B-166993, JUN. 18, 1969

B-166993: Jun 18, 1969

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KELLEY WAS EMPLOYED BY THE INTERSTATE COMMERCE COMMISSION AS AN ATTORNEY ADVISER. HE WAS PLACED ON LEAVE WITHOUT PAY INCIDENT TO HOSPITALIZATION. HIS LEAVE WITHOUT PAY WAS EXTENDED BEYOND THE PERIOD HE WAS INCAPACITATED FOR WORK BECAUSE HE WAS IN THE CARE OF A PHYSICIAN OUTSIDE OF THE AREA OF HIS OFFICIAL STATION. APPARENTLY HE WAS UNABLE TO RETURN TO WASHINGTON AND RESUME HIS DUTIES WITH THE COMMISSION PRIOR TO SUCH REPORTING DATE. WE HELD THAT AN EMPLOYEE OTHERWISE ENTITLED TO MILITARY LEAVE MAY BE GRANTED SUCH LEAVE EVEN THOUGH HE WAS IN A LEAVE-WITHOUT-PAY STATUS JUST PRIOR TO ENTRY INTO MILITARY SERVICE IF UNDER THE FACTS OF THE CASE IT MAY BE DETERMINED THAT HE WOULD HAVE BEEN IN A CIVILIAN PAY STATUS DURING THE FIRST 15 DAYS OF HIS MILITARY SERVICE BUT FOR THE REQUIREMENT THAT HE PERFORM SUCH MILITARY SERVICE.

B-166993, JUN. 18, 1969

TO MRS. MARGUERITE B. CASEY:

WE REFER TO YOUR LETTER OF MAY 16, 1969, YOUR REFERENCE MDB, CONCERNING THE ENTITLEMENT OF MR. JOSEPH E. KELLEY III, TO PAY FOR MILITARY LEAVE FOR 15 DAYS UNDER THE PROVISIONS OF 5 U.S.C. 6323, SUBSEQUENT TO HIS ENTRY IN MILITARY SERVICE ON APRIL 7, 1969, FOR AN EXTENDED PERIOD OF ACTIVE SERVICE.

MR. KELLEY WAS EMPLOYED BY THE INTERSTATE COMMERCE COMMISSION AS AN ATTORNEY ADVISER. ON FEBRUARY 13, 1969, HE WAS PLACED ON LEAVE WITHOUT PAY INCIDENT TO HOSPITALIZATION, SURGERY AND POST OPERATIVE CARE, HAVING EXHAUSTED OR NEARLY EXHAUSTED HIS SICK AND ANNUAL LEAVE. APPARENTLY, HIS LEAVE WITHOUT PAY WAS EXTENDED BEYOND THE PERIOD HE WAS INCAPACITATED FOR WORK BECAUSE HE WAS IN THE CARE OF A PHYSICIAN OUTSIDE OF THE AREA OF HIS OFFICIAL STATION, WASHINGTON, D.C. DURING HIS PERIOD OF LEAVE WITHOUT PAY, HE RECEIVED ORDERS TO ACTIVE MILITARY DUTY AS A RESERVE OFFICER IN THE ARMY JUDGE ADVOCATE GENERAL'S CORPS WHICH HAD AN EFFECTIVE DATE OF APRIL 7, 1969. APPARENTLY HE WAS UNABLE TO RETURN TO WASHINGTON AND RESUME HIS DUTIES WITH THE COMMISSION PRIOR TO SUCH REPORTING DATE.

IN THE DECISION 37 COMP. GEN. 608, WE HELD THAT AN EMPLOYEE OTHERWISE ENTITLED TO MILITARY LEAVE MAY BE GRANTED SUCH LEAVE EVEN THOUGH HE WAS IN A LEAVE-WITHOUT-PAY STATUS JUST PRIOR TO ENTRY INTO MILITARY SERVICE IF UNDER THE FACTS OF THE CASE IT MAY BE DETERMINED THAT HE WOULD HAVE BEEN IN A CIVILIAN PAY STATUS DURING THE FIRST 15 DAYS OF HIS MILITARY SERVICE BUT FOR THE REQUIREMENT THAT HE PERFORM SUCH MILITARY SERVICE. FROM THE FACTS AND DOCUMENTS PRESENTED, IT APPEARS THAT MR. KELLEY WOULD HAVE RETURNED TO WORK WITH THE COMMISSION ON OR ABOUT APRIL 7 HAD HE NOT BEEN REQUIRED TO REPORT FOR MILITARY DUTY ON THAT DATE.

ACCORDINGLY, WE BELIEVE THAT UNDER THE PROVISIONS OF 5 U.S.C. 6323 YOU MAY PROPERLY PAY MR. KELLEY FOR MILITARY LEAVE INCIDENT TO HIS ENTRY ON ACTIVE MILITARY DUTY ON APRIL 7, 1969.