B-198929.OM, FEB 25, 1981

B-198929.OM, FEB 25, 1981

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

HEREWITH ARE THREE FILES RELATING TO REQUESTS FOR WAIVER UNDER THE PROVISIONS OF 5 U.S.C. 5584 OF ERRONEOUS PAYMENTS FOR ANNUAL LEAVE. QUESTION HAS ARISEN CONCERNING THE DEFINITION OF "MILITARY AID TO ENFORCE THE LAW," AS IT PERTAINS TO THE PROVISIONS OF 5 U.S.C. 6323(C).

THE RECORD SHOWS THAT ON FEBRUARY 4, 1979, THE GOVERNOR OF MONTANA CALLED SEVERAL STATE NATIONAL GUARD UNITS TO STATE ACTIVE DUTY FOR THE PURPOSES OF PROVIDING EMERGENCY SUPPORT SERVICES TO THREE MONTANA STATE INSTITUTIONS AFFECTED BY EMPLOYEE STRIKES. THESE INSTITUTIONS WERE THE MONTANA STATE PRISON AT DEER LODGE, THE MONTANA BOULDER RIVER SCHOOL FOR THE MENTALLY HANDICAPPED AT BOULDER, AND THE MONTANA STATE MENTAL INSTITUTION AT GALEN.

PHILLIP RHODES, RICHARD MASSENGALE AND NORMAN CASMAN, THREE EMPLOYEES OF THE VETERANS ADMINISTRATION MEDICAL AND REGIONAL OFFICE CENTER AT FORT HARRISON, MONTANA, WERE AMONG THE NATIONAL GUARD TECHNICIANS CALLED TO STATE ACTIVE DUTY. MR. RHODES SERVED ON DUTY FROM FEBRUARY 13 THROUGH MARCH 2, 1979, AT THE MONTANA BOULDER RIVER SCHOOL. MR. MASSENGALE SERVED FROM MARCH 3 THROUGH MARCH 14, 1979, AT THE MONTANA STATE PRISON, AND MR. CASMAN SERVED FROM FEBRUARY 4 THROUGH FEBRUARY 13, 1979, ALSO AT THE MONTANA STATE PRISON. DURING THESE PERIODS MR. RHODES, MR. MASSENGALE, AND MR. CASMAN PERFORMED DUTIES THE STRIKING EMPLOYEES NORMALLY WOULD HAVE PERFORMED.

INITIALLY THE VETERANS ADMINISTRATION DETERMINED THAT THE SERVICES THE TECHNICIANS PROVIDED WHILE ON STATE ACTIVE DUTY COULD NOT BE CONSIDERED "MILITARY AID TO ENFORCE THE LAW," AND THEREFORE, THEY GRANTED THE EMPLOYEES ANNUAL LEAVE FOR THE PERIOD OF THEIR SERVICE WITH THE STATE NATIONAL GUARD AND PAID THE EMPLOYEES FOR THIS ANNUAL LEAVE. SUBSEQUENTLY, HOWEVER, THE VETERANS ADMINISTRATION DETERMINED THAT THE SERVICE THE TECHNICIANS PROVIDED WAS FOR THE PURPOSES OF LAW ENFORCEMENT. CONSEQUENTLY, SINCE NONE OF THE EMPLOYEES HAD EXHAUSTED HIS 22 DAY LAW ENFORCEMENT LEAVE ENTITLEMENT, THE VETERANS ADMINISTRATION DETERMINED THAT THE EMPLOYEES MUST CHARGE THEIR ABSENCES TO THE LAW ENFORCEMENT LEAVE PROVIDED UNDER THE PROVISIONS OF 5 U.S.C. 6323(C), AND THAT THE PAYMENTS THE EMPLOYEES RECEIVED FOR ANNUAL LEAVE WERE ERRONEOUS. THE EMPLOYEES HAVE NOW APPEALED THE VETERANS ADMINISTRATION'S DETERMINATIONS.

IN 49 COMP.GEN. 233 WE HELD THAT IF A TECHNICIAN CALLED TO STATE ACTIVE DUTY HAD NOT EXHAUSTED THE 22 DAYS OF LAW ENFORCEMENT LEAVE PROVIDED UNDER 5 U.S.C. 6323(C), HIS ABSENCE MUST BE CHARGED TO LAW ENFORCEMENT LEAVE. IN THAT DECISION WE ALSO HELD THAT A TECHNICIAN COULD NOT CHARGE SUCH AN ABSENCE TO ANNUAL LEAVE UNLESS HE HAD USED 22 DAYS OF LAW ENFORCEMENT LEAVE DURING THE LEAVE YEAR. IN VIEW OF THIS, IT APPEARS THAT THE VETERANS ADMINISTRATION'S ACTION TO CHARGE THE TECHNICIANS WITH LAW ENFORCEMENT LEAVE, RATHER THAN ANNUAL LEAVE, IS APPROPRIATE, IF THE SERVICES THE TECHNICIANS PROVIDED CAN BE CONSIDERED TO HAVE BEEN FOR THE PURPOSES OF ENFORCING THE LAW.

IN 49 COMP GEN. 233, WE HELD THAT SERVICES PERFORMED FOR THE PURPOSES OF MAINTAINING ORDER DURING CIVIL DISORDERS, INCLUDING CIVIL DISORDERS ARISING FROM NATURAL DISASTERS DID FALL WITHIN THE DEFINITION OF "MILITARY AID TO ENFORCE THE LAW." IN B-168117, NOVEMBER 6, 1969, WE EXTENDED THIS DEFINITION TO INCLUDE SERVICES FOR THE PURPOSE OF ALLEVIATING THE RESULTS OF DISASTER. HOWEVER, THE DISASTERS IN THESE PARTICULAR INSTANCES WERE NATURAL DISASTERS SUCH AS FLOODS OR HURRICANES. THEREFORE, THE QUESTION ARISES AS TO WHETHER AN EMPLOYEE STRIKE AT A STATE INSTITUTION CONSTITUTES A DISASTER, AND, IF SO, CAN THE DUTIES TECHNICIANS PERFORM WHEN CALLED TO REPLACE STRIKING EMPLOYEES BE CONSIDERED "MILITARY AID TO ENFORCE THE LAW"?

IF THE ANSWERS TO THESE QUESTIONS ARE AFFIRMATIVE, WE UNDERSTAND THAT THE PAYMENTS THE THREE EMPLOYEES RECEIVED WERE ERRONEOUS AND, THEREFORE, WE WILL BE ABLE TO CONSIDER THEIR REQUESTS FOR WAIVER UNDER THE PROVISIONS OF 5 U.S.C. 5584.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED. YOUR SUBMISSION RAISES SEVERAL QUESTIONS CONCERNING PAY ADMINISTRATION OF THESE EMPLOYEES. WAS THE DUTY PERFORMED BY THE EMPLOYEES AS NATIONAL GUARD MEMBERS PROPERLY CLASSIFIED AS LEAVE UNDER 5 U.S.C. 5323(C) (NOW 5 U.S.C. 6323(B))? ARE THE EMPLOYEES ENTITLED TO RETAIN THE PAY RECEIVED FROM THE NATIONAL GUARD WITHOUT AN ADJUSTMENT TO THEIR CIVILIAN COMPENSATION AS REQUIRED BY 5 U.S.C. 5519? MAY THE EMPLOYEES ELECT TO USE ANNUAL LEAVE WHEN THEY HAVE NOT EXHAUSTED THEIR LEAVE ENTITLEMENT UNDER 5 U.S.C. 6323(C)? LASTLY, ARE THERE ERRONEOUS PAYMENTS INVOLVED HERE WHICH MAY BE CONSIDERED FOR WAIVER UNDER 5 U.S.C. 5584?

IT IS OUR VIEW THAT THE LEAVE WAS PROPERLY CLASSIFIED BY THE VETERANS ADMINISTRATION AS LEAVE UNDER 5 U.S.C. 6323(C) AND AS A RESULT THE EMPLOYEES' CLAIMS FOR ANNUAL LEAVE SUBSTITUTION AND RETENTION OF THE NATIONAL GUARD PAY WITHOUT ADJUSTMENT AS REQUIRED BY 5 U.S.C. 5519, MUST BE DENIED. FURTHER, ALTHOUGH THE SUBMISSION INDICATES ANNUAL LEAVE WAS CHARGED NO ERRONEOUS PAYMENTS WERE MADE, SINCE THE RECORD SHOWS THAT THE EMPLOYEES WERE NOT CHARGED ANNUAL LEAVE. THUS, IT IS NOT A MATTER FOR WAIVER CONSIDERATION UNDER 5 U.S.C. 5584.

IN DETERMINING WHETHER THE DUTIES PERFORMED BY A FEDERAL EMPLOYEE WHILE ON STATE ACTIVE DUTY AS A MEMBER OF THE NATIONAL GUARD ARE WITHIN THE DEFINITION OF THE TERM "MILITARY AID TO ENFORCE THE LAW" AS PROVIDED FOR IN 5 U.S.C. 6323(C) WE HAVE PRIMARILY RELIED ON THE WORDING OF THE MILITARY ORDERS ISSUED AND THE NATURE OF THE DUTIES EXPRESSED IN THOSE ORDERS. SEE 50 COMP.GEN. 154 (1970) AND 49 COMP.GEN. 233, 240 (1969).

IN THE PRESENT SITUATION, THE EMPLOYEES INVOLVED WERE CALLED INTO THE ACTIVE MILITARY SERVICE OF MONTANA FOR THE PURPOSE OF "PROVIDING EMERGENCY SUPPORT TO MONTANA STATE INSTITUTIONS AFFECTED BY EMPLOYEE STRIKES." ACCORDANCE WITH THE TERMS OF THE MILITARY ORDERS THE EMPLOYEES CARRIED OUT CIVILIAN DUTIES USUALLY PERFORMED BY THE STRIKING EMPLOYEES.

THE GOVERNOR OF MONTANA ISSUED THE ORDERS UNDER THE AUTHORITY OF ARTICLE VI, SECTION 13, OF THE CONSTITUTION OF THE STATE OF MONTANA, AND A DECLARATION OF STATE OF EMERGENCY SIGNED BY HIM ON FEBRUARY 4, 1979. ARTICLE VI, SECTION 13, OF THE MONTANA STATE CONSTITUTION PROVIDES AS FOLLOWS:

"THE GOVERNOR IS COMMANDER-IN-CHIEF OF THE MILITIA FORCES OF THE STATE, EXCEPT WHEN THEY ARE IN THE ACTUAL SERVICE OF THE UNITED STATES. HE MAY CALL OUT ANY PART OR ALL OF THE FORCES TO AID IN THE EXECUTION OF THE LAWS, SUPPRESS INSURRECTION, REPEL INVASION, OR PROTECT LIFE AND PROPERTY IN NATURAL DISASTERS."

SINCE THE ORDERS STATED THAT THE NATIONAL GUARD WAS TO "PROVIDE EMERGENCY SUPPORT" IT APPEARS, FROM THE AUTHORITY GRANTED TO THE GOVERNOR BY THE STATE CONSTITUTION, THAT THE NATIONAL GUARD WAS CALLED TO PERFORM THESE DUTIES IN ORDER TO AID IN THE EXECUTION OF THE LAWS RELATING TO MONTANA STATE INSTITUTIONS. IT SHOULD BE NOTED THAT THE AFFECTED STATE INSTITUTIONS ARE SPECIFICALLY PROVIDED FOR AND MAINTAINED PURSUANT TO STATE LAW. SEE: MONT. REV. CODES ANN. TITLE 80, VOLUME 5, PART 1 (1977 CUM. SUPP.).

IN A SITUATION SIMILAR TO THE ONE AT HAND WE NOTED THAT THE TERM "TO ENFORCE A LAW" MAY MEAN "TO GIVE EFFECT TO, TO CAUSE TO HAVE FORCE" AND DOES NOT NECESSARILY MEAN TO CAUSE AN ARREST AND TO ENFORCE BY ACTUAL FORCE AND PUNISHMENT. 50 COMP.GEN. 154, SUPRA, CITING MERIDIAN LIMITED V. SIPPY, 128 P. 2D 884, 888 (CAL. APP. 3D, 1942). ALSO, THE TERM "LAW ENFORCEMENT" IS NOT LIMITED TO ENFORCEMENT OF THE CRIMINAL LAW. BRISTOL MEYERS CO. V. F.T.C., 284 F. SUPP. 745, 747 (D.D.C. 1968).

THUS, THE RECORD INDICATES THAT THE MILITARY SERVICE IN QUESTION WAS PERFORMED TO GIVE FORCE AND EFFECT TO THE LAWS RELATING TO THE MONTANA STATE INSTITUTIONS AFFECTED BY EMPLOYEE STRIKES. THE FACT THAT ALL THE NATIONAL GUARD MEMBERS DID NOT PERFORM SPECIFIC DUTIES OF A MILITARY OR POLICE CHARACTER DOES NOT ALTER THE PURPOSE BEHIND THE NATIONAL GUARD BEING CALLED. SEE GENERALLY 50 COMP.GEN. 154, SUPRA. IN VIEW OF THIS, THE VETERANS ADMINISTRATION'S DETERMINATION THAT THE MILITARY SERVICE PERFORMED BY THE EMPLOYEES INVOLVED WAS MILITARY AID TO ENFORCE THE LAW APPEARS TO BE CORRECT.

THEREFORE, SINCE THE EMPLOYEES ARE CONSIDERED TO HAVE PERFORMED MILITARY AID TO ENFORCE THE LAW THEY MUST BE CHARGED LEAVE UNDER THE PROVISIONS OF 5 U.S.C. 6323(C), WITHOUT AN OPTION TO USE ANNUAL LEAVE IF THEY HAVE NOT EXHAUSTED SUCH LEAVE AND THEIR PAY SHOULD BE ADJUSTED AS PROVIDED IN 5 U.S.C. 5519. SEE 49 COMP.GEN. 233, 236-237, 243 (1969).

ACCORDINGLY, IT IS OUR VIEW THAT THE CLAIMS OF THE INVOLVED EMPLOYEES TO RETAIN THE PAY RECEIVED FROM THE NATIONAL GUARD WITHOUT AN ADJUSTMENT OF THEIR CIVILIAN PAY REQUIRED BY 5 U.S.C. 5519, MUST BE DENIED.

IN ADDITION, WHILE THE SUBMISSION STATES THERE WAS A CHARGE TO ANNUAL LEAVE, THE RECORD SHOWS THAT NO ANNUAL LEAVE WAS GRANTED OR USED. THUS, NO ERRONEOUS PAYMENTS HAVE OCCURRED WHICH MAY BE CONSIDERED FOR WAIVER UNDER 5 U.S.C. 5584. THESE CLAIMS ARE MERELY TO RETAIN NATIONAL GUARD PAY WHICH MUST BE ADJUSTED AGAINST CIVILIAN PAY AS REQUIRED BY 5 U.S.C. 5519.

DIGEST

1. FEDERAL EMPLOYEES WERE CALLED TO STATE ACTIVE DUTY AS MEMBERS OF THE NATIONAL GUARD. PURPOSE OF THE CALL WAS TO PROVIDE EMERGENCY SUPPORT TO STATE INSTITUTIONS AFFECTED BY EMPLOYEE STRIKES. THE DUTIES PERFORMED ARE CONSIDERED MILITARY AID TO ENFORCE THE LAW WITHIN THE MEANING OF 5 U.S.C. 6323(C) (NOW 5 U.S.C. 6323(B)), AS THE MILITARY SERVICE WAS PERFORMED TO GIVE FORCE AND EFFECT TO THE LAWS RELATING TO THE STATE INSTITUTIONS WHICH ARE PROVIDED FOR AND MAINTAINED UNDER STATE LAW.