A-32761, SEPTEMBER 8, 1930, 10 COMP. GEN. 116

A-32761: Sep 8, 1930

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LEAVES OF ABSENCE - MILITARY - INVOLVING TWO CALENDAR YEARS AN EMPLOYEE WHO IS GRANTED 15 DAYS' MILITARY LEAVE DURING ONE CALENDAR YEAR. AS FOLLOWS: YOU ARE INFORMED THAT EDWARD ENGEL. WAS ON SAID DATE. WHO ARE MEMBERS OF THE NAVAL RESERVE. ON ALL DAYS DURING WHICH THEY ARE EMPLOYED. IS HEREBY ABOLISHED. IN LIEU THEREOF THERE IS HEREBY CREATED AND ESTABLISHED. REPORTS THAT THE DUTY INVOLVED BY THE ORDERS ISSUED TO EDWARD ENGEL WILL CONTINUE FOR APPROXIMATELY NINE MONTHS IF HE IS NOT ELIMINATED AFTER PRELIMINARY TESTS. THERE IS NO QUESTION THAT UNDER THE PROVISIONS OF THE STATUTE ABOVE QUOTED. EDWARD ENGEL IS ENTITLED TO MILITARY LEAVE OF ABSENCE. DURING WHICH HE IS EMPLOYED ON TRAINING DUTY.

A-32761, SEPTEMBER 8, 1930, 10 COMP. GEN. 116

LEAVES OF ABSENCE - MILITARY - INVOLVING TWO CALENDAR YEARS AN EMPLOYEE WHO IS GRANTED 15 DAYS' MILITARY LEAVE DURING ONE CALENDAR YEAR, UNDER SECTION 36 OF THE NAVAL RESERVE ACT OF FEBRUARY 28, 1925, 43 STAT. 1089, AND WHO CONTINUES ON TRAINING DUTY INTO THE NEXT CALENDAR YEAR, FOR WHICH LEAVE WITHOUT PAY HAS BEEN GRANTED, MAY NOT BE GRANTED AN ADDITIONAL 15 DAYS' MILITARY LEAVE WITH PAY AT THE BEGINNING OF, OR DURING THE SECOND CALENDAR YEAR, UNLESS AND UNTIL THERE HAS BEEN A RETURN TO CIVILIAN DUTY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, SEPTEMBER 8, 1930:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 23, 1930, AS FOLLOWS:

YOU ARE INFORMED THAT EDWARD ENGEL, DESIGN DRAFTSMAN (SHIP) EMPLOYED AT THE NAVY YARD, PHILADELPHIA, PENNSYLVANIA, AT A COMPENSATION OF $8.05 PER DIEM, ENLISTED IN THE VOLUNTEER MARINE CORPS RESERVE (AVIATION) JUNE 13, 1930, AND WAS ON SAID DATE, UNDER WRITTEN ORDERS, PLACED ON ACTIVE DUTY AND DIRECTED TO PROCEED FIRST TO THE MARINE BARRACKS, NAVY YARD, PHILADELPHIA, PENNSYLVANIA, AND REPORT TO THE COMMANDING OFFICER THEREAT, FOR CLOTHING OUTFIT, THENCE TO PROCEED, ON JUNE 14, 1930 TO THE NAVAL RESERVE AVIATION BASE, VALLEY STREAM (L.I.), NEW YORK, AND REPORT TO THE COMMANDING OFFICER FOR ASSIGNMENT TO ELIMINATION FLIGHT TRAINING.

EDWARD ENGEL SUBMITTED A REQUEST TO THE COMMANDANT, NAVY YARD, PHILADELPHIA, PENNSYLVANIA, UNDATED, THAT HE BE GRANTED MILITARY LEAVE WITH PAY FOR THE DURATION OF HIS TRAINING PERIOD.

SECTION 36 OF THE NAVAL RESERVE ACT, APPROVED FEBRUARY 28, 1925 (45 STAT. 1080, 1089; TITLE 34, SEC. 768, U.S.C.), PROVIDES:

"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.'

SECTION 2 OF THE NAVAL RESERVE ACT (43 STAT. 1080; TITLE 34, SEC. 752, U.S.C.), PROVIDES:

"THAT THE UNITED STATES MARINE CORPS RESERVE, ESTABLISHED UNDER THE ACT OF AUGUST 29, 1916, IS HEREBY ABOLISHED, AND IN LIEU THEREOF THERE IS HEREBY CREATED AND ESTABLISHED, AS A COMPONENT PART OF THE UNITED STATES MARINE CORPS, A MARINE CORPS RESERVE, UNDER THE SAME PROVISIONS IN ALL RESPECTS (EXCEPT AS MAY BE NECESSARY TO ADAPT THE SAID PROVISIONS TO THE MARINE CORPS) AS THOSE CONTAINED IN THIS ACT OR WHICH MAY HEREAFTER BE ENACTED PROVIDING FOR THE NAVAL RESERVE: PROVIDED, THAT THE MARINE CORPS RESERVE SHALL CONSIST OF TWO CLASSES, NAMELY: THE FLEET MARINE CORPS RESERVE AND THE VOLUNTEER MARINE CORPS RESERVE, CORRESPONDING, AS NEAR AS MAY BE, TO THE FLEET NAVAL RESERVE AND THE VOLUNTEER NAVAL RESERVE, RESPECTIVELY.'

THE COMMANDANT, NAVY YARD, PHILADELPHIA, PENNSYLVANIA, REPORTS THAT THE DUTY INVOLVED BY THE ORDERS ISSUED TO EDWARD ENGEL WILL CONTINUE FOR APPROXIMATELY NINE MONTHS IF HE IS NOT ELIMINATED AFTER PRELIMINARY TESTS.

THERE IS NO QUESTION THAT UNDER THE PROVISIONS OF THE STATUTE ABOVE QUOTED, EDWARD ENGEL IS ENTITLED TO MILITARY LEAVE OF ABSENCE, WITHOUT LOSS OF PAY, TIME OR EFFICIENCY RATING, ON ALL DAYS, NOT TO EXCEED FIFTEEN DURING THE CURRENT CALENDAR YEAR, DURING WHICH HE IS EMPLOYED ON TRAINING DUTY.

IT IS PURPOSED TO FURLOUGH EDWARD ENGEL, WITHOUT PAY, FROM HIS EMPLOYMENT AT THE NAVY YARD, PHILADELPHIA, PENNSYLVANIA, FROM THE TERMINATION OF HIS PAY-STATUS PERIOD. IT IS REQUESTED THAT YOU INFORM THE NAVY DEPARTMENT WHETHER, IN THE EVENT THAT HIS TRAINING PERIOD EXTENDS INTO THE FOLLOWING CALENDAR YEAR, EDWARD ENGEL IS ENTITLED, AT THE BEGINNING OF THE FOLLOWING CALENDAR YEAR AND WITHOUT OTHERWISE RESUMING HIS PAY STATUS, TO FIFTEEN DAYS' LEAVE, WITHOUT LOSS OF PAY, TIME OR EFFICIENCY RATING, WHILE SO EMPLOYED ON TRAINING WITH THE VOLUNTEER MARINE RESERVE, UNDER ORDERS. OTHER WORDS, IS EDWARD ENGEL, UNDER THE FACTS PRESENTED, ENTITLED TO MILITARY LEAVE, WITH PAY FOR FIFTEEN DAYS AT THE BEGINNING OF THE FOLLOWING YEAR, PRIOR TO THE RESUMPTION OF HIS DUTIES AT THE NAVY YARD, PHILADELPHIA, PENNSYLVANIA?

UNDER THE MILITARY LEAVE ACT OF FEBRUARY 28, 1925, QUOTED IN YOUR SUBMISSION, EACH PERIOD OF AUTHORIZED TRAINING DUTY OF RESERVISTS, AND EACH MAXIMUM PERIOD OF AUTHORIZED LEAVE OF ABSENCE WITHOUT LOSS OF PAY, TIME OR EFFICIENCY RATING, IS INTENDED TO BE CONSIDERED AS A SEPARATE AND DISTINCT UNIT OF TIME, RELATING TO THE CALENDAR YEAR. A MAXIMUM OF 15 DAYS, MILITARY LEAVE OF ABSENCE WITH PAY IS AUTHORIZED FOR ANYONE PERIOD OF TRAINING DUTY EQUAL TO OR IN EXCESS OF FIFTEEN DAYS, REGARDLESS OF LENGTH AND WHETHER IN ONE OR MORE CALENDAR YEARS, AND A MAXIMUM OF 15 DAYS' MILITARY LEAVE WITH PAY IS AUTHORIZED DURING EACH CALENDAR YEAR REGARDLESS OF THE NUMBER OF PERIODS OF AUTHORIZED TRAINING DUTY. APPLYING THE STATUTE, THEREFORE, A PERIOD OF AUTHORIZED TRAINING DUTY EXTENDING BEYOND THE END OF THE CALENDAR YEAR IN WHICH IT BEGINS MAY NOT BE DIVIDED INTO SEPARATE PERIODS CORRESPONDING TO CALENDAR YEARS SO AS TO GRANT AN EMPLOYEE AN EXCESS OF 15 DAYS' MILITARY LEAVE OF ABSENCE WITH PAY FOR ANY ONE AUTHORIZED PERIOD OF TRAINING DUTY, WHETHER IN ONE OR MORE CALENDAR YEARS.

IN DECISION OF AUGUST 29, 1930, A-2000, 10 COMP. GEN. 102, IT WAS HELD, IN CONSTRUING THE LEAVE STATUTES APPLICABLE TO CIVILIAN EMPLOYEES AS FOLLOWS:

* * * IT IS MORE UNREASONABLE TO CONCLUDE THAT THE STATUTE CONTEMPLATES OR AUTHORIZES THE GRANTING OF ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY AT THE BEGINNING OF EACH CALENDAR OR OTHER LEAVE YEAR, SO LONG AS THE EMPLOYEE MAY BE CONTINUED ON THE ROLLS, WITHOUT A RETURN TO DUTY FOLLOWING A PERIOD OF ABSENCE FROM DUTY IN A NONPAY STATUS. LEAVE OF ABSENCE WITH PAY IS DEPENDENT UPON AN ACTUAL DUTY STATUS WITH PAY, AND THERE CAN BE NO LEAVE STATUS WITH PAY IN ANY LEAVE YEAR UNLESS AND UNTIL THERE HAS BEEN A STATUS OF ACTUAL DUTY WITH PAY IN SAID YEAR. THE MERE ENDING OF ONE LEAVE YEAR AND THE BEGINNING OF ANOTHER WITHOUT A RETURN TO DUTY DOES NOT IPSO FACTO AUTHORIZE GRANTING THE EMPLOYEE A NEW ALLOWANCE OF LEAVE UNDER THE STATUTE. IF IT DID, IT WOULD BE POSSIBLE BY ADMINISTRATIVE ACTION TO CARRY AN EMPLOYEE ON THE ROLLS AND GIVE HIM PAY FOR OVER TWO MONTHS EACH YEAR OVER A PERIOD OF ANY NUMBER OF YEARS WITHOUT PERFORMANCE OF ANY DUTY WHATEVER. IT COULD NOT BE SERIOUSLY CONTENDED THAT THE LEAVE LAWS CONTEMPLATED THE PAYMENT OF COMPENSATION UNDER SUCH CIRCUMSTANCES.

THE SAME PRINCIPLE IS APPLICABLE IN APPLYING THE TERMS OF MILITARY LEAVE STATUTES. ACCORDINGLY, THE QUESTION SUBMITTED IS ANSWERED IN THE NEGATIVE.