A-26901, MAY 7, 1929, 8 COMP. GEN. 590

A-26901: May 7, 1929

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LEAVE OF ABSENCE - MILITARY AN EMPLOYEE OF THE UNITED STATES WHO IS A MEMBER OF THE NATIONAL GUARD AND ALSO OF THE OFFICERS' RESERVE CORPS MAY BE GRANTED LEAVE OF ABSENCE AS A MEMBER OF THE NATIONAL GUARD UNDER SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3. BELONGS TO THE NATIONAL GUARD IN MAINE AND IS A FIRST LIEUTENANT IN THE EIGHTH COAST ARTILLERY. HE WAS GRANTED LEAVE WITHOUT LOSS OF PAY WHILE TRAINING IN THE NATIONAL GUARD FROM JULY 7 TO JULY 21. WILL YOU PLEASE INFORM ME WHETHER HIS REQUEST MAY BE GRANTED? THE QUESTION PRESENTED IS UNDERSTOOD TO BE WHETHER AN EMPLOYEE OF THE UNITED STATES WHO IS A MEMBER OF THE NATIONAL GUARD AND ALSO A MEMBER OF THE OFFICERS' RESERVE CORPS AND WHO HAS BEEN GRANTED A LEAVE OF ABSENCE AS A MEMBER OF THE NATIONAL GUARD UNDER SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3.

A-26901, MAY 7, 1929, 8 COMP. GEN. 590

LEAVE OF ABSENCE - MILITARY AN EMPLOYEE OF THE UNITED STATES WHO IS A MEMBER OF THE NATIONAL GUARD AND ALSO OF THE OFFICERS' RESERVE CORPS MAY BE GRANTED LEAVE OF ABSENCE AS A MEMBER OF THE NATIONAL GUARD UNDER SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 203, AND ALSO AS A MEMBER OF THE OFFICERS' RESERVE CORPS UNDER THE ACT OF MAY 12, 1917, 40 STAT. 72.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL MAY 7, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 17, 1929, AS FOLLOWS:

A LARGE NUMBER OF EMPLOYEES IN THE RAILWAY MAIL SERVICE BELONG TO MILITARY ORGANIZATIONS SUCH AS THE NATIONAL GUARD, THE OFFICERS' RESERVE CORPS, AND THE NAVAL RESERVE CORPS. SOME OF THE EMPLOYEES BELONG TO MORE THAN ONE OF THESE ORGANIZATIONS AND REQUEST LEAVE WITH PAY TO TAKE THE TRAINING REQUIRED BY EACH ORGANIZATION. FOR EXAMPLE, ROLLISTON S. WOODBURY, AN EMPLOYEE OF THE RAILWAY MAIL SERVICE, BELONGS TO THE NATIONAL GUARD IN MAINE AND IS A FIRST LIEUTENANT IN THE EIGHTH COAST ARTILLERY. HE WAS GRANTED LEAVE WITHOUT LOSS OF PAY WHILE TRAINING IN THE NATIONAL GUARD FROM JULY 7 TO JULY 21, 1928, IN ACCORDANCE WITH SECTION 80 OF THE NATIONAL DEFENSE ACT APPROVED JUNE 3, 1916. HE ALSO TRAINED AT FORT PREBLE, ME., AS A RESERVE OFFICER FROM NOVEMBER 11 TO NOVEMBER 24, 1928, AND HAS REQUESTED LEAVE WITH PAY IN THE RAILWAY MAIL SERVICE FOR THAT TIME UNDER PROVISIONS OF THE ACT OF JULY 2, 1918, 40 STAT. 754.

WILL YOU PLEASE INFORM ME WHETHER HIS REQUEST MAY BE GRANTED?

THE QUESTION PRESENTED IS UNDERSTOOD TO BE WHETHER AN EMPLOYEE OF THE UNITED STATES WHO IS A MEMBER OF THE NATIONAL GUARD AND ALSO A MEMBER OF THE OFFICERS' RESERVE CORPS AND WHO HAS BEEN GRANTED A LEAVE OF ABSENCE AS A MEMBER OF THE NATIONAL GUARD UNDER SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 203, DURING THE CALENDAR YEAR 1928, IS ALSO ENTITLED TO A LEAVE OF ABSENCE DURING THE SAME YEAR AS A MEMBER OF THE OFFICERS' RESERVE CORPS UNDER THE SIMILAR PROVISION IN THE ACT OF MAY 12, 1917, 40 STAT. 72, AS FOLLOWS:

* * * THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO SHALL BE MEMBERS OF THE OFFICERS' RESERVE CORPS SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING, ON ALL DAYS DURING WHICH THEY SHALL BE ORDERED TO DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, FOR PERIODS NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR.

THE ACT CITED BY YOU APPEARS TO HAVE NO BEARING ON THE QUESTION HERE PRESENTED.

SECTION 37 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED BY THE ACT OF JUNE 4, 1920, AND AS FURTHER AMENDED BY THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1033, PROVIDES:

OFFICERS' RESERVE CORPS: FOR THE PURPOSE OF PROVIDING A RESERVE OF OFFICERS AVAILABLE FOR MILITARY SERVICE WHEN NEEDED THERE SHALL BE ORGANIZED AN OFFICERS' RESERVE CORPS * * *. ANY PERSON WHO HAS BEEN AN OFFICER OF THE ARMY AT ANY TIME BETWEEN APRIL 6, 1917, AND JUNE 30, 1919, OR AN OFFICER OF THE REGULAR ARMY AT ANY TIME MAY BE APPOINTED AS A RESERVE OFFICER IN THE HIGHEST GRADE WHICH HE HELD IN THE ARMY OR ANY LOWER GRADE. ANY PERSON COMMISSIONED IN THE NATIONAL GUARD AND RECOGNIZED AS A NATIONAL GUARD OFFICER BY THE SECRETARY OF WAR MAY UPON HIS OWN APPLICATION BE APPOINTED AS A RESERVE OFFICER IN THE GRADE HELD BY HIM IN THE NATIONAL GUARD. NO OTHER PERSON SHALL IN TIME OF PEACE BE ORIGINALLY APPOINTED AS A RESERVE OFFICER OF INFANTRY, CAVALRY, FIELD ARTILLERY, COAST ARTILLERY, OR AIR SERVICE IN A GRADE ABOVE THAT OF SECOND LIEUTENANT. IN TIME OF PEACE APPOINTMENTS IN THE INFANTRY, CAVALRY, FIELD ARTILLERY, COAST ARTILLERY, AND AIR SERVICE SHALL BE LIMITED TO FORMER OFFICERS OF THE ARMY, OFFICERS OF THE NATIONAL GUARD RECOGNIZED AS SUCH BY THE SECRETARY OF WAR, GRADUATES OF THE RESERVE OFFICERS' TRAINING CORPS, AS PROVIDED IN SECTION 47B HEREOF, WARRANT OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, NATIONAL GUARD, AND ENLISTED RESERVE CORPS, AND PERSONS WHO SERVED IN THE ARMY AT SOME TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918. * * *

MEMBERS OF THE NATIONAL GUARD ARE THUS EXPRESSLY MADE ELIGIBLE FOR APPOINTMENT IN THE OFFICERS' RESERVE CORPS, AND WHEN SO APPOINTED THE LAWS RELATING TO THE OFFICERS' RESERVE CORPS ARE APPLICABLE TO THEM, INCLUDING THE PROVISION OF THE ACT OF MAY 12, 1917, QUOTED SUPRA, RELATING TO LEAVE OF ABSENCE, IF THEY ARE CIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES. SEE IN THIS CONNECTION 3 COMP. GEN. 281; 6 ID. 178.

YOU ARE ADVISED THEREFORE THAT IF MR. WOODBURY OTHERWISE COMES WITHIN THE ACT OF MAY 12, 1917, SUPRA, HIS RIGHT TO THE LEAVE OF ABSENCE THEREIN AUTHORIZED IS NOT DEFEATED BY THE FACT OF HIS HAVING BEEN GRANTED A LEAVE OF ABSENCE AS A MEMBER OF THE NATIONAL GUARD UNDER SECTION 80 OF THE NATIONAL DEFENSE ACT.

THE FOREGOING IS NOT, HOWEVER, TRUE WITH RESPECT TO MEMBERS OF THE NAVAL RESERVE, THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, CREATING THE NAVAL RESERVE, PROVIDING BY SECTION 4---

* * * THAT NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA. * * *

PROVISION IS MADE FOR "MILITARY" LEAVE FOR NAVAL RESERVES, NOT EXCEEDING 15 DAYS DURING A CALENDAR YEAR, BY SECTION 36 OF THE LAST CITED ACT, 43 STAT. 1090.