B-141315, DEC. 11, 1959

B-141315: Dec 11, 1959

Additional Materials:

Contact:

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

 

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

THE RECORD SHOWS THAT YOU WERE SEPARATED FROM YOUR CIVILIAN POSITION WITH THE VICKSBURG DISTRICT. THE RECORD ALSO SHOWS THAT YOU WERE RE EMPLOYED BY THE DEPARTMENT OF THE ARMY WITHIN NINETY DAYS AFTER RELEASE FROM ACTIVE DUTY AND THAT THE DEPARTMENT APPARENTLY CONSIDERED YOUR REEMPLOYMENT TO BE A . YOUR ATTENTION IS DIRECTED TO SECTION 459 (G) (2) WHICH READS AS FOLLOWS: "/G) REEMPLOYMENT BENEFITS TO PERSONS ENLISTING OR CALLED TO ACTIVE DUTY. "/2) ANY PERSON WHO. IF HE IS RELIEVED FROM ACTIVE DUTY NOT LATER THAN FOUR YEARS AFTER THE DATE OF ENTERING UPON ACTIVE DUTY OR AS SOON AFTER THE EXPIRATION OF SUCH FOUR YEARS AS HE IS ABLE TO OBTAIN ORDERS RELIEVING HIM FROM ACTIVE DUTY.'. THAT SUBSECTION REQUIRES THAT IN ORDER TO HAVE THE STATUS OF A CIVILIAN OFFICER OR EMPLOYEE DURING ACTIVE MILITARY SERVICE IMPUTED RETROACTIVELY TO A RESERVE MEMBER UNDER SECTION 459 (C).

B-141315, DEC. 11, 1959

TO MR. JAMES B. LESLIE, JR.:

YOUR LETTER OF NOVEMBER 8, 1959, REQUESTS RECONSIDERATION OF OUR SETTLEMENT OF OCTOBER 15, 1959, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT FOR MILITARY LEAVE AS AN ARMY RESERVE OFFICER, CORPS OF ENGINEERS.

THE RECORD SHOWS THAT YOU WERE SEPARATED FROM YOUR CIVILIAN POSITION WITH THE VICKSBURG DISTRICT, CORPS OF ENGINEERS, VICKSBURG, MISSISSIPPI, DEPARTMENT OF THE ARMY, EFFECTIVE FEBRUARY 23, 1951, TO ENTER MILITARY SERVICE AND THAT YOUR ACTIVE MILITARY SERVICE EXTENDED FROM FEBRUARY 24, 1951, TO JULY 16, 1955, A PERIOD OF FOUR YEARS, THREE MONTHS, AND TWENTY- TWO DAYS. THE RECORD ALSO SHOWS THAT YOU WERE RE EMPLOYED BY THE DEPARTMENT OF THE ARMY WITHIN NINETY DAYS AFTER RELEASE FROM ACTIVE DUTY AND THAT THE DEPARTMENT APPARENTLY CONSIDERED YOUR REEMPLOYMENT TO BE A ,RESTORATION" IN ACCORDANCE WITH 50 U.S.C. APP. 459. HOWEVER, YOUR ATTENTION IS DIRECTED TO SECTION 459 (G) (2) WHICH READS AS FOLLOWS:

"/G) REEMPLOYMENT BENEFITS TO PERSONS ENLISTING OR CALLED TO ACTIVE DUTY.

"/2) ANY PERSON WHO, SUBSEQUENT TO JUNE 24, 1948, ENTERS UPON ACTIVE DUTY (OTHER THAN FOR THE PURPOSE OF DETERMINING HIS PHYSICAL FITNESS), WHETHER OR NOT VOLUNTARILY, IN THE ARMED FORCES OF THE UNITED STATES OR THE PUBLIC HEALTH SERVICE IN RESPONSE TO AN ORDER OR CALL TO ACTIVE DUTY SHALL, UPON HIS RELIEF FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS, BE ENTITLED TO ALL OF THE REEMPLOYMENT RIGHTS AND BENEFITS PROVIDED BY THIS SECTION IN THE CASE OF PERSONS INDUCTED UNDER THE PROVISIONS OF THIS TITLE (SECTIONS 451- 454 AND 455-471 OF THIS APPENDIX), IF HE IS RELIEVED FROM ACTIVE DUTY NOT LATER THAN FOUR YEARS AFTER THE DATE OF ENTERING UPON ACTIVE DUTY OR AS SOON AFTER THE EXPIRATION OF SUCH FOUR YEARS AS HE IS ABLE TO OBTAIN ORDERS RELIEVING HIM FROM ACTIVE DUTY.'

THAT SUBSECTION REQUIRES THAT IN ORDER TO HAVE THE STATUS OF A CIVILIAN OFFICER OR EMPLOYEE DURING ACTIVE MILITARY SERVICE IMPUTED RETROACTIVELY TO A RESERVE MEMBER UNDER SECTION 459 (C), RELATING TO SERVICE CONSIDERED AS FURLOUGH, THE INDIVIDUAL MUST HAVE BEEN RESTORED TO HIS FEDERAL CIVILIAN POSITION IN ACCORDANCE WITH SECTION 459 (B) (A), COVERING REEMPLOYMENT RIGHTS; AND, TO BE ENTITLED TO SUCH MANDATORY RESTORATION, HE MUST NOT HAVE SERVED ON ACTIVE DUTY MORE THAN FOUR YEARS, OR IF LONGER, HE MUST BE ABLE TO SHOW THAT HE COULD NOT OBTAIN RELEASE ORDERS ANY SOONER. IN YOUR CASE SUCH "RESTORATION" WAS NOT REQUIRED BY SECTION 459 BECAUSE OF SERVICE BEYOND THE FOUR-YEAR LIMITATION. EVEN THOUGH 5 U.S.C. 30R (B) REQUIRES RESTORATION IN SUCH AN INSTANCE AND INCLUDES NO TIME LIMIT, NO RIGHT ACCRUES UNDER 5 U.S.C. 30R (B) TO BE CONSIDERED AN OFFICER OR EMPLOYEE ON LEAVE OF ABSENCE DURING MILITARY SERVICE AS IS TRUE UNDER 50 U.S.C. APP. 459 (C); HENCE, NO RIGHT TO PAYMENT FOR MILITARY LEAVE COULD ACCRUE THEREUNDER.

YOU NOW POINT OUT THAT ON NOVEMBER 19, 1954, WHILE ON DUTY IN KOREA YOU WERE INJURED; THAT AN OPERATION WAS PERFORMED ON NOVEMBER 26, 1954, AND SHORTLY THEREAFTER YOU WERE ADVISED A SECOND OPERATION WOULD BE REQUIRED AND THAT YOU WOULD BE RETURNED TO THE UNITED STATES FOR THE OPERATION. YOU SAY THAT UPON BEING SO ADVISED YOU RESOLVED THAT IF YOU COULD NOT BE RESTORED TO FULL DUTY THAT YOU WOULD REQUEST YOUR RELEASE FROM MILITARY SERVICE BEFORE THE EXPIRATION OF FOUR YEARS AND RETURN TO YOUR CIVILIAN POSITION. YOU SHOW THAT YOU WERE RETURNED TO THE UNITED STATES, OPERATED UPON AND RELEASED FROM THE HOSPITAL ON MAY 13, 1955; THAT YOU TOOK A SHORT LEAVE BEGINNING THE NEXT DAY AND WENT DIRECTLY TO VICKSBURG WHERE YOU APPLIED FOR YOUR CIVILIAN POSITION. ON JUNE 14, 1955, YOU WERE ADVISED YOU COULD RETURN TO YOUR CIVILIAN POSITION AND THE NEXT DAY YOU REQUESTED RELEASE FROM ACTIVE DUTY TO ACCEPT CIVILIAN EMPLOYMENT. THE FOREGOING INFORMATION FURNISHED BY YOU SHOWS YOU DID NOT REQUEST YOUR RELEASE FROM MILITARY SERVICE UNTIL AFTER THE FOUR-YEAR LIMITATION HAD EXPIRED. THEREFORE, SINCE YOU WERE NOT RELEASED FROM ACTIVE DUTY UNTIL JULY 16, 1955, AFTER FOUR YEARS, THREE MONTHS, AND TWENTY-TWO DAYS, NO BASIS EXISTS FOR PAYMENT OF YOUR CLAIM FOR MILITARY LEAVE. HENCE, THE SETTLEMENT OF OCTOBER 15, 1959, MUST BE SUSTAINED.