B-12310, SEPTEMBER 18, 1940, 20 COMP. GEN. 163

B-12310, SEPTEMBER 18, 1940, 20 COMP. GEN. 163

CIVILIAN EMPLOYEES ORDERED TO ACTIVE MILITARY DUTY - LEAVES OF ABSENCE, ETC. A CIVILIAN EMPLOYEE MEMBER OF THE NAVAL RESERVE IS ENTITLED TO 15 DAYS' MILITARY LEAVE OF ABSENCE WITH PAY FOR TRAINING DUTY WITH THE RESERVE IN ANY CALENDAR YEAR, BUT IS NOT ENTITLED TO SUCH LEAVE FOR ACTIVE DUTY OTHER THAN TRAINING, AND FOR ANY PERIOD OF DUTY AS A MEMBER OF THE RESERVE FOR WHICH HE IS NOT ENTITLED TO MILITARY LEAVE HE MAY BE GRANTED THE ANNUAL LEAVE WITH PAY TO HIS CREDIT TO COVER AN EQUIVALENT AMOUNT OF ABSENCE REQUIRED TO PERFORM SUCH DUTY, NOTWITHSTANDING THE DUAL COMPENSATION STATUTES. WHERE A CIVILIAN EMPLOYEE MEMBER OF THE NAVAL RESERVE ELECTS TO TAKE LEAVE WITHOUT PAY FROM HIS CIVILIAN POSITION, INSTEAD OF FIRST TAKING HIS ACCRUED ANNUAL LEAVE, FOR THE PURPOSE OF PERFORMING TRAINING DUTY IN EXCESS OF 15 DAYS IN ANY 1 CALENDAR YEAR, OR FOR ACTIVE DUTY, AS A MEMBER OF THE NAVAL RESERVE, HE MAY BE RECREDITED UPON RETURN TO HIS CIVILIAN POSITION WITH ANNUAL LEAVE TO HIS CREDIT AT THE TIME HE STARTED ON THE LEAVE WITHOUT PAY. TEMPORARY EMPLOYEES ARE NOT ENTITLED TO ANY MILITARY LEAVE WITH PAY AND IN VIEW OF THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED, MAY NOT BE GRANTED ANNUAL LEAVE WHILE ABSENT FROM THEIR CIVILIAN POSITIONS FOR THE PURPOSE OF PERFORMING TRAINING DUTY OR ACTIVE DUTY AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY, OR OF THE NATIONAL GUARD, IF THE COMBINED RATE OF THE SALARY IN THEIR CIVILIAN POSITION AND ACTIVE MILITARY PAY AND ALLOWANCES EXCEEDS $2,000 PER ANNUM. A TEMPORARY OR PERMANENT CIVILIAN EMPLOYEE MEMBER OF THE NATIONAL GUARD CALLED INTO ACTIVE MILITARY SERVICE OF THE UNITED STATES, IS SUBJECT TO THE DUAL COMPENSATION PAYMENT PROHIBITION OF SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED, AND THEREFORE, MAY NOT BE PAID CIVILIAN COMPENSATION FOR ANY PERIOD HE RECEIVES ACTIVE DUTY PAY WITH THE ARMY IF THE COMBINED RATE EXCEEDS $2,000 EVEN THOUGH HE HAS ACCRUED UNUSED ANNUAL LEAVE TO HIS CREDIT IN HIS CIVILIAN POSITION. MILITARY LEAVE OF ABSENCE WITH PAY MAY NOT BE GRANTED TO ANY EMPLOYEE SERVING UNDER AN APPOINTMENT DESIGNATED AS "TEMPORARY," REGARDLESS OF THE LENGTH OF SUCH APPOINTMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, SEPTEMBER 18, 1940:

I HAVE YOUR LETTER OF SEPTEMBER 11, 1940, AS FOLLOWS:

THE NAVY DEPARTMENT HAS UNDER CONSIDERATION THE ISSUANCE OF REVISED INSTRUCTIONS GOVERNING ITS CIVILIAN EMPLOYEES WHO MAY BE GRANTED MILITARY LEAVE, ANNUAL LEAVE OR FURLOUGH WITHOUT PAY WHEN ORDERED, EITHER WITH OR WITHOUT THEIR CONSENT, TO TRAINING OR ACTIVE DUTY AS MEMBERS OF THE NAVAL RESERVE, THE OFFICERS' RESERVE CORPS AND THE NATIONAL GUARD.

SECTION 9 OF THE ANNUAL LEAVE REGULATIONS OF MARCH 29, 1940, PROVIDES THAT LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED AND CURRENT ACCRUED LEAVE ALLOWABLE UNDER THE REGULATIONS IS EXHAUSTED EXCEPT THAT AN EMPLOYEE WHO IS ORDERED TO ACTIVE MILITARY, NAVAL, OR COAST GUARD DUTY MAY, PRIOR TO THE EXHAUSTION OF HIS ACCUMULATED AND CURRENT ACCRUED LEAVE, BE GRANTED LEAVE OR FURLOUGH WITHOUT PAY DURING ALL OR ANY PORTION OF THE PERIOD NECESSARY TO PERFORM SUCH DUTY. IN THE CASE OF A CIVIL EMPLOYEE ORDERED TO TRAINING DUTY WITH THE NAVAL RESERVE FOR A PERIOD IN EXCESS OF FIFTEEN DAYS, YOUR DECISION IS REQUESTED AS TO WHETHER THE EMPLOYEE WILL FORFEIT HIS LEAVE ACCRUALS UNDER THE PROVISIONS OF SECTION 9 OF THE ANNUAL LEAVE REGULATIONS IF HE DESIRES TO TAKE AND IS GRANTED LEAVE WITHOUT PAY INSTEAD OF ANNUAL LEAVE FOR THE EXCESS TRAINING PERIOD.

TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE WITH PAY AS MEMBERS OF THE OFFICERS' RESERVE CORPS. HOWEVER, AS IT WAS STATED IN DECISION OF THE COMPTROLLER GENERAL OF NOVEMBER 21, 1939, TO THE SECRETARY OF THE INTERIOR (19 COMP. GEN. 515) THAT THE CLEAR PURPOSE AND INTENT OF THE ACT OF MAY 12, 1917 (40 STAT. 72; 10 U.S.C. 371) "WAS TO MAINTAIN THE STATUS QUO OF CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT--- WHO ARE ALSO MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY--- ONLY DURING THE TRAINING PERIODS NOT EXCEEDING FIFTEEN DAYS EACH CALENDAR YEAR TO WHICH TRAINING THEY MAY BE ORDERED WITHOUT THEIR CONSENT, THUS GIVING THEM THE RIGHT TO RECEIVE CIVILIAN COMPENSATION CONCURRENTLY WITH MILITARY PAY FOR SUCH STATED PERIOD," YOUR DECISION IS REQUESTED AS TO WHETHER A TEMPORARY EMPLOYEE ORDERED TO TRAINING DUTY WITH THE OFFICERS' RESERVE CORPS FOR FIFTEEN CALENDAR DAYS MAY RECEIVE PAY FOR ANNUAL LEAVE IF DUE CONCURRENTLY WITH HIS MILITARY PAY, IF THE COMBINED RATES EXCEED $2,000 PER ANNUM.

IN VIEW OF THE WORDING OF SECTION 6 OF THE DUAL SERVICE ACT OF MAY 10, 1916 (39 STAT. 120), AS AMENDED BY THE ACT OF AUGUST 29, 1916 (39 STAT. 582; 5 U.S.C. 58, 59), YOUR DECISION IS REQUESTED AS TO WHETHER A TEMPORARY OR PERMANENT EMPLOYEE ORDERED TO ACTIVE DUTY, OR A TEMPORARY EMPLOYEE ORDERED TO TRAINING DUTY WITH THE NATIONAL GUARD, MAY RECEIVE PAY FOR ANNUAL LEAVE IF DUE CONCURRENTLY WITH HIS MILITARY PAY, IF THE COMBINED RATES EXCEED $2,000 PER ANNUM.

YOUR ADVICE IS REQUESTED AS TO WHETHER EMPLOYEES APPOINTED TEMPORARILY, FOR PERIODS OF UNKNOWN DURATION, AS DISTINGUISHED FROM THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING SIX MONTHS, ARE TO BE CONSIDERED PERMANENT OR TEMPORARY FOR MILITARY LEAVE PAY PURPOSES.

SECTION 9 OF THE ANNUAL LEAVE REGULATIONS AS AMENDED BY EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940, RETROACTIVELY EFFECTIVE TO JULY 1, 1936 (SEE SEC. 21), PROVIDES IN PERTINENT PART AS FOLLOWS:

LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED AND CURRENT ACCRUED LEAVE ALLOWABLE UNDER THESE REGULATIONS IS EXHAUSTED EXCEPT THAT *

(B) AN EMPLOYEE WHO IS ORDERED TO ACTIVE MILITARY, NAVAL, OR COAST GUARD DUTY MAY, PRIOR TO THE EXHAUSTION OF HIS ACCUMULATED AND CURRENT ACCRUED LEAVE, BE GRANTED LEAVE OR FURLOUGH WITHOUT PAY DURING ALL OR ANY PORTION OF THE PERIOD NECESSARY TO PERFORM SUCH DUTY.

DURING A PERIOD AN EMPLOYEE IS ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY, NOT EXCEEDING 15 DAYS EACH CALENDAR YEAR FOR TRAINING PURPOSES, HIS PAY STATUS IN HIS CIVILIAN POSITION IS CONTINUOUS AND HE IS NOT REQUIRED TO TAKE LEAVE OF ABSENCE WITHOUT PAY. THE PURPOSE OF THE QUOTED AMENDMENT TO THE ANNUAL LEAVE REGULATIONS WAS TO BRIDGE OVER ANY PERIOD OF ABSENCE DUE TO MILITARY, NAVAL, OR COAST GUARD DUTY FOR WHICH AN EMPLOYEE IS NOT ENTITLED TO HIS SALARY AS ON MILITARY LEAVE WHILE ON ACTIVE DUTY, OR TRAINING DUTY IN EXCESS OF 15 DAYS, AND TO PRESERVE THE ANNUAL LEAVE TO THE CREDIT OF THE EMPLOYEE WHEN HE GOES IN A NONPAY STATUS IN HIS CIVILIAN POSITION DUE TO SUCH SERVICE FOR RECREDIT TO HIM UPON RETURN TO A PAY STATUS IN HIS CIVILIAN POSITION. HENCE, THE WORDS "ACTIVE MILITARY, NAVAL, OR COAST GUARD DUTY" AS USED IN THE ANNUAL LEAVE REGULATIONS MAY BE REGARDED AS INCLUDING ANY PERIOD AN EMPLOYEE IS NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY DURING WHICH HE PERFORMS MILITARY, NAVAL, OR COAST GUARD DUTY UNDER PROPER ORDERS. AN EMPLOYEE WHO IS CALLED TO DUTY AS A MEMBER OF THE NAVAL RESERVE FOR WHICH PERIOD HE IS NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY, MAY BE GRANTED THE ANNUAL LEAVE WITH PAY TO HIS CREDIT TO COVER AN EQUIVALENT AMOUNT OF ABSENCE REQUIRED TO PERFORM SUCH DUTY WITH THE NAVAL RESERVE, NOTWITHSTANDING THE DUAL COMPENSATION STATUTES. 19 COMP. GEN. 880; DECISION OF SEPTEMBER 13, 1940, B-12172, 20 COMP. GEN. 151. HOWEVER, UNDER THE TERMS OF SECTION 9 OF THE ANNUAL LEAVE REGULATIONS AN EMPLOYEE MAY ELECT TO TAKE, AND IT IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE TO GRANT HIM, LEAVE OF ABSENCE WITHOUT PAY FOR THE PURPOSE OF PERFORMING TRAINING DUTY, IN EXCESS OF 15 DAYS IN ANY ONE CALENDAR YEAR, OR FOR ACTIVE DUTY, AS A MEMBER OF THE NAVAL RESERVE, AND TO HAVE RECREDITED TO HIM UPON RETURNING TO SERVICE IN HIS CIVILIAN POSITION THE ANNUAL LEAVE TO HIS CREDIT WHEN REPORTING FOR DUTY WITH THE RESERVE. THE ABOVE ANSWERS THE QUESTION CONTAINED IN THE SECOND PARAGRAPH OF YOUR LETTER.

REFERRING TO THE THIRD PARAGRAPH OF YOUR LETTER, AS TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY (DECISION OF SEPTEMBER 4, 1941, B-11963, 20 COMP. GEN. 123), THEY WOULD BECOME SUBJECT TO THE TERMS OF THE DUAL-COMPENSATION ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, WHEN ABSENT FROM THEIR TEMPORARY CIVILIAN POSITIONS FOR THE PURPOSE OF PERFORMING EITHER TRAINING OR ACTIVE MILITARY DUTY AS A MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY. THERE IS NOTHING IN THE DECISION OF NOVEMBER 21, 1939, 19 COMP. GEN. 513, 515, CITED BY YOU, TO EXEMPT TEMPORARY EMPLOYEES FROM THE TERMS OF THE DUAL COMPENSATION STATUTES. ACCORDINGLY, TEMPORARY EMPLOYEES MAY NOT BE GRANTED ANNUAL LEAVE OF ABSENCE WITH PAY WHILE ABSENT FROM THEIR CIVILIAN POSITIONS FOR THE PURPOSE OF PERFORMING TRAINING DUTY FOR NOT TO EXCEED 15 CALENDAR DAYS IN ANY 1 CALENDAR YEAR, AS A MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY, IF THE COMBINED RATE OF THE SALARY IN THEIR CIVILIAN POSITION AND ACTIVE MILITARY PAY AND ALLOWANCES EXCEEDS $2,000 PER ANNUM.

AS TO PERMANENT EMPLOYEES WHO ARE ORDERED TO ACTIVE DUTY, AS DISTINGUISHED FROM ANNUAL-TRAINING DUTY, AS A MEMBER OF THE NATIONAL GUARD, THE QUESTION IN THE FOURTH PARAGRAPH OF YOUR LETTER HAS BEEN ANSWERED IN THE NEGATIVE. SEE DECISION OF SEPTEMBER 18, 1940, B 12291. THE SAME RULE IS APPLICABLE TO TEMPORARY EMPLOYEES WHILE ABSENT FROM THEIR CIVILIAN POSITIONS EITHER ON TRAINING OR ACTIVE DUTY AS A MEMBER OF THE NATIONAL GUARD.

IN THE DECISION OF SEPTEMBER 4, 1940, B-11963, 20 COMP. GEN. 123, THERE WAS RESTATED AND AFFIRMED THE GENERAL RULE STATED IN A NUMBER OF DECISIONS RENDERED PRIOR TO JANUARY 1, 1936 (THE EFFECTIVE DATE OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, GRANTING ANNUAL LEAVE OF ABSENCE WITH PAY TO TEMPORARY EMPLOYEES), THAT MILITARY LEAVE OF ABSENCE WITH PAY MAY NOT BE GRANTED TO TEMPORARY EMPLOYEES. OF COURSE, THESE PRIOR DECISIONS DID NOT DEFINE "TEMPORARY" EMPLOYEES, AS THAT TERM HAS BEEN DEFINED IN SECTION 1 (C) OF THE ANNUAL LEAVE REGULATIONS--- "THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING SEE PARTICULARLY 6 COMP. GEN. 178; ID. 275; 9 ID. 119. THERE IS NOTHING IN THE ANNUAL LEAVE ACT OF MARCH 14, 1936, SUPRA, OR IN THE ANNUAL LEAVE REGULATIONS, APPLICABLE TO MILITARY LEAVE OF ABSENCE WITH PAY. REFERRING TO THE FIFTH PARAGRAPH OF YOUR LETTER IT IS CONCLUDED, THEREFORE, THAT MILITARY LEAVE OF ABSENCE WITH PAY MAY NOT BE GRANTED TO ANY EMPLOYEE SERVING UNDER AN APPOINTMENT DESIGNATED AS "TEMPORARY," REGARDLESS OF THE LENGTH THEREOF.