A-28088, JULY 31, 1929, 9 COMP. GEN. 48

A-28088: Jul 31, 1929

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LEAVES OF ABSENCE - MILITARY - NATIONAL GUARD MEMBERS PARTICIPATING IN A PARADE A CIVILIAN EMPLOYEE OF THE UNITED STATES WHO IS ALSO A MEMBER OF THE NATIONAL GUARD OF A STATE IS NOT ENTITLED TO MILITARY LEAVE UNDER SECTION 80 OF THE ACT OF JUNE 3. AS FOLLOWS: YOU ARE ADVISED THAT JOHN S. IS A PRIVATE IN THE 103RD OBSERVATION SQUADRON. HAYMAKER STATES THAT FAILURE TO REPORT WOULD HAVE RESULTED IN COURT MARTIAL PROCEEDINGS BEING INSTITUTED AGAINST HIM. FOR WHICH REASON THE NAVY DEPARTMENT IS LOATH TO APPLY THE PRINCIPLES SET FORTH IN THE DECISIONS OF JULY 3. THE NAVY DEPARTMENT IS UNCERTAIN AS TO WHETHER THE PARTICIPATION IN SAID EXERCISES BY MEMBERS OF THE 103RD OBSERVATION SQUADRON. IS THE ENGAGEMENT IN FIELD OR COAST- DEFENSE TRAINING SUCH AS TO ENTITLE AN EMPLOYEE OF THE NAVY YARD.

A-28088, JULY 31, 1929, 9 COMP. GEN. 48

LEAVES OF ABSENCE - MILITARY - NATIONAL GUARD MEMBERS PARTICIPATING IN A PARADE A CIVILIAN EMPLOYEE OF THE UNITED STATES WHO IS ALSO A MEMBER OF THE NATIONAL GUARD OF A STATE IS NOT ENTITLED TO MILITARY LEAVE UNDER SECTION 80 OF THE ACT OF JUNE 3, 1916, 39 STAT. 203, WHILE ABSENT FROM DUTY PARTICIPATING IN A "PARADE," SUCH PARADE IN ITSELF NOT CONSTITUTING FIELD OR COAST-DEFENSE TRAINING WITHIN THE MEANING OF THE ACT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JULY 31, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 23, 1929, AS FOLLOWS:

YOU ARE ADVISED THAT JOHN S. HAYMAKER, A CIVILIAN EMPLOYEE OF THE U.S. NAVY YARD, PHILADELPHIA, PA., IS A PRIVATE IN THE 103RD OBSERVATION SQUADRON, 28TH DIVISION AIR SERVICE, PENNSYLVANIA NATIONAL GUARD.

UNDER DATE OF APRIL 6, 1929, JOHN S. HAYMAKER REQUESTED THREE HOURS "MILITARY LEAVE" FOR THE PURPOSE OF REPORTING FOR ROLL CALL AND MARCHING IN A PARADE UNDER ORDERS FROM COMPETENT AUTHORITY. JOHN S. HAYMAKER STATES THAT FAILURE TO REPORT WOULD HAVE RESULTED IN COURT MARTIAL PROCEEDINGS BEING INSTITUTED AGAINST HIM.

THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, SECTION 80 (39 STAT. 203; TITLE 32, SEC. 75, U.S.C.), PROVIDES:

"THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO SHALL BE MEMBERS OF THE NATIONAL GUARD 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 ENGAGED IN FIELD OR COAST-DEFENSE TRAINING ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF THIS ACT.'

THERE DOES NOT APPEAR TO BE ANY STATUTE OTHER THAN THE ABOVE APPLICABLE TO THE MEMBERS OF THE NATIONAL GUARD OUTSIDE OF THE DISTRICT OF COLUMBIA, FOR WHICH REASON THE NAVY DEPARTMENT IS LOATH TO APPLY THE PRINCIPLES SET FORTH IN THE DECISIONS OF JULY 3, 1922 (2 COMP. GEN. 1), AND MARCH 26, 1927 (6 COMP. GEN. 635), AS SAID DECISIONS RELATED TO MEMBERS OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA.

THE NAVY DEPARTMENT IS UNCERTAIN AS TO WHETHER THE PARTICIPATION IN SAID EXERCISES BY MEMBERS OF THE 103RD OBSERVATION SQUADRON, 28TH DIVISION AIR SERVICE, PENNSYLVANIA NATIONAL GUARD, IS THE ENGAGEMENT IN FIELD OR COAST- DEFENSE TRAINING SUCH AS TO ENTITLE AN EMPLOYEE OF THE NAVY YARD, PHILADELPHIA, PA., A MEMBER OF SAID ORGANIZATION WHO PARTICIPATED IN SAID EXERCISES, TO LEAVE OF ABSENCE WITHOUT LOSS OF PAY OR TIME.

YOUR ADVICE IN THE PREMISES IS REQUESTED.

THE ONLY LAW AUTHORIZING MILITARY LEAVE OF ABSENCE FOR OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO ARE MEMBERS OF THE NATIONAL GUARD OF THE SEVERAL STATES IS CONTAINED IN SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, QUOTED BY YOU, AND IT WILL BE NOTED THAT THE LEAVE THEREIN AUTHORIZED IS LIMITED TO THE TIME ENGAGED IN FIELD OR COAST- DEFENSE TRAINING, ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF THAT ACT, AND DOES NOT INCLUDE ABSENCE FOR NATIONAL GUARD SERVICE FOR OTHER PURPOSES.

SECTION 92 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 206, REQUIRES THE PARTICIPATION OF EACH COMPANY, TROOP, BATTERY, AND DETACHMENT OF THE NATIONAL GUARD IN ,ENCAMPMENTS, MANEUVERS, OR OTHER EXERCISES, INCLUDING OUTDOOR TARGET PRACTICE, AT LEAST 15 DAYS IN TRAINING EACH YEAR, INCLUDING TARGET PRACTICE," UNLESS EXCUSED BY THE SECRETARY OF WAR, AND SECTION 94 PROVIDES FOR "ENCAMPMENTS, MANEUVERS, OR OTHER EXERCISES, INCLUDING OUTDOOR TARGET PRACTICE, FOR FIELD OR COAST-DEFENSE INSTRUCTION.'

THE REGULATIONS PROVIDING FOR SUCH ENCAMPMENTS, ETC., ARE CONTAINED IN SECTION 3 OF NATIONAL GUARD REGULATIONS NO. 45.

THE STANDARD DICTIONARY DEFINES THE WORD "PARADE" IN THE MILITARY SENSE, AS A MARSHALING AND MANEUVERING OF TROOPS FOR DISPLAY OR OFFICIAL INSPECTION. IT WOULD SEEM THAT A MERE PARADE, IN ITSELF, MAY NOT BE CONSIDERED AS COMING WITHIN THE TERMS OF ENCAMPMENTS, MANEUVERS, OR OTHER EXERCISES FOR FIELD OR COAST-DEFENSE TRAINING AUTHORIZED BY SECTIONS 92 AND 94 OF THE NATIONAL DEFENSE ACT AND THE REGULATIONS MADE IN PURSUANCE THEREOF.

YOU ARE ADVISED, THEREFORE, THAT MR. HAYMAKER IS NOT ENTITLED UNDER SAID SECTION 80 OF THE NATIONAL DEFENSE ACT TO THREE HOURS' LEAVE FOR THE PURPOSE OF PARTICIPATING IN A PARADE OF HIS ORGANIZATION.