B-127627, JUNE 22, 1956, 35 COMP. GEN. 708

B-127627, JUNE 22, 1956, 35 COMP. GEN. 708

LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - DUTY COVERING MORE THAN ONE CALENDAR YEAR A FEDERAL EMPLOYEE WHO IS ORDERED TO ACTIVE MILITARY DUTY PURSUANT TO SECTION 99 OF THE NATIONAL DEFENSE ACT (32 U.S.C. 146) FOR AN 18 MONTH FLIGHT TRAINING COURSE WHICH COVERS PARTS OF TWO CALENDAR YEARS IS ENTITLED TO ONLY ONE 15-DAY PERIOD OF MILITARY LEAVE.

TO THE ATTORNEY GENERAL, JUNE 22, 1956:

BY LETTER DATED APRIL 13, 1956, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL REQUESTED OUR DECISION WHETHER MILITARY LEAVE MAY BE GRANTED IN THE CIRCUMSTANCES HERE RELATED.

AN EMPLOYEE OF THE SAVANNAH, GEORGIA, OFFICE OF THE FEDERAL BUREAU OF INVESTIGATION IS A MEMBER OF THE GEORGIA AIR NATIONAL GUARD AND HOLDS A RESERVE COMMISSION IN THE AIR FORCE. HE IS ATTENDING AN 18 MONTH COURSE OF AIR FORCE TRAINING BY AN ORDER OF THE GOVERNOR OF THE STATE OF GEORGIA, DATED MARCH 26, 1956. THE 18-MONTH COURSE COVERS PARTS OF TWO CALENDAR YEARS, 1956 AND 1957.

THE EMPLOYEE WAS ORDERED TO ACTIVE DUTY FOR TRAINING UNDER SECTION 99 OF THE NATIONAL DEFENSE ACT, 32 U.S.C. 146, EFFECTIVE APRIL 9, 1956, AND WAS DIRECTED TO PROCEED TO LACKLAND AIR FORCE BASE, TEXAS, FOR OFFICER PREFLIGHT COURSE ENDING MAY 11, 1956, FOLLOWING WHICH HE WAS TO BE ASSIGNED TO 3302D PILOT TRAINING GROUP, SPENCE AIR FORCE BASE, MOULTRIE, GEORGIA, FOR ATTENDANCE AT PILOT TRAINING-IN-1GRADE CLASS 57 O. UPON COMPLETION OF THE PILOT TRAINING, THE OFFICER WILL RETURN TO HIS HOME AND REVERT FROM ACTIVE DUTY FOR TRAINING STATUS TO HIS STATE NATIONAL GUARD STATUS.

THE QUESTIONS ARE WHETHER THE EMPLOYEE IS ENTITLED TO MILITARY LEAVE AND, IF SO, WHETHER HE MAY BE GRANTED 15 DAYS' MILITARY LEAVE IN EACH OF THE CALENDAR YEARS 1956 AND 1957.

THE ACTIVE DUTY FOR TRAINING HERE INVOLVED COULD ONLY BE DUBIOUSLY REGARDED AS FIELD OR COAST-DEFENSE TRAINING UNDER SECTION 80 OF THE NATIONAL DEFENSE ACT, 32 U.S.C. 75. COMPARE 20 COMP. GEN. 375 AND 28 COMP. GEN. 373. THE ACT OF MAY 12, 1917, AS AMENDED BY SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 506, 10 U.S.C. 371, PROVIDES THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO ARE MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY, ON ALL DAYS DURING WHICH THEY ARE ORDERED TO ACTIVE DUTY FOR TRAINING, OR ACTIVE DUTY, OR TO DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, FOR PERIODS NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR. SECTION 714 (B) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 504, 32 U.S.C. 65, ROVIDES:

THE FULL-TIME TRAINING OR OTHER FULL-TIME DUTY PERFORMED BY MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES OR MEMBERS OF THE AIR NATIONAL GUARD OF THE UNITED STATES WHILE IN THEIR STATUS AS MEMBERS OF THE NATIONAL GUARD OR AIR NATIONAL GUARD OF THE SEVERAL STATES * * * PURSUANT TO SECTIONS 94, 97, 99, AND 113 OF THE NATIONAL DEFENSE ACT, AS AMENDED, FOR WHICH THEY ARE ENTITLED TO RECEIVE PAY FROM THE UNITED STATES OR WITHOUT PAY AS PROVIDED IN SECTION 240 OF THIS ACT SHALL BE CONSIDERED ACTIVE DUTY FOR TRAINING IN THE SERVICE OF THE UNITED STATES AS RESERVE MEMBERS OF THE ARMY OR AIR FORCE * * *.

SINCE THE ACTIVE DUTY FOR TRAINING HERE INVOLVED IS PERFORMED PURSUANT TO SECTION 99 OF THE NATIONAL DEFENSE ACT, THE EMPLOYEE MAY BE GRANTED MILITARY LEAVE FOR THE FIRST 15 DAYS OF ACTIVE DUTY TRAINING IN THE CALENDAR YEAR 1956.

IN 10 COMP. GEN. 116, CONSTRUING PROVISIONS OF SECTION 36 OF THE NAVAL RESERVE ACT OF 1925, 34 U.S.C. 768, SIMILAR TO THE PROVISIONS NOW CONTAINED IN 10 U.S.C. 371, WE HELD THAT:

* * * EACH PERIOD OF AUTHORIZED TRAINING DUTY OF RESERVISTS, AND EACH MAXIMUM PERIOD OF AUTHORIZED LEAVE OF ABSENCE WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING, IS INTENDED TO BE CONSIDERED AS A SEPARATE AND DISTINCT UNIT OF TIME, RELATING TO THE CALENDAR YEAR. A MAXIMUM OF 15 DAYS' MILITARY LEAVE OF ABSENCE WITH PAY IS AUTHORIZED FOR ANY ONE PERIOD OF TRAINING DUTY IF EQUAL TO OR IN EXCESS OF 15 DAYS, REGARDLESS OF LENGTH AND WHETHER IN ONE OR MORE CALENDAR YEARS, AND A MAXIMUM OF 15 DAYS' MILITARY LEAVE WITH PAY IS AUTHORIZED DURING EACH CALENDAR YEAR REGARDLESS OF THE NUMBER OF PERIODS OF AUTHORIZED TRAINING DUTY. IN APPLYING THE STATUTE, THEREFORE, A PERIOD OF AUTHORIZED TRAINING DUTY EXTENDING BEYOND THE END OF THE CALENDAR YEAR IN WHICH IT BEGINS MAY NOT BE DIVIDED INTO SEPARATE PERIODS CORRESPONDING TO CALENDAR YEARS SO AS TO GRANT AN EMPLOYEE AN EXCESS OF 15 DAYS' MILITARY LEAVE OF ABSENCE WITH PAY FOR ANY ONE AUTHORIZED PERIOD OF TRAINING DUTY, WHETHER IN ONE OR MORE CALENDAR YEARS.

ALSO, THERE WAS INVOKED THE PRINCIPLE THAT AN EMPLOYEE ABSENT ON LEAVE WITHOUT PAY AT THE END OF ONE CALENDAR YEAR MAY NOT BE GRANTED LEAVE WITH PAY AT THE BEGINNING OF A NEW CALENDAR YEAR UNLESS THERE IS A RETURN TO DUTY. IN 29 COMP. GEN. 269, WE HELD THAT AN EMPLOYEE MEMBER OF THE NAVAL RESERVE WHO WAS IN A CIVILIAN PAY STATUS UPON ENTERING FOR THE SECOND TIME WITHIN ONE CALENDAR YEAR A PERIOD OF TRAINING DUTY WHICH EXTENDED INTO THE SUBSEQUENT CALENDAR YEAR MAY BE GRANTED MILITARY LEAVE FOR THE FIRST 15 DAYS OF THE SECOND CALENDAR YEAR. THE RULE CONSISTENTLY FOLLOWED IS THAT, FOR EACH PERIOD OF QUALIFYING MILITARY DUTY, MILITARY LEAVE MAY BE GRANTED PROVIDED THE TOTAL AMOUNT OF MILITARY LEAVE DOES NOT EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR. THE STATUTES AUTHORIZING MILITARY LEAVE FOR RESERVISTS HAVE NEVER BEEN VIEWED AS PERMITTING MORE THAN THE GRANT OF 15 DAYS OF MILITARY LEAVE FOR ANY ONE PERIOD OF QUALIFYING MILITARY DUTY.

ACCORDINGLY, MILITARY LEAVE MAY NOT BE GRANTED IN THE CALENDAR YEAR 1957 FOR THE ACTIVE DUTY FOR TRAINING PERFORMED PURSUANT TO THE ORDERS OF MARCH 26, 1956.