B-11963, SEPTEMBER 4, 1940, 20 COMP. GEN. 123

B-11963: Sep 4, 1940

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"WHEN ACTUALLY EMPLOYED" PERSONNEL ARE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY UNDER ANY OF THE THREE STATUTES CONTROLLING THE GRANTING OF MILITARY LEAVE TO CIVILIAN OFFICERS AND EMPLOYEES WHO ARE MEMBERS OF THE NATIONAL GUARD. EMPLOYEES WHO ARE APPOINTED FOR INDEFINITE PERIODS. ARE PERMANENT EMPLOYEES AND. ARE ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY WHEN THEY ARE CALLED TO MILITARY OR NAVAL DUTY FOR TRAINING OR FOR INSTRUCTION. EMPLOYEES WHO ARE INFORMALLY EMPLOYED EACH YEAR FOR ONE SEASON ARE TEMPORARY EMPLOYEES. ARE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY. 1940: I HAVE YOUR LETTER OF AUGUST 20. REQUIRING A DETERMINATION WHETHER THEY ARE TO BE CLASSED AS "TEMPORARY" OR "REGULAR" EMPLOYEES WITH RESPECT TO THE SEVERAL MILITARY-LEAVE ACTS.

B-11963, SEPTEMBER 4, 1940, 20 COMP. GEN. 123

LEAVES OF ABSENCE - MILITARY - TEMPORARY, ETC., EMPLOYEES TEMPORARY, SUBSTITUTE, AND "WHEN ACTUALLY EMPLOYED" PERSONNEL ARE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY UNDER ANY OF THE THREE STATUTES CONTROLLING THE GRANTING OF MILITARY LEAVE TO CIVILIAN OFFICERS AND EMPLOYEES WHO ARE MEMBERS OF THE NATIONAL GUARD, THE OFFICERS' RESERVE CORPS OF THE ARMY AND THE NAVAL RESERVE. EMPLOYEES WHO ARE APPOINTED FOR INDEFINITE PERIODS, ALTHOUGH THEY WORK ONLY DURING THE SUMMER OR OTHER SEASON, ARE PERMANENT EMPLOYEES AND, AS SUCH, ARE ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY WHEN THEY ARE CALLED TO MILITARY OR NAVAL DUTY FOR TRAINING OR FOR INSTRUCTION--- AS DISTINGUISHED FROM ACTIVE MILITARY OR NAVAL SERVICE-- DURING A PERIOD OF ACTUAL SERVICE IN THEIR CIVILIAN POSITIONS, BUT EMPLOYEES WHO ARE INFORMALLY EMPLOYED EACH YEAR FOR ONE SEASON ARE TEMPORARY EMPLOYEES, AND, AS SUCH, ARE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, SEPTEMBER 4, 1940:

I HAVE YOUR LETTER OF AUGUST 20, 1940, AS FOLLOWS:

A CHANGE IN THE APPOINTMENT STATUS OF FOREST GUARDS IN THE FOREST SERVICE HAS RAISED CERTAIN QUESTIONS RELATIVE TO THE GRANTING OF MILITARY LEAVE TO THIS CLASS OF EMPLOYEES, REQUIRING A DETERMINATION WHETHER THEY ARE TO BE CLASSED AS "TEMPORARY" OR "REGULAR" EMPLOYEES WITH RESPECT TO THE SEVERAL MILITARY-LEAVE ACTS.

AS TO MEMBERS OF THE NATIONAL GUARD, DECISION 2 COMP. GEN. 247 INDICATES THAT LEAVE MAY BE GRANTED EMPLOYEES ENGAGED FOR A PERIOD OF TIME HOWEVER TEMPORARY OR INDEFINITE ON ALL DAYS ENGAGED IN FIELD OR COAST DEFENSE TRAINING ORDERED OR AUTHORIZED UNDER THE ACT OF JUNE 3, 1916. WHILE I DO NOT FIND THAT THIS DECISION HAS BEEN SPECIFICALLY REVERSED, LATER DECISIONS INDICATE THAT MILITARY LEAVE MAY NOT BE GRANTED TO TEMPORARY PERSONNEL AND IT APPEARS THAT THIS RULING APPLIES ALSO TO THE NATIONAL GUARD (3 COMP. GEN. 112; 6 ID. 178, 275; 16 ID. 105, 119; 18 ID. 403; 19 ID. 177).

FOR MANY YEARS FOREST GUARDS AND OTHER SEASONAL EMPLOYEES IN THE FOREST SERVICE HAVE BEEN EMPLOYED EACH YEAR WITHOUT FORMAL APPOINTMENT NOTICES FROM THE SECRETARY'S OFFICE, BEING ASSIGNED TO DUTY AT SUCH TIME IN THE SPRING AS THEIR SERVICES WERE NEEDED AND SEPARATED IN THE FALL WHEN THE FIRE SEASON WAS OVER AND OTHER TEMPORARY WORK DISCONTINUED. WHILE IN MANY INSTANCES PERSONS WERE EMPLOYED YEAR AFTER YEAR THERE WAS NO CONTINUITY OF APPOINTMENT STATUS AND OFTEN NO DEFINITE ASSURANCE OF REEMPLOYMENT. EFFECTIVE AS OF JANUARY 30, 1939, MANY OF THESE EMPLOYEES WERE CHANGED FROM INFORMAL TO FORMAL APPOINTMENT STATUS, PENDING TRANSFER TO THE CLASSIFIED SERVICE, THE APPOINTMENT CONTINUING INDEFINITELY, AT A PER ANNUM RATE WHILE CONTINUOUSLY EMPLOYED AND A CORRESPONDING PER DIEM RATE ( 1/360TH OF THE ANNUAL RATE) FOR TIME ACTUALLY EMPLOYED DURING SHORT OR INTERMITTENT PERIODS BETWEEN CONTINUOUS SERVICE FIELD SEASONS. THOSE WHOSE PAST SERVICE WAS ENTIRELY SATISFACTORY AND WHOSE INDEFINITE APPOINTMENTS FOR SEASONAL AND INTERMITTENT BETWEEN SEASONS WORK WAS DESIRED WERE RECOMMENDED TO THE CIVIL SERVICE COMMISSION FOR CLASSIFIED STATUS UNDER EXECUTIVE ORDER NO. 7916, DATED JUNE 24, 1938. AS THE CIVIL SERVICE COMMISSION APPROVED THEIR QUALIFICATIONS, THESE EMPLOYEES HAVE BEEN TRANSFERRED TO THE CLASSIFIED SERVICE STATUS EFFECTIVE AS OF FEBRUARY 1, 1939.

IN THIS CONNECTION IT IS DESIRABLE THAT DECISION 2 COMP. GEN. 247 BE DEFINITELY AFFIRMED OR REVERSED. AS PREVIOUSLY MENTIONED, THE LATTER DECISIONS INDICATE THAT THAT DECISION IS NOT TO BE OBSERVED AND THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE FOR THE OFFICERS' RESERVE CORPS, NAVAL RESERVE, OR NATIONAL GUARD. IF IT IS HELD THAT TEMPORARY EMPLOYEES MAY BE ALLOWED MILITARY LEAVE WHEN ENGAGED IN FIELD OR COAST DEFENSE TRAINING ORDERED OR AUTHORIZED FOR MEMBERS OF THE NATIONAL GUARD, NO FURTHER QUESTION EXISTS WITH RESPECT TO THE ABOVE-MENTIONED EMPLOYEES SO FAR AS NATIONAL GUARD SERVICE IS CONCERNED. IF HELD THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE FOR NATIONAL GUARD SERVICE, CLASSIFICATION AS "TEMPORARY" OR "REGULAR" WILL DETERMINE WHETHER SEASONAL PERSONNEL UNDER CONTINUING APPOINTMENTS MAY BE ALLOWED MILITARY LEAVE FOR NATIONAL GUARD AND OTHER MILITARY SERVICES. DECISION AS TO THE PRESENT APPLICABILITY OF 2 COMP. GEN. 247 IS DESIRED.

THE MORE GENERAL QUESTION IS WHETHER THESE EMPLOYEES WHO WORK FOR VARYING PERIODS EACH SEASON, DEPENDING PRINCIPALLY ON WEATHER CONDITIONS, USUALLY FROM 4 TO 8 MONTHS AND OCCASIONALLY IN SOME LOCATIONS FOR LONGER PERIODS, ARE TO BE CLASSED AS "REGULAR" OR "TEMPORARY" EMPLOYEES WITH RESPECT TO THE MILITARY-LEAVE LAWS. IF CLASSED AS REGULAR EMPLOYEES IN THIS CONNECTION, IT IS ASSUMED THAT MILITARY LEAVE WOULD BE GRANTED ONLY WHEN ORDERED TO MILITARY SERVICE FOR A PERIOD DURING WHICH THEY WOULD OTHERWISE BE EMPLOYED IN CONTINUOUS EMPLOYMENT STATUS; ON THE OTHER HAND, IF ORDERED TO MILITARY SERVICE DURING A PERIOD OF SHORT OR INTERMITTENT SERVICE AT THE APPLICABLE PER DIEM RATE, IT IS ASSUMED THAT THEIR STATUS WOULD NECESSARILY BE THAT OF A TEMPORARY EMPLOYEE AND NO MILITARY LEAVE ALLOWED.

YOUR EARLY DECISION ON THESE QUESTIONS WILL BE APPRECIATED.

THE RULE STATED IN DECISION OF SEPTEMBER 30, 1922, 2 COMP. GEN. 247, TO WHICH YOU REFER, THAT TEMPORARY EMPLOYEES WHO ARE MEMBERS OF THE NATIONAL GUARD ARE ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY, HAS BEEN SUPERSEDED AND RENDERED INOPERATIVE BY SUBSEQUENT DECISIONS OF THIS OFFICE. IN ADDITION TO THE DECISIONS CITED IN THE SECOND PARAGRAPH OF YOUR LETTER, SEE 9 COMP. GEN. 119; 14 ID. 28; ID. 336. ALSO, IT WAS HELD IN 18 COMP. GEN. 538, THAT EMPLOYEES PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" ARE NOT ENTITLED TO TEMPORARY LEAVE.

THE DECISIONS CITED IN THE SUBMISSION (OTHER THAN 2 COMP. GEN. 247) INCLUDING THOSE ABOVE CITED HOLD THAT TEMPORARY, SUBSTITUTE, AND "WHEN ACTUALLY EMPLOYED" PERSONNEL ARE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY UNDER ANY OF THE THREE STATUTES CONTROLLING THE GRANTING OF MILITARY LEAVE TO CIVILIAN OFFICERS AND EMPLOYEES WHO ARE MEMBERS OF THE NATIONAL GUARD, THE OFFICERS' RESERVE CORPS OF THE ARMY, AND THE NAVAL RESERVE.

THE RULE HAS SUPPORT IN DECISION OF THE MUNICIPAL COURT OF THE DISTRICT OF COLUMBIA RENDERED IN THE CASE OF R. C. THOMAS--- IN THAT CONNECTION YOUR ATTENTION BEING INVITED TO THAT PART OF DECISION IN 9 COMP. GEN. 119, AT PAGE 120, AS FOLLOWS:

THE ACT OF JUNE 3, 1916, IS APPLICABLE TO PERMANENT EMPLOYEES ONLY AND IS NO AUTHORITY FOR THE PAYMENT TO A TEMPORARY EMPLOYEE FOR THE TIME HE WAS ABSENT FROM AND DID NOT PERFORM THE DUTIES OF HIS CIVIL POSITION. DECISION TO THE POSTMASTER GENERAL OF AUGUST 20, 1923, 3 COMP. GEN. 112. SEE, ALSO, 6 COMP. GEN. 178 AND 275 (CASE OF R. C. THOMAS) IN REGARD TO RESERVE OFFICERS, UNDER THE ACT OF MAY 12, 1917, 40 STAT. 72, CONTAINING PROVISIONS SIMILAR TO THOSE IN THE ACT OF JUNE 3, 1916. IT MAY BE STATED THAT SUIT WAS BROUGHT BY THOMAS IN THE MUNICIPAL COURT OF THE DISTRICT OF COLUMBIA, MUNICIPAL CAUSE NO. 143836, AND WAS DECIDED ADVERSELY TO HIM ON SUBSTANTIALLY THE SAME GROUNDS AS SET FORTH IN DECISION OF THIS OFFICE (A- 15977). AN EXAMINATION OF THE CITED DECISIONS WILL DISCLOSE THAT THE GENERAL RULE DENYING MILITARY LEAVE WITH PAY TO SUCH CLASSES OF PERSONNEL HAS BEEN RESTATED AND AFFIRMED SUBSEQUENT TO THE NEW ANNUAL AND SICK LEAVE STATUTES AND REGULATIONS GRANTING ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY TO TEMPORARY, SUBSTITUTE, AND, UNDER CERTAIN CIRCUMSTANCES,"WHEN ACTUALLY EMPLOYED" PERSONNEL. ACCORDINGLY, THE RULE STATED IN 2 COMP. GEN. 247 IS NOT NOW FOR APPLICATION.

HOWEVER, BASED UPON THE STATEMENT OF FACTS IN YOUR LETTER, A DISTINCTION SHOULD BE MADE BETWEEN EMPLOYEES WHO ARE APPOINTED FOR INDEFINITE PERIODS, ALTHOUGH THEY WORK ONLY DURING THE SUMMER OR OTHER SEASON, AND EMPLOYEES WHO ARE INFORMALLY EMPLOYED EACH YEAR FOR ONE SEASON. THE FORMER APPEAR PROPERLY FOR REGARDING AS PERMANENT EMPLOYEES AND, AS SUCH, ARE ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY PROVIDED ALL THE CONDITIONS OF THE CONTROLLING STATUTES BE MET, WHEREAS, THE LATTER CLASS APPEAR PROPERLY FOR REGARDING AS TEMPORARY EMPLOYEES, AND, AS SUCH, ARE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY.

OF COURSE, EMPLOYEES WHO ARE PROPERLY CLASSED AS PERMANENT ARE ENTITLED TO MILITARY LEAVE ONLY WHEN CALLED TO MILITARY OR NAVAL DUTY FOR TRAINING OR INSTRUCTION, AS DISTINGUISHED FROM ACTIVE MILITARY OR NAVAL SERVICE (SEE 19 COMP. GEN. 513; ID. 880) DURING A PERIOD OF ACTUAL SERVICE IN THEIR CIVILIAN POSITIONS.