A-65382, SEPTEMBER 25, 1935, 15 COMP. GEN. 248

A-65382: Sep 25, 1935

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LEAVES OF ABSENCE - MILITARY - MERCHANT MARINE NAVAL RESERVE AND VOLUNTEER NAVAL RESERVE OFFICERS AND EMPLOYEES OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE MERCHANT MARINE NAVAL RESERVE AND VOLUNTEER NAVAL RESERVE MAY NOT BE GRANTED MILITARY LEAVE OF ABSENCE WHEN AUTHORIZED TO PERFORM TRAINING DUTY WITH PAY. AS OLLOWS: YOUR DECISION IS REQUESTED WHETHER MEMBERS OF THE MERCHANT MARINE NAVAL RESERVE AND VOLUNTEER NAVAL RESERVE MAY BE GRANTED MILITARY LEAVE OF ABSENCE IN ACCORDANCE WITH SECTION 36 OF THE ACT OF FEBRUARY 28. WHEN THEY ARE ORDERED TO TRAINING DUTY WITH PAY. IS NOT WITHIN THE PURVIEW OF SECTION 36 OF THE ACT OF FEBRUARY 28. WHO ARE MEMBERS OF THE NAVAL RESERVE.

A-65382, SEPTEMBER 25, 1935, 15 COMP. GEN. 248

LEAVES OF ABSENCE - MILITARY - MERCHANT MARINE NAVAL RESERVE AND VOLUNTEER NAVAL RESERVE OFFICERS AND EMPLOYEES OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE MERCHANT MARINE NAVAL RESERVE AND VOLUNTEER NAVAL RESERVE MAY NOT BE GRANTED MILITARY LEAVE OF ABSENCE WHEN AUTHORIZED TO PERFORM TRAINING DUTY WITH PAY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, SEPTEMBER 25, 1935:

THERE HAS BEEN RECEIVED, PRESUMABLY BY YOUR DIRECTION, LETTER OF SEPTEMBER 10, 1935, AS OLLOWS:

YOUR DECISION IS REQUESTED WHETHER MEMBERS OF THE MERCHANT MARINE NAVAL RESERVE AND VOLUNTEER NAVAL RESERVE MAY BE GRANTED MILITARY LEAVE OF ABSENCE IN ACCORDANCE WITH SECTION 36 OF THE ACT OF FEBRUARY 28, 1925, WHEN THEY ARE ORDERED TO TRAINING DUTY WITH PAY.

IN DECISION OF AUGUST 8, 1935 (A-63993) YOU DECIDED 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. SECTION 36 OF THE ACT OF FEBRUARY 28, 1925, PROVIDES:

"THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR 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 20 OF THIS ACT PROVIDES THAT IN TIME OF PEACE OFFICERS AND ENROLLED AND ENLISTED MEN OF THE FLEET NAVAL RESERVE SHALL BE REQUIRED TO PERFORM SUCH TRAINING DUTY, NOT TO EXCEED FIFTEEN DAYS ANNUALLY, AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY, UNLESS EXCUSED THEREFROM FOR GOOD AND SUFFICIENT REASONS BY DIRECTION OF THE SECRETARY OF THE NAVY. THIS SECTION FURTHER PROVIDES THAT MEMBERS OF THE FLEET NAVAL RESERVE MAY BE GIVEN ADDITIONAL TRAINING DUTY, WITH OR WITHOUT PAY, AS MAY BE AUTHORIZED, WITH THEIR CONSENT, BY THE SECRETARY OF THE NAVY.

SECTION 32 OF THE SAME ACT PROVIDES THAT OFFICERS AND ENLISTED MEN OF THE MERCHANT MARINE NAVAL RESERVE, MAY, UPON THEIR OWN APPLICATION, APPROVED BY DIRECTION OF THE SECRETARY OF THE NAVY, BE GIVEN THE SAME TRAINING DUTY, WITH OR WITHOUT PAY, AS IS PROVIDED FOR OFFICERS AND ENLISTED MEN OF THE FLEET NAVAL RESERVE.

AND, SECTION 35 OF THE ACT 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.'

IT IS NOTED THAT THE QUOTED PROVISION OF SECTION 36 OF THE ACT OF FEBRUARY 28, 1925, UNDER WHICH MILITARY LEAVE IS GRANTED APPLIES TO "ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, WHO ARE MEMBERS OF THE NAVAL RESERVE.' THIS PROVISION IS NOT LIMITED TO MEMBERS OF THE FLEET NAVAL RESERVE, BUT EMBRACES ALL MEMBERS OF THE NAVAL RESERVE, WHICH INCLUDES THOSE OF THE MERCHANT MARINE NAVAL RESERVE AND VOLUNTEER NAVAL RESERVE. IT WAS OBVIOUSLY THE INTENT OF CONGRESS TO AUTHORIZE MILITARY LEAVE TO ALL CLASSES OF THE NAVAL RESERVE.

IF, AS DECIDED IN DECISION OF AUGUST 8, 1935, MEMBERS OF THE VOLUNTEER NAVAL RESERVE ARE NOT ENTITLED TO MILITARY LEAVE UNDER AN AUTHORIZATION TO PERFORM TRAINING DUTY WITHOUT PAY, SUCH MILITARY LEAVE WOULD LIKEWISE BE DENIED TO A MEMBER OF THE MERCHANT MARINE NAVAL RESERVE WHO IS AUTHORIZED TO PERFORM TRAINING DUTY WITHOUT PAY UNDER THE PROVISIONS OF SECTION 32 OF THE ACT OF FEBRUARY 28, 1925. IF IT SHOULD BE DECIDED THAT MEMBERS OF THESE TWO CLASSES ARE NOT ENTITLED TO MILITARY LEAVE WHEN ON AUTHORIZED TRAINING DUTY WITH PAY, THEY WOULD BE DENIED ENTIRELY THE BENEFITS UNDER THE QUOTED PROVISION OF SECTION 36.

IT IS FURTHER NOTED THAT THIS DECISION INVITES ATTENTION TO SECTION 20 OF THE ACT OF FEBRUARY 28, 1925, WHICH PROVIDES THAT MEMBERS OF THE FLEET NAVAL RESERVE "MAY BE GIVEN ADDITIONAL TRAINING DUTY OR OTHER DUTY, EITHER WITH OR WITHOUT PAY, AS MAY BE AUTHORIZED, WITH THEIR CONSENT, BY THE SECRETARY OF THE NAVY.' IT IS STATED FURTHER THAT "IT IS SUCH "ADDITIONAL" TRAINING OR OTHER DUTY NOT REQUIRED TO BE PERFORMED WHICH MAY BE AUTHORIZED.'

IN ORDER THAT THE USE OF THE TERM "AUTHORIZED" IN ORDERS ISSUED TO MEMBERS OF THE NAVAL RESERVE MAY BE PROPERLY CONSIDERED IT IS POINTED OUT THAT ALL ORDERS FOR TRAINING DUTY, EITHER WITH OR WITHOUT PAY, ARE DESIGNATED AS AN "AUTHORIZATION FOR TRAINING DUTY," OR "ORDERS TO TRAINING TY.' IN THIS CONNECTION ATTENTION IS INVITED TO THE FORM OF ORDERS SET FORTH IN NAVAL RESERVE CIRCULAR LETTER OF APRIL 21, 1927 (GR/L16-4/A4- 3/27), COPY ATTACHED HERETO. THE USE OF THE TERM IS DEFINED THEREIN AS FOLLOWS:

"ORDERS AND AUTHORIZATIONS FOR TRAINING DUTY ARE DIFFERENTIATED AS FOLLOWS:

"/A) AN ORDER TO TRAINING DUTY WITH PAY IS ISSUED WHEN THE COMMANDANT DESIRES THE INDIVIDUAL OFFICER OR MEN TO RECEIVE MILEAGE OR TRANSPORTATION AT GOVERNMENT EXPENSE.

"/B) AN AUTHORIZATION IS ISSUED WHEN NO MILEAGE OR TRANSPORTATION AT GOVERNMENT EXPENSE IS TO BE GRANTED.'

YOU CITE A PORTION OF SECTION 36 OF THE ACT OF FEBRUARY 28, 1925, AND URGE THAT THE QUOTED LANGUAGE IS NOT LIMITED TO MEMBERS OF THE FLEET NAVAL RESERVE BUT EMBRACES ALL MEMBERS OF THE NAVAL RESERVE WHICH INCLUDES THOSE OF THE MERCHANT MARINE NAVAL RESERVE AND VOLUNTEER NAVAL RESERVE.

THE NAVAL RESERVE, AS ORGANIZED UNDER THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, CONSISTS OF THREE CLASSES, THE FLEET NAVAL RESERVE, THE MERCHANT MARINE NAVAL RESERVE, AND THE VOLUNTEER NAVAL RESERVE. THE FLEET NAVAL RESERVE CONSISTS OF OFFICERS AND MEN IN TRAINING OR QUALIFIED FOR GENERAL COMBAT DUTIES AFLOAT, INCLUDING AVIATION DUTIES. THIS CLASS OF THE RESERVES MAY BE ORGANIZED INTO DIVISIONS AND BATTALIONS OR AVIATION SQUADRONS. THE LAW CONTEMPLATES THE ATTENDANCE OF DRILLS BY MEMBERS WITH THEIR ORGANIZATIONS AND REQUIRES 15 DAYS' ACTIVE OR TRAINING DUTY EACH YEAR. THE ORGANIZATION IS ON A PARITY WITH THE NATIONAL GUARD. THE MERCHANT MARINE NAVAL RESERVE IS COMPOSED OF MEN EMPLOYED, OR WHO HAVE BEEN EMPLOYED WITHIN 3 YEARS, ON PUBLIC VESSELS OF THE UNITED STATES OR ON SEAGOING VESSELS DOCUMENTED UNDER THE LAWS OF THE UNITED STATES AS MAY BE APPROVED BY THE SECRETARY OF THE NAVY. THEY ARE NOT ORGANIZED, AND ARE NOT REQUIRED TO ATTEND DRILLS OR PERFORM TRAINING DUTY BUT MAY UPON THEIR OWN APPLICATION APPROVED BY THE SECRETARY OF THE NAVY BE GIVEN THE SAME TRAINING DUTY, WITH OR WITHOUT PAY, AS IS PROVIDED FOR THE FLEET NAVAL RESERVE. THE VOLUNTEER NAVAL RESERVE IS COMPOSED OF TWO MAIN SUBDIVISIONS: OFFICERS AND MEN QUALIFIED FOR COMBAT DUTIES AFLOAT, INCLUDING MEN WHO, EXCEPT FOR LACK OF VACANCIES, ARE ELIGIBLE TO BELONG TO THE FLEET NAVAL RESERVE; AND OFFICERS AND MEN OF LIMITED QUALIFICATIONS AVAILABLE FOR SPECIFIC TECHNICIST AND SPECIALIST DUTIES. THEY ARE NOT ORGANIZED AND ARE NOT REQUIRED BY LAW TO DRILL OR TO PERFORM TRAINING DUTY. SEE IN THIS CONNECTION HEARINGS, NAVY DEPARTMENT APPROPRIATION BILL FOR 1936, PAGES 206 TO 258.

IT IS SET OUT IN SECTION 35 OF THE ACT OF FEBRUARY 25, 1935, THAT OFFICERS AND ENLISTED MEN OF THE VOLUNTEER NAVAL RESERVE SHALL NOT BE REQUIRED TO PERFORM DRILLS OR PERFORM TRAINING DUTY, BUT THE LAW PROVIDES: "THAT THEY MAY UPON THEIR OWN APPLICATION, APPROVED BY DIRECTION OF THE SECRETARY OF THE NAVY, BE GIVEN THE SAME ACTIVE OR TRAINING DUTY, WITH OR WITHOUT PAY, AS IS PROVIDED FOR OFFICERS AND ENLISTED MEN OF THE FLEET NAVAL RESERVE," AND SECTION 9 PROVIDES THAT ,IN TIME OF PEACE, EXCEPT AS IS OTHERWISE PROVIDED IN THIS ACT, THEY (MEMBERS OF THE NAVAL RESERVE) SHALL ONLY BE ORDERED TO OR CONTINUED ON ACTIVE DUTY WITH THEIR OWN CONSENT.'

SECTION 32 MAKES SIMILAR PROVISION FOR TRAINING OF THE OFFICERS AND MEN OF THE MERCHANT MARINE NAVAL RESERVE, UPON THEIR OWN APPLICATION.

WHILE TRAINING VOLUNTARILY APPLIED FOR BY THESE MEMBERS, MAY BE AUTHORIZED BY THE SECRETARY OF THE NAVY, WITH PAY, IT IS STATED AT PAGE 208 OF THE ABOVE CITED HEARINGS THAT "NO APPROPRIATION HAS THUS FAR BEEN MADE" AND AT PAGE 214 THAT "NO FUNDS FOR THE TRAINING THE MERCHANT MARINE NAVAL RESERVE WERE INCLUDED IN THE BUDGET IN VIEW OF THE PRIOR REFUSAL OF THE COMMITTEE TO RECOMMEND THE APPROPRIATION OF ANY FUNDS FOR THIS BRANCH OF THE RESERVE" AND THE STATEMENT THAT IT "WILL CONTINUE TO EXPECT THAT NO FUNDS WILL BE EXPENDED FOR SUCH ACTIVITY WITHOUT SPECIAL THORIZATION.' HOWEVER, IT IS STATED AT PAGE 237 THAT MANY APPLICATIONS FROM VOLUNTEER RESERVISTS FOR TRAINING DUTY HAVE BEEN REFUSED BECAUSE OF LACK OF FUNDS, BUT THAT AN INSIGNIFICANT NUMBER ARE AUTHORIZED TO TRAIN WITH PAY. WOULD APPEAR THAT DECISION IS REQUESTED AS TO THOSE FEW WHO MAY BE OFFICERS AND EMPLOYEES OF THE UNITED STATES.

IT WAS STATED IN THE DECISION OF AUGUST 8, 1935, A-63993, 14 COMP. GEN. 110, THAT:

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, 68TH CONGRESS, 2ND SESSION, PAGE 6, THAT ,EXISTING LAWS DO NOT ALLOW IT IS DESIRED TO PLACE THEM ON A PARITY IN THIS RESPECT WITH THE NATIONAL GUARD; " * * *

IN VIEW OF THE FACT THAT MEMBERS OF THE MERCHANT MARINE NAVAL RESERVE AND THE VOLUNTEER NAVAL RESERVE MAY ONLY BE ORDERED TO OR CONTINUED ON ACTIVE DUTY IN TIME OF PEACE WITH THEIR OWN CONSENT, WHAT WAS SAID IN THE ABOVE CITED DECISION IS EQUALLY APPLICABLE TO SUCH MEMBERS AUTHORIZED TO ACTIVE TRAINING DUTY WITH PAY.

MEMBERS OF THE NAVAL RESERVE ARE ENTITLED TO MILITARY LEAVE ONLY ON THE DAYS ON WHICH THEY ARE EMPLOYED UNDER ORDERS OR TRAINING DUTY FOR PERIODS NOT TO EXCEED 15 DAYS IN A CALENDAR YEAR. FIFTEEN DAYS' TRAINING, UNDER ORDERS, MAY BE REQUIRED ONLY OF MEMBERS OF THE FLEET NAVAL RESERVE. THE TERM, UNDER ORDERS, OR BY VIRTUE OF AN ORDER, IN MILITARY AND NAVAL PARLANCE, CONTEMPLATES AN AUTHORITY TO DIRECT, AND THE ONLY TRAINING WHICH MAY BE DIRECTED OR REQUIRED BY MEMBERS OF THE NAVAL RESERVE IS THE 15 DAYS WHICH MAY BE REQUIRED OF MEMBERS OF THE FLEET NAVAL RESERVE UNDER SECTION 20 OF THE 1925 ACT. ANSWERING YOUR QUESTION SPECIFICALLY YOU ARE ADVISED THAT MEMBERS OF THE MERCHANT MARINE NAVAL RESERVE AND VOLUNTEER NAVAL RESERVE MAY NOT BE GRANTED MILITARY LEAVE OF ABSENCE WHEN THEY ARE AUTHORIZED TO TRAIN WITH PAY.