B-143613, SEP. 21, 1960

B-143613: Sep 21, 1960

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YOU WERE CALLED TO ACTIVE DUTY AS A RESERVE OFFICER IN THE UNITED STATES ARMY FOR A PERIOD OF TWO YEARS. YOU REQUESTED AND WERE GRANTED A NEW CATEGORY WHICH EXTENDED YOUR OBLIGATION TO REMAIN IN THE ARMY UNTIL JANUARY 31. THAT YOU WERE RELEASED FROM THE ARMY ON NOVEMBER 26. YOU CONTEND THAT YOU ARE ENTITLED TO THE MILITARY LEAVE IN QUESTION UNDER THE ACT OF MAY 12. - A SIMILAR PROVISION IS NOW CONTAINED IN SECTION 29 (A) OF THE ACT OF AUGUST 10. - BECAUSE YOU WERE RELEASED FROM ACTIVE DUTY AS SOON AFTER THE EXPIRATION OF FOUR YEARS' SERVICE AS YOU WERE ABLE TO OBTAIN THE NECESSARY ORDERS. 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 * * * 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.'.

B-143613, SEP. 21, 1960

TO MR. THEODORE E. MONAHAN:

ON JULY 14, 1960, YOU REQUESTED RECONSIDERATION OF OUR SETTLEMENT OF JUNE 13, 1960, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION FOR 15 DAYS' MILITARY LEAVE DURING THE CALENDAR YEAR 1953.

ON JUNE 1, 1951, WHILE EMPLOYED BY THE DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, YOU WERE CALLED TO ACTIVE DUTY AS A RESERVE OFFICER IN THE UNITED STATES ARMY FOR A PERIOD OF TWO YEARS; THAT, IN ORDER TO BE ELIGIBLE TO ACCOMPANY YOUR UNIT OVERSEAS, YOU REQUESTED AND WERE GRANTED A NEW CATEGORY WHICH EXTENDED YOUR OBLIGATION TO REMAIN IN THE ARMY UNTIL JANUARY 31, 956; THAT YOU WERE RELEASED FROM THE ARMY ON NOVEMBER 26, 1955; AND THAT YOU OBTAINED REINSTATEMENT TO YOUR POSITION WITH THE BUREAU OF RECLAMATION ON FEBRUARY 8, 1956.

YOU CONTEND THAT YOU ARE ENTITLED TO THE MILITARY LEAVE IN QUESTION UNDER THE ACT OF MAY 12, 1917, 40 STAT. 72, AS AMENDED BY SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 506--- A SIMILAR PROVISION IS NOW CONTAINED IN SECTION 29 (A) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, 5 U.S.C. 30R (A/--- BECAUSE YOU WERE RELEASED FROM ACTIVE DUTY AS SOON AFTER THE EXPIRATION OF FOUR YEARS' SERVICE AS YOU WERE ABLE TO OBTAIN THE NECESSARY ORDERS.

SECTION 9 (G) (2) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, 62 STAT. 614, AS AMENDED, 50 U.S.C. APP. 459 (G) (2) PROVIDES:

"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 * * * 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 PROVISION DEFINES AND LIMITS THE RIGHTS OF RESERVISTS TO THEIR CIVILIAN EMPLOYMENT AND MUST BE APPLIED TO MILITARY LEAVE GRANTED A RESERVIST WHILE ON ACTIVE DUTY IN THE ARMED FORCES.

IN ITS REPORT ON THE 1952 AMENDMENTS TO THE SELECTIVE SERVICE ACT OF 1948 --- ONE OF WHICH CHANGED THE TITLE OF THE ACT TO THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT--- THE SENATE COMMITTEE ON THE ARMED SERVICES STATED AT PAGE 69 OF SENATE REPORT NO. 117, 82D CONGRESS, ON S-1:

"EXTENDING REEMPLOYMENT RIGHTS TO PERSONS WHO SERVE NOT MORE THAN 4 YEARS.--- UNDER EXISTING LAW REEMPLOYMENT RIGHTS ARE EXTENDED TO PERSONS WHO ENLIST FOR NOT MORE THAN 3 YEARS. THE PROPOSED LEGISLATION WOULD EXTEND THESE RIGHTS TO PERSONS WHO SERVE FOR NOT MORE THAN 4 YEARS. THUS IT WILL BE SEEN THAT THE TEST IS THE LENGTH OF TIME AN INDIVIDUAL SERVES AND NOT THE LENGTH OF TIME FOR WHICH HE ORIGINALLY ENLISTED.

"UNDER THE PROPOSED LEGISLATION AN INDIVIDUAL WHO ENLISTS FOR 5 OR 6 YEARS BUT IS RELEASED FROM SERVICE IN 4 YEARS OR LESS WOULD BE ENTITLED TO REEMPLOYMENT RIGHTS; UNDER THE EXISTING LAW HE WOULD NOT. FURTHERMORE, UNDER EXISTING LAW AN INDIVIDUAL IS ENTITLED TO REEMPLOYMENT RIGHTS ONLY UPON THE EXPIRATION OF HIS FIRST ENLISTMENT AFTER THE DATE OF ENACTMENT OF THE SELECTIVE SERVICE ACT OF 1948. UNDER THE PROPOSED LEGISLATION IT IS IMMATERIAL HOW MANY TIMES AN INDIVIDUAL MAY HAVE ENLISTED AFTER THE DATE OF ENACTMENT OF THAT ACT SO LONG AS HIS TOTAL SERVICE DOES NOT EXCEED 4 YEARS.'

THUS, IT IS APPARENT THAT THE INTENT OF CONGRESS IN ENACTING THE SUBJECT PROVISION WAS TO LIMIT REEMPLOYMENT RIGHTS TO RESERVISTS WHO SERVE NOT MORE THAN FOUR YEARS UNDER ONE OR MORE ENLISTMENT OR, COMMITMENT, AND TO EXCLUDE FROM ITS PROVISIONS RESERVISTS WHO VOLUNTARILY EXTEND THEIR TOURS OF DUTY BEYOND FOUR YEARS.

SINCE YOUR SERVICE EXTENDED BEYOND FOUR YEARS BECAUSE OF YOUR VOLUNTARY APPLICATION FOR A NEW CATEGORY, YOU ARE NOT ENTITLED TO MILITARY LEAVE FOR THE CALENDAR YEAR 1953.

THEREFORE, OUR SETTLEMENT OF JUNE 13, 1960, WHICH DISALLOWED YOUR CLAIM IS SUSTAINED.