B-36228, AUGUST 11, 1943, 23 COMP. GEN. 92

B-36228, AUGUST 11, 1943, 23 COMP. GEN. 92

LEAVES OF ABSENCE - MILITARY - MEMBERS OF STATE DEFENSE ORGANIZATIONS MILITARY LEAVE OF ABSENCE WITH PAY, WHICH IS GRANTED CIVILIAN EMPLOYEES OF THE UNITED STATES UNDER SPECIFIC STATUTORY AUTHORITY FOR THE PURPOSE OF TRAINING IN THE NATIONAL GUARD, ETC., AS PROSPECTIVE MEMBERS OF THE ARMED FORCES OF THE UNITED STATES FOR ACTIVE DUTY, MAY NOT BE GRANTED MEMBERS OF A STATE DEFENSE ORGANIZATION CREATED UNDER AUTHORITY OF THE ACT OF AUGUST 18, 1941, WHICH PROHIBITS MEMBERS OF A STATE DEFENSE ORGANIZATION, CREATED DURING THE ABSENCE OF THE NATIONAL GUARD ON ACTIVE DUTY AS A PART OF THE ARMED FORCES OF THE UNITED STATES, FROM BEING CALLED INTO ACTIVE MILITARY SERVICE AS SUCH MEMBERS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, AUGUST 11, 1943:

I HAVE YOUR LETTER OF AUGUST 9, 1943, REF. JAF:J:HJM:AC, AS FOLLOWS:

THE NAVY DEPARTMENT IS IN RECEIPT OF AN INQUIRY FROM THE NAVY YARD, PHILADELPHIA, PENNSYLVANIA, AS TO WHETHER EMPLOYEES OF THE NAVY YARD WILL BE ENTITLED TO MILITARY LEAVE FOR THE PERIOD THEY ARE ORDERED TO ENGAGE IN TRAINING OR OTHER AUTHORIZED MANEUVERS AS MEMBERS OF THE PENNSYLVANIA RESERVE DEFENSE CORPS, AS WAS THE CASE WITH RESPECT TO EMPLOYEES WHO WERE FORMERLY MEMBERS OF THE PENNSYLVANIA NATIONAL GUARD. THE ACT OF THE PENNSYLVANIA LEGISLATURE UNDER WHICH THE PENNSYLVANIA RESERVE DEFENSE CORPS WAS ESTABLISHED IS ACT NO. 2, APPROVED MARCH 19, 1941 (1941 P.L. 3).

IT IS REQUESTED THAT A DECISION BE RENDERED IN THE PREMISES. IN VIEW OF THE FACT THAT EMPLOYEES HAVE BEEN ORDERED TO SUCH DUTY FOR ONE WEEK COMMENCING 14 AUGUST 1943, IT WILL BE APPRECIATED IF REPLY HERETO MAY BE EXPEDITED.

THE ACT OF AUGUST 18, 1941, 55 STAT. 628, PROVIDES AS FOLLOWS:

THAT SECTION 61 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, IS AMENDED TO READ AS FOLLOWS:

"SEC. 61. NO STATE OR TERRITORY NOR PUERTO RICO OR THE CANAL ZONE SHALL MAINTAIN TROOPS IN TIME OF PEACE OTHER THAN AS AUTHORIZED IN ACCORDANCE WITH THE ORGANIZATION PRESCRIBED UNDER THIS ACT: PROVIDED, THAT NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED AS LIMITING THE RIGHTS OF THE STATES AND TERRITORIES AND PUERTO RICO AND THE CANAL ZONE IN THE USE OF THE NATIONAL GUARD WITHIN THEIR RESPECTIVE BORDERS IN TIME OF PEACE: PROVIDED FURTHER, THAT NOTHING CONTAINED IN THIS ACT SHALL PREVENT THE ORGANIZATION AND MAINTENANCE OF STATE OR TERRITORIAL POLICE OR CONSTABULARY: PROVIDED FURTHER, THAT UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE FOR DISCIPLINE IN TRAINING, THE ORGANIZATION BY AND MAINTENANCE WITHIN ANY STATE OR TERRITORY OR PUERTO RICO OR THE CANAL ZONE OF SUCH MILITARY FORCES OTHER THAN NATIONAL GUARD AS MAY BE PROVIDED BY THE LAWS OF SUCH STATE OR TERRITORY IS HEREBY AUTHORIZED WHILE ANY PART OF OF THE NATIONAL GUARD OF THE STATE OR TERRITORY OR PUERTO RICO OR THE CANAL ZONE CONCERNED IS IN ACTIVE FEDERAL SERVICE: PROVIDED FURTHER, THAT SUCH FORCES SHALL NOT BE CALLED, ORDERED, OR IN ANY MANNER DRAFTED, AS SUCH, INTO THE MILITARY SERVICES OF THE UNITED STATES; HOWEVER, NO PERSON SHALL, BY REASON OF HIS MEMBERSHIP IN ANY SUCH UNIT, BE EXEMPTED FROM MILITARY SERVICE UNDER ANY FEDERAL LAW: AND PROVIDED FURTHER, THAT THE SECRETARY OF WAR IN HIS DISCRETION AND UNDER REGULATIONS DETERMINED BY HIM, IS AUTHORIZED TO ISSUE, FROM TIME TO TIME, FOR THE USE OF SUCH MILITARY UNITS, TO ANY STATE OR TERRITORY OR PUERTO RICO OR THE CANAL ZONE, UPON REQUISITION OF THE GOVERNOR THEREOF, SUCH ARMS AND EQUIPMENT AS MAY BE IN POSSESSION OF AND CAN BE SPARED BY THE WAR DEPARTMENT.'

SECTION 80 OF THE ACT OF JUNE 3, 1916, 39 STAT. 203, PROVIDES AS FOLLOWS:

LEAVES OF ABSENCE FOR CERTAIN GOVERNMENT EMPLOYEES.--- ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA WHO SHALL BE MEMBERS OF THE NATIONAL GUARD 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 ENGAGED IN FIELD OR COAST- DEFENSE TRAINING ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF THIS ACT. SEE, ALSO, THE ACT OF MAY 12, 1917, 40 STAT. 72, GRANTING MILITARY LEAVE OF ABSENCE TO "OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO SHALL BE MEMBERS OF THE OFFICERS' RESERVE CORPS," AND SECTION 9 OF THE ACT OF JUNE 25, 1939, 52 STAT. 1175, 1177, GRANTING MILITARY LEAVE TO "OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NAVAL RESERVE.'

MILITARY LEAVE OF ABSENCE WITH PAY IS GRANTED FOR THE PURPOSE OF TRAINING PROSPECTIVE MEMBERS OF THE ARMED FORCES OF THE UNITED STATES FOR ACTIVE DUTY. THE ACT OF AUGUST 18, 1941, SUPRA, PROHIBITS MEMBERS OF A STATE DEFENSE ORGANIZATION, CREATED IN THE ABSENCE OF THE NATIONAL GUARD, FROM BEING CALLED INTO ACTIVE SERVICE OF THE UNITED STATES AS SUCH MEMBERS. HENCE, IT MAY NOT BE INFERRED FROM ANY OF THE PROVISIONS OF THE ACT OF AUGUST 18, 1941, THAT THE CONGRESS INTENDED TO GRANT MILITARY LEAVE OF ABSENCE WITH PAY TO MEMBERS OF A STATE MILITARY ORGANIZATION OTHER THAN THE NATIONAL GUARD. NONE OF THE ABOVE-CITED FEDERAL STATUTES AUTHORIZING THE GRANTING OF MILITARY LEAVE OF ABSENCE WITH PAY FROM A CIVILIAN POSITION UNDER THE FEDERAL GOVERNMENT APPLIES TO OFFICERS OR EMPLOYEES WHO ARE MEMBERS OF A STATE ORGANIZATION CREATED BY STATE LAW FOR PURPOSES OF DEFENSE DURING THE PERIOD OF THE PRESENT WAR EMERGENCY, WHILE THE NATIONAL GUARD IS A PART OF THE ARMED FORCES OF THE UNITED STATES ON ACTIVE DUTY. NOR HAS ANY OTHER PROVISION OF LAW OR REGULATIONS HAVING THE FORCE AND EFFECT OF LAW BEEN CALLED TO MY ATTENTION WHICH MAY BE REGARDED AS AUTHORIZING THE GRANTING OF MILITARY LEAVE OF ABSENCE WITH PAY UNDER SUCH CIRCUMSTANCES.