B-133674, DEC. 30, 1957

B-133674: Dec 30, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

OUR DECISION IS REQUESTED AS TO WHETHER THE ARGUMENTS ADVANCED IN THE MEMORANDUM WARRANT A CHANGE IN THE EXISTING RULES IN THE MATTER. HE WAS APPARENTLY CHARGED A DAY OF MILITARY LEAVE FOR THAT DAY. EVEN THOUGH IT WAS NOT A REGULARLY SCHEDULED WORK DAY FOR HIM. EVEN THOUGH HE WAS ABSENT FROM HIS DUTIES ONLY 10 REGULARLY SCHEDULED WORKDAYS. HE WAS CHARGED ANNUAL LEAVE FOR EACH REGULARLY SCHEDULED WORK DAY DURING THIS ABSENCE. THE EMPLOYEE CONTENDS THAT MILITARY LEAVE SHOULD HAVE BEEN CHARGED ONLY FOR WORKDAYS SCHEDULED DURING HIS FIRST ABSENCE. THAT HE SHOULD HAVE BEEN CHARGED ONLY FIVE DAYS OF ANNUAL LEAVE FOR THE SECOND PERIOD OF TRAINING DUTY. THE GENERAL RULE IS WELL ESTABLISHED THAT INTERVENING SUNDAYS AND HOLIDAYS ARE TO BE INCLUDED IN COMPUTING STATED PERIODS OF TIME.

B-133674, DEC. 30, 1957

TO THE ATTORNEY GENERAL:

ON AUGUST 30, 1957, YOUR REFERENCE A7, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL TRANSMITTED A MEMORANDUM CONCERNING THE PROPRIETY OF CHARGING MILITARY LEAVE UPON A CALENDAR DAY, RATHER THAN UPON A WORKDAY BASIS. THE PROBLEM APPEARS TO BE INVOLVED NOW IN THE CASE OF AN EMPLOYEE OF YOUR DEPARTMENT, AND OUR DECISION IS REQUESTED AS TO WHETHER THE ARGUMENTS ADVANCED IN THE MEMORANDUM WARRANT A CHANGE IN THE EXISTING RULES IN THE MATTER.

THE EMPLOYEE SAYS THAT HE RECENTLY COMPLETED TWO PERIODS OF ACTIVE NAVAL RESERVE TRAINING SERVICE OF 14 DAYS EACH, WITH TRAVEL TIME. THE FIRST BEGAN ON SUNDAY, JUNE 16, 1957, AND HE WAS APPARENTLY CHARGED A DAY OF MILITARY LEAVE FOR THAT DAY, EVEN THOUGH IT WAS NOT A REGULARLY SCHEDULED WORK DAY FOR HIM, AND FOR 14 CALENDAR DAYS THEREAFTER, OR A TOTAL OF 15 DAYS. THIS EXHAUSTED THE 15 DAY PERIOD AUTHORIZED IN 5 U.S.C. 30R, EVEN THOUGH HE WAS ABSENT FROM HIS DUTIES ONLY 10 REGULARLY SCHEDULED WORKDAYS. THE EMPLOYEE'S SECOND PERIOD OF NAVAL DUTY BEGAN ON JULY 7, 1957, AND HE WAS CHARGED ANNUAL LEAVE FOR EACH REGULARLY SCHEDULED WORK DAY DURING THIS ABSENCE, OR A TOTAL OF 10 DAYS. THE EMPLOYEE CONTENDS THAT MILITARY LEAVE SHOULD HAVE BEEN CHARGED ONLY FOR WORKDAYS SCHEDULED DURING HIS FIRST ABSENCE, AND NOT FOR NONWORK DAYS, AND THAT HE SHOULD HAVE BEEN CHARGED ONLY FIVE DAYS OF ANNUAL LEAVE FOR THE SECOND PERIOD OF TRAINING DUTY.

THE GENERAL RULE IS WELL ESTABLISHED THAT INTERVENING SUNDAYS AND HOLIDAYS ARE TO BE INCLUDED IN COMPUTING STATED PERIODS OF TIME, IN THE ABSENCE OF AN EXPRESS PROVISION TO THE CONTRARY. SEE WALKER V. HAZEN, 90 F.2D. 502, CERTIORARI DENIED, 302 U.S. 723; AND MCCOY V. DUCHAY, 279 F. 1001. THIS GENERAL RULE HAS CONSISTENTLY BEEN FOLLOWED BY THE ATTORNEYS GENERAL, THE COMPTROLLERS OF THE TREASURY, AND THE COMPTROLLERS GENERAL IN CONSTRUING STATUTES PERTAINING TO LEAVES OF ABSENCE OF GOVERNMENT EMPLOYEES. SEE 20 OP.ATTY.GEN. 716 (1894); 22 OP.ATTY.GEN. 77 (1898); 5 COMP. DEC. 436; 11 COMP. GEN. 357, 358; AND 16 ID. 1039. IN ACCORDANCE WITH THE CITED OPINIONS OF THE ATTORNEYS GENERAL DEPARTMENTAL EMPLOYEES WERE CHARGED ANNUAL LEAVE FOR INTERVENING SUNDAYS AND HOLIDAYS OCCURRING DURING PERIODS OF ANNUAL LEAVE UNTIL CONGRESS SPECIFICALLY PROVIDED OTHERWISE IN SECTION 4 OF THE ACT OF FEBRUARY 24, 1899, 30 STAT. 846, 890. SEE 5 U.S.C. 30 IN THE ORIGINAL EDITION, 44 STAT. 31. THE ACT OF FEBRUARY 24, 1899, HOWEVER, SPECIFICALLY PROVIDED FOR THE EXCLUSION OF SUNDAYS AND LEGAL HOLIDAYS ONLY FROM COMPUTATIONS OF ANNUAL LEAVE; AND IT WAS THEREFORE HELD IN 23 MS COMP. DEC. 328 (DISCUSSED AT 13 COMP. DEC. 800) THAT SUCH DAYS SHOULD NOT BE EXCLUDED IN COMPUTING SICK LEAVE. SIMILARLY, IN 13 COMP. DEC. 799, IT WAS HELD THAT A STATUTE WHICH PROVIDED FOR THE EXCLUSION OF SUNDAYS AND HOLIDAYS IN THE COMPUTATION OF THE ANNUAL LEAVE OF POST OFFICE CLERKS DID NOT AUTHORIZE THE EXCLUSION OF SUCH DAYS IN COMPUTING THE ANNUAL LEAVE OF EMPLOYEES OF THE MAIL BAG REPAIR SHOP. SEE, ALSO, 11 COMP. DEC. 357, AND 23 ID. 192; AND THE CASES CITED IN THE RESERVIST'S MEMORANDUM,9 COMP. GEN. 448; 27 ID. 253; AND 29 ID. 269. THINK IT EVIDENT THAT THE CONGRESS, IN ENACTING MILITARY LEAVE STATUTES, WAS AWARE NOT ONLY OF THIS GENERAL RULE OF CONSTRUCTION BUT ALSO OF ITS CONSISTENT APPLICATION BY THE ATTORNEYS GENERAL AND THE COMPTROLLERS OF THE TREASURY IN THEIR INTERPRETATIONS OF STATUTES RELATING TO LEAVES OF ABSENCE.

IT APPEARS TO BE THE VIEW OF THE EMPLOYEE THAT THE PHRASE "FROM HIS DUTIES" IN THE VARIOUS PROVISIONS OF LAW AUTHORIZING MILITARY LEAVE SHOULD BE CONSTRUED AS AN EXPRESS EXCLUSION OF NONWORKDAYS FROM MILITARY LEAVE. WE FIND NO SUPPORT FOR SUCH VIEW IN THE LEGISLATIVE HISTORY PERTAINING TO SUCH PROVISIONS. AS A MATTER OF FACT, THE PHRASE APPEARED IN SUBSTANTIALLY ITS PRESENT FORM IN SECTION 49 OF THE ACT OF MARCH 1, 1889, 25 STAT. 772, 779, PERTAINING TO THE MILITIA OF THE DISTRICT OF COLUMBIA. THAT PROVISION AUTHORIZED LEAVE NOT ONLY FOR THE ENCAMPMENTS OF NOT LESS THAN SIX CONSECUTIVE DAYS PROVIDED FOR IN SECTION 43 OF THE ACT, BUT ALSO FOR DAYS OF PARADE ORDERED OR AUTHORIZED UNDER THE ACT. THERE WAS NO SPECIFIED LIMITATION ON THE TOTAL NUMBER OF DAYS OF LEAVE WHICH COULD BE GRANTED. OTHER EARLY ACTS PERTAINING TO THE TRAINING OF THE MILITIA OF THE SEVERAL STATES, INCLUDING THE NAVAL MILITIA, CONTAINED NO PROVISION AT ALL FOR THE GRANTING OF MILITARY LEAVE TO GOVERNMENT EMPLOYEES; HOWEVER, SUCH STATUTES USUALLY PRESCRIBED FOR ENCAMPMENTS OR EXERCISES OF MINIMUM PERIODS OF FIVE CONSECUTIVE DAYS. SEE SECTION 18 OF THE ACT OF JANUARY 21, 1903, 32 STAT. 775, 778, AND SECTION 15 OF THE ACT OF FEBRUARY 16, 1914, 38 STAT. 283, 288.

THE ACT OF JUNE 3, 1916, 39 STAT. 166, PROVIDED FOR PERIODS OF TRAINING NOT TO EXCEED 15 DAYS IN ANY CALENDAR YEAR FOR THE REGULAR ARMY RESERVE (SECTION 31, PAGE 187), THE OFFICERS RESERVE CORPS (SECTION 39, PAGE 191), THE ENLISTED RESERVE CORPS (SECTION 55, PAGES 195-196), AND AT LEAST 15 DAYS OF ENCAMPMENTS, MANEUVERS, OR OTHER EXERCISES FOR THE NATIONAL GUARD (SECTION 92), PAGE 206. NO MILITARY LEAVE WAS GRANTED TO MEMBERS OF ANY OF THE FIRST THREE CATEGORIES LISTED ABOVE. REGARDING THE NATIONAL GUARD, SECTION 80 (PAGE 203) PROVIDED:

"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.'

FROM THE UNDERSCORED LANGUAGE IT IS CLEAR THAT THE GRANTING OF LEAVE "FROM HIS DUTIES" TO ANY NATIONAL GUARDSMAN WAS, NECESSARILY, TO BE GOVERNED BY THE LENGTH OF THE PERIOD OF TRAINING ORDERED; AGAIN THERE WAS NO SPECIFIED LIMITATION ON THE NUMBER OF DAYS OF LEAVE WHICH COULD BE GRANTED. SEE, IN THAT CONNECTION, THE COLLOQUY PERTAINING TO THIS PROVISION AT 53 CONGRESSIONAL RECORD, PART 5, 4311. THERE WAS LIKEWISE NO SPECIFIED LIMITATION ON THE NUMBER OF DAYS OF MILITARY LEAVE FOR THE PERFORMANCE OF DRILLS, CRUISES, OR OTHER ORDERED DUTY GRANTED MEMBERS OF THE NAVAL MILITIA UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 556. SEE THE THIRD FULL PARAGRAPH ON PAGE 594.

THE ACT OF MAY 12, 1917, 40 STAT. 40, PROVISO IN FIRST PARAGRAPH ON PAGE 72, AUTHORIZED FOR MEMBERS OF THE OFFICERS RESERVE CORPS OF THE ARMY "LEAVES OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY, TIME OR EFFICIENCY RATING ON ALL DAYS DURING WHICH THEY SHALL BE ORDERED TO DUTY WITH TROOPS, OR AT FIELD EXERCISES OR FOR PERIODS OF INSTRUCTION NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR.' THIS PROVISION, CODIFIED AS 31 U.S.C. 371, ORIGINAL EDITION, CLEARLY RELATES TO THE ACT OF JUNE 3, 1916, SUPRA, ESTABLISHING THE OFFICERS' RESERVE CORPS, AND THE 15- DAY PERIOD CLEARLY RELATED TO, AND WAS LIMITED BY, THE 15 DAY TRAINING PERIOD AUTHORIZED IN THE 1916 ACT. THUS, THERE EVOLVED A GENERAL PATTERN OF LEGISLATION PERTAINING TO TRAINING DUTY FOR THE VARIOUS RESERVE COMPONENTS UNDER WHICH PERIODS OF TRAINING DUTY OF 15 DAYS WERE AUTHORIZED AND ORDERED, AND 15 DAY PERIODS OF LEAVE OF ABSENCE AUTHORIZED TO PERMIT THE PERFORMANCE OF SUCH DUTY. OBVIOUSLY, SUBSEQUENT PROVISIONS AUTHORIZING LEAVES OF ABSENCE FOR TRAINING DUTY MUST BE CONSTRUED IN THE LIGHT OF THAT GENERAL PATTERN.

THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, WAS THE FIRST REALLY COMPREHENSIVE STATUTE REGARDING THE NAVAL RESERVE. SECTION 20 OF THAT ACT, CODIFIED IN THE ORIGINAL EDITION AS 34 U.S.C. 1081, PROVIDED, SO FAR AS PERTINENT, AS FOLLOWS:

"THAT IN TIME OF PEACE, EXCEPT AS HEREIN OTHERWISE PROVIDED, 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.'

IN ADDITION, SECTION 36 OF THE SAME ACT, CODIFIED AS 34 U.S.C. 768, PROVIDED, SO FAR AS PERTINENT, THAT:

"* * * PROVIDED, THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF 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.'

NOT ONLY IS IT APPARENT FROM THE PLAIN LANGUAGE OF THE STATUTE THAT THE FIFTEEN-DAY PERIOD OF LEAVE RELATES TO, AND MUST BE GOVERNED BY, THE FIFTEEN-DAY PERIOD OF TRAINING DUTY, BUT THE LEGISLATIVE HISTORY ALSO SUPPORTS THIS VIEW. ON PAGES 2578 AND 2579 OF A HEARING HELD BY THE COMMITTEE ON NAVAL AFFAIRS, HOUSE OF REPRESENTATIVES, ON MAY 20, 1924, ON THE BILL H.R. 3935, LATER INTRODUCED AS H.R. 9534, TO PROVIDE FOR THE CREATION, ADMINISTRATION, AND MAINTENANCE OF A NAVAL RESERVE AND A MARINE CORPS RESERVE, WE FIND THE FOLLOWING COLLOQUY:

"COLONEL ROOSEVELT. I WOULD LIKE TO SEE TRAINING PERIODS FOR THE FLEET NAVAL RESERVE AT CERTAIN TIMES. THAT WE HAVE PROVIDED FOR IN THIS BILL.

"MR. ANDREW. YOU WOULD HAVE A CERTAIN TRAINING PERIOD EVERY YEAR?

"COLONEL ROOSEVELT. YES. WE HAVE DRILL PERIODS, WHICH ARE CARRIED ON THROUGHOUT THE YEAR, AND THEN WE HAVE 15 DAYS' SEA SERVICE, WHEN THEY GO OFF AND TAKE THEIR CRUISE WITH THEIR VESSELS.

"MR. BRITTEN. THAT CRUISE IS NOT LESS THAN 15 DAYS?

"COLONEL ROOSEVELT. NOT MORE THAN 15 DAYS.'

ALSO, IN THE LIGHT OF THE FACT THAT GOVERNMENT EMPLOYEES THEN WERE BEING PAID ON THE BASIS OF A THIRTY-DAY MONTH, INCLUDING PAY FOR SUNDAYS AND HOLIDAYS, AND THE FACT THAT MILITARY PAY, THEN AS WELL AS AT PRESENT, WAS SIMILARLY COMPUTED, THE FOLLOWING COLLOQUY APPEARING AT PAGE 2650 TAKES ON SPECIAL SIGNIFICANCE:

"MR. VINSON. GOING BACK TO LINE 22, OF PAGE 26 * * * THAT WILL GIVE A GOVERNMENT EMPLOYEE 45 DAYS PAY FROM HIS JOB, BECAUSE UNDER THE LAW HE IS ENTITLED TO 30 DAYS LEAVE, AND THIS WILL GIVE HIM 15 DAYS ADDITIONAL.

"MR. BRITTEN. IN THE DISTRICT?

"MR. VINSON. OR ANY GOVERNMENT EMPLOYEE ANYWHERE IN THE UNITED STATES, SO THAT A GOVERNMENT EMPLOYEE, MAIL CLERK, OR POST OFFICE EMPLOYEE IS ENTITLED TO 30 DAYS LEAVE UNDER THE CIVIL SERVICE ACT, AND IN ADDITION TO THAT UNDER THIS BILL HE GETS 15 DAYS OR A TOTAL OF 45 DAYS OVER ALL, AND ARE YOU NOT LIKELY TO FILL UP YOUR RESERVE WITH GOVERNMENT EMPLOYEES WHO WILL DRAW THAT 15 DAYS EXTRA PAY AND TIME?

"ADMIRAL LATIMER. IF THAT WERE TRUE, THEY WOULD HAVE ALL BEEN IN THE NATIONAL GUARD.

"MR. VINSON. HOW MUCH DO THEY GET FOR THAT 15 DAYS?

"ADMIRAL LATIMER. THEY GET THE PAY OF THEIR RATING, WHATEVER IT IS.

"MR. VINSON. THEN, IF A MAN IS RATED AS A WARRANT OFFICER OF THE VOLUNTEER NAVAL RESERVE HE WOULD THEN GET ABOUT $40 FOR HIS 15 DAYS SERVICE, IN ADDITION TO DRAWING HIS PAY IN THE ARTMENT.'

AND FINALLY, ON PAGES 2601 AND 2602, WE FIND THE FOLLOWING PERTINENT INFORMATION:

"ADMIRAL LATIMER. * * * IN TIME OF PEACE OFFICERS AND MEN OF THE NAVAL RESERVE ARE REQUIRED TO PERFORM NOT TO EXCEED 15 DAYS' TRAINING DUTY ANNUALLY, IN ACCORDANCE WITH THE DIRECTIONS OF THE SECRETARY OF THE NAVY. THEY MAY BE EXCUSED ONLY BY DIRECTION OF THE SECRETARY OF THE NAVY. OFFICERS AND MEN MAY BE GIVEN AN ADDITIONAL TRAINING OR OTHER DUTY WITH OR WITHOUT PAY, BY THE SECRETARY OF THE NAVY.

"MR. ANDREW. WOULD 15 DAYS GIVE THEM MUCH TRAINING?

"ADMIRAL LATIMER. IT WOULD GIVE THEM 15 DAYS, AND IN ADDITION THERETO THEY WOULD BE ABLE TO PUT IN THEIR 30 DRILLS.'

WE THINK IT IS EVIDENT FROM THE FOREGOING THAT THE INTENTION OF THE ADMINISTRATIVE OFFICE WAS TO REQUEST, AND THAT THE INTENTION OF THE CONGRESS WAS TO GRANT, AUTHORITY FOR THE PERFORMANCE BY NAVAL RESERVISTS OF TRAINING DUTY FOR PERIODS OF NOT TO EXCEED 15 DAYS AND, TO PROVIDE, SO FAR AS GOVERNMENT EMPLOYEES ARE CONCERNED, THAT THEIR PAY, TIME, OR EFFICIENCY RATING SHOULD NOT BE ADVERSELY AFFECTED BY REASON OF THEIR PERFORMING SUCH DUTY. THUS, BOTH THE PLAIN LANGUAGE AND LEGISLATIVE HISTORY OF THE STATUTE, VIEWED IN THE LIGHT OF THE PRECEDING STATUTES WITH WHICH IT IS ENTIRELY CONSISTENT AND ON WHICH IT WAS UNDOUBTEDLY PATTERNED, MAKE IT CLEAR THAT THE PHRASE ,FROM HIS DUTIES" MAY NOT BE CONSTRUED AS AN EXPRESS EXCLUSION OF SUNDAYS AND HOLIDAYS FROM THE COMPUTATION OF LEAVE FOR PERIODS OF MILITARY TRAINING ORDERED THEREUNDER.

WE FIND NOTHING IN THE LANGUAGE OR THE LEGISLATIVE HISTORY OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, OR THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 481, WHICH COULD EVEN REMOTELY BE CONSTRUED AS REQUIRING A DIFFERENT CONSTRUCTION. ON THE CONTRARY, THE PERTINENT PROVISIONS OF THE 1925 ACT WERE REENACTED WITHOUT SUBSTANTIAL CHANGE IN SECTION 9 OF THE 1938 ACT. ALTHOUGH SECTION 803 OF THE 1952 ACT REPEALED SECTION 9 OF THE 1938 ACT, SUBSECTION 804 (A) AMENDED THE HEREINBEFORE-MENTIONED ACT OF MAY 12, 1917, BY SUBSTITUTING THE WORDS "RESERVE COMPONENTS OF THE ARMED FORCES" FOR "OFFICERS RESERVE CORPS OR ENLISTED RESERVE CORPS.' AS SO AMENDED, THE STATUTE, APPEARING AS 10 U.S.C. 371, 1952 EDITION, PROVIDED: "ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO SHALL BE MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES 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 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 FIFTEEN DAYS IN ANY ONE CALENDAR YEAR: PROVIDED, THAT MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES WHO ARE IN THE EMPLOY OF THE UNITED STATES GOVERNMENT OR OF THE DISTRICT OF COLUMBIA AND WHO ARE ORDERED TO DUTY BY PROPER AUTHORITY SHALL, WHEN RELIEVED FROM DUTY, BE RESTORED TO THE POSITIONS HELD BY THEM WHEN ORDERED TO DUTY.'

FROM THE EXPLANATION OF THE AMENDMENT BY MR. JOSEPH D. SULLIVAN, OFFICE OF GENERAL COUNSEL, OFFICE OF THE SECRETARY OF DEFENSE, ON PAGE 1028 OF THE HEARINGS BEFORE THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES ON H.R. 4860, 82ND CONGRESS, IT APPEARS THAT THE PURPOSE OF THE CHANGE WAS MERELY TO APPLY THE PROVISION EQUALLY TO ALL RESERVE COMPONENTS. WE FIND NO EVIDENCE OF ANY INTENT TO CHANGE THE METHOD OF CHARGING THE LEAVE. IT IS THUS APPARENT THAT THE ARMED SERVICES RESERVE ACT OF 1952, SO FAR AS NAVAL RESERVISTS ARE CONCERNED, MERELY CONTINUED, IN LANGUAGE OF SUBSTANTIALLY IDENTICAL IMPORT, THE PROVISONS OF THE 1925 ACT.

AS POINTED OUT BY THE EMPLOYEE HERE CONCERNED, THE PROVISION OF LAW NOW IN EFFECT, SECTION 29 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, 5 U.S.C. 30R (A), PROVIDES AS FOLLOWS:

"EACH RESERVE OF THE ARMED FORCES OR MEMBER OF THE NATIONAL GUARD WHO IS AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA, PERMANENT OR TEMPORARY INDEFINITE, WITHOUT REGARD TO CLASSIFICATION OR TERMINOLOGY PECULIAR TO THE CIVIL SERVICE SYSTEM, IS ENTITLED TO LEAVE OF ABSENCE FROM HIS DUTIES, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING FOR EACH DAY, BUT NOT MORE THAN 15 DAYS IN ANY CALENDAR YEAR, IN WHICH HE IS ON ACTIVE DUTY, OR IS ENGAGED IN FIELD OR COAST DEFENSE TRAINING UNDER SECTIONS 502-505 OF TITLE 32, UNITED STATES CODE.'

IT SEEMS TO US THAT, NOTWITHSTANDING THE CHANGE IN LANGUAGE, THIS PROVISION IS SUBSTANTIALLY IDENTICAL IN IMPORT, SO FAR AS THE LIMITATION ON MILITARY LEAVE IS CONCERNED, WITH THE PROVISION OF THE ACT OF MAY 12, 1917, AS AMENDED, ABOVE QUOTED, EVEN THOUGH THE WORD "PERIODS" WAS OMITTED. HOWEVER, ANY POSSIBLE DOUBT IN THE MATTER IS DISPELLED BY THE FACT THAT THE PROVISION WAS REENACTED IN CONNECTION WITH THE GENERAL CODIFICATION OF MILITARY LAWS AND THE ENACTMENT INTO POSITIVE LAW OF THE PRESENT TITLES 10 AND 32 OF THE UNITED STATES CODE. SUBSECTION 49 (A) OF THE ACT INDICATES THAT IT WAS THE LEGISLATIVE PURPOSE TO RESTATE IN SECTIONS 1-48 THE LAW REPLACED IN THESE SECTIONS, WITHOUT SUBSTANTIVE CHANGE.

IN THE LIGHT OF THE FOREGOING COMMENTS OUR VIEW IS THAT THE PHRASE "FROM HIS DUTIES" AS USED IN THE PROVISIONS OF LAW NOW IN EFFECT, 5 U.S.C. 30R, NEITHER EXPRESSLY NOR IMPLIEDLY PERMITS THE EXCLUSION OF NONWORK DAYS IN APPLYING THE 15-DAY LIMITATION. ON THE CONTRARY, OUR OPINION IS THAT THE LEGISLATIVE HISTORY OF THE PHRASE AND OF MILITARY LEAVE LAWS CLEARLY INDICATE THAT SUCH LAWS MUST BE CONSTRUED TOGETHER WITH, AND ARE LIMITED BY, THE PERIOD OF TRAINING DUTY AUTHORIZED OR REQUIRED BY OR PURSUANT TO LAW. IN THAT CONNECTION, YOUR ATTENTION IS DIRECTED TO THE PROVISION OF 10 U.S.C. 672 (B) PRESENTLY IN EFFECT, WHICH LIMITS THE PERIOD OF DUTY TO WHICH A RESERVIST INVOLUNTARILY MAY BE ORDERED TO NOT MORE THAN 15 DAYS A YEAR.

ASIDE FROM THE MILITARY LEAVE LAWS, WE HAVE BEEN ABLE TO FIND IN THE GENERAL LAWS GOVERNING LEAVES OF ABSENCE AND HOURS OF DUTY NO PROVISION WHICH, EITHER EXPRESSLY OR BY IMPLICATION AUTHORIZES THE EXCLUSION OF NONWORKDAYS IN CHARGING MILITARY LEAVE.

IN THE ABSENCE OF ANY EXPRESS PROVISION SUCH AS THAT IN 5 U.S.C. 2064 (A) PERTAINING TO ANNUAL AND SICK LEAVE, WE MUST THEREFORE CONTINUE, IN ACCORDANCE WITH THE GENERAL RULE PREVIOUSLY MENTIONED, TO REQUIRE THE CHARGING OF MILITARY LEAVE FOR ANY INTERVENING NONWORKDAYS OCCURRING DURING PERIODS OF ORDERED MILITARY TRAINING. HOWEVER, AS POINTED OUT IN 27 COMP. GEN. 245, AT PAGE 253, ONLY THE INTERVENING NONWORKDAYS--- THOSE WHOLLY WITHIN THE PERIOD OF ABSENCE ON MILITARY LEAVE--- NEED BE CHARGED. THUS, IN THE INSTANT CASE THE EMPLOYEE SHOULD HAVE BEEN CHARGED MILITARY LEAVE DURING HIS FIRST TOUR OF DUTY FROM MONDAY, JUNE 17, 1957, THROUGH FRIDAY, JUNE 28, 1957, OR A TOTAL OF 12 DAYS. HE SHOULD NOT HAVE BEEN CHARGED WITH MILITARY LEAVE FOR SUNDAY, JUNE 16, AND FOR SATURDAY AND SUNDAY, JUNE 29 AND 30. THUS, THREE DAYS OF HIS ABSENCE FROM DUTY DURING HIS SECOND TOUR PROPERLY MAY BE CHARGED TO MILITARY LEAVE, THUS REDUCING THE ANNUAL LEAVE CHARGE FOR THAT PERIOD TO SEVEN DAYS. CORRECTIVE ACTION SHOULD BE TAKEN ACCORDINGLY. IN THAT REGARD, WE ARE FULLY COGNIZANT OF THE FACT THAT THERE IS CONSIDERABLE SUBSTANCE TO THE VIEW THAT ALL ACTIVE DUTY DAYS, INCLUDING ALL NONWORKDAYS, SHOULD BE COUNTED AGAINST THE 15 DAYS OF MILITARY LEAVE OF ABSENCE PERMITTED BY THE STATUTE. HOWEVER, IN CONSIDERATION OF THE LONG-ESTABLISHED RULE EXCLUDING CERTAIN NONWORKDAYS,AS INDICATED ABOVE, AND FOR THE REASONS SET FORTH IN 27 COMP. GEN. 245, 253, WE DO NOT BELIEVE IT APPROPRIATE TO MODIFY OUR POSITION ON SUCH EXCLUSIONS AT THIS TIME.