A-99707, DECEMBER 10, 1938, 18 COMP. GEN. 538

A-99707: Dec 10, 1938

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LEAVES OF ABSENCE - MILITARY - "WHEN ACTUALLY EMPLOYED" EMPLOYEES EMPLOYEES SERVING UNDER A CONTRACT OF EMPLOYMENT OR AN APPOINTMENT ON A "WHEN ACTUALLY EMPLOYED" BASIS ARE NOT ENTITLED TO MILITARY LEAVE EVEN THOUGH QUALIFYING AS "INDEFINITE EMPLOYEES" FOR LEAVE PURPOSES UNDER THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14. IS AS FOLLOWS: YOUR ADVICE IS REQUESTED WHETHER EMPLOYEES SERVING UNDER PERMANENT APPOINTMENTS BUT PAID ONLY WHEN ACTUALLY EMPLOYED. ARE ENTITLED TO MILITARY LEAVE UNDER THE SEVERAL STATUTES GOVERNING SUCH LEAVE. IS CLEAR. THAT IS. THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE (16 COMP. IT WAS THE VIEW OF YOUR OFFICE THAT ONLY PERMANENT OR "REGULAR" EMPLOYEES WERE ENTITLED TO MILITARY LEAVE (3 COMP.

A-99707, DECEMBER 10, 1938, 18 COMP. GEN. 538

LEAVES OF ABSENCE - MILITARY - "WHEN ACTUALLY EMPLOYED" EMPLOYEES EMPLOYEES SERVING UNDER A CONTRACT OF EMPLOYMENT OR AN APPOINTMENT ON A "WHEN ACTUALLY EMPLOYED" BASIS ARE NOT ENTITLED TO MILITARY LEAVE EVEN THOUGH QUALIFYING AS "INDEFINITE EMPLOYEES" FOR LEAVE PURPOSES UNDER THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, RESPECTIVELY, AND THE REGULATIONS ISSUED THEREUNDER.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, DECEMBER 10, 1938:

YOUR LETTER OF NOVEMBER 28, 1938, IS AS FOLLOWS:

YOUR ADVICE IS REQUESTED WHETHER EMPLOYEES SERVING UNDER PERMANENT APPOINTMENTS BUT PAID ONLY WHEN ACTUALLY EMPLOYED, WHO QUALIFY AS "INDEFINITE EMPLOYEES" FOR LEAVE PURPOSES UNDER EXECUTIVE ORDERS NOS. 7845 AND 7846, ARE ENTITLED TO MILITARY LEAVE UNDER THE SEVERAL STATUTES GOVERNING SUCH LEAVE.

IT HAS NOT BEEN FOUND THAT YOUR OFFICE HAS RULED SPECIFICALLY ON THIS QUESTION, ALTHOUGH YOUR POSITION WITH REFERENCE TO TEMPORARY EMPLOYEES, EVEN UNDER THE CURRENT LEAVE LAWS AND REGULATIONS, IS CLEAR, THAT IS, THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE (16 COMP. GEN. 105; 16 ID. 119). PRIOR TO THE PRESENT LEAVE LAWS, IT WAS THE VIEW OF YOUR OFFICE THAT ONLY PERMANENT OR "REGULAR" EMPLOYEES WERE ENTITLED TO MILITARY LEAVE (3 COMP. GEN. 112; 6 ID. 178). WHILE SUCH RULE SEEMS PROPERLY TO EXCLUDE FROM SUCH LEAVE EMPLOYEES WHO ARE IN FACT INTERMITTENT" AND THEREFORE NOT TO BE CONSIDERED "REGULAR" WITHIN THE PRINCIPLE LAID DOWN BY THESE EARLIER DECISIONS, IT IS FOUND THAT BY REASON OF THE DEFINITIONS OF THE CURRENT LEAVE REGULATIONS THERE MAY BE EMPLOYEES, PAID ONLY WHEN ACTUALLY EMPLOYED BUT QUALIFYING AS "INDEFINITE" UNDER THE LEAVE REGULATIONS, FOR WHOM IT WOULD APPEAR CONSISTENT TO RECOGNIZE THE RIGHT TO MILITARY LEAVE. THAT IS, WHILE TEMPORARY EMPLOYEES ARE NOT ENTITLED TO SUCH GRANT, SUCH EMPLOYEES HAVE APPOINTMENTS OF SIX MONTHS OR LESS IN DURATION, WHEREAS AN EMPLOYEE, THOUGH PAID ONLY "WHEN ACTUALLY EMPLOYED," QUALIFYING AS INDEFINITE FOR ANNUAL AND SICK LEAVE PURPOSES, MAY SERVE A CONTINUOUS PERIOD IN EXCESS OF SIX MONTHS.

YOUR ADVICE IS REQUESTED, THEREFORE, WHETHER AN INDEFINITE EMPLOYEE SERVING A SUBSTANTIAL PERIOD OF TIME MAY, IN ANY CASE, OBTAIN THE BENEFITS OF MILITARY LEAVE. IF THE ANSWER TO THIS QUESTION IS IN THE AFFIRMATIVE, INQUIRY IS FURTHER MADE AS TO WHAT PERIOD OF SERVICE IS TO BE CONSIDERED THE TEST TO DETERMINE THE LENGTH OF SERVICE REQUIRED TO QUALIFY FOR THIS GRANT.

IT IS TO BE BORNE IN MIND, IN THIS CONNECTION, THAT WHILE THESE EMPLOYEES ARE DESIGNATED "WHEN ACTUALLY EMPLOYED," THEIR APPOINTMENTS ARE IN THE NATURE OF PERMANENT APPOINTMENTS RATHER THAN TEMPORARY.

YOUR EARLY CONSIDERATION OF THIS MATTER WILL BE APPRECIATED.

UNDER AN APPOINTMENT PROVIDING FOR PAYMENT OF COMPENSATION "ONLY WHEN ACTUALLY EMPLOYED," PAYMENT OF COMPENSATION IS CONTEMPLATED ONLY FOR EMPLOYMENT IN THE CIVIL POSITION COVERED BY THE APPOINTMENT. THIS IS TRUE WHETHER THE EMPLOYEE HAPPENS TO WORK SHORT OR LONG CONTINUOUS PERIODS DUE TO THE EXIGENCIES OF THE SERVICE. PAYMENT OF COMPENSATION DURING ANNUAL AND SICK LEAVE OF ABSENCE IS AUTHORIZED UNDER CERTAIN CONDITIONS BY REASON OF THE PROVISIONS IN THE CURRENT UNIFORM ANNUAL AND SICK LEAVE REGULATIONS. 17 COMP. GEN. 1017; 18 ID. 400. HOWEVER, THE BASIS ON WHICH MILITARY LEAVE OF ABSENCE WITH PAY IS GRANTED CIVIL EMPLOYEES OF THE UNITED STATES IS THAT THE CONTROLLING STATUTES PROVIDE THAT EMPLOYEES SHALL BE ENTITLED TO MILITARY LEAVE OF ABSENCE FROM THEIR CIVIL POSITIONS "WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING.' SEE ACT OF JUNE 3, 1916, 39 STAT. 203, 32 U.S.C. 75; ACT OF MAY 12, 1917, 40 STAT. 72, U.S.C. 371; AND ACT OF JUNE 25, 1938, 52 STAT. 1175. WHEN A CONTRACT OF EMPLOYMENT OR AN APPOINTMENT PROVIDES FOR PAYMENT OF COMPENSATION SPECIFICALLY ON THE BASIS OF "ONLY WHEN ACTUALLY EMPLOYED" IN A CIVIL POSITION, THE EMPLOYEE WOULD NOT LOSE ANY PAY, TIME, OR EFFICIENCY RATING UNDER THE TERMS OF THE CONTRACT OF EMPLOYMENT OR APPOINTMENT WHEN ABSENT FROM CIVIL DUTY PURSUANT TO ORDERS TO REPORT FOR MILITARY DUTY.