A-69403, JANUARY 18, 1936, 15 COMP. GEN. 633

A-69403: Jan 18, 1936

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DISTRICT OF COLUMBIA NATIONAL GUARD - ATTENDANCE AT SERVICE SCHOOLS - MILITARY LEAVE OF ABSENCE OF FEDERAL EMPLOYEE MEMBERS A FEDERAL EMPLOYEE MEMBER OF THE DISTRICT OF COLUMBIA NATIONAL GUARD WHO IS ORDERED TO ATTEND A MILITARY SERVICE SCHOOL UNDER SECTION 99 OF THE NATIONAL DEFENSE ACT OF JUNE 3. IS NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY. 1936: THERE WAS RECEIVED YOUR LETTER OF DECEMBER 27. WAS GRANTED 15 DAYS MILITARY LEAVE FROM JULY 6. PRENTICE WAS ORDERED. A COPY OF SPECIAL ORDER NO. 92 IS ATTACHED. YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER MR. PRENTICE IS ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY FOR THE 56-DAY PERIOD DURING WHICH HE WAS ABSENT FROM THE OFFICE ATTENDING THE QUARTERMASTER MOTOR TRANSPORT SCHOOL.

A-69403, JANUARY 18, 1936, 15 COMP. GEN. 633

DISTRICT OF COLUMBIA NATIONAL GUARD - ATTENDANCE AT SERVICE SCHOOLS - MILITARY LEAVE OF ABSENCE OF FEDERAL EMPLOYEE MEMBERS A FEDERAL EMPLOYEE MEMBER OF THE DISTRICT OF COLUMBIA NATIONAL GUARD WHO IS ORDERED TO ATTEND A MILITARY SERVICE SCHOOL UNDER SECTION 99 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 207, IS NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, JANUARY 18, 1936:

THERE WAS RECEIVED YOUR LETTER OF DECEMBER 27, 1935, AS FOLLOWS:

MAX G. D. PRENTICE, A JUNIOR CLERK IN THE AGRICULTURAL ADJUSTMENT ADMINISTRATION, DEPARTMENT OF AGRICULTURE, RECEIVING A SALARY OF $1,440, WAS GRANTED 15 DAYS MILITARY LEAVE FROM JULY 6, 1935, TO JULY 20, 1935, FOR THE PURPOSE OF ATTENDING A MILITARY ENCAMPMENT OF THE DISTRICT OF COLUMBIA NATIONAL GUARD. LATER, ON AUGUST 28, 1935, PURSUANT TO A VOLUNTARY APPLICATION, MR. PRENTICE WAS ORDERED, UNDER SPECIAL ORDER NO. 92, ISSUED FROM HEADQUARTERS, DISTRICT OF COLUMBIA NATIONAL GUARD, BY PEYTON G. NEVITT, ACTING ADJUTANT GENERAL OF THE COLUMBIA NATIONAL GUARD, TO REPORT AT THE QUARTERMASTER MOTOR TRANSPORT SCHOOL, AT CAMP HOLABIRD, MARYLAND, AS A STUDENT IN THE MOTOR TRANSPORT OFFICERS' COURSE, FROM SEPTEMBER 14 TO NOVEMBER 8, 1935, INCLUSIVE. A COPY OF SPECIAL ORDER NO. 92 IS ATTACHED.

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER MR. PRENTICE IS ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY FOR THE 56-DAY PERIOD DURING WHICH HE WAS ABSENT FROM THE OFFICE ATTENDING THE QUARTERMASTER MOTOR TRANSPORT SCHOOL, IN COMPLIANCE WITH THE ABOVE MENTIONED ORDER:

1. IN VIEW OF HIS VOLUNTARY APPLICATION TO BE ORDERED TO REPORT TO THE SCHOOL AND

2. IN VIEW OF SECTION 49 OF THE ACT OF MARCH 1, 1889, 25 STAT. 779, AS AMENDED JULY 1, 1902, 32 STAT. 615; FEB. 18, 1909, 35 STAT. 634; 20 D.C. CODE. SEC. 1493, WHICH PROVIDES AS FOLLOWS:

"ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NATIONAL GUARD SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY OR TIME ON ALL DAYS OF ANY PARADE OR ENCAMPMENT ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF THIS ACT. THIS SECTION SHALL BE CONSTRUED AS COVERING ALL DAYS OF SERVICE WHICH THE NATIONAL GUARD, OR ANY PORTION THEREOF, MAY BE ORDERED TO PERFORM BY THE COMMANDING GENERAL.'

IN PRESENTING THIS MATTER FOR A RULING FROM YOU, WE ARE NOT UNMINDFUL OF YOUR DECISION OF NOVEMBER 10, 1921, TO THE SECRETARY OF THE TREASURY, 1 COMP. GEN. 256, IN WHICH YOU HOLD, QUOTING FROM THE SYLLABUS, THAT "A NATIONAL GUARD OFFICER MAY NOT BE GRANTED MILITARY LEAVE OF ABSENCE WITH PAY FROM A CIVILIAN POSITION UNDER THE GOVERNMENT WHILE ATTENDING, UNDER ORDERS, A MILITARY SERVICE SCHOOL FOR THE PURPOSE OF PURSUING A REGULAR COURSE OF STUDY.'

THE FOREGOING DECISION, HOWEVER, INVOLVES AN INTERPRETATION OF SECTION 80 OF THE ACT OF JUNE 3, 1916,"AN ACT FOR MAKING A FURTHER AND MORE EFFECTUAL PROVISION FOR THE NATIONAL DEFENSE," 39 STAT. 166-217, WHEREAS THE INSTANT CASE, AS HAS BEEN MENTIONED, RELATES TO SECTION 49 OF THE ACT OF MARCH 1, 1889, AS AMENDED "AN ACT TO PROVIDE FOR THE ORGANIZATION OF THE MILITIA OF THE DISTRICT OF COLUMBIA.'

IT WAS STATED IN YOUR DECISION OF JULY 3, 1922, TO THE POSTMASTER GENERAL, 2 COMP. GEN. 1, THAT THE ACT OF JUNE 3, 1916, 39 STAT. 166,"IS A LAW OF GENERAL APPLICATION," WHILE THE ACT OF MARCH 1, 1889, AS AMENDED,"IS A SPECIAL PROVISION MADE FOR THE DISTRICT OF COLUMBIA NATIONAL GUARD," AND ,NOT ONLY IS THERE NO REASON WHY BOTH LAWS MAY NOT STAND TOGETHER, BUT EVERY REASON WHY THEY SHOULD.'

IT IS TO BE POINTED OUT, HOWEVER, THAT ALTHOUGH THE ABOVE-CITED ACTS MAY BE SAID TO "STAND TOGETHER" FOR THE PURPOSES OF THE QUESTION INVOLVED IN THAT DECISION, NAMELY, WHETHER POST OFFICE DEPARTMENT EMPLOYEES WHO ARE MEMBERS OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA MAY BE GRANTED LEAVE OF ABSENCE WITHOUT LOSS OF TIME OR PAY, TO PARTICIPATE IN PARADES OR ENCAMPMENTS OR ON ALL DAYS OF SERVICE ORDERED BY THE COMMANDING GENERAL, AS AUTHORIZED BY THE ACT OF MARCH 1, 1889, AS AMENDED, AS WELL AS FOR FIELD OR COAST DEFENSE TRAINING AUTHORIZED FOR ALL THE NATIONAL GUARD BY THE ACT OF JUNE 3, 1916; NEVERTHELESS, IT APPEARS THAT THE ITALICIZED SENTENCE QUOTED ABOVE FROM 20 D.C. CODE 1493, IS AN EXPANSION OF THE ORIGINAL ACT OF MARCH 1, 1889. IT ALSO SEEMS THAT THE EXPANDING PROVISION, WHICH AROSE OUT OF THE ACT OF JULY 1, 1902, 32 STAT. 615 GOES FURTHER THAN THE LEAVE PROVISION IN THE NATIONAL DEFENSE ACT, 39 STAT. 203, IN THAT THE AMENDMENT OF JULY 1, 1902, PROVIDES THAT "ALL DAYS OF SERVICE WHICH THE NATIONAL GUARD (THAT IS, THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA), OR ANY PORTION THEREOF MAY BE ORDERED TO PERFORM BY THE COMMANDING GENERAL" SHALL BE GRANTED AS MILITARY LEAVE WITH PAY. SUCH PROVISION IS CONTAINED IN SEC. 80 OF THE ACT OF JUNE 3, 1916.

WE ARE AWARE OF THE FACT THAT YOU HAVE HERETOFORE HELD THAT EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA, WHO ARE MEMBERS OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA, ARE NOT ENTITLED UNDER SECTION 49 OF THE ACT OF MARCH 1, 1889, AS AMENDED TO MILITARY LEAVE WHILE PARTICIPATING IN TARGET PRACTICE MATCHES OUTSIDE OF THE DISTRICT OF COLUMBIA, EXCEPT AS TO MATCHES HELD IN CONNECTION WITH ANNUAL ENCAMPMENTS, 8 COMP. GEN. 210; AND THAT, LIKEWISE, SUCH EMPLOYEES ARE NOT ENTITLED TO LEAVE UNDER THIS ACT FOR THE PURPOSE OF ATTENDING INTERNATIONAL RIFLE MATCHES, 6 COMP. GEN. 635; BUT THERE HAS BEEN DISCOVERED NO DECISION RELATING SPECIFICALLY TO THE ACT OF MARCH 1, 1889, 25 STAT. 779, AS AMENDED BY THE ACT OF JULY 1, 1902, 32 STAT. 615, WHICH WOULD INDICATE WHETHER OR NOT DAYS SPENT IN ATTENDANCE AT A QUARTERMASTER MOTOR TRANSPORT SCHOOL ARE "DAYS OF SERVICE" WITHIN THE MEANING OF THE ACT, AS AMENDED, ENTITLING AN EMPLOYEE ATTENDING SAID SCHOOL TO MILITARY LEAVE WITH PAY.

LIKEWISE, WE HAVE BEFORE US YOUR DECISION OF AUGUST 8, 1935, TO THE SECRETARY OF STATE, A-63993, IN WHICH YOU HOLD THAT "TRAINING DUTY BY A MEMBER OF THE VOLUNTARY NATIONAL RESERVE (WHO HAS MADE A PERSONAL REQUEST TO BE AUTHORIZED TO REPORT FOR TRAINING DUTY), WITHOUT PAY, IS NOT WITHIN THE PURVIEW OF SECTION 36 OF THE ACT OF FEBRUARY 2, 1935, AND DOES NOT ENTITLE MEMBERS THUS AUTHORIZED TO TRAIN TO ANY OF THE BENEFITS PRESCRIBED THEREIN; " AND ALSO YOUR DECISION OF JULY 15, 1929, TO THE POSTMASTER GENERAL, 9 COMP. GEN. 13, HOLDING THAT "GOVERNMENT EMPLOYEES WHO ARE MEMBERS OF OFFICERS' RESERVE CORPS ARE NOT ENTITLED TO MILITARY LEAVE WHILE ATTACHED TO THE WAR DEPARTMENT AT THEIR OWN EXPENSE AND ON THEIR VOLUNTARY APPLICATION FOR TRAINING AND INSTRUCTION AUTHORIZED BY SECTIONS 38 AND 39 OF ARMY REGULATIONS, 140 5 OF JANUARY 16, 1929.'

THERE WOULD BE CONSIDERABLE HESITATION ON OUR PART, HOWEVER, IN APPLYING THE RULE OF ANY OF THE FOREGOING DECISIONS TO THE QUESTION THAT IS RAISED HEREIN WITH RESPECT TO MILITARY LEAVE UNDER THE ACT OF MARCH 1, 1889, AS AMENDED.

WE ARE, THEREFORE, RESPECTFULLY REQUESTING AN OPINION FROM YOU BEARING DIRECTLY UPON THE MATTER.

AS STATED IN THE CITED DECISION OF THIS OFFICE DATED JULY 3, 1922, 2 COMP. GEN. 1, MEMBERS OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA MAY BE GRANTED, UNDER CERTAIN CIRCUMSTANCES, MILITARY LEAVE OF ABSENCE WITH PAY FROM CIVILIAN POSITIONS IN THE FEDERAL OR DISTRICT OF COLUMBIA SERVICE, NOT ONLY UNDER THE SPECIAL ACT OF MAY 1, 1889, AS AMENDED BY THE ACTS OF JULY 1, 1902, 32 STAT. 615, AND FEBRUARY 18, 1909, 35 STAT. 634, BUT ALSO UNDER THE GENERAL ACT OF JUNE 3, 1916, 39 STAT. 166.

SECTION 52 (FORMERLY SECTION 49) OF THE ACT OF MARCH 1, 1889, 25 STAT. 779, AS AMENDED BY THE ACT OF FEBRUARY 18, 1909, 35 STAT. 634, PROVIDES:

THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NATIONAL GUARD SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY OR TIME, ON ALL DAYS OF ANY PARADE OR ENCAMPMENT ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF THIS ACT.

THE ACT OF JULY 1, 1902, 32 STAT. 615, UNDER "MILITIA OF THE DISTRICT OF COLUMBIA," PROVIDES:

THAT SECTION FORTY-NINE OF "AN ACT TO PROVIDE FOR THE ORGANIZATION OF THE MILITIA OF THE DISTRICT OF COLUMBIA," APPROVED MARCH FIRST, EIGHTEEN HUNDRED AND EIGHTY-NINE, SHALL BE CONSTRUED AS COVERING ALL DAYS OF SERVICE WHICH THE NATIONAL GUARD, OR ANY PORTION THEREOF, MAY BE ORDERED TO PERFORM BY THE COMMANDING GENERAL.'

SECTION 99 OF THE NATIONAL DEFENSE ACT AS AMENDED BY SECTION 3 OF THE ACT OF MAY 28, 1926, 44 STAT. 674, UNDER WHICH ATTENDANCE OF MEMBERS OF THE NATIONAL GUARD AT SERVICE SCHOOLS IS AUTHORIZED, PROVIDES IN PART AS FOLLOWS:

UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, THE SECRETARY OF WAR MAY, UPON RECOMMENDATION OF THE GOVERNOR OF ANY STATE OR TERRITORY, OR THE COMMANDING GENERAL OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA, AUTHORIZE A LIMITED NUMBER OF SELECTED OFFICERS, WARRANT OFFICERS, OR ENLISTED MEN OF THE NATIONAL GUARD TO ATTEND AND PURSUE A REGULAR COURSE OF STUDY AT ANY MILITARY-SERVICE SCHOOL OF THE UNITED STATES, EXCEPT THE UNITED STATES MILITARY ACADEMY, * * * AND ANY SUCH OFFICER OR WARRANT OFFICER, SHALL RECEIVE, OUT OF ANY NATIONAL GUARD ALLOTMENT OF FUNDS AVAILABLE FOR THE PURPOSE, THE PAY AND ALLOWANCES PROVIDED IN THE PAY READJUSTMENT ACT OF JUNE 10, 1922, FOR OFFICERS AND WARRANT OFFICERS OF THE NATIONAL GUARD WHEN AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY AND THE TRAVEL ALLOWANCES PROVIDED IN SECTION 12 THEREOF * * *.

ALTHOUGH THE "ORDER" TO FIRST LIEUTENANT PRENTICE WAS ISSUED BY AUTHORITY OF THE COMMANDING GENERAL OF THE DISTRICT OF COLUMBIA NATIONAL GUARD HE WAS NOT ORDERED TO PERFORM ANY DUTY WITH THE DISTRICT OF COLUMBIA NATIONAL GUARD BUT BY OR BY AUTHORITY OF THE SECRETARY OF WAR HE WAS AUTHORIZED UNDER SECTION 99 OF THE NATIONAL DEFENSE ACT TO ATTEND THE SERVICE SCHOOL NAMED. THE DISTRICT OF COLUMBIA STATUTES CITED HAVE NO APPLICATION TO PERIODS OF ATTENDANCE AT INSTRUCTION BY MEMBERS OF THE DISTRICT OF COLUMBIA NATIONAL GUARD UNDER SECTION 99 OF THE NATIONAL DEFENSE ACT ALTHOUGH THE AUTHORIZATION TO ATTEND MAY TAKE THE FORM OF AN ORDER FROM THE COMMANDING GENERAL OF THE DISTRICT OF COLUMBIA NATIONAL GUARD. COMP. GEN. 635; 8 ID. 210.

SECTION 80 OF THE ACT OF JUNE 3, 1916, SUPRA, PROVIDES AS FOLLOWS:

SEC. 80. LEAVES OF ABSENCE FOR CERTAIN GOVERNMENT EMPLOYEES.--- ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA 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.

THIS STATUTE IS NOT APPLICABLE IN THE INSTANT CASE FOR THE REASON THAT THE EMPLOYEE, WHILE ATTENDING THE QUARTERMASTER MOTOR TRANSPORT SCHOOL, WAS NOT "ENGAGED IN FIELD OR COAST-DEFENSE TRAINING.' SEE 1 COMP. GEN. 256.

YOU ARE ADVISED ACCORDINGLY THAT THE GRANTING OF MILITARY LEAVE OF ABSENCE WITH PAY WAS NOT AUTHORIZED FOR THE 56-DAY PERIOD THE EMPLOYEE WAS ABSENT FROM HIS CIVILIAN POSITION ATTENDING THE QUARTERMASTER MOTOR TRANSPORT SCHOOL.