B-137009, SEPTEMBER 24, 1958, 38 COMP. GEN. 237

B-137009, SEPTEMBER 24, 1958, 38 COMP. GEN. 237

CIVILIAN PERSONNEL - CIVILIANS ON MILITARY DUTY - ATTENDANCE AT ARMY NATIONAL GUARD SCHOOL - REEMPLOYMENT, ETC., RIGHTS A CAREER-CONDITIONAL EMPLOYEE WHO, PURSUANT TO ORDERS ISSUED BY A STATE NATIONAL GUARD, ATTENDS A NATIONAL GUARD ASSOCIATE COMMAND AND GENERAL STAFF COLLEGE FOR A FOUR-MONTH COURSE OF INSTRUCTION UNDER A PRIORITY OF 32 U.S.C. 505 IS ENTITLED MILITARY PAY FROM THE UNITED STATES DURING THE TOUR AND TO HAVE THE DUTY CONSIDERED ACTIVE MILITARY DUTY" FOR TRAINING IN THE ARMED FORCES FOR ENTITLEMENT TO REEMPLOYMENT BENEFITS PROVIDED IN CIVIL SERVICE REGULATION 35.5 (5 C.F.R. 35). A CAREER-CONDITIONAL EMPLOYEE WHO, AFTER A FOUR-MONTH COURSE OF INSTRUCTION AT AN ARMY NATIONAL GUARD SCHOOL PURSUANT TO 32 U.S.C. 505, IS RESTORED TO THE POSITION AND SALARY STEP HELD WHEN ORDERED TO DUTY IS ENTITLED TO HAVE THE NATIONAL GUARD SERVICE CREDITED FOR PERIODIC STEP- INCREASE PURPOSES. ATTENDANCE AT AN ARMY NATIONAL GUARD SCHOOL PURSUANT TO 32 U.S.C. 505 BY A CAREER-CONDITIONAL EMPLOYEE ENTITLED THE EMPLOYEE TO BE TREATED AS IF HE HAD CONTINUED IN SUCH EMPLOYMENT UNTIL THE TIME OF RESTORATION SO THAT THE MILITARY SERVICE IS CREDITABLE FOR PURPOSES OF THE CONTINUOUS PERIOD OF NINETY DAYS OF EMPLOYMENT FOR ANNUAL AND SICK LEAVE, 5 U.S.C. 2062 (A) AND FOR PURPOSES OF CREDITING SERVICE FOR LONGEVITY STEP-INCREASES, 5 U.S.C. 1123.

TO THE SECRETARY OF THE AIR FORCE, SEPTEMBER 24, 1958:

ON AUGUST 1, 1958, THE DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE ( MANPOWER, PERSONNEL AND RESERVE FORCES) REQUESTED OUR DECISION CONCERNING THE REEMPLOYMENT RIGHTS AND BENEFITS OF MR. GEORGE D. APPLEBY, JR., A CAREER-CONDITIONAL CIVILIAN EMPLOYEE OF THE AIR FORCE, WHO UNDER HIS ORDERS AS A MEMBER OF THE ARMY NATIONAL GUARD ATTENDED A SERVICE SCHOOL IN THE CIRCUMSTANCES DISCUSSED BELOW.

PURSUANT TO MR. APPLEBY'S VOLUNTARY APPLICATION, AND BY SPECIAL ORDERS NO. 304 DATED 17 DECEMBER 1956, AS AMENDED ( S.O. NO. 80, 3 APRIL 1957), THE ADJUTANT GENERAL'S OFFICE, MILITARY DEPARTMENT, STATE OF MISSISSIPPI, ORDERED MR. APPLEBY TO ATTEND CERTAIN INSTRUCTION AT THE ASSOCIATE COMMAND AND GENERAL STAFF COLLEGE, LEAVENWORTH, KANSAS, WHICH COURSES LASTED FROM 7 JANUARY TO 24 1957. MILITARY LEAVE OF 15 DAYS FROM HIS CIVILIAN POSITION WAS NOT REQUESTED BY MR. APPLEBY. HIS REQUEST FOR LEAVE WITHOUT PAY FOR THE PERIOD OF DUTY AT THE COLLEGE WAS DENIED BY HIS SUPERVISOR. MR. APPLEBY WAS SEPARATED FROM HIS CIVILIAN POSITION EFFECTIVE 6 JANUARY 1957, AND WAS NOTIFIED "YOU WILL BE ENTITLED TO RESTORATION IN AN APPROPRIATE POSITION UPON COMPLIANCE WITH THE CONDITIONS OF SEC. 9, UNIVERSAL MILITARY TRAINING AND SERVICE ACT * * *," 50 U.S.C. APP. 459. AT THE TIME OF HIS SEPARATION HE WAS IN THE FIRST STEP OF THE GS GRADE.

MR. APPLEBY WAS ORDERED TO ATTEND THE COLLEGE UNDER AUTHORITY OF 32 U.S.C. 505, ENACTED AUGUST 10, 1956, 70A STAT. 611. THAT STATUTE PERMITS THE SECRETARY OF THE ARMY TO AUTHORIZE A LIMITED NUMBER OF MEMBERS OF THE ARMY NATIONAL GUARD TO ATTEND SERVICE SCHOOLS. THE DEPUTY ASSISTANT SECRETARY SAYS THAT EFFECTIVE JUNE 3, 1957, THE EMPLOYEE WAS RESTORED TO THE POSITION--- SECOND STEP--- HELD BY HIM WHEN HE WAS ORDERED TO DUTY, AS PROVIDED IN SUBSECTION 29 (B) OF THE 1956 ACT, 70A STAT. 632, 5 U.S.C. 30R (B). HOWEVER, AS AUTHORITY FOR HIS REEMPLOYMENT THE PERSONNEL ACTION CITED CIVIL SERVICE REGULATION 35.5 (5 C.F.R. 35; FPM Z1-375) ENTITLED " RESTORATION OF FEDERAL EMPLOYEES AFTER ACTIVE MILITARY DUTY.' THAT REGULATION IS STATED TO HAVE BEEN ISSUED UNDER AUTHORITY OF SECTION 50 U.S.C. APP. 459.

IN GENERAL, SECTION 459 (G) (2) OF 50 U.S.C. APPENDIX PROVIDES THAT ANY PERSON WHO SUBSEQUENT TO JUNE 24, 1948, ENTERS UPON ACTIVE DUTY SHALL UPON HIS RELIEF FROM ACTIVE DUTY, WITHIN THE TIME LIMITS PRESCRIBED THEREIN, UNDER HONORABLE CONDITIONS "BE ENTITLED TO ALL OF THE REEMPLOYMENT RIGHTS AND BENEFITS PROVIDED BY THIS SECTION IN THE CASE OF PERSONS INDUCTED" UNDER SUBSECTION 459 (A), (B), AND (C). IN THAT REGARD, SUBSECTION 459 (B) (A) PROVIDES FOR INDUCTED EMPLOYEES OF THE UNITED STATES, THAT QUALIFIED EMPLOYEES "SHALL * * * BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY.' SUBSECTION 459 (C) PROVIDES THAT SUCH RESTORED EMPLOYEE (1) ,SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING AND SERVICE IN THE ARMED FORCES, SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY" AND (2) "IN SUCH MANNER AS TO GIVE HIM SUCH STATUS IN HIS EMPLOYMENT AS HE WOULD HAVE ENJOYED IF HE HAD CONTINUED IN SUCH EMPLOYMENT CONTINUOUSLY FROM THE TIME OF HIS ENTERING THE ARMED FORCES UNTIL THE TIME OF HIS RESTORATION TO SUCH EMPLOYMENT.'

AS TO MEMBERS OF THE ARMY NATIONAL GUARD, 70A STAT. 211, 10 U.S.C. 3686, PROVIDES IN PART---

(2) FULL-TIME TRAINING OR OTHER FULL-TIME DUTY PERFORMED BY A MEMBER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES IN HIS STATUS AS A MEMBER OF THE ARMY NATIONAL GUARD UNDER SECTION 316 AND 503-505 OF TITLE 32 FOR WHICH HE IS ENTITLED TO PAY FROM THE UNITED STATES, OR FOR WHICH HE WAS WAIVED SUCH PAY, SHALL BE CONSIDERED ACTIVE DUTY FOR TRAINING IN FEDERAL SERVICE AS A RESERVE OF THE ARMY; * * *

THUS, IT APPEARS THAT MR. APPLEBY WAS ENTITLED TO PAY FROM THE UNITED STATES DURING HIS TOUR OF DUTY AT THE COLLEGE UNDER 32 U.S.C. 505, AND THAT SUCH DUTY CONSTITUTED " ACTIVE MILITARY DUTY" FOR TRAINING IN THE ARMED FORCES WITHIN THE MEANING OF SECTION 35.1 (B) (2) OF THE CITED CIVIL SERVICE REGULATION ( FPM, PAGE Z1-375).

IN VIEW OF THE ABOVE, OUR DECISION IS REQUESTED UPON THE FOLLOWING QUESTIONS:

1. WAS IT PROPER TO INCREASE THE SALARY OF MR. APPLEBY TO $4660 PER ANNUM EFFECTIVE 3 JUNE 1957 AS SHOWN BY THE INCLOSED COPY OF STANDARD FORM 50 BASED UPON CREDITING THE PERIOD ON DUTY AT THE ASSOCIATE COMMAND AND GENERAL STAFF COLLEGE TOWARD THE 52 WEEKS OF SERVICE REQUIRED FOR HIS PERIODIC STEP INCREASE?

2. IF YOUR ANSWER TO QUESTION 1 IS AFFIRMATIVE, IS SUCH PERIOD OF DUTY CREDITABLE FOR PURPOSES OF (I) MEETING THE REQUIREMENT OF 90 DAYS' CONTINUOUS SERVICE FOR ENTITLEMENT TO ANNUAL LEAVE, (II) DETERMINING HIS ENTITLEMENT TO LONGEVITY STEP INCREASES, AND (III) DETERMINING HIS ENTITLEMENT TO RETIREMENT BENEFITS?

IN LIGHT OF THE EXPRESS "SENSE OF THE CONGRESS" SET FORTH IN SUBSECTION 459 (C) (2), PERTINENT PART QUOTED ABOVE, WHICH "SENSE" BY VIRTUE OF 10 U.S.C. 3686 (2) REASONABLY APPLIES TO THE SERVICE AND DUTY OF MEMBERS OF THE NATIONAL GUARD PERFORMED PURSUANT TO 32 U.S.C. 505, AND AS SECTION 701 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1121, AND THE FEDERAL EMPLOYEES PAY REGULATIONS, RELATING TO STEP-INCREASES AUTHORIZE COUNTING OF PERIODS OF SERVICE WITH THE ARMED FORCES ( FPM Z1 314.01), OUR ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE.

CONCERNING QUESTION 2 (I), THE EMPLOYEE IN THIS CASE HAD A STATUTORY RIGHT TO BE RESTORED TO HIS CIVILIAN POSITION AFTER THE MILITARY DUTY OF( SERVICE, AND WAS SO RESTORED. IN LINE WITH OUR ANSWER TO QUESTION 1 ABOVE, HIS ABSENCE IS NOT REGARDED AS A BREAK IN SERVICE. COMPARE OUR ANSWER TO QUESTION 7 AT 31 COMP. GEN. 581, 587 (B-108880). HENCE, OUR ANSWER TO PART (I) OF QUESTION 2 IS THAT SINCE SUBSECTION 459 (C), QUOTED ABOVE, INTENDS THAT THE RESTORED EMPLOYEE BE TREATED IN A MANNER AS "IF HE HAD CONTINUED IN SUCH EMPLOYMENT CONTINUOUSLY * * * UNTIL THE TIME OF HIS RESTORATION, THE PERIOD OF DUTY AT THE COLLEGE IS CREDITABLE FOR PURPOSES OF "CONTINUOUS PERIOD OF NINETY DAYS" OF EMPLOYMENT REQUIRED UNDER SUBSECTION 203 (I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2062 (I), BEFORE ANNUAL LEAVE MAY BE CREDITED TO AN EMPLOYEE.

IN LINE WITH OUR ABOVE ANSWER TO QUESTION 1, AND SINCE THE FEDERAL EMPLOYEES PAY REGULATIONS PROVIDE FOR COUNTING OF INTERVENING MILITARY SERVICE TOWARDS LONGEVITY STEP-INCREASES ( FPM Z1-316), NATIONAL GUARD DUTY WITH PAY UNDER 32 U.S.C. 505 MAY BE REGARDED AS PART OF THE ,CONTINUOUS SERVICE" FOR LONGEVITY STEP-INCREASES SUCH AS IS CONTEMPLATED IN SECTION 703 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1123. CF. B-126295, FEBRUARY 9, 1956.

PART (III) OF QUESTION 2 CONCERNS SERVICE CREDIT FOR PURPOSES OF CIVIL SERVICE RETIREMENT, WHICH QUESTION WOULD BE FOR SUBMISSION TO AND DETERMINATION BY THE CIVIL SERVICE COMMISSION.