B-123384, JULY 8, 1955, 35 COMP. GEN. 5

B-123384, JULY 8, 1955, 35 COMP. GEN. 5

LEAVES OF ABSENCE - MILITARY - PART-TIME OR INTERMITTENT EMPLOYEES THE ACT OF JULY 1, 1947, PRECLUDES THE GRANT OF MILITARY LEAVE TO OTHER THAN REGULAR OR PERMANENT EMPLOYEES AND, THEREFORE, PART-TIME AND INTERMITTENT EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE WITH PAY.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, JULY 8, 1955:

YOUR LETTER OF MARCH 23, 1955, REQUESTS OUR DECISION WHETHER EMPLOYEES IN THE VETERANS ADMINISTRATION, WHO ARE GIVEN PERMANENT APPOINTMENTS ON A PART-TIME, INDEFINITE, PER ANNUM BASIS, ARE ENTITLED TO MILITARY LEAVE UNDER SECTION 4 OF THE ACT OF JULY 1, 1947, 61 STAT. 239, 10 U.S. CODE 371A.

SECTION 4 OF THE REFERRED-TO ACT PROVIDES:

THE WORDS "OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA" AS USED IN THE THIRD PARAGRAPH, SUBHEADING " ORDINANCE STORES AND EQUIPMENT FOR RESERVE OFFICERS' TRAINING CORPS," OF THE ACT OF MAY 12, 1917 (40 STAT. 72; 10 U.S.C. ANNOTATED 371), AS NOW OR HEREAFTER AMENDED, AS USED IN THAT PART OF SECTION 80 OF THE ACT OF JUNE 3, 1916 (39 STAT. 203; 32 U.S.C. 75), AS NOW OR HEREAFTER AMENDED, WHICH PRECEDES THE PROVISO, AND AS USED IN THE FIRST PROVISO OF SECTION 9 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1177; 34 U.S.C. ANNOTATED 853G), AS NOW OR HEREAFTER AMENDED, 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 CLASSIFICATIONS OR TERMINOLOGY PECULIAR TO THE FEDERAL CIVIL SERVICE SYSTEM. ( ITALICS SUPPLIED.)

THE DEFINITION OF "OFFICERS AND EMPLOYEES," AS USED IN SECTION 4 MERELY EXTENDED THE BENEFITS OF MILITARY LEAVE TO INCLUDE EMPLOYEES WHO HAD BEEN DESIGNATED AS "TEMPORARY INDEFINITE" EMPLOYEES, SUCH AS THOSE APPOINTED UNDER SECTION 2 OF REGULATION VIII OF THE CIVIL SERVICE LAWS AND REGULATIONS, AND WHO PREVIOUSLY HAD BEEN REGARDED AS NOT ENTITLED TO MILITARY LEAVE. SEE 26 COMP. GEN. 610. ALSO, THE LEGISLATIVE HISTORY OF THE ABOVE ACT INDICATES THAT THE WORD "INDEFINITE" WAS INSERTED AFTER THE WORD "TEMPORARY" IN SECTION 4 FOR THE SPECIFIC PURPOSE OF DENYING MILITARY LEAVE WITH PAY TO PART-TIME OR INTERMITTENT EMPLOYEES. THEREFORE, THE GRANT OF MILITARY LEAVE TO OTHER THAN A REGULAR OR PERMANENT EMPLOYEE CLEARLY WOULD BE INCONSISTENT WITH THE UNDERLYING PRINCIPLES OF THE GRANT OF MILITARY LEAVE. SEE 18 COMP. GEN. 538.

ACCORDINGLY, SINCE THE CLASSES OF EMPLOYEES LISTED IN YOUR LETTER ARE SHOWN AS "PART-TIME" EMPLOYEES, THEY ARE NOT ENTITLED TO MILITARY LEAVE WITH PAY.