TO SUCH MILITARY LEAVE, WE HAVE HELD (CONSISTENT WITH 5 U.S.C. 5534) THAT IT IS PROPER TO GRANT ANNUAL LEAVE TO EMPLOYEES ON ACTIVE MILITARY DUTY AS RESERVISTS OR NATIONAL GUARDSMEN. 37 COMP. GEN. 255.

HEADS OF AGENCIES MAY EXERCISE THEIR AUTHORITY TO EXCUSE EMPLOYEES WITHOUT LOSS OF PAY OR CHARGE TO LEAVE WHEN EMPLOYEES ARE CALLED FOR NONFEDERALIZED STATE NATIONAL GUARD DUTY TO WHICH 5 U.S.C. 6323 IS NOT APPLICABLE. B-152149, AUGUST 2, 1963. ALTHOUGH THE ABSENCES HERE IN QUESTION MIGHT BE CONSIDERED AS BEING SIMILAR, THE CONGRESS HAS SPECIFICALLY PROVIDED FOR EXCUSED ABSENCE WITHOUT CHARGE TO LEAVE FOR CERTAIN RESERVE AND NATIONAL GUARD DUTY. WE DO NOT BELIEVE THAT THE DISCRETIONARY AUTHORITY WHICH AGENCY HEADS HAVE TO EXCUSE EMPLOYEES WHEN ABSENT WITHOUT CHARGE TO LEAVE MAY BE USED TO INCREASE THE NUMBER OF DAYS AN EMPLOYEE IS EXCUSED FOR THE PURPOSE OF PARTICIPATING IN RESERVE AND NATIONAL GUARD ACTIVITIES WHICH OTHERWISE ARE COVERED BY 5 U.S.C. 6323. THEREFORE, EVEN THOUGH AN EMPLOYEE IS ABSENT ON MILITARY DUTY COVERED BY THAT SECTION FOR MORE THAN 15 DAYS IN ANY CALENDAR YEAR, HE MAY NOT BE FURTHER EXCUSED FROM HIS CIVILIAN POSITION WITHOUT LOSS OF PAY OR CHARGE TO LEAVE. IN THAT CONNECTION WE NOTE THAT THE BILL H.R. 16951, 90TH CONGRESS, WHICH WAS INTRODUCED ON MAY 1, 1968, WOULD AUTHORIZE UP TO 22 DAYS OF EXCUSED ABSENCE FOR EMPLOYEES WHO ARE CALLED TO FULL TIME ACTIVE DUTY AS MEMBERS OF THE NATIONAL GUARD IN CONNECTION WITH RIOTS OR CIVIL DISORDERS.

WE UNDERSTAND THAT SOME FEDERAL EMPLOYEES WHO WERE CALLED TO ACTIVE DUTY AS RESERVISTS OR MEMBERS OF FEDERALIZED NATIONAL GUARD UNITS IN CONNECTION WITH THE DISORDERS IN APRIL OF THIS YEAR MAY HAVE BEEN GRANTED EXCUSED ABSENCES BY THEIR AGENCIES. THEREFORE, WE CONCUR IN THE ISSUANCE OF A BULLETIN ALONG THE LINES PROPOSED. HOWEVER, WE BELIEVE IT IS MORE APPROPRIATE TO INCLUDE IN YOUR PROPOSED BULLETIN A REFERENCE TO THIS DECISION RATHER THAN THOSE NOW CITED.