A-43594, AUGUST 15, 1932, 12 COMP. GEN. 241

A-43594, AUGUST 15, 1932, 12 COMP. GEN. 241

ECONOMY ACT - MILITARY LEAVE - POSTAL SERVICE IF AN ADMINISTRATIVE OFFICE, NOTWITHSTANDING THE MANDATORY PROVISIONS OF LAW, REFUSES TO GRANT MILITARY LEAVE AND PLACES THE EMPLOYEE ON FURLOUGH UNDER THE PROVISIONS OF SECTION 101 (B) OF THE ECONOMY ACT FOR AND DURING THE PERIOD THE EMPLOYEE IS TAKING MILITARY TRAINING, THE FACT THAT THE EMPLOYEE ATTENDS THE TRAINING CAMP WHILE HE IS ON HIS LEGISLATIVE FURLOUGH DOES NOT GIVE HIM THE RIGHT TO PAY AT THE SALARY OF HIS CIVILIAN POSITION FOR ANY PART OF THE TIME OF HIS ABSENCE ON SUCH FURLOUGH. (DISTINGUISHED BY 12 COMP. GEN. 385; ID. 505.)

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 15, 1932:

BURIE L. BELL, OFFICER IN THE RESERVE CORPS OF THE ARMY, HAS FILED IN THIS OFFICE CLAIM FOR HIS COMPENSATION AS A POSTAL EMPLOYEE, FOR THE PERIOD FROM JULY 17 TO 30, 1932, WHILE ABSENT FROM HIS CIVILIAN DUTIES TO COMPLY WITH ORDERS ISSUED TO HIM FROM THE PROPER MILITARY AUTHORITIES PLACING HIM ON ACTIVE DUTY FOR TRAINING, PURSUANT TO THE PROVISIONS OF SECTION 39 OF THE ACT OF JUNE 3, 1916, 39 STAT. 191, IT APPEARING THAT THE POST OFFICE DEPARTMENT HAS REQUIRED HIM TO TAKE LEGISLATIVE FURLOUGH WITHOUT PAY UNDER THE TERMS OF 101 (B) OF THE ECONOMY ACT.

SPECIAL ORDER NO. 74, DATED JUNE 26, 1932, IS IN PART AS FOLLOWS:

1. BY DIRECTION OF THE PRESIDENT AND UNDER AUTHORITY CONTAINED IN LETTER AG353 (6-9-30) MISC. M-C, WD., JUNE 28, 1930, AND TRAINING MEMORANDUM NO. 1, HQ. 4TH CORPS AREA, FEBRUARY 23, 1932, EACH OF THE FOLLOWING NAMED RESERVE OFFICERS ASSIGNED TO THE 321ST FIELD ARTILLERY, IS, WITH HIS CONSENT, ORDERED TO ACTIVE DUTY ON JULY 17, 1932. ON THAT DATE HE WILL PROCEED FROM THE PLACE SHOWN AFTER HIS NAME TO FORT BRAGG, N.C., REPORTING IN PERSON UPON ARRIVAL TO THE COMMANDING GENERAL THEREAT FOR TRAINING:

321 FIELD ARTILLERY DATE OF RANK:

2D LT. BURIE L. BELL, FA-RES (0-274500). JULY 3, 1932, 428-15TH ST., WEST PALM BEACH, FLA.

EACH OFFICER WILL BE RELIEVED IN TIME TO ENABLE HIM TO ARRIVE AT HIS HOME ON JULY 30, 1932, ON WHICH DATE HE WILL REVERT TO AN INACTIVE STATUS. 1004 P 1-0121 A 084-3. THE TRAVEL DIRECTED IS NECESSARY IN THE MILITARY SERVICE. FD 1004 P 1-0621 A 084-3.

WHILE AT FORT BRAGG, PURSUANT TO THIS ORDER, CLAIMANT RECEIVED THE FOLLOWING LETTER DATED JULY 23, 1932, FROM HIS FOREMAN IN THE POSTAL SERVICE.

THE P.O. DEPARTMENT WILL NOT ALLOW MILITARY LEAVE WITH PAY THIS YEAR. YOU ARE ON FURLOUGH. LET ME KNOW IF YOU WILL BE BACK THE 1ST OR IF YOU WILL TAKE THE BALANCE OF YOUR FURLOUGH BEFORE COMING BACK TO WORK.

UNDER DATE OF JULY 16, 1932, THE FIRST ASSISTANT POSTMASTER GENERAL ISSUED THE FOLLOWING BULLETIN:

UNTIL FURTHER NOTICE, AND UNTIL THE DEPARTMENT CAN FORMULATE A DEFINITE POLICY TO CONFORM TO THE NEEDS OF THE SERVICE AFTER IT IS DEMONSTRATED HOW SERIOUSLY THE FURLOUGHING OF EMPLOYEES WILL INTERFERE WITH NORMAL MAIL SERVICE, IT IS DEEMED NECESSARY TO DENY APPLICATIONS FOR MILITARY LEAVE.

EMPLOYEES, IF THEY SO DESIRE, MAY OF COURSE UTILIZE FURLOUGHS FOR MILITARY ATTENDANCE PROVIDED SUCH FURLOUGHS CAN BE GRANTED WITHOUT INJURY TO THE SERVICE.

A FURTHER BULLETIN RELATIVE TO THIS SUBJECT WILL BE ISSUED LATER.

THE ACT OF MAY 12, 1917, 40 STAT. 72, PROVIDES IN PART AS FOLLOWS:

PROVIDED FURTHER, THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO SHALL BE MEMBERS OF THE OFFICERS' RESERVE CORPS 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 ORDERED TO DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR.

PROVIDED FURTHER, THAT MEMBERS OF THE OFFICERS' RESERVE CORPS WHO ARE IN THE EMPLOY OF THE UNITED STATES GOVERNMENT OR OF THE DISTRICT OF COLUMBIA AND WHO ARE ORDERED TO DUTY BY PROPER AUTHORITY SHALL, WHEN RELIEVED FROM DUTY, BE RESTORED TO THE POSITIONS HELD BY THEM WHEN ORDERED TO DUTY.

THIS OFFICE HAS HELD IN A NUMBER OF DECISIONS THAT THE PROVISIONS OF THE ECONOMY ACT HAVE NOT SUSPENDED THE RIGHT TO RECEIVE MILITARY LEAVE OF ABSENCE WITH PAY NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR GRANTED TO OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT BY THE ABOVE-QUOTED STATUTE OR OTHER STATUTES APPLYING TO THE NATIONAL GUARD AND THE NAVAL RESERVE. 12 COMP. GEN. 9, 17, 36, 37.

THEREFORE, DURING THE FISCAL YEAR 1933 THE SAME RULES WOULD APPLY AS WERE APPLICABLE PRIOR TO JULY 1, 1932. IN DECISION OF SEPTEMBER 23, 1926, 6 COMP. GEN. 178, IT WAS HELD:

THE GRANTING OF LEAVE FROM THEIR CIVILIAN OCCUPATIONS IN THE GOVERNMENT SERVICE TO MEMBERS OF THE OFFICERS' RESERVE CORPS WHEN ORDERED TO TRAINING DUTY APPEARS TO BE MANDATORY, BUT IT DOES NOT NECESSARILY FOLLOW THAT THE EMPLOYEE IS ENTITLED TO CIVILIAN PAY WHILE NOT PERFORMING THE DUTIES OF HIS CIVILIAN POSITION. 1 COMP. GEN. 256; 3 ID. 346; 4 ID. 65. * * *

WHILE THIS STATEMENT WAS MADE IN A DECISION DEALING PARTICULARLY WITH TEMPORARY EMPLOYEES, THE SAME PRINCIPLE IS APPLICABLE TO PERMANENT FULL- TIME EMPLOYEES. THAT IS TO SAY, IF THE ADMINISTRATIVE OFFICE, NOTWITHSTANDING THE MANDATORY PROVISIONS OF THE LAW HEREINBEFORE QUOTED, REFUSES TO GRANT THE MILITARY LEAVE AND PLACES THE EMPLOYEE ON FURLOUGH UNDER THE PROVISIONS OF SECTION 101 (B) OF THE ECONOMY ACT FOR AND DURING THE PERIOD HE IS TAKING MILITARY TRAINING, AS APPEARS TO HAVE BEEN THE CASE HERE, THE FACT THAT THE EMPLOYEE ATTENDS THE TRAINING CAMP WHILE HE IS ON HIS LEGISLATIVE FURLOUGH DOES NOT GIVE HIM THE RIGHT TO BE PAID THE SALARY OF HIS CIVILIAN POSITION FOR ANY PART OF THE TIME OF HIS ABSENCE ON SUCH FURLOUGH. THE LAW SPECIFICALLY PROVIDES THAT SUCH FURLOUGH SHALL BE WITHOUT COMPENSATION.

WHILE THE RIGHT TO LEAVE OF ABSENCE WITHOUT LOSS OF PAY FOR MILITARY TRAINING OR SERVICE PURSUANT TO PROPER ORDERS IS AN ABSOLUTE RIGHT GRANTED BY STATUTE AND MAY NOT BE LEGALLY DENIED BY ADMINISTRATIVE ACTION, THERE IS NO LOSS OF PAY WHERE THE EMPLOYEE AT THE TIME HE WAS IN ATTENDANCE AT THE TRAINING WAS NOT OTHERWISE IN A STATUS ENTITLING HIM TO PAY. FOR INSTANCE, IT COULD NOT SERIOUSLY BE CONTENDED THAT AN EMPLOYEE ON AN EXTENDED VOLUNTARY LEAVE OF ABSENCE WITHOUT PAY OR UNDER AN ADMINISTRATIVE FURLOUGH UNDER THE PROVISIONS OF SECTION 216 OF THE ECONOMY ACT COULD RESTORE HIMSELF TO PAY STATUS FOR A PERIOD OF 15 DAYS DURING SUCH ABSENCE BY PERFORMING MILITARY SERVICE OR TRAINING PURSUANT TO PROPER MILITARY ORDERS. THERE IS NO LEGAL BASIS FOR APPLYING A DIFFERENT RULE WHERE THE PERIOD OF MILITARY TRAINING OR SERVICE IS DURING A PERIOD OF LEGISLATIVE FURLOUGH. SINCE NO PAY ACCRUES DURING A PERIOD OF LEGISLATIVE FURLOUGH THERE IS NOT INVOLVED ANY "LOSS OF PAY" IN TAKING MILITARY TRAINING OR SERVICE DURING SUCH PERIOD.

AS THE FACTS APPEAR, THE CLAIM OF BURIE L. BELL MUST BE AND IS DISALLOWED.