B-144035, OCT. 20, 1960

B-144035, OCT. 20, 1960

TO ADMINISTRATOR, FEDERAL AVIATION AGENCY:

YOUR LETTER OF SEPTEMBER 19, 1960, REQUESTS OUR DECISION ON CERTAIN QUESTIONS REGARDING THE PROPRIETY OF GRANTING RETROACTIVE MILITARY LEAVE AND THE COMPENSATION PAYABLE THEREFOR TO A CIVILIAN EMPLOYEE OF YOUR AGENCY WHO WAS ORDERED INTO ACTIVE MILITARY SERVICE PRIOR TO JANUARY 1, 1953.

THE EMPLOYEE WAS SEPARATED FOR ACTIVE MILITARY SERVICE WITH RESTORATION RIGHTS ON APRIL 8, 951; WAS DISCHARGED THEREFROM ON OCTOBER 6, 1953; APPLIED FOR RESTORATION ON DECEMBER 22, 1953, AND WAS RESTORED TO CIVILIAN DUTY WITH YOUR AGENCY ON JANUARY 11, 1954. IN PARAGRAPH 1 OF YOUR LETTER THE CLAIM IS REPORTED TO INVOLVE THE PERIOD FROM JANUARY 1 TO OCTOBER 6, 1953, WHEREAS IN PARAGRAPH 2, YOU INDICATE THAT THE PENDING CLAIM IS FOR MILITARY SERVICE FROM APRIL 1951, THROUGH OCTOBER 1953. WE ASSUME THE REFERENCE TO JANUARY 1, 1953, WAS FOR PURPOSE OF EMPHASIZING THE EFFECTIVE DATE OF THE MILITARY LEAVE STATUTE INVOLVED. HOWEVER, THE TIME VARIATION IS IMMATERIAL SINCE WE HAVE CONSISTENTLY FOLLOWED THE RULE THAT AN EMPLOYEE MAY NOT BE GRANTED MORE THAN 15 DAYS' MILITARY LEAVE WITH PAY FOR ANY ONE PERIOD OF ACTIVE MILITARY DUTY, REGARDLESS OF WHETHER THAT PERIOD IS WHOLLY WITHIN ONE YEAR, OR EXTENDS OVER MORE THAN ONE CALENDAR YEAR. 10 COMP. GEN. 116; B-134171, JUNE 6, 1958.

ALTHOUGH THE CLAIMANT HERE WAS ON ACTIVE MILITARY DUTY FOR MORE THAN TWO YEARS, WE NOTE THAT HIS MILITARY SERVICE BEGAN SEVERAL MONTHS PRIOR TO JANUARY 1, 1953, THE EFFECTIVE DATE OF THE ARMED FORCES RESERVE ACT OF 1952, APPROVED JULY 9, 1952, 66 STAT. 481. PRIOR TO JANUARY 1, 1953, EMPLOYEE-RESERVISTS WERE ENTITLED TO MILITARY LEAVE WITH PAY FROM THEIR CIVILIAN JOBS, NOT TO EXCEED 15 DAYS IN ANY CALENDAR YEAR, ONLY WHEN ORDERED TO "DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION.' THE 1952 ACT AMENDED THE MILITARY LEAVE STATUTES THEN IN EFFECT BY--- SO FAR AS IS HERE PERTINENT--- INSERTING THE PORTION UNDERLINED IN THE AMENDED PROVISION (10 U.S.C. 371-1952 EDITION) QUOTED BELOW:

"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 * * *.'

YOU SAY THAT THE CLAIMANT PERFORMED A 15-DAY TOUR OF ACTIVE MILITARY DUTY FROM MAY 15 THROUGH MAY 30, 1954, AND WHILE YOU PRESUME THAT HE WAS CREDITED WITH MILITARY LEAVE THEREFOR, SUCH CREDIT CANNOT BE CONFIRMED BECAUSE THE LEAVE RECORDS FOR 1954 HAVE SINCE BEEN DESTROYED IN COMPLIANCE WITH AGENCY RECORDS DISPOSAL INSTRUCTIONS. IN PARAGRAPH 3 OF YOUR LETTER YOU REFER TO OTHER PROCEDURAL INSTRUCTIONS ISSUED BY YOUR AGENCY ON MAY 21, 1958, WHICH HAVE NOT BEEN AMENDED, RELATING TO THE PROCESSING OF EMPLOYEES' CLAIMS FOR RETROACTIVE MILITARY LEAVE. THOSE INSTRUCTIONS READ, AS FOLLOWS:

"WHERE THERE IS NO QUESTION THAT THE EMPLOYEE, OR FORMER EMPLOYEE IF STILL SEPARATED IN ORDER TO PERFORM MILITARY DUTY, IS ENTITLED TO PAYMENT FOR MILITARY LEAVE AN SF-50 "NOTIFICATION OF PERSONNEL ACTION" SHOULD BE ISSUED TO CORRECT THE PREVIOUS SEPARATION DATE TO SHOW A LATER DATE FOR ENTRY INTO THE MILITARY SERVICE. AN EXCEPTION TO THIS PROCEDURE WILL BE NECESSARY IF THE EMPLOYEE ENTERED MILITARY SERVICE IN A RESERVE COMPONENT PRIOR TO JANUARY 1, 1953. UNDER THESE CIRCUMSTANCES, IT WOULD APPEAR IMPROPER TO EFFECT A CHANGE IN THE SEPARATION DATE WHICH OCCURRED PRIOR TO THE DATE OF THE CHARGE IN THE LAW AUTHORIZING THE GRANTING OF MILITARY LEAVE. IN THESE CASES SF-50 SHOULD BE PREPARED SHOWING "MILITARY LEAVE" AS THE NATURE OF ACTION, WITH THE EFFECTIVE DATE 15 CALENDAR DAYS PRIOR TO THE DATE OF REEMPLOYMENT. HOWEVER, IF THE LAST TWO DAYS OF THE 15 CALENDAR DAYS SHOULD FALL ON SATURDAY AND SUNDAY, THE BEGINNING DATE OF THE MILITARY LEAVE PERIOD SHOULD BE ADJUSTED TO EXCLUDE SUCH DAYS FROM THE CHARGE AGAINST MILITARY LEAVE.'

QUESTION 1, READS AS FOLLOWS:

"WOULD IT BE PROPER, IN VIEW OF THE AGENCY'S PROCEDURAL INSTRUCTIONS QUOTED ABOVE, TO CREDIT THIS EMPLOYEE WITH 15 DAYS OF MILITARY LEAVE IN 1953, SPECIFICALLY DURING THE LAST PART OF ACTUAL MILITARY SERVICE IN THAT CALENDAR YEAR? * * *"

THE PERIOD DESIGNATED FOR MILITARY LEAVE MUST INVOLVE A PERIOD DURING WHICH THE CLAIMANT WAS ACTUALLY ASSIGNED TO MILITARY DUTY. ANY ADMINISTRATIVE INSTRUCTIONS WHICH WOULD PERMIT THE DESIGNATION OF ANY PERIOD DURING WHICH THE CLAIMANT WAS NOT ENGAGED ON MILITARY DUTY SHOULD BE DISREGARDED. SINCE THE CLAIMANT HERE WAS ON ACTIVE MILITARY DUTY ONLY TO OCTOBER 6, 1953, AND AS A RESULT OF THE 1952 ACT, ABOVE, WAS IN A STATUS ENTITLING HIM TO THE COMPENSATION OF HIS CIVILIAN POSITION FOR MILITARY LEAVE, IT WOULD BE PROPER TO CREDIT THE CLAIMANT WITH MILITARY LEAVE FOR THE 15-DAY PERIOD BEGINNING ON SEPTEMBER 22 (TUESDAY) THROUGH OCTOBER 6 (TUESDAY), 1953, IF OTHERWISE CORRECT. SEE 37 COMP. GEN. 608; ID. 313. THEREFORE, QUESTION NO. 1 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION NO. 2 READS:

"IF THE EMPLOYEE'S REQUEST FOR RETROACTIVE MILITARY LEAVE WERE APPROVED AS PROPOSED IN QUESTION 1, ABOVE, WOULD THE EMPLOYEE BE COMPENSATED FOR SUCH LEAVE AT THE RATE OF COMPENSATION HE WOULD HAVE BEEN EARNING, DURING THE TIME PERIOD NOW DESIGNATED AS MILITARY LEAVE, IF HE HAD NOT ENTERED MILITARY SERVICE OR WOULD HE BE COMPENSATED INSTEAD AT THE RATE EARNED AT THE TIME HE WAS SEPARATED FROM MILITARY SERVICE?

THE COMPENSATION PAYABLE IS THE AMOUNT WHICH THE CLAIMANT WOULD HAVE EARNED AS A CIVILIAN DURING THE 15 CALENDAR DAY PERIOD ADMINISTRATIVELY DESIGNATED AS MILITARY LEAVE USING THE PERIOD (ABOVE INDICATED) FROM TUESDAY, SEPTEMBER 22 THROUGH TUESDAY, OCTOBER 6, 1953, THE CLAIMANT HERE IS ENTITLED TO CIVILIAN PAY FOR ELEVEN WORKDAYS DURING THE 15 CALENDAR DAY PERIOD, COMPUTED AT THE RATE HE WOULD HAVE EARNED (EXCEPT FOR MILITARY DUTY) ON SEPTEMBER 22, 1953, PLUS THE AMOUNT (INCLUDING ANY STATUTORY INCREASE) WHICH WOULD HAVE BEEN EARNED DURING THE SUCCEEDING 14 CALENDAR DAY PERIOD OF ACTIVE MILITARY SERVICE. SEE GENERALLY 31 COMP. GEN. 173. QUESTION 2 IS ANSWERED ACCORDINGLY. FOR FURTHER INFORMATION REGARDING "WORKDAYS" AS DISTINGUISHED FROM "CALENDAR" DAYS USED IN DETERMINING THE AMOUNT OF COMPENSATION DUE FOR MILITARY LEAVE OF ABSENCE, SEE 27 COMP. GEN. 245, AT PAGES 252-253.