B-207689 L/M, AUG 20, 1982

B-207689 L/M, AUG 20, 1982

PRECIS-UNAVAILABLE

GUY V. MOLINARI, HOUSE OF REPRESENTATIVES:

THIS LETTER RESPONDS TO YOUR MAY 21, 1982 COMMUNICATION REQUESTING OUR REVIEW OF CORRESPONDENCE FROM YOUR CONSTITUENT, WILLIAM F. HART, REGARDING MILITARY LEAVE REGULATIONS FOR CIVILIAN EMPLOYEES.

MR. HART, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE, SERVES FOR 4 WEEKS ON ACTIVE DUTY EACH YEAR AS A MEMBER OF THE NEW YORK ARMY NATIONAL GUARD. HE WROTE TO YOU OUT OF A CONCERN FOR THE WAY MILITARY LEAVE GRANTED TO GOVERNMENT EMPLOYEES IS COMPUTED. INTERVENING NONWORKDAYS WHOLLY WITHIN A PERIOD OF ACTIVE DUTY ARE CHARGED TO MILITARY LEAVE. AS A RESULT, MR. HART DOES NOT HAVE SUFFICIENT MILITARY LEAVE TO COVER HIS ACTIVE DUTY AND MUST USE ANNUAL LEAVE. HE WOULD PREFER THAT - AS IN SICK LEAVE AND ANNUAL LEAVE - THESE NONWORKDAYS NOT BE CHARGED AGAINST HIS MILITARY LEAVE ALLOWANCE OF 15 DAYS PER FISCAL YEAR.

UNDER THE PROVISIONS OF 5 U.S.C. SEC. 6323(A), AN EMPLOYEE OF THE GOVERNMENT MAY BE GRANTED UP TO 15 DAYS' MILITARY LEAVE PER FISCAL YEAR WITHOUT LOSS OF PAY, TIME, OR PERFORMANCE OR EFFICIENCY RATING FOR ACTIVE DUTY. IT SHOULD BE NOTED THAT THIS LEAVE IS GRANTED ON THE BASIS OF THE TIME THAT A MEMBER OF THE RESERVE OR NATIONAL GUARD IS UNDER ORDERS FOR ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING. THUS, IF THE MEMBER RECEIVES ORDERS FOR A CONTINUOUS 2-WEEK PERIOD THE INTERVENING NONWORKDAYS (IN THE CIVILIAN POSITION) ARE CHARGED TO MILITARY LEAVE. IF, HOWEVER, THE ORDERS TO ACTIVE DUTY ARE FOR TWO SEPARATE PERIODS, FOR EXAMPLE, TWO CONSECUTIVE 5-DAY WEEKS OF MONDAY THROUGH FRIDAY, THE INTERVENING SATURDAY AND SUNDAY WOULD NOT BE CHARGED TO MILITARY LEAVE. E.G. B-171947, SEPTEMBER 7, 1972, COPY ENCLOSED. IN OTHER WORDS, IT IS THE MILITARY DUTY THAT CONTROLS THE CHARGING OF THE LEAVE, NOT THE EMPLOYEE'S CIVILIAN POSITION WORK SCHEDULE.

ADDITIONALLY, AS WE STATED IN 27 COMP.GEN. 245, 252-53 (1947), THE RULE REQUIRING THAT MILITARY LEAVE BE CHARGED ON A CALENDAR-DAY BASIS, INCLUDING INTERVENING NONWORKDAYS WHOLLY WITHIN A CONTINUOUS PERIOD OF ACTIVE DUTY, IS ONE OF STATUTORY CONSTRUCTION WHICH CARRIES A LONG HISTORY OF CONSISTENT APPLICATION. WE RECENTLY APPROVED THIS RULE FOR COMPUTING MILITARY LEAVE TIME IN PETE LEWIS, JR., B-188145, NOVEMBER 15, 1977, AT PAGE 6. THE WORD "DAYS" APPEARING IN A STATUTE HAS BEEN CONSTRUED TO MEAN CALENDAR DAYS - NOT WORKDAYS - ABSENT AN EXPRESS AND CONTRARY CONGRESSIONAL DECLARATION. IN LIGHT OF THIS RULE, WE HAVE HELD THAT IF CONGRESS HAD INTENDED TO EXCLUDE INTERVENING NONWORKDAYS WHEN ENACTING MILITARY LEAVE STATUTES, IT WOULD HAVE DONE SO EXPRESSLY. B-133674, DECEMBER 30, 1957.

CONGRESS HAS IN FACT EXPRESSLY EXCLUDED HOLIDAYS AND NONWORKDAYS FROM COMPUTATION OF ANNUAL AND SICK LEAVE. 5 U.S.C. SECS. 6301-6311. MOREOVER, CONGRESS RECENTLY RECONSIDERED AND AMENDED THE MILITARY LEAVE PROVISIONS TO ALLOW CARRYOVER OF UNUSED MILITARY LEAVE TO THE NEXT YEAR AND COMPUTATION ON THE BASIS OF THE FISCAL YEAR AS OPPOSED TO THE CALENDAR YEAR. 94 STAT. 1850 (1980). NO EXPRESS OR IMPLIED PROVISION MODIFYING THE INTERVENING NONWORKDAYS RULE APPEARS AMONG THOSE AMENDMENTS, NOR DID CONGRESS DISCUSS THE RULE ANYWHERE IN THE LEGISLATIVE HISTORY OF THE ACT. ACCORDINGLY, ABSENT A CONGRESSIONAL EXPRESSION TO THE CONTRARY, WE DO NOT FEEL A DIFFERENT CONCLUSION IS WARRANTED.

WE TRUST THIS IS RESPONSIVE TO YOUR INQUIRY.