B-160447, DECEMBER 19, 1966, 46 COMP. GEN. 584

B-160447: Dec 19, 1966

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WHO SUBSEQUENT TO THAT DATE IS RESTORED TO HIS CIVILIAN POSITION UNDER 5 U.S.C. 3551. SECTION 3551 NOT PROVIDING THAT AN EMPLOYEE RESTORED TO DUTY WILL BE REGARDED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE FROM HIS CIVILIAN POSITION DURING A PERIOD OF MILITARY SERVICE. IS NOT WITHIN THE PURVIEW OF 5 U.S.C. 6303 (A) (C). WHO CONTINUES TO BE EMPLOYED WITHOUT A BREAK IN SERVICE OF MORE THAN 30 DAYS IS ENTITLED TO CREDIT FOR MILITARY SERVICE IN DETERMINING HIS ANNUAL LEAVE ACCRUAL CATEGORY. CONCERNING THE RESTORATION RIGHTS OF AN EMPLOYEE WHO AS A MILITARY RESERVIST WAS CALLED TO ACTIVE MILITARY DUTY BEFORE NOVEMBER 30. WHO SUBSEQUENT TO SUCH DATE WAS RESTORED TO HIS CIVILIAN POSITION UNDER 5 U.S.C. 3551 (FORMERLY 5 U.S.C. 30R (B) ( AFTER MILITARY RETIREMENT BASED ON 20 YEARS OF SERVICE. 5 U.S.C. 3551 IS AS FOLLOWS: AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA.

B-160447, DECEMBER 19, 1966, 46 COMP. GEN. 584

LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - ACTIVE DUTY, ETC., SERVICE - SERVICE CREDIT ON REEMPLOYMENT A CIVILIAN EMPLOYEE CALLED TO ACTIVE MILITARY SERVICE BEFORE NOVEMBER 30, 1964, WHO SUBSEQUENT TO THAT DATE IS RESTORED TO HIS CIVILIAN POSITION UNDER 5 U.S.C. 3551, MAY NOT BE CREDITED WITH HIS MILITARY SERVICE IN DETERMINING THE ANNUAL LEAVE ACCRUAL CATEGORY IN WHICH HE SHOULD BE PLACED UPON REEMPLOYMENT, SECTION 3551 NOT PROVIDING THAT AN EMPLOYEE RESTORED TO DUTY WILL BE REGARDED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE FROM HIS CIVILIAN POSITION DURING A PERIOD OF MILITARY SERVICE, AND THE EMPLOYEE RESTORED TO HIS CIVILIAN POSITION AFTER NOVEMBER 30, 1964, IS NOT WITHIN THE PURVIEW OF 5 U.S.C. 6303 (A) (C), PRESCRIBING THAT A RETIRED MEMBER OF THE UNIFORMED SERVICES EMPLOYED IN A CIVILIAN POSITION ON NOVEMBER 30, 1964, WHO CONTINUES TO BE EMPLOYED WITHOUT A BREAK IN SERVICE OF MORE THAN 30 DAYS IS ENTITLED TO CREDIT FOR MILITARY SERVICE IN DETERMINING HIS ANNUAL LEAVE ACCRUAL CATEGORY.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, DECEMBER 19, 1966:

WE REFER TO YOUR LETTER OF NOVEMBER 22, 1966, CONCERNING THE RESTORATION RIGHTS OF AN EMPLOYEE WHO AS A MILITARY RESERVIST WAS CALLED TO ACTIVE MILITARY DUTY BEFORE NOVEMBER 30, 1964, AND WHO SUBSEQUENT TO SUCH DATE WAS RESTORED TO HIS CIVILIAN POSITION UNDER 5 U.S.C. 3551 (FORMERLY 5 U.S.C. 30R (B) ( AFTER MILITARY RETIREMENT BASED ON 20 YEARS OF SERVICE.

5 U.S.C. 3551 IS AS FOLLOWS:

AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, PERMANENT OR TEMPORARY INDEFINITE, WHO IS ORDERED TO ACTIVE DUTY OR TO DUTY UNDER SECTIONS 502-505 OF TITLE 32 AS A RESERVE OF THE ARMED FORCES OR MEMBER OF THE NATIONAL GUARD, IS ENTITLED, ON RELEASE FROM DUTY, TO BE RESTORED TO THE POSITION HELD WHEN ORDERED TO DUTY.

UPON REEMPLOYMENT IN A CIVILIAN POSITION FOLLOWING MILITARY RETIREMENT OF SUCH A RESERVIST THERE IS A QUESTION AS TO WHAT EXTENT HIS MILITARY SERVICE IS CREDITABLE IN DETERMINING HIS ANNUAL LEAVE ACCRUAL CATEGORY. IT IS UPON THIS QUESTION THAT YOU REQUEST A DECISION.

5 U.S.C. 6303 (A) RELATING TO ANNUAL LEAVE ACCRUAL CATEGORIES OF EMPLOYEES IS, IN PART, AS FOLLOWS:

* * * HOWEVER, AN EMPLOYEE WHO IS A RETIRED MEMBER OF A UNIFORMED SERVICE AS DEFINED BY SECTION 3501 OF THIS TITLE IS ENTITLED TO CREDIT FOR ACTIVE MILITARY SERVICE ONLY IF---

(C) ON NOVEMBER 30, 1964, HE WAS EMPLOYED IN A POSITION TO WHICH THIS SUBCHAPTER APPLIES AND THEREAFTER HE CONTINUED TO BE SO EMPLOYED WITHOUT A BREAK IN SERVICE OF MORE THAN 30 DAYS.

TO BE ENTITLED TO CREDIT FOR MILITARY SERVICE UNDER THE QUOTED CODE PROVISION AN INDIVIDUAL CLEARLY WOULD HAVE TO HAVE BEEN EMPLOYED ON NOVEMBER 30, 1964, IN A POSITION TO WHICH SUBCHAPTER I, CHAPTER 63, TITLE 5, U.S. CODE, APPLIES.

WITH RESPECT TO MATTERS WITHIN THE JURISDICTION OF THE CIVIL SERVICE COMMISSION, EXCEPT FOR RETIREMENT MATTERS WHICH ARE GOVERNED BY SPECIFIC STATUTORY PROVISIONS, YOU SAY THAT THE COMMISSION HAS TAKEN THE VIEW THAT WHENEVER AN EMPLOYEE IS RESTORED TO A CIVILIAN POSITION FOLLOWING MILITARY SERVICE UNDER A MANDATORY RESTORATION RIGHT HE IS TO BE REGARDED AS NOT HAVING BEEN SEPARATED FROM HIS CIVILIAN POSITION. YOU URGE THAT WE ADOPT THIS VIEW IN CONNECTION WITH OUR CONSTRUCTION OF 5 U.S.C. 6303 (A), QUOTED ABOVE, SO THAT A RESERVIST WHO WAS IN THE ACTIVE MILITARY SERVICE ON NOVEMBER 30, 1964, BUT WHO SUBSEQUENT TO THAT DATE WAS RETIRED FROM THE MILITARY SERVICE AND WAS RESTORED TO A CIVILIAN POSITION UNDER THE AUTHORITY OF 5 U.S.C. 3551 WOULD, AS OF NOVEMBER 30, 1964, BE REGARDED AS HAVING BEEN "EMPLOYED IN A POSITION TO WHICH THIS SUBCHAPTER APPLIES WITHIN THE MEANING OF SAID SECTION 6303 (A).'

WE UNDERSTAND THE QUESTION PRESENTED IS LIMITED TO EMPLOYEES WHO MUST RELY EXCLUSIVELY UPON 5 U.S.C. 3551 FOR THEIR RIGHTS TO RESTORATION.

WHILE THE RIGHT OF RESTORATION UNDER 5 U.S.C. 3551 IS NOT CONTINGENT UPON THE LENGTH OF TIME AN EMPLOYEE MAY REMAIN IN THE ACTIVE MILITARY SERVICE (43 COMP. GEN. 439; B-158925, APRIL 27, 1966, OUR VIEW IS THAT SUCH RIGHT IS NOTHING MORE THAN A BARE RIGHT TO BE RESTORED AND DOES NOT ENTITLE THE RESTORED EMPLOYEE TO BENEFITS COMPARABLE WITH THOSE GRANTED UNDER SECTION 9 OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, 50 U.S.C. APP. 459. SEE DECISION OF SEPTEMBER 27, 1966, B 159926; ALSO DECISION OF AUGUST 18, 1966, B-148404. COPIES OF THOSE DECISIONS ARE ENCLOSED. SECTION 9 SPECIFICALLY PROVIDES THAT AN EMPLOYEE RESTORED TO DUTY AFTER MILITARY SERVICE AND WITHIN THE PRESCRIBED TIME LIMITS WILL BE REGARDED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE FROM HIS CIVILIAN POSITION. HOWEVER, 5 U.S.C. 3551 CONTAINS NO PROVISION TO THAT EFFECT.

WE RECOGNIZE THAT IN ACCORDANCE WITH THE SPECIFIC STATUTORY AUTHORITY CONTAINED IN 5 U.S.C. 5335--- WHICH APPLIES IRRESPECTIVE OF WHETHER THE ENPLOYEE BE CONSIDERED ON FURLOUGH OR SEPARATED--- THE CIVIL SERVICE COMMISSION INDEPENDENTLY OF SECTION 9 OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT ALLOWS RESERVISTS AND MEMBERS OF THE NATIONAL GUARD, WHO ARE RESTORED TO CIVILIAN POSITIONS UNDER SECTION 3551, FULL CREDIT FOR STEP INCREASE PURPOSES FOR ALL PERIODS THEY WERE IN THE MILITARY SERVICE. HOWEVER, NO SIMILAR AUTHORITY EXISTS FOR CREDITING MILITARY SERVICE FOR ANNUAL LEAVE ACCRUAL PURPOSES WHERE AS HERE THE EMPLOYEE IS NOT REGARDED AS HAVING BEEN ON FURLOUGH OR ON LEAVE OF ABSENCE FROM HIS CIVILIAN POSITION DURING THE PERIOD OF MILITARY SERVICE.

IT FOLLOWS THAT THE MILITARY SERVICE OF AN INDIVIDUAL UNDER THE CIRCUMSTANCES HERE RELATED IS NOT CREDITABLE IN DETERMINING THE ANNUAL LEAVE ACCRUAL CATEGORY IN WHICH HE SHOULD BE PLACED UPON REEMPLOYMENT IN A CIVILIAN POSITION.