Skip to main content

B-241272, Feb 15, 1991, 70 Comp.Gen. 263

B-241272 Feb 15, 1991
Jump To:
Skip to Highlights

Highlights

Federal employees who are members of the Reserve or National Guard are now entitled to carry over up to 15 days of unused military leave into the next fiscal year. When the carried over leave is combined with the 15 days accrued in the new fiscal year. Employees may be continued in military leave status on leave they had to their credit in the fiscal year they entered active duty although the military duty to which the leave is applied extends into the next fiscal year. Decisions to the contrary are no longer applicable. (10 Comp.Gen. 102 (1930). Federal employees who are members of the Reserve or National Guard serving on active military duty which extends into a second fiscal year now may accrue and use the 15 days of military leave which accrues at the beginning of the second year without return to civilian status.

View Decision

B-241272, Feb 15, 1991, 70 Comp.Gen. 263

CIVILIAN PERSONNEL - Leaves Of Absences - Military leave - Accrual - Eligibility 1. In light of the 1980 amendment to the military leave statute, 5 U.S.C. Sec. 6323(a), federal employees who are members of the Reserve or National Guard are now entitled to carry over up to 15 days of unused military leave into the next fiscal year. When the carried over leave is combined with the 15 days accrued in the new fiscal year, it produces a maximum military leave benefit of 30 days which may be used in one fiscal year. Employees may be continued in military leave status on leave they had to their credit in the fiscal year they entered active duty although the military duty to which the leave is applied extends into the next fiscal year. Decisions to the contrary are no longer applicable. (10 Comp.Gen. 102 (1930), 10 Comp.Gen. 116 (1930), 11 Comp.Gen. 469 (1932), 12 Comp.Gen. 241 (1932), 17 Comp.Gen. 174 (1937), 29 Comp.Gen.269 (1949), 35 Comp.Gen. 708 (1956), 40 Comp.Gen. 186 (1960), 41 Comp.Gen. 320 (1961), 51 Comp.Gen. 23 (1971). 2. Federal employees who are members of the Reserve or National Guard serving on active military duty which extends into a second fiscal year now may accrue and use the 15 days of military leave which accrues at the beginning of the second year without return to civilian status. This is authorized under the 1980 amendment to section 6323(a), which provides additional flexibility in accrual and use of military leave. Comptroller General decisions to the contrary (10 Comp.Gen. 102 (1930), 10 Comp.Gen. 116 (1930), 11 Comp.Gen. 469 (1932), 12 Comp.Gen. 241 (1932), 17 Comp.Gen. 174 (1937), 29 Comp.Gen. 269 (1949), 35 Comp.Gen. 708 (1956), 40 Comp.Gen. 186 (1960), 41 Comp.Gen. 320 (1961), 51 Comp.Gen. 23 (1971) are superseded.

Accrual and charging of military Leave -- Active Duty Extending Into Next Leave Year:

The Office of Personnel Management (OPM) asks whether it would be permissible to revise the current guidance in the Federal Personnel Manual (FPM) that indicates that military leave that may be taken under 5 U.S.C. Sec. 6323(a) (1988) by government employees who are reservists or National Guardsmen is limited to 15 days for each period of active duty that the employees are required to serve whether the period of service is wholly within one year or extends over more than one year. /1/

OPM notes that the FPM guidance is based on prior decisions of the Comptroller General which limit to 15 the number of days of military leave that can be taken for each period of active duty. OPM also notes that a 1980 amendment to the military leave statute in question, 5 U.S.C. Sec. 6323(a), now permits the accrual of 15 days of military leave per fiscal year and carry over of any unused military leave from one fiscal year to the next totalling not more than 30 days. The agency indicates that while this amendment now allows, potentially, a period of up to 30 days leave to be used for any one period of active duty, it is not clear whether it has affected our rulings which prohibit the use of additional military leave accruing in a subsequent fiscal year when the active duty period extends into the subsequent year without an intervening return to civilian status. The question arises because of Operation Desert Shield which has required the call to active duty in August and September 1990 of many reservists who are federal employees and whose active duty continues into the 1991 fiscal year. /2/

For the reasons explained below we hold that in view of the 1980 amendment to the military leave statute the 15-day limitation on use of military leave for any one period of active duty is no longer applicable. The employee is now entitled to use the amount of military leave to his credit at the time of entry on active duty, which may not exceed 30 days, and the use of such leave may extend into the next fiscal year. The amount used in the second fiscal year also may not exceed the maximum of 30 days including any leave carried over plus the 15 days which accrue at the beginning of the new fiscal year.

BACKGROUND

Until 1980 the statute providing for military leave under 5 U.S.C. Sec. 6323(a) allowed a civilian federal employee to accumulate and use 15 days of military leave each year when he served on active duty or active duty for training as a member of the Reserves or the National Guard. If the military leave was not used in the year it was accrued, it was forfeited. We have long interpreted section 6323(a) and its predecessor statutes to require that no more than 15 days of military leave could be used for any one period of active duty or active duty for training, even though that period may span 2 years. See 51 Comp.Gen. 23 (1971); 41 Comp.Gen. 320 (1961); 40 Comp.Gen. 186 (1960); 35 Comp.Gen. 708 (1956); 29 Comp.Gen. 269 (1949); 10 Comp.Gen. 116 (1930). Thus, if an active duty assignment continued into a second year, and military leave were used in the first year, even though at the beginning of the second year the reservist would normally become entitled to an additional 15 days of military leave for use in that year, the additional 15 days could not be used for the continuing assignment that began the previous year. OPM is concerned that if this principle is applied to those members of the Reserves or National Guard who were called up for the Desert Shield Operation in the Persian Gulf in August or September 1990, they would not be able to use the 15 days of military leave they would accrue on October 1, 1990, the beginning of the new fiscal year, for any of the remainder of their continuing duty in that Operation.

The original military leave statutes provided employees with leave of absence "without loss of pay, time, or efficiency rating, on all days during which they are employed, under orders, on training duty for periods not to exceed fifteen days in any one calendar year." /3/ These statutes apparently were primarily directed at the usual practice whereby reservists performed an annual 15-day cruise or field training period. an early time we interpreted the statutes to mean that each period of authorized training duty of reservists and each maximum period of authorized military leave was intended to be considered as a separate and distinct unit of time, relating to the calendar year. That is, we considered that a maximum of 15 days of military leave with pay was authorized for any one period of training duty and a maximum of 15 days of military leave with pay was authorized during each calendar year regardless of the number of periods of training duty. Therefore, we held that in applying the leave statute a period of training duty extending beyond the end of the calendar year in which it began could not be divided into separate periods corresponding to calendar years so as to grant an employee an excess of 15 days military leave with pay for any one period of military duty, whether in one or separate years. 10 Comp.Gen. 116 (1930).

In so holding we also applied a principle applicable to employees' annual and sick leave which at that time accrued on an annual basis. Under this principle an employee who continued on an agency's rolls in a nonpay status at the end of the leave year was required to return to actual duty with pay before becoming entitled to leave in the subsequent year. It was noted that to hold otherwise would make it possible for an employee to receive 2 months pay each year over any number of years without performance of any duty whatsoever, which, we stated, the leave laws did not contemplate. See 10 Comp.Gen. 102 (1930), quoted in 10 Comp.Gen. 116, 117, supra. See also 40 Comp.Gen. 186, supra, concerning denial of a claim by a Reserve officer, serving on continuous active duty for over 7 years, for payment for 15 days military leave for each year.

Similarly, in 11 Comp.Gen. 469 (1932), we held that an employee who was in a leave-without-pay status was not entitled to military leave with pay upon entry on military training duty since the language of the leave statute, "without loss of pay, time, or efficiency rating" clearly evidenced that the employee must be receiving pay immediately prior to the beginning of the training duty. We noted that the statute did not authorize pay for training duty, but simply saved civilian pay, etc., to which the employee is otherwise entitled. See also 12 Comp.Gen. 241 (1932), 17 Comp.Gen. 174 (1937), 29 Comp.Gen. 269, supra, and 40 Comp.Gen. 186, supra.

Although over the next 50 years the military leave laws were reenacted several times, consolidated and extended to apply to active duty in addition to active duty for training, the substance of the statutes was not modified to change our basic interpretation of their application in this regard, at least not until the substantive change made in 1980.

The question now arises as to what impact the 1980 amendment to 5 U.S.C. Sec. 6323(a) had on the two principles just discussed -- that no more than 15 days of military leave could be used for any one period of active duty or active duty for training and that an active civilian pay status must be maintained before military leave may be granted. That is, may the statute as amended in 1980 be interpreted to authorize those called to active duty in August or September 1990 for Desert Shield to be paid for additional military leave carried over to or accrued in the new fiscal year beginning October 1, 1990.

ANALYSIS AND CONCLUSION

The 1980 amendment made by Pub.L. No. 96-431,Sec. 1, 94 Stat. 1850 (1980), among other things, added the following to the military leave statute, 5 U.S.C. Sec. 6323(a):

"Leave under this subsection accrues for n employee or individual at the rate of 15 days per fiscal year and, to the extent that it is not used in a fiscal year, accumulates for use in the succeeding fiscal year until it totals 15 days at the beginning of a fiscal year."

This provision had the effect of changing the leave year from a calendar year to a fiscal year and allowing the accumulation of up to 15 days of unused military leave to be carried over for use in the succeeding year so that a total maximum of 30 days of leave could be accumulated for use in the subsequent year.

The House Report discussing the bill that became the 1980 amendment to section 6323(a) indicated that the change was intended to increase administrative flexibility in scheduling military training and employees would be better able to attend training without losing the military leave benefit. H.R. Rep. No. 96-1128, 96th Cong., 2d Sess. 3 (1980). This was based on the assumption that a single active duty training period of up to 30 days could be covered by using 15 days of military leave that had accrued for carry over from a prior year plus 15 days that accrue for the current year. See Hearings on H.R. 6065, before the House Subcommittee on Compensation and Employee Benefits, Committee on Post Office and Civil Service, 96th Cong., 2d Sess. 5 and 15-16 (1980).

This new concept of allowing the carry over of up to 15 days of unused military leave to the new fiscal year to produce a new benefit of up to 30 days leave available for use is significant. It not only raised the maximum amount that could be available for use, it provided for carrying leave over for use in the next fiscal year with the two goals of providing greater flexibility and avoiding the loss of unused leave. In accordance with the purposes of the new provisions, it is our view that the statute should be interpreted to provide the flexibility to allow an employee who has unused military leave to his credit at the time he is called to active duty, which he could otherwise carry over into the next fiscal year, to be placed on and paid for such leave although the period of active duty to be covered by the leave continues into the next fiscal year. Of course, not more than 15 days of such leave may be carried over and used in the new fiscal year.

Similarly we also view the new provision as providing sufficient authority to authorize an employee whose active duty period carries over into the second fiscal year to use the military leave otherwise accruing for his use at the beginning of the new fiscal year and to be paid for it up to the maximum of 15 days while on such leave. This view is supported by the concept the 1980 amendment adopts that unused leave can be carried over to produce a maximum total military leave benefit of 30 days, which is the equivalent of two fiscal-year periods of leave. Thus, regardless of the amount of military leave that may have been accumulated by employees and used in fiscal year 1990 when they entered active duty for Desert Shield, at the beginning of the new fiscal year on October 1, 1990, they would be able to accrue an additional 15 days of military leave that could be used immediately, based upon their status as employees when they entered active duty in fiscal year 1990. To the extent our decisions discussed above hold to the contrary, they are no longer applicable.

/1/ The matter was presented to us in a submission from OPM's General Counsel.

/2/ We note that OPM has recently provided guidance to agencies advising them that the most appropriate action in this situation in most cases is to retain the employees in a leave-without-pay status rather than to separate them from their civilian position. For the purposes of this decision we are assuming that the employees are so retained.

/3/ Section 36 of the Act of Feb. 28, 1925, 43 Stat. 1089, 34 U.S.C. Sec. 768 (1925), applicable to the Naval and Marine Corps Reserve, construed in 10 Comp.Gen. 116 (1930). Similar language applicable to the Officers Reserve Corps (Army) was provided in the Act of May 12, 1917, 40 Stat. 72, 10 U.S.C. Sec. 371 (1925), construed in 12 comp. Gen. 241 (1932).

GAO Contacts

Office of Public Affairs