B-160648, FEBRUARY 6, 1967, 46 COMP. GEN. 661

B-160648: Feb 6, 1967

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POST OFFICE DEPARTMENT - EMPLOYEES - LEAVES OF ABSENCE - MILITARY - SUBSTITUTE EMPLOYEES A SUBSTITUTE EMPLOYEE OF THE POST OFFICE DEPARTMENT WHO HAD FORMERLY BEEN EMPLOYED AS A CIVILIAN BY THE DEPARTMENT OF THE ARMY IS ENTITLED TO CREDIT FOR THAT SERVICE IN DETERMINING HIS ENTITLEMENT TO MILITARY LEAVE WITH PAY. 5 U.S.C. 6323 (B) REQUIRING ONLY THAT A SUBSTITUTE EMPLOYEE SHALL HAVE . OR TEMPORARY INDEFINITE SERVICE THAT IS PERFORMED WITH ANOTHER GOVERNMENT AGENCY OR WITH THE POST OFFICE DEPARTMENT. IS TO BE USED IN DETERMINING THE ELIGIBILITY OF A SUBSTITUTE POSTAL EMPLOYEE TO MILITARY LEAVE AS WELL AS THE AMOUNT OF MILITARY LEAVE TO WHICH HE MAY BE ENTITLED. YOU REQUESTED OUR DECISION WHETHER A SUBSTITUTE EMPLOYEE OF THE POST OFFICE DEPARTMENT IS ENTITLED TO MILITARY LEAVE WITH PAY UNDER THE FOLLOWING FACTS AS QUOTED FROM YOUR LETTER.

B-160648, FEBRUARY 6, 1967, 46 COMP. GEN. 661

POST OFFICE DEPARTMENT - EMPLOYEES - LEAVES OF ABSENCE - MILITARY - SUBSTITUTE EMPLOYEES A SUBSTITUTE EMPLOYEE OF THE POST OFFICE DEPARTMENT WHO HAD FORMERLY BEEN EMPLOYED AS A CIVILIAN BY THE DEPARTMENT OF THE ARMY IS ENTITLED TO CREDIT FOR THAT SERVICE IN DETERMINING HIS ENTITLEMENT TO MILITARY LEAVE WITH PAY, 5 U.S.C. 6323 (B) REQUIRING ONLY THAT A SUBSTITUTE EMPLOYEE SHALL HAVE ,WORKED" AT LEAST 1,040 HOURS DURING THE PRECEDING CALENDAR YEAR TO BE ENTITLED TO MILITARY LEAVE OF ABSENCE. THEREFORE, ANY PERMANENT, OR TEMPORARY INDEFINITE SERVICE THAT IS PERFORMED WITH ANOTHER GOVERNMENT AGENCY OR WITH THE POST OFFICE DEPARTMENT, INCLUDING THE POSTAL FIELD SERVICE, IS TO BE USED IN DETERMINING THE ELIGIBILITY OF A SUBSTITUTE POSTAL EMPLOYEE TO MILITARY LEAVE AS WELL AS THE AMOUNT OF MILITARY LEAVE TO WHICH HE MAY BE ENTITLED.

TO THE POSTMASTER GENERAL, FEBRUARY 6, 1967:

BY LETTER DATED JANUARY 6, 1967, YOU REQUESTED OUR DECISION WHETHER A SUBSTITUTE EMPLOYEE OF THE POST OFFICE DEPARTMENT IS ENTITLED TO MILITARY LEAVE WITH PAY UNDER THE FOLLOWING FACTS AS QUOTED FROM YOUR LETTER.

MR. EDWARD J. FAUVEL WAS EMPLOYED AS A CAREER CIVILIAN EMPLOYEE BY THE DEPARTMENT OF THE ARMY AS A SMALL ARMS REPAIRER, WB 6610, GRADE 10, STEP 1, $2.82 PER HOUR FROM FEBRUARY 9, 1963, TO JULY 29, 1966. ON JULY 30, 1966, HE TRANSFERRED TO THE POST OFFICE DEPARTMENT AS A SUBSTITUTE CITY CARRIER UNDER A TEMPORARY APPOINTMENT WITHOUT TIME LIMIT.

MR. FAUVEL APPLIED FOR MILITARY LEAVE WITH PAY FOR THE PERIOD AUGUST 26, 1966 TO SEPTEMBER 10, 1966.

THE STATUTORY PROVISION PERTAINING TO MILITARY LEAVE FOR SUBSTITUTE EMPLOYEES IN THE POSTAL FIELD SERVICE FIRST APPEARED IN THE ACT OF JUNE 22, 1956, PUBLIC LAW 610, 84TH CONG., 70 STAT. 330, WHICH AMENDED THE ACT OF JULY 1, 1947, 61 STAT. 239, BY ADDING AT THE END THEREOF THE FOLLOWING NEW SENTENCE: THE WORDS "OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA," AS USED IN SUCH PROVISIONS OF LAW, AS NOW OR HEREAFTER AMENDED, ALSO SHALL BE CONSTRUED TO MEAN SUBSTITUTE EMPLOYEES IN THE POSTAL FIELD SERVICE; SUCH SUBSTITUTE EMPLOYEES SHALL BE ENTITLED TO MILITARY LEAVE OF ABSENCE ON THE BASIS OF ONE HOUR OF SUCH LEAVE FOR EACH PERIOD OR PERIODS AGGREGATING TWENTY-SIX HOURS OF WORK PERFORMED IN THE CALENDAR YEAR IMMEDIATELY PRECEDING THE YEAR IN WHICH THEY ARE ORDERED TO DUTY BY PROPER AUTHORITY: PROVIDED, THAT THE NUMBER OF HOURS WORKED DURING THE PRECEDING CALENDAR YEAR SHALL NOT BE LESS THAN ONE THOUSAND FORTY HOURS BEFORE SUCH SUBSTITUTE EMPLOYEE SHALL BE ENTITLED TO MILITARY LEAVE OF ABSENCE, PAY FOR SUCH LEAVE NOT TO EXCEED EIGHTY HOURS IN EACH CALENDAR YEAR.

THE ABOVE PROVISION HAS NOW BEEN CODIFIED IN 5 U.S.C. 6323 (B).

YOU POINT OUT THAT THE POST OFFICE DEPARTMENT HAS INTERPRETED THE ABOVE LANGUAGE TO MEAN THAT A SUBSTITUTE EMPLOYEE IS ENTITLED TO MILITARY LEAVE ONLY IF HE WERE IN A PAY STATUS IN THE POSTAL SERVICE A MINIMUM OF 1,040 HOURS DURING THE PRECEDING CALENDAR YEAR. IN THAT REGARD, SECTION 721.763 OF THE POSTAL MANUAL PROVIDES:

SUBSTITUTES. MILITARY LEAVE FOR A SUBSTITUTE IS COMPUTED ON THE BASIS OF 1 HOUR OF SUCH LEAVE FOR EACH PERIOD OR PERIODS AGGREGATING 26 HOURS IN A PAY STATUS IN THE CALENDAR YEAR IMMEDIATELY PRECEDING THE YEAR IN WHICH HE IS ORDERED TO DUTY BY PROPER AUTHORITY, PROVIDED: (A) THE SUBSTITUTE IS IN A PAY STATUS IN THE POSTAL SERVICE A MINIMUM OF 1,040 HOURS DURING THE PRECEDING CALENDAR YEAR AND (B) PAY FOR MILITARY LEAVE CANNOT EXCEED 80 HOURS IN EACH CALENDAR YEAR.

IN VIEW OF MR. FAUVEL'S CASE, YOU NOW QUESTION WHETHER YOUR DEPARTMENT'S INTERPRETATION OF THE ABOVE-QUOTED STATUTORY LANGUAGE IS CORRECT OR WHETHER AN EMPLOYEE, SUCH AS MR. FAUVEL, IS ENTITLED TO CREDIT FOR MILITARY LEAVE PURPOSES FOR OTHER GOVERNMENT SERVICE PERFORMED PRIOR TO HIS APPOINTMENT AS A SUBSTITUTE POSTAL EMPLOYEE.

THE STATUTORY LANGUAGE QUOTED ABOVE REQUIRES ONLY THAT A SUBSTITUTE EMPLOYEE SHALL HAVE WORKED" AT LEAST 1,040 HOURS DURING THE PRECEDING CALENDAR YEAR BEFORE HE SHALL BE ENTITLED TO MILITARY LEAVE OF ABSENCE. MOREOVER, THE LEGISLATIVE HISTORY OF PUBLIC LAW 610, 84TH CONG., FAILS TO CONCLUSIVELY ESTABLISH THAT IT WAS THE INTENT OF CONGRESS THAT SUCH WORK, I.E., THE 1,040 HOURS OR MORE, BE PERFORMED SOLELY IN THE POSTAL SERVICE.

THEREFORE, OUR OPINION IS THAT SERVICE, PERMANENT OR TEMPORARY INDEFINITE, PERFORMED WITH ANOTHER GOVERNMENT AGENCY OR WITH THE POST OFFICE DEPARTMENT, INCLUDING THE POSTAL FIELD SERVICE, IS TO BE USED IN DETERMINING THE ELIGIBILITY OF A SUBSTITUTE POSTAL EMPLOYEE TO MILITARY LEAVE AS WELL AS THE AMOUNT OF SUCH MILITARY LEAVE TO WHICH HE MAY BE ENTITLED. SEE 35 COMP. GEN. 5 CONCERNING THE CLASSES OF EMPLOYEES ENTITLED TO MILITARY LEAVE.