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B-144198, OCTOBER 21, 1960, 40 COMP. GEN. 231

B-144198 Oct 21, 1960
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FISCAL YEAR BASIS AN EMPLOYEE WHO WAS GRANTED 15 DAYS OF MILITARY LEAVE DURING THE FIRST HALF OF THE CALENDAR YEAR 1960 UNDER SECTION 29 OF THE ACT OF AUGUST 10. IS AGAIN ENTITLED TO 15 DAYS OF MILITARY LEAVE ON JULY 1. A RESERVIST WHO TAKES THE FULL AMOUNT OF MILITARY LEAVE TO WHICH HE IS ENTITLED DURING FISCAL YEAR 1961 DURING THE LAST HALF OF CALENDAR YEAR 1960 IS NOT AGAIN ENTITLED TO MILITARY LEAVE UNTIL JULY 1. EVEN THOUGH NO MILITARY LEAVE WAS TAKEN DURING THE FIRST HALF CALENDAR YEAR 1960. WERE AMENDED TO CHANGE THE BASIS FOR GRANTING LEAVE FROM A CALENDAR YEAR TO A FISCAL YEAR. MAY HAVE THE DAYS PRIOR TO JUNE 30. MUST BE CHARGED TO THE 15 DAYS OF MILITARY LEAVE TO WHICH THE EMPLOYEE IS ENTITLED IN THE 1961 FISCAL YEAR.

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B-144198, OCTOBER 21, 1960, 40 COMP. GEN. 231

CIVILIAN PERSONNEL - MILITARY LEAVE - CALENDAR V. FISCAL YEAR BASIS AN EMPLOYEE WHO WAS GRANTED 15 DAYS OF MILITARY LEAVE DURING THE FIRST HALF OF THE CALENDAR YEAR 1960 UNDER SECTION 29 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, 5 U.S.C. 30R, AS AMENDED, IS AGAIN ENTITLED TO 15 DAYS OF MILITARY LEAVE ON JULY 1, 1960, UNDER SECTION 7 OF THE ACT OF JUNE 30, 1960, 74 STAT. 282, WHICH AMENDED SECTION 28 OF THE 1956 ACT TO CHANGE THE BASIS FOR GRANTING MILITARY LEAVE FROM A CALENDAR YEAR TO A FISCAL YEAR; HOWEVER, A RESERVIST WHO TAKES THE FULL AMOUNT OF MILITARY LEAVE TO WHICH HE IS ENTITLED DURING FISCAL YEAR 1961 DURING THE LAST HALF OF CALENDAR YEAR 1960 IS NOT AGAIN ENTITLED TO MILITARY LEAVE UNTIL JULY 1, 1961, EVEN THOUGH NO MILITARY LEAVE WAS TAKEN DURING THE FIRST HALF CALENDAR YEAR 1960. AN EMPLOYEE WHO WENT ON A 15-DAY TOUR OF MILITARY DUTY IN JUNE 1960 WHICH EXTENDED INTO THE FISCAL YEAR 1961 WHEN BY SECTION 7 OF THE ACT OF JUNE 30, 1960, 74 STAT. 282, EFFECTIVE JULY 1, 1960, THE MILITARY LEAVE PROVISIONS IN SECTION 29 (A) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, AS AMENDED, WERE AMENDED TO CHANGE THE BASIS FOR GRANTING LEAVE FROM A CALENDAR YEAR TO A FISCAL YEAR, MAY HAVE THE DAYS PRIOR TO JUNE 30, 1960, CHARGED TO ANY UNUSED MILITARY LEAVE ACCRUING AFTER JANUARY 1, 1960, BUT THE MILITARY DUTY AFTER JULY 1, 1960, MUST BE CHARGED TO THE 15 DAYS OF MILITARY LEAVE TO WHICH THE EMPLOYEE IS ENTITLED IN THE 1961 FISCAL YEAR. WITH RESPECT TO SUBSTITUTE POSTAL EMPLOYEES IN THE FIELD SERVICE WHO, PRIOR TO ENACTMENT OF PUBLIC LAW 86-559, APPROVED JUNE 30, 1960 (WHICH CHANGED MILITARY LEAVE FROM A CALENDAR TO A FISCAL YEAR BASIS), WERE ENTITLED UNDER SECTION 29 (A) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, AS AMENDED BY SECTION 13 OF THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1557, 5 U.S.C. 30R, TO MILITARY LEAVE NOT IN EXCESS OF 80 HOURS DURING ANY CALENDAR YEAR, BASED ON 1 HOUR FOR EACH PERIOD AGGREGATING 26 WORK HOURS IN THE CALENDAR YEAR PROCEEDING THAT IN WHICH THEY WERE ORDERED TO TRAINING DUTY, THE USE OF MILITARY LEAVE, IN RECOGNITION OF THE CONCEPT OF LEAVE EARNED THROUGH SERVICE, IS POSTPONED TO JULY 1, 1961, WHEN LEAVE ACCRUALS EARNED DURING FISCAL YEAR 1961 NOT TO EXCEED 80 HOURS WILL BE AVAILABLE FOR USE IN FISCAL YEAR 1962; THUS, LEAVE ACCRUALS FOR CALENDAR YEAR 1959 AND THE FIRST HALF OF 1960 ARE NOT LOST.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 21, 1960:

ON OCTOBER 7, 1960, THE ACTING CHAIRMAN SUBMITTED FOR OUR CONSIDERATION SEVERAL QUESTIONS, REFLECTING INQUIRIES RECEIVED BY THE COMMISSION, CONCERNING THE EFFECT OF SECTION 7 OF PUBLIC LAW 86-559, APPROVED JUNE 30, 1960, 74 STAT. 282, AMENDING THE MILITARY LEAVE LAW, 5 U.S.C. 30R. THE AMENDING SECTION READS AS FOLLOWS:

SECTION 29 (A) OF THE ACT OF AUGUST 10, 1956, CHAPTER 1041, AS AMENDED (5 U.S.C. 30R), IS AMENDED BY STRIKING OUT THE WORDS "CALENDAR YEAR" WHENEVER THEY APPEAR THEREIN AND INSERTING THE WORDS "FISCAL YEAR" IN PLACE THEREOF.

THE QUESTIONS PRESENTED ARE QUOTED AS FOLLOWS:

1. AN EMPLOYEE USED 15 DAYS OF MILITARY LEAVE EARLY IN THE CALENDAR YEAR 1960, WHEN THE LAW ENTITLED HIM TO 15 DAYS IN THE CALENDAR YEAR. EXPECTS TO SERVE ANOTHER 15-DAY TOUR OF TRAINING DUTY IN OCTOBER, 1960. IS HE ENTITLED, WHILE ON TRAINING DUTY IN OCTOBER, TO USE THE 15 DAYS OF MILITARY LEAVE FOR THE FISCAL YEAR 1961?

2. AM EMPLOYEE WENT ON A 15-DAY TOUR OF TRAINING DUTY LATE IN JUNE, AND USED 3 DAYS OF MILITARY LEAVE BEFORE JULY 1. HE BELIEVES THAT HE SHOULD BE ENTITLED TO CHARGE THE ENTIRE 15 DAYS TO THE CALENDAR YEAR 1960, AND SHOULD BE ENTITLED, IN THE EVENT HE HAS FURTHER TRAINING DUTY DURING FISCAL 1961, TO 15 ADDITIONAL DAYS CHARGEABLE TO FISCAL 1961. IS HE CORRECT?

3. AN EMPLOYEE USED 10 DAYS OF MILITARY LEAVE IN MAY, 1960. AFTER JULY 1, 1960, IS HE ENTITLED TO THE REMAINING FIVE DAYS OF MILITARY LEAVE FOR CALENDAR 1960, AS WELL AS 15 DAYS FOR THE FISCAL YEAR 1961?

4. IF EMPLOYEES ARE LIMITED AFTER JULY 1, 1960, TO THE MILITARY LEAVE PERMITTED FOR FISCAL 1961, REGARDLESS OF WHETHER THEY HAD USED ANY OR ALL OF THE MILITARY LEAVE FORMERLY AUTHORIZED FOR THE CALENDAR YEAR 1960, A SPECIAL PROBLEM MAY EXIST WITH RESPECT TO SOME POSTAL SUBSTITUTES. THE STATUTE BEFORE AMENDMENT (5 U.S.C. 30R) CONTAINED THE FOLLOWING ADDITIONAL SENTENCES:

"A SUBSTITUTE EMPLOYEE IN THE POSTAL FIELD SERVICE IS ENTITLED TO LEAVE OF ABSENCE FROM HIS DUTIES, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING, FOR THE SAME PURPOSE, ON THE BASIS OF ONE HOUR OF LEAVE FOR EACH PERIOD AGGREGATING 26 HOURS OF WORK PERFORMED IN THE CALENDAR YEAR NEXT BEFORE THE CALENDAR YEAR IN WHICH HE IS ORDERED TO THAT DUTY OR TRAINING. HOWEVER, HE IS NOT ENTITLED TO ANY LEAVE UNDER THIS SECTION UNLESS HE HAS WORKED AT LEAST 1,040 HOURS DURING THE CALENDAR YEAR NEXT BEFORE THAT YEAR IN WHICH HE IS ORDERED TO THAT DUTY OR TRAINING, AND HE MAY NOT BE PAID FOR MORE THAN 80 HOURS OF LEAVE UNDER THIS SECTION IN ANY CALENDAR YEAR.'

A POSTAL SUBSTITUTE MAY HAVE MET THE REQUIREMENTS FOR MILITARY LEAVE IN CALENDAR YEAR 1960, BASED ON HOURS WORKED IN THE CALENDAR YEAR 1959, AND YET NOT MEET THE REQUIREMENTS FOR FISCAL YEAR 1961 BASED ON HOURS WORKED IN FISCAL 1960. IT APPEARS TO US THAT THE AMENDMENT MUST HAVE BEEN INTENDED FOR THE CONVENIENCE OF THE MILITARY DEPARTMENTS, BECAUSE RESERVE TRAINING PROGRAMS ARE ON A FISCAL YEAR RATHER THAN A CALENDAR YEAR BASIS; AND THAT IT COULD NOT HAVE BEEN INTENDED TO DEPRIVE ANY RESERVISTS OF AN ENTITLEMENT ALREADY EARNED UNLESS THE AMENDMENT PROVIDES A SUBSTITUTE OF EQUAL VALUE. (A) IS ALL CREDIT FOR HOURS WORKED IN THE FIRST 6 MONTHS OF CALENDAR 1960 LAST BY THE AMENDMENT? (B) OR, IF HOURS WORKED IN CALENDAR 1960, IS SUCH AN EMPLOYEE ENTITLED TO MILITARY LEAVE IN FISCAL 1961 BASED ON THE HOURS HE HAD WORKED IN CALENDAR 1959?

THE QUESTIONS ARE ANSWERED IN THE ORDER PRESENTED.

1. UNDER 5 U.S.C. 30R AS IT EXISTED AT THE TIME THE EMPLOYEE ENTERED ON ACTIVE DUTY FOR TRAINING EARLY IN THE CALENDAR YEAR 1960 HE WAS ENTITLED TO A GRANT OF MILITARY LEAVE NOT IN EXCESS OF 15 DAYS. LIKEWISE UNDER THE LANGUAGE OF THE STATUTE AS AMENDED ON JUNE 30, 1960, WHICH CHANGED THE BASIS FOR GRANTING MILITARY LEAVE FROM A CALENDAR TO A FISCAL YEAR BASIS, HE AGAIN WAS ENTITLED TO A GRANT OF MILITARY LEAVE NOT IN EXCESS OF 15 DAYS FOR THE SECOND PERIOD OF TRAINING DUTY IN OCTOBER 1960 (FISCAL YEAR 1961). WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE 1960 AMENDMENT OF 5 U.S.C. 30R TO CLEARLY INDICATE ANYTHING TO THE CONTRARY.

WE NOTE THAT AS A RESULT OF THE AMENDMENT OF JUNE 30, 1960, THE PERIOD OF ENTITLEMENT TO MILITARY LEAVE WILL BE ADVANCED FOR SOME EMPLOYEES AND POSTPONED FOR OTHERS. FOR EXAMPLE, A RESERVIST WHO WAS GRANTED NOT IN EXCESS OF 15 DAYS OF MILITARY LEAVE BETWEEN JANUARY 1, 1960, AND JUNE 30, 1960, IS AGAIN ENTITLED TO 15 DAYS OF MILITARY LEAVE ON JULY 1, 1960, UNDER THE NEW WORDING OF 5 U.S.C. 30R. HOWEVER, A RESERVIST WHO HAS HAD NO MILITARY LEAVE IN THE FIRST HALF OF THE CALENDAR YEAR 1960, AND WHO TAKES MILITARY LEAVE DURING THE LATTER HALF OF SUCH CALENDAR YEAR IS NOT AGAIN ENTITLED TO MILITARY LEAVE UNTIL JULY 1, 1961. ALSO, WE POINT OUT THAT IF THE EMPLOYEE HAD NOT TAKEN MILITARY LEAVE IN OCTOBER 1960, BUT HAD WAITED UNTIL AFTER JANUARY 1, 1961, TO TAKE SUCH LEAVE HE WOULD BE IN NO DIFFERENT POSITION ON JUNE 30, 1961, SO FAR AS CONCERNS THE AMOUNT OF MILITARY LEAVE AUTHORIZED UNDER THE APPLICABLE STATUTE. THEREFORE, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

2. CONSISTENT WITH OUR ANSWER TO QUESTION 1, ONLY THE 3 DAYS OF MILITARY LEAVE USED BEFORE JULY 1, 1960, MAY BE CHARGED TO THE 15 DAYS OF SUCH LEAVE WHICH ACCRUED ON JANUARY 1, 1960. THE 12 DAYS OF MILITARY LEAVE WHICH WAS USED ON AND AFTER JULY 1, 1960, MUST BE CHARGED TO THE 15 DAYS OF MILITARY LEAVE WHICH ACCRUED ON JULY 1, 1960, UNDER THE AMENDED ACT. THE MILITARY LEAVE WHICH ACCRUED TO THE EMPLOYEE ON JANUARY 1, 1960, AND WHICH WAS UNUSED ON JULY 1, 1960, IS LOST. THEREFORE, THE QUESTION IS ANSWERED IN THE NEGATIVE.

3. THE QUESTION IS ANSWERED IN THE NEGATIVE. SEE ANSWER TO QUESTION 2.

4. BECAUSE OF THE DIFFERENT METHOD OF MILITARY LEAVE ACCRUAL APPLICABLE TO SUBSTITUTE EMPLOYEES OF THE POSTAL FIELD SERVICE A DIFFERENT APPROACH SEEMS REQUIRED IN RESOLVING THE QUESTIONS PRESENTED.

A. THE SPECIFIC QUESTION IS ANSWERED IN THE NEGATIVE. THE AMENDING LAW PROVIDES NO METHOD FOR EFFECTING THE ADJUSTMENT OF LEAVE REQUIRED BY THE CHANGE FROM A CALENDAR TO A FISCAL YEAR BASIS AND THE LEGISLATIVE HISTORY FURNISHES NO CLUE IN THAT REGARD. SINCE AN ADJUSTMENT NECESSARILY IS REQUIRED WE BELIEVE IT TO BE CONSISTENT WITH THE INTENT OF CONGRESS TO RULE THAT LEAVE ACCRUALS EARNED DURING THE PERIOD JANUARY 1 THROUGH JUNE 30, 1960, NOT EXCEEDING 80 HOURS, MAY BE USED DURING THE LIKE PERIOD IN 1961. LEAVE ACCRUALS FOR CALENDAR YEAR 1959, NOT EXCEEDING 80 HOURS, MAY BE USED DURING THE 1960 CALENDAR YEAR. WHILE THE FOREGOING RULING POSTPONES FOR 12 MONTHS THE ,FISCAL YEAR" BASIS FOR USE OF MILITARY LEAVE BY SUBSTITUTE EMPLOYEES OF THE POSTAL FIELD SERVICE, IT RECOGNIZES THE CONCEPT OF LEAVE EARNED THROUGH SERVICE. WHETHER EMPLOYEES ARE CALLED TO ACTIVE DUTY FOR TRAINING WITHIN THE PERIODS REFERRED TO ABOVE IS WITHIN THE CONTROL OF THE DEPARTMENTS CONCERNED.

AFTER JUNE 30, 1961, LEAVE ACCRUALS, NOT EXCEEDING 80 HOURS, EARNED DURING THE FISCAL YEAR 1961 WILL BE AVAILABLE FOR USE IN FISCAL YEAR 1962.

B. IN VIEW OF OUR ANSWER TO QUESTION 4 (A) AN ANSWER TO QUESTION 4 (B) APPEARS UNNECESSARY.

IN CONSTRUING SECTION 7 OF PUBLIC LAWS 86-559, WE BELIEVE IT TO BE THE INTENT OF THE LEGISLATION THAT SECTION 7 TAKE EFFECT JULY 1, 1960.

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