A-63993, AUGUST 8, 1935, 15 COMP. GEN. 110

A-63993: Aug 8, 1935

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TO PERFORM FIFTEEN DAYS' TRAINING DUTY WITHOUT PAY IS NOT ENTITLED TO LEAVE FROM HIS CIVIL POSITION WITH PAY UNDER SECTION 36 OF THE ACT OF FEBRUARY 28. YOU ARE AUTHORIZED TO REPORT TO THE MEDICAL OFFICER. THIS AUTHORITY WILL BE CONSIDERED CANCELLED. 3. YOU ARE AUTHORIZED TO REPORT TO THE COMMANDING OFFICER. A COPY OF THIS AUTHORIZATION WITH ALL ENDORSEMENTS WILL BE FORWARDED TO THE BUREAU OF NAVIGATION UPON COMPLETION OF TRAINING. 4. UPON COMPLETION OF THIS TRAINING DUTY YOU WILL BE EXAMINED PHYSICALLY. UPON RETURN TO YOUR HOME YOU WILL CONSIDER YOURSELF RELEASED FROM TRAINING DUTY. 5. TURKEL IS EMPLOYED THAT INASMUCH AS THE AUTHORIZATION DID NOT AMOUNT TO AN ORDER TO REPORT FOR ACTIVE DUTY BUT WAS MERELY AN AUTHORIZATION BASED UPON A PERSONAL REQUEST.

A-63993, AUGUST 8, 1935, 15 COMP. GEN. 110

LEAVES OF ABSENCE - MILITARY A MEMBER OF THE VOLUNTEER NAVAL RESERVE AUTHORIZED BY THE NAVAL AUTHORITIES, UPON HIS OWN APPLICATION AND WITH HIS OWN CONSENT, TO PERFORM FIFTEEN DAYS' TRAINING DUTY WITHOUT PAY IS NOT ENTITLED TO LEAVE FROM HIS CIVIL POSITION WITH PAY UNDER SECTION 36 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1040.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, AUGUST 8, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 20, 1935, AS FOLLOWS:

UNDER DATE OF JANUARY 22, 1935, HARRY R. TURKEL, AN EMPLOYEE OF THE DEPARTMENT, MADE APPLICATION FOR 15 DAYS' MILITARY LEAVE TO COMMENCE JANUARY 25, FORWARDING WITH HIS APPLICATION AN "AUTHORIZATION FOR TRAINING DUTY WITHOUT PAY" READING AS FOLLOWS:

"UNITED STATES NAVY YARD,

COMMANDANT'S OFFICE,

WASHINGTON, D.C., JANUARY 21, 1935. 63540 (NR) FROM: COMMANDANT,TO: LIEUTENANT (J.G.) HARRY R. TURKEL, I V (S), U.S.N.R.,

TREATY DIVISION, DEPARTMENT OF STATE,

WASHINGTON, D.C. SUBJECT: AUTHORIZATION FOR TRAINING DUTY WITHOUT PAY.

1. HAVING REQUESTED TRAINING DUTY WITHOUT PAY, YOU ARE AUTHORIZED TO REPORT TO THE MEDICAL OFFICER, NAVY YARD, WASHINGTON, D.C., ON OR ABOUT JAN. 22, 1935, FOR PHYSICAL EXAMINATION.

2. IF FOUND NOT PHYSICALLY QUALIFIED, THIS AUTHORITY WILL BE CONSIDERED CANCELLED.

3. IF FOUND PHYSICALLY QUALIFIED, YOU ARE AUTHORIZED TO REPORT TO THE COMMANDING OFFICER, U.S.S. NEW ORLEANS, AT NEW YORK, N.Y., OR SUCH OTHER PORT AS THAT VESSEL MAY BE, ON JANUARY 25, 1935, FOR SIXTEEN (16) DAYS' TRAINING DUTY WITHOUT PAY.

A COPY OF THIS AUTHORIZATION WITH ALL ENDORSEMENTS WILL BE FORWARDED TO THE BUREAU OF NAVIGATION UPON COMPLETION OF TRAINING.

4. UPON COMPLETION OF THIS TRAINING DUTY YOU WILL BE EXAMINED PHYSICALLY. UPON RETURN TO YOUR HOME YOU WILL CONSIDER YOURSELF RELEASED FROM TRAINING DUTY.

5. BRING THIS AUTHORIZATION WITH YOU UPON REPORTING FOR TRAINING DUTY. INABILITY TO COMPLY WITH THIS AUTHORITY MUST BE REPORTED TO THE COMMANDANT IMMEDIATELY.

6. ALL TRAVEL PERFORMED MUST BE WITHOUT MILEAGE OR OTHER EXPENSE TO THE GOVERNMENT.

J. R. DEFREES,

COMMANDANT.

COPY

F. W. BENSON. BY DIRECTION.'

ON JANUARY 23 THE OFFICER OF THE DEPARTMENT CHARGED WITH THE ADMINISTRATION OF LEAVES OF ABSENCE INFORMED THE CHIEF OF THE DIVISION IN WHICH MR. TURKEL IS EMPLOYED THAT INASMUCH AS THE AUTHORIZATION DID NOT AMOUNT TO AN ORDER TO REPORT FOR ACTIVE DUTY BUT WAS MERELY AN AUTHORIZATION BASED UPON A PERSONAL REQUEST, THE DEPARTMENT WAS PREVENTED, UNDER THE CONTROLLING STATUTE (ACT OF FEBRUARY 28, 1925), FROM GRANTING MILITARY LEAVE. IT WAS POINTED OUT, HOWEVER, THAT ANNUAL LEAVE WOULD BE GRANTED IF REQUESTED. IN REACHING THIS DECISION THE DEPARTMENT WAS GUIDED BY YOUR DECISION RENDERED JULY 15, 1929 (9 COMP. GEN. 13) FROM WHICH THE FOLLOWING IS QUOTED:

"POSTAL SERVICE EMPLOYEES WHO ARE MEMBERS OF THE OFFICERS' RESERVE CORPS ARE NOT ENTITLED TO LEAVE WITH PAY, UNDER THE ACT OF MAY 12, 1917, 40 STAT. 72, WHILE ATTACHED BY THE WAR DEPARTMENT AT THEIR OWN EXPENSE AND ON THEIR VOLUNTARY APPLICATIONS FOR TRAINING AND INSTRUCTIONS AS AUTHORIZED BY SECTIONS 38 AND 39 OF ARMY REGULATIONS 140-5 OF JANUARY 16, 1928.'

THE DEPARTMENT CONSIDERED THAT THE SAME BASIC QUESTION, AS IT RELATES TO MEMBERS OF THE OFFICERS' RESERVE CORPS, HAVING BEEN DECIDED BY THE COMPTROLLER GENERAL, THE RULING WOULD APPLY AS WELL TO MEMBERS OF THE NAVAL RESERVE, AND PARTICULARLY SO SINCE IT WOULD SEEM THAT IT WAS THE INTENT OF CONGRESS THAT SIMILAR TREATMENT SHOULD BE ACCORDED MEMBERS OF BOTH SERVICES.

NO REQUEST FOR ANNUAL LEAVE WAS RECEIVED FROM MR. TURKEL WHO, CONTRARY TO THE DEPARTMENT'S REGULATIONS, LEFT HIS DESK IN THE DEPARTMENT OF STATE AND REPORTED FOR DUTY ON BOARD A NAVAL VESSEL UNDER THE AUTHORIZATION REFERRED TO, WITHOUT OBTAINING THE DEPARTMENT'S APPROVAL OF LEAVE OF ABSENCE OF ANY KIND.

ON JANUARY 28, THE CHIEF OF DIVISION WAS INFORMED THAT MR. TURKEL, HAVING DEPARTED WITHOUT THE APPROVAL OF LEAVE,"IS ABSENT FROM THE DEPARTMENT WITHOUT PERMISSION AND WOULD ORDINARILY BE LIABLE TO DISCIPLINARY ACTION.' IT WAS AGAIN INDICATED, HOWEVER, THAT IF ANNUAL LEAVE WOULD BE REQUESTED ITS APPROVAL WOULD BE GIVEN CONSIDERATION. THE REPLY INDICATED THAT ANNUAL LEAVE WOULD NOT BE REQUESTED. THEREFORE, IN ORDER TO REGULARIZE MR. TURKEL'S STATUS, HE WAS PLACED ON ANNUAL LEAVE AND NOTIFICATION OF THAT ACTION WAS SENT TO THE CHIEF OF DIVISION ON JANUARY 29.

THE QUESTION FOR DECISION IS WHETHER AN EMPLOYEE OF THE UNITED STATES WHO IS A MEMBER OF THE VOLUNTEER NAVAL RESERVE MAY BE GRANTED 15 DAYS' LEAVE WITH PAY WHEN AUTHORIZED BY THE SECRETARY OF THE NAVY TO REPORT AT HIS OWN EXPENSE FOR TRAINING WITHOUT PAY.

SECTION 36 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1090, PROVIDES, IN PART, AS FOLLOWS:

* * * 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.

THE NAVAL RESERVE IS ORGANIZED UNDER THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, AND CONSISTS OF THREE CLASSES, NAMELY: THE FLEET NAVAL RESERVE, THE MERCHANT MARINE NAVAL RESERVE, AND THE VOLUNTEER NAVAL RESERVE. SECTIONS 4 AND 9 OF THE ACT PROVIDE, IN PART:

SEC. 4. THAT THE NAVAL RESERVE SHALL BE COMPOSED OF MALE CITIZENS OF THE UNITED STATES AND OF THE INSULAR POSSESSIONS OF THE UNITED STATES OF EIGHTEEN YEARS OF AGE OR OVER WHO BY APPOINTMENT OR ENLISTMENT THEREIN, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY, * * * OBLIGATE THEMSELVES TO SERVE IN THE NAVY IN TIME OF WAR OR DURING THE EXISTENCE OF A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT: * * *.

SEC. 9. THAT OFFICERS AND MEN OF THE NAVAL RESERVE, INCLUDING THOSE WHO MAY HAVE BEEN RETIRED, MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS AND MAY BE REQUIRED TO PERFORM ACTIVE DUTY THROUGHOUT THE WAR OR UNTIL THE NATIONAL EMERGENCY CEASES TO EXIST; BUT IN TIME OF PEACE, EXCEPT AS IS OTHERWISE PROVIDED IN THIS ACT, THEY SHALL ONLY BE ORDERED TO OR CONTINUED ON ACTIVE DUTY WITH THEIR OWN CONSENT: * * *.

SECTION 20 OF THE ACT PROVIDES THAT IN TIME OF PEACE OFFICERS AND MEN OF THE FLEET NAVAL RESERVE SHALL BE "REQUIRED" TO PERFORM TRAINING DUTY, NOT TO EXCEED 15 DAYS ANNUALLY, AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY, AND CAN BE EXCUSED ONLY BY THE SECRETARY OF THE NAVY. THEY MAY BE GIVEN "ADDITIONAL" TRAINING OR OTHER DUTY, EITHER WITH OR WITHOUT PAY, AS MAY BE ,AUTHORIZED," WITH THEIR CONSENT, BY THE SECRETARY OF THE NAVY. SECTION 30 ESTABLISHED THE MERCHANT MARINE NAVAL RESERVE, TO CONSIST OF CITIZENS OF THE UNITED STATES AND INSULAR POSSESSIONS OF THE UNITED STATES FOLLOWING THE SEA AS A PROFESSION, EMPLOYED OR WHO HAVE BEEN EMPLOYED WITHIN 3 YEARS ON PUBLIC VESSELS OF THE UNITED STATES OR SEA-GOING VESSELS DOCUMENTED UNDER LAWS OF THE UNITED STATES. AT THE TIME OF THE ESTABLISHMENT OF THE NAVAL RESERVE, MEMBERS OF THE NAVAL RESERVE FORCE NOT OTHERWISE AUTHORIZED TO BE TRANSFERRED TO THE FLEET NAVAL RESERVE OR THE MARINE NAVAL RESERVE, WERE TRANSFERRED TO THE VOLUNTEER NAVAL RESERVE. UNDER SECTION 31 OFFICERS AND ENLISTED MEN OF THE MERCHANT MARINE NAVAL RESERVE ARE REQUIRED TO BE TRANSFERRED TO THE VOLUNTEER NAVAL RESERVE, OR DISCHARGED, 3 YEARS AFTER CEASING TO FOLLOW THE SEA AS A PROFESSION. SECTION 35 PROVIDES:

THAT OFFICERS AND ENLISTED MEN OF THE VOLUNTEER NAVAL RESERVE SHALL NOT BE REQUIRED TO ATTEND DRILLS OR PERFORM TRAINING DUTY AND SHALL RECEIVE NO PAY OR ALLOWANCES, EXCEPT WHEN ORDERED TO ACTIVE DUTY OR TRAINING DUTY: PROVIDED, THAT THEY MAY, UPON THEIR OWN APPLICATION, APPROVED BY THE DIRECTION OF THE SECRETARY OF THE NAVY, BE GIVEN THE SAME ACTIVE DUTY OR TRAINING DUTY, WITH OR WITHOUT PAY, AS IS PROVIDED FOR OFFICERS AND ENLISTED MEN OF THE FLEET NAVAL RESERVE.

THE ACTIVE DUTY OR TRAINING DUTY WHICH MAY BE ORDERED FOR MEMBERS OF THE VOLUNTEER NAVAL RESERVE IS THAT DESCRIBED IN SECTIONS 4 AND 9 OF THE ACT, QUOTED ABOVE. UNDER SECTION 20, IN TIME OF PEACE, ANNUAL TRAINING DUTY NOT TO EXCEED 15 DAYS, IS REQUIRED TO BE PERFORMED BY OFFICERS OF THE FLEET NAVAL RESERVE. THIS DUTY IS REQUIRED TO BE PERFORMED UNDER ORDERS, AND IT IS FURTHER PROVIDED "THAT THEY MAY BE GIVEN ADDITIONAL TRAINING OR OTHER DUTY, EITHER WITH OR WITHOUT PAY, AS MAY BE AUTHORIZED, WITH THEIR CONSENT, BY THE SECRETARY OF THE NAVY.' IT IS SUCH "ADDITIONAL" TRAINING OR OTHER DUTY NOT REQUIRED TO BE PERFORMED WHICH MAY BE AUTHORIZED. THE NAVAL SERVICE ENTITLING TO LEAVE WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATINGS IS THAT WHICH MAY BE LEGALLY REQUIRED, AND DURING THE PERIOD WHEN EMPLOYED "UNDER ORDERS" BY COMPETENT NAVAL AUTHORITY. SEE, ALSO, THE STATEMENT MADE IN SENATE REPORT NO. 866, SIXTY-EIGHTH CONGRESS, SECOND SESSION, PAGE 6, THAT "EXISTING LAWS DO NOT ALLOW "MILITARY LEAVE" TO NAVAL RESERVISTS WHO ARE GOVERNMENT EMPLOYEES; IT IS DESIRED TO PLACE THEM ON A PARITY IN THIS RESPECT WITH THE NATIONAL GUARD; " ALSO, THE STATEMENT "IT GIVES RESERVISTS WHO ARE EMPLOYEES OF THE UNITED STATES THE SAME LEAVE OF ABSENCE FOR TRAINING DUTY THAT IS NOW GRANTED THE NATIONAL GUARD," CONGRESSIONAL RECORD, SIXTY-EIGHTH CONGRESS, SECOND SESSION, PAGE 438. THE MILITARY LEAVE PROVIDED BY SECTION 80 OF THE ACT OF JUNE 3, 1916, 39 STAT. 203, FOR OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO ARE MEMBERS OF THE NATIONAL GUARD, IS "ON ALL DAYS DURING WHICH THEY SHALL BE ENGAGED IN FIELD OR COAST DEFENSE TRAINING ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF THIS ACT" AND SECTION 92 OF THE NATIONAL DEFENSE ACT PROVIDES THAT EACH ORGANIZATION OF THE NATIONAL GUARD, UNLESS EXCUSED BY THE SECRETARY OF WAR, SHALL "PARTICIPATE IN ENCAMPMENTS, MANEUVERS, OR OTHER EXERCISES, INCLUDING OUTDOOR TARGET PRACTICE, AT LEAST 15 DAYS IN TRAINING EACH YEAR.' THERE IS NO PROVISION OF LAW TO AUTHORIZE MEMBERS OF THE NATIONAL GUARD TO PERFORM TRAINING DUTY, WITH THEIR CONSENT, WITHOUT PAY AND UNDER WHICH THEY WOULD BE ENTITLED TO PAY IN A CIVIL POSITION UNDER THE GOVERNMENT.

ACCORDINGLY, YOU ARE ADVISED THAT TRAINING DUTY BY A MEMBER OF THE VOLUNTEER NAVAL RESERVE, WITHOUT PAY, IS NOT WITHIN THE PURVIEW OF SECTION 36 OF THE ACT OF FEBRUARY 28, 1925, AND DOES NOT ENTITLE MEMBERS THUS AUTHORIZED TO TRAIN TO ANY OF THE BENEFITS PRESCRIBED THEREIN. THIS HOLDING IS IN HARMONY WITH THE RULE SET OUT IN 9 COMP. GEN. 13, THAT GOVERNMENT EMPLOYEES WHO ARE MEMBERS OF THE OFFICERS' RESERVE CORPS ARE NOT ENTITLED TO MILITARY LEAVE WHILE ATTACHED BY THE WAR DEPARTMENT AT THEIR OWN EXPENSE AND ON THEIR VOLUNTARY APPLICATIONS FOR TRAINING AND INSTRUCTION AUTHORIZED BY LAW.