A-31224, APRIL 9, 1930, 9 COMP. GEN. 448

A-31224: Apr 9, 1930

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WHO ARE MEMBERS OF THE NAVAL RESERVE. 1930: I HAVE YOUR LETTER OF MARCH 28. IS A CHIEF QUARTERMASTER IN THE 39TH DIVISION. HE WAS ORDERED TO TAKE 15 DAYS ACTIVE TRAINING DUTY AT PHILADELPHIA BEGINNING AUGUST 17 AND ENDING AUGUST 31. IT WAS NECESSARY FOR HIM TO LEAVE KANSAS CITY AUGUST 15. HE WAS ABSENT FROM THE RAILWAY MAIL SERVICE 19 CALENDAR DAYS. WHO ARE MEMBERS OF THE NAVAL RESERVE. ON ALL DAYS DURING WHICH THEY ARE EMPLOYED UNDER ORDERS. WHICH SERVICE IS ORGANIZED ON THE BASIS OF 306 WORKING DAYS PER ANNUM. THE MATTER IS SUBMITTED TO YOU FOR DECISION. THE COMPTROLLER OF THE TREASURY HELD THAT SUNDAYS AND HOLIDAYS SHOULD BE COUNTED IN COMPUTING THE TIME FOR WHICH ANNUAL OR SICK LEAVE WAS GRANTED ON THE GROUND THAT CONGRESS IN THE SAME STATUTE HAD SPECIFICALLY EXCLUDED SUNDAYS AND HOLIDAYS FROM THE DAYS ON WHICH SEVEN HOURS OF LABOR SHOULD BE REQUIRED.

A-31224, APRIL 9, 1930, 9 COMP. GEN. 448

LEAVES OF ABSENCE - MILITARY IN COMPUTING THE 15 DAYS OF LEAVE WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING, AUTHORIZED BY THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1090, TO OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, WHO ARE MEMBERS OF THE NAVAL RESERVE, SUNDAYS AND HOLIDAYS OCCURRING WITHIN THE PERIOD OF ABSENCE SHOULD BE INCLUDED.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, APRIL 9, 1930:

I HAVE YOUR LETTER OF MARCH 28, 1930, AS FOLLOWS:

RAILWAY POSTAL CLERK BENNIE B. KIRBY, OF KANSAS CITY, MISSOURI, IS A CHIEF QUARTERMASTER IN THE 39TH DIVISION, 8TH BATTALION, UNITED STATES NAVAL RESERVE. HE WAS ORDERED TO TAKE 15 DAYS ACTIVE TRAINING DUTY AT PHILADELPHIA BEGINNING AUGUST 17 AND ENDING AUGUST 31, 1929. IN ORDER TO REACH PHILADELPHIA AUGUST 17, IT WAS NECESSARY FOR HIM TO LEAVE KANSAS CITY AUGUST 15, AND HE DID NOT RETURN TO DUTY IN THE RAILWAY MAIL SERVICE AT KANSAS CITY UNTIL SEPTEMBER 2, 1929. ALTOGETHER, HE WAS ABSENT FROM THE RAILWAY MAIL SERVICE 19 CALENDAR DAYS, OR 15 WORKING DAYS.

THE DEPARTMENT GAVE HIM 15 CALENDAR DAYS LEAVE WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING, BEGINNING AUGUST 15 AND ENDING AUGUST 29, 1929, UNDER THE FOLLOWING PROVISION IN THE NAVAL RESERVE ACT APPROVED FEBRUARY 28, 1925:

"PROVIDED, THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, WHO ARE MEMBERS OF THE NAVAL RESERVE, 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 ARE EMPLOYED UNDER ORDERS, ON TRAINING DUTY FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR.'

THIS COMPELLED MR. KIRBY TO TAKE TWO OF THE 15 DAYS ANNUAL LEAVE DUE HIM IN THE RAILWAY MAIL SERVICE OR BE ABSENT TWO DAYS WITHOUT PAY.

THE DEPARTMENT HOLDS THAT THE TRAINING PERIOD OF 15 DAYS SPECIFIED IN THE ACT REFERS TO CALENDAR TIME, OR THE ACTUAL PERIOD OF TRAINING INCLUDING SUNDAYS AND HOLIDAYS; BUT HE CONTENDS THAT IT REFERS TO WORKING DAYS IN THE RAILWAY MAIL SERVICE, WHICH SERVICE IS ORGANIZED ON THE BASIS OF 306 WORKING DAYS PER ANNUM. THEREFOR, THE MATTER IS SUBMITTED TO YOU FOR DECISION.

IN CONSTRUING SECTION 7 OF THE ACT OF MARCH 15, 1898, 30 STAT. 316, AS AMENDED BY THE ACT OF JULY 7, 1898, ID. 653, GRANTING 30 DAYS LEAVE OF ABSENCE WITH PAY TO EMPLOYEES OF THE EXECUTIVE DEPARTMENTS, THE COMPTROLLER OF THE TREASURY HELD THAT SUNDAYS AND HOLIDAYS SHOULD BE COUNTED IN COMPUTING THE TIME FOR WHICH ANNUAL OR SICK LEAVE WAS GRANTED ON THE GROUND THAT CONGRESS IN THE SAME STATUTE HAD SPECIFICALLY EXCLUDED SUNDAYS AND HOLIDAYS FROM THE DAYS ON WHICH SEVEN HOURS OF LABOR SHOULD BE REQUIRED; AND IF IT HAD BEEN THE LEGISLATIVE INTENT TO EXCLUDE THOSE DAYS IN COMPUTING LEAVE OF ABSENCE, SPECIFIC LEGISLATION TO THAT EFFECT WOULD HAVE BEEN INCLUDED IN THE ENACTMENT. SEE, ALSO, THE ACT OF FEBRUARY 24, 1899, 30 STAT. 890, SPECIFICALLY PROVIDING THAT THE 30 DAYS' ANNUAL LEAVE OF ABSENCE SHOULD BE EXCLUSIVE OF SUNDAYS AND LEGAL HOLIDAYS.

THE ACT OF OCTOBER 1, 1890, 26 STAT. 648, AUTHORIZED LEAVES OF ABSENCE NOT EXCEEDING 15 DAYS TO BE ALLOWED TO "CLERKS AND EMPLOYEES ATTACHED TO FIRST AND SECOND CLASS POST OFFICES" AND ,EMPLOYEES OF THE MAIL BAG REPAIR SHOPS.' IN CONSTRUING SAID ACT THE COMPTROLLER OF THE TREASURY HELD THAT SUNDAYS AND HOLIDAYS WERE TO BE INCLUDED IN COMPUTING THE LEAVE GRANTED BY THE ACT. THE ACT OF MARCH 2, 1907, 34 STAT. 1213, PROVIDED THAT THE LEAVES OF ABSENCE ALLOWED TO "CLERKS IN POST OFFICES SHOULD BE EXCLUSIVE OF SUNDAYS AND HOLIDAYS.' THE COMPTROLLER OF THE TREASURY HELD IN DECISION OF MAY 15, 1907, THAT THE PROVISION IN THE ACT OF MARCH 2, 1907, SUPRA, DID NOT APPLY TO EMPLOYEES OF THE MAIL BAG REPAIR SHOPS BECAUSE THEY WERE NOT SPECIFICALLY MENTIONED IN THE AMENDING STATUTE.

THE PRINCIPLE UNDERLYING THE DECISIONS HEREIN CITED IS APPLICABLE TO THE INSTANT CASE. IT MUST BE PRESUMED THAT IF THE CONGRESS HAD INTENDED THAT THE LEAVE OF ABSENCE GRANTED TO EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, WHO ARE MEMBERS OF THE NAVAL RESERVE, SHOULD BE EXCLUSIVE OF SUNDAYS AND HOLIDAYS, APPROPRIATE LANGUAGE TO THAT EFFECT WOULD HAVE BEEN INCLUDED IN THE ENACTMENT.

ACCORDINGLY, YOU ARE ADVISED THAT THE DEPARTMENT'S INTERPRETATION IS CORRECT, NAMELY, THAT THE TRAINING PERIOD OF 15 DAYS SPECIFIED IN THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1090, REFERS TO CALENDAR TIME OR THE ACTUAL PERIOD OF TRAINING INCLUDING SUNDAYS AND HOLIDAYS. SUCH INTERPRETATION TENDS TO MAKE THE APPLICATION OF THE LAW MORE UNIFORM AND MORE EQUITABLE SINCE IN MANY INSTANCES EMPLOYEES ARE REQUIRED TO WORK ON SUNDAYS AND LEGAL HOLIDAYS, WHICH DAYS WOULD, UNDER THE CIRCUMSTANCES, NECESSARILY HAVE TO BE INCLUDED IN COMPUTING THE LEAVE OF ABSENCE.