B-68279, AUGUST 11, 1947, 27 COMP. GEN. 78

B-68279: Aug 11, 1947

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UPON THE AMOUNT OF MILITARY LEAVE WITH PAY WHICH MAY BE GRANTED TO CIVILIAN EMPLOYEES WHO ARE ALSO MEMBERS OF THE NATIONAL GUARD. HAS NO APPLICATION TO EMPLOYEE- MEMBERS OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA WHO ARE ENTITLED UNDER THE ACT OF MARCH 1. WHO PREVIOUSLY WERE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY. ARE NOT NOW ENTITLED TO SUCH LEAVE OF ABSENCE BY VIRTUE OF THE PROVISION IN SECTION 4 OF THE ACT OF JULY 1. 1947: I HAVE YOUR LETTER OF JULY 22. LIMITS TO 15 DAYS IN ANY ONE CALENDAR YEAR THE AMOUNT OF TIME ALLOWABLE TO MEMBERS OF THE NATIONAL GUARD WHO ARE EMPLOYEES OF THE UNITED STATES GOVERNMENT OR THE DISTRICT OF COLUMBIA AND WHO ARE ORDERED TO DUTY BY PROPER AUTHORITY.

B-68279, AUGUST 11, 1947, 27 COMP. GEN. 78

LEAVES OF ABSENCE - MILITARY - APPLICABILITY OF TIME LIMITATION TO DUTY WITH DISTRICT OF COLUMBIA NATIONAL GUARD; ENTITLEMENT OF SUBSTITUTE POSTAL EMPLOYEES TO MILITARY LEAVE THE 15-DAY LIMIT PRESCRIBED BY SECTION 2 OF THE ACT OF JULY 1, 1947, AMENDING SECTION 80 OF THE NATIONAL DEFENSE ACT OF 1916, UPON THE AMOUNT OF MILITARY LEAVE WITH PAY WHICH MAY BE GRANTED TO CIVILIAN EMPLOYEES WHO ARE ALSO MEMBERS OF THE NATIONAL GUARD, HAS NO APPLICATION TO EMPLOYEE- MEMBERS OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA WHO ARE ENTITLED UNDER THE ACT OF MARCH 1, 1889, TO MILITARY LEAVE WITH PAY, WITHOUT TIME LIMITATION, WHEN ORDERED BY THE COMMANDING GENERAL TO ACTIVE DUTY IN CONNECTION WITH PARADES OR ENCAMPMENTS. CLASSIFIED SUBSTITUTE EMPLOYEES OF THE POSTAL SERVICE, WHO PREVIOUSLY WERE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY, ARE NOT NOW ENTITLED TO SUCH LEAVE OF ABSENCE BY VIRTUE OF THE PROVISION IN SECTION 4 OF THE ACT OF JULY 1, 1947, INCLUDING TEMPORARY INDEFINITE EMPLOYEES IN THE CLASS OF EMPLOYEES ENTITLED TO MILITARY LEAVE WITH PAY.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, AUGUST 11, 1947:

I HAVE YOUR LETTER OF JULY 22, 1947 (REFERENCE 15), AS FOLLOWS:

SECTION 2, PUBLIC LAW 153, APPROVED JULY 1, 1947, AMENDING EXISTING LAWS RELATING TO MILITARY LEAVE OF CERTAIN EMPLOYEES OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA SO AS TO EQUALIZE RIGHTS TO LEAVE OF ABSENCE AND RE-EMPLOYMENT OF SUCH EMPLOYEES, LIMITS TO 15 DAYS IN ANY ONE CALENDAR YEAR THE AMOUNT OF TIME ALLOWABLE TO MEMBERS OF THE NATIONAL GUARD WHO ARE EMPLOYEES OF THE UNITED STATES GOVERNMENT OR THE DISTRICT OF COLUMBIA AND WHO ARE ORDERED TO DUTY BY PROPER AUTHORITY. THIS IS AN AMENDMENT TO SECTION 80 OF THE ACT OF JUNE 3, 1916, (39 STAT. 203; 32 U.S.C. 75). THE DISTRICT CODE 20-1493, 1889, MARCH 1 (25 STAT. 779) PROVIDES THAT OFFICERS AND EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NATIONAL GUARD (OF THE DISTRICT OF COLUMBIA) SHALL BE ENTITLED TO LEAVE OF ABSENCE ON ALL DAYS OF ANY PARADE OR ENCAMPMENT ORDERED BY THE COMMANDING GENERAL. A DECISION IS REQUESTED AS TO WHETHER THE LIMITATION OF 15 DAYS' LEAVE OF ABSENCE PROVIDED FOR IN SECTION 2 OF PUBLIC LAW 153 IS APPLICABLE TO MEMBERS OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA WHO ARE CALLED UPON TO PARTICIPATE IN PARADES AND OTHER NATIONAL GUARD ACTIVITIES AT INTERVALS.

SECTION 4 OF THE ABOVE ACT READS AS FOLLOWS:

"THE WORDS "OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA" AS USED IN THE THIRD PARAGRAPH SUBHEADING " ORDNANCE STORES AND EQUIPMENT FOR RESERVE OFFICERS' TRAINING CORPS" OF THE ACT OF MAY 12, 1917 (40 STAT. 72; 10 U.S.C. ANNOTATED 371), AS NOW OR HEREAFTER AMENDED, AS USED IN THAT PART OF SECTION 80 OF THE ACT OF JUNE 3, 1916 (39 STAT. 203; 32 U.S.C. 75), AS NOW OR HEREAFTER AMENDED, WHICH PRECEDES THE PROVISO, AND AS USED IN THE FIRST PROVISO OF SECTION 9 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1177; 34 U.S.C. ANNOTATED 853G), AS NOW OR HEREAFTER AMENDED, SHALL BE CONSTRUED TO MEAN ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, PERMANENT OR TEMPORARY INDEFINITE, WITHOUT REGARD TO CLASSIFICATIONS OR TERMINOLOGY PECULIAR TO THE FEDERAL CIVIL SERVICE SYSTEM.'

THE HOUSE OF REPRESENTATIVES REPORT ON THIS BILL STATES THAT:

"THE OBJECT IN INSERTING THE WORD "INDEFINITE" FOLLOWING THE WORD "TEMPORARY" IN THE THIRD LINE FROM THE BOTTOM OF SECTION 4, IS TO CLARIFY THE RIGHT TO MILITARY LEAVE OF 15 DAYS PER YEAR AND TO PRECLUDE THE EXTENSION OF THIS RIGHT TO PART-TIME EMPLOYEES. IT IS NOT INTENDED IN THIS LEGISLATION TO GIVE THE RIGHT OF MILITARY LEAVE TO PART-TIME OR INTERMITTENT EMPLOYEES WHOSE EMPLOYMENT IS LIMITED TO A BRIEF PERIOD OF TIME. IF THIS PROVISION WERE TO BE CONSTRUED TO GIVE PART-TIME AND INTERMITTENT EMPLOYEES A RIGHT TO A 15-DAY MILITARY LEAVE DURING THAT PERIOD OF PART-TIME EMPLOYMENT, THE APPROPRIATIONS AND FUNDS AVAILABLE FOR DOING THAT SMALL PIECE OF PART-TIME WORK WOULD NEVER BE ADEQUATE, AND IT IS NOT CONTEMPLATED BY EITHER THE WAR OR NAVY DEPARTMENT TO GIVE PART-TIME OR INTERMITTENT EMPLOYEES A RIGHT TO 15 DAYS' ANNUAL LEAVE WITH PAY. THE INSERTION OF THE WORD "INDEFINITE" MEETS THE COMPTROLLER GENERAL'S OBJECTION IN THIS SPECT.'

IN THE SENATE REPORT IT IS STATED THAT:

"THIS BILL CLARIFIES WHICH TYPE OF EMPLOYEES ARE ENTITLED TO MILITARY LEAVE. IN THE PAST, TEMPORARY INDEFINITE EMPLOYEES, WHO MIGHT WORK FOR MANY YEARS FOR THE GOVERNMENT, WERE NOT ENTITLED TO SUCH LEAVE. THIS BILL PERMITS PERMANENT AND TEMPORARY INDEFINITE EMPLOYEES TO RECEIVE MILITARY LEAVE. IT EXCLUDES, HOWEVER, THE PURELY TEMPORARY EMPLOYEES, WHO ARE THOSE EMPLOYED FOR A DEFINITE TOUR OF DUTY FOR PERIODS OF LESS THAN 1 YEAR, AND PART-TIME OR INTERMITTENT EMPLOYEES.'

A DECISION IS REQUESTED AS TO WHETHER UNDER THE ABOVE PROVISIONS CLASSIFIED SUBSTITUTE EMPLOYEES OF THE POSTAL SERVICE WHO ARE PAID ON AN HOURLY BASIS AND DO NOT IN ALL INSTANCES PERFORM FULL EIGHT HOURS' WORK EVERY DAY OR 40 HOURS' WORK EVERY WEEK ARE TO BE GRANTED MILITARY LEAVE WITH PAY AND ENTITLED TO THE RESTORATION RIGHTS AND OTHER PRIVILEGES ESTABLISHED BY THE ACT.

IN 19 COMP. GEN. 687, THE EFFECT OF THE RESPECTIVE STATUTES RELATIVE TO MILITARY LEAVE OF ABSENCE FOR MEMBERS OF THE NATIONAL GUARD WAS STATED AS FOLLOWS (QUOTING FROM THE SYLLABUS):

SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 203, ALLOWS MILITARY LEAVE WITH PAY TO CIVILIAN OFFICERS AND EMPLOYEES WHO ARE MEMBERS OF THE NATIONAL GUARD ON "ALL DAYS DURING WHICH THEY SHALL BE ENGAGED IN FIELD OR COAST-DEFENSE TRAINING ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF THIS ACT," AND THERE IS NO LIMIT ON THE NUMBER OF DAYS OF SUCH LEAVE WHICH MAY BE GRANTED FOR THE SPECIFIED PURPOSES. STATUTES AUTHORIZING MILITARY LEAVE FOR CIVILIAN OFFICERS AND EMPLOYEES ORDERED TO ACTIVE DUTY AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY, OR AS MEMBERS OF THE NAVAL RESERVE, AND LIMITING SUCH LEAVE TO 15 DAYS IN ANY 1 CALENDAR YEAR, DISTINGUISHED.

THERE IS NO LIMIT ON THE NUMBER OF DAYS MILITARY LEAVE WITH PAY WHICH MAY BE GRANTED CIVILIAN OFFICERS AND EMPLOYEES WHO ARE MEMBERS OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA WHEN ORDERED TO ACTIVE DUTY OF THE KIND FOR WHICH SUCH LEAVE IS AUTHORIZED UNDER THE ACT OF MARCH 1, 1899, AS AMENDED (APPLICABLE EXCLUSIVELY TO DISTRICT OF COLUMBIA NATIONAL GUARD), OR WHEN ORDERED TO ENGAGE IN THE "FIELD OR COAST-DEFENSE TRAINING" SPECIFIED UNDER SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 203 (APPLICABLE TO THE NATIONAL GUARD THROUGHOUT THE COUNTRY).

SECTION 2 OF THE ACT OF JULY 1, 1947, PUBLIC LAW 153, 61 STAT. 239, AMENDS SECTION 80 OF THE NATIONAL GUARD ACT OF JUNE 3, 1916, BY PLACING A 15-DAY LIMIT UPON THE LEAVE WHICH MAY BE GRANTED UNDER THAT ACT TO CIVILIAN EMPLOYEES FOR NATIONAL GUARD PURPOSES. HOWEVER, IT DOES NOT AMEND, OR IN ANY WAY CHANGE, THE ACT OF MARCH 1, 1889, 25 STAT. 779, RELATING SPECIFICALLY TO MEMBERS OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA AND, ACCORDINGLY, THE 15-DAY LIMIT HAS NO APPLICATION TO MEMBERS OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA.

IN 3 COMP. GEN. 112, IT WAS HELD (QUOTING FROM THE SYLLABUS):

SUBSTITUTE RAILWAY POSTAL EMPLOYEES ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY FOR THE PURPOSE OF ATTENDING RESERVE OFFICERS' TRAINING CAMPS OR NATIONAL GUARD TRAINING CAMPS.

AFTER THE PASSAGE OF THE ACT OF JULY 18, 1939, 53 STAT. 1062, GRANTING ANNUAL AND SICK LEAVE TO SUBSTITUTE POSTAL EMPLOYEES, THEIR RIGHT TO MILITARY LEAVE AGAIN WAS PRESENTED TO THIS OFFICE FOR CONSIDERATION, AND IN 19 COMP. GEN. 177, PAGE 182, IT WAS HELD:

* * * THERE IS NOTHING IN THE ACT EXPRESSED OR IMPLIED WHICH REASONABLY MAY BE CONSTRUED AS GRANTING MILITARY LEAVE OF ABSENCE WITH PAY TO SUBSTITUTE POSTAL EMPLOYEES.

THE DEFINITION OF OFFICERS AND EMPLOYEES IN SECTION 4 OF THE ACT OF JULY 1, 1947, 61 STAT. 239, AS MEANING "PERMANENT OR TEMPORARY INDEFINITE" EMPLOYEES, WAS INTENDED, AS APTLY ILLUSTRATED IN THE REPORTS QUOTED IN YOUR SUBMISSION, TO EXTEND ITS PROVISIONS TO INCLUDE EMPLOYEES WHO HAD BEEN DESIGNATED AS TEMPORARY INDEFINITE EMPLOYEES SUCH AS THOSE APPOINTED UNDER SECTION 2, REGULATION VIII, OF THE CIVIL SERVICE LAWS AND REGULATIONS, AND WHO WERE HELD BY THIS OFFICE NOT TO HAVE BEEN ENTITLED TO MILITARY LEAVE. 26 COMP. GEN. 610. I FIND NOTHING THEREIN WHICH WOULD WARRANT ANY CHANGE IN THE CONCLUSION REACHED IN 19 COMP. GEN. 177, SUPRA, THAT SUBSTITUTE POSTAL EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE. HENCE, THE QUESTION SUBMITTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.