B-173997, OCT 27, 1971

B-173997: Oct 27, 1971

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HE REMAINED A TEMPORARY EMPLOYEE AND CONSEQUENTLY WAS NOT AUTHORIZED MILITARY LEAVE UNDER CHAPTER 630. CORPS OF ENGINEERS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17. WHICH WAS TRANSMITTED TO OUR OFFICE BY THE OFFICE OF THE CHIEF OF ENGINEERS FOR A DECISION AS TO WHETHER ENTITLEMENT TO MILITARY LEAVE EXISTS. SCOTT WAS GIVEN AN EXCEPTED APPOINTMENT AS A LAW CLERK NOT TO EXCEED JUNE 5. SCOTT WAS ADMITTED TO THE FLORIDA BAR ON JUNE 4. HE WAS APPARENTLY RECOMMENDED FOR APPOINTMENT AS AN ATTORNEY AND HE APPLIED FOR MILITARY LEAVE TO PERFORM ANNUAL TRAINING WITH HIS UNIT OF THE FLORIDA ARMY NATIONAL GUARD FOR 16 DAYS COMMENCING JUNE 12. SCOTT'S LEAVE APPLICATION WAS DENIED ON THE GROUND THAT CHAPTER 630.

B-173997, OCT 27, 1971

CIVILIAN EMPLOYEE - MILITARY LEAVE DENIAL OF CLAIM OF ALLAN C. D. SCOTT, II, AN EMPLOYEE OF THE CORPS OF ENGINEERS, FOR MILITARY LEAVE INCIDENT TO TRAINING DUTY WITH HIS UNIT OF THE FLORIDA NATIONAL GUARD. SINCE CLAIMANT HAD NOT YET BEEN APPOINTED TO A REGULAR EXCEPTED POSITION, HE REMAINED A TEMPORARY EMPLOYEE AND CONSEQUENTLY WAS NOT AUTHORIZED MILITARY LEAVE UNDER CHAPTER 630, SUBCHAPTER 9-4, FEDERAL PERSONNEL MANUAL.

TO JACKSONVILLE DISTRICT, CORPS OF ENGINEERS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17, 1971, REFERENCE SAJFF, CONCERNING THE CLAIM OF MR. ALLEN C. D. SCOTT, II, AN EMPLOYEE OF YOUR AGENCY, FOR MILITARY LEAVE, WHICH WAS TRANSMITTED TO OUR OFFICE BY THE OFFICE OF THE CHIEF OF ENGINEERS FOR A DECISION AS TO WHETHER ENTITLEMENT TO MILITARY LEAVE EXISTS.

THE RECORD INDICATES THAT ON APRIL 6, 1971, MR. SCOTT WAS GIVEN AN EXCEPTED APPOINTMENT AS A LAW CLERK NOT TO EXCEED JUNE 5, 1972, UNDER CIVIL SERVICE REGULATION 213.3102(E). MR. SCOTT WAS ADMITTED TO THE FLORIDA BAR ON JUNE 4, 1971. DURING THE PERIOD JUNE 7 TO 11, 1971, HE WAS APPARENTLY RECOMMENDED FOR APPOINTMENT AS AN ATTORNEY AND HE APPLIED FOR MILITARY LEAVE TO PERFORM ANNUAL TRAINING WITH HIS UNIT OF THE FLORIDA ARMY NATIONAL GUARD FOR 16 DAYS COMMENCING JUNE 12, 1971. MR. SCOTT'S LEAVE APPLICATION WAS DENIED ON THE GROUND THAT CHAPTER 630, SUBCHAPTER 9- 4, FEDERAL PERSONNEL MANUAL, PROVIDES THAT TEMPORARY, WHEN-ACTUALLY- EMPLOYED, AND PART-TIME PERSONNEL ARE NOT ENTITLED TO MILITARY LEAVE. JUNE 23, 1971, THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, APPROVED MR. SCOTT'S EMPLOYMENT AS AN ATTORNEY AND HIS APPOINTMENT WAS EFFECTED JULY 4, 1971.

CIVIL SERVICE REGULATION 213.3102(E) PROVIDES THAT AN APPOINTMENT TO A LAW CLERK-TRAINEE POSITION SHALL BE FOR A PERIOD NOT TO EXCEED 14 MONTHS PENDING ADMISSION TO THE BAR, THAT NO PERSON SHALL BE GIVEN MORE THAN ONE APPOINTMENT, AND THAT NO APPOINTMENT SHALL BE EXTENDED TO EXCEED 14 MONTHS IN DURATION. IT IS CONTEMPLATED THAT A LAW CLERK TRAINEE WILL BE GIVEN A REGULAR EXCEPTED APPOINTMENT AS AN ATTORNEY UNDER CIVIL SERVICE REGULATION 213.3102(D) UPON ADMISSION TO THE BAR. HOWEVER, THERE IS NO CIVIL SERVICE COMMISSION REQUIREMENT THAT A LAW CLERK-TRAINEE BE GIVEN A REGULAR EXCEPTED APPOINTMENT AS AN ATTORNEY UPON ADMISSION TO THE BAR AND, THEREFORE, IT IS WITHIN THE DISCRETION OF THE AGENCY TO MAKE OR WITHHOLD SUCH APPOINTMENT WHEN THE LAW CLERK TRAINEE IS ADMITTED TO THE BAR. SHOULD THE AGENCY FAIL TO MAKE A REGULAR EXCEPTED APPOINTMENT, THE LAW CLERK-TRAINEE'S APPOINTMENT WOULD EXPIRE AT THE END OF 14 MONTHS. IN VIEW OF THIS THE ACTION OF THE CIVIL SERVICE COMMISSION IN AUTHORIZING THE APPOINTMENT OF LAW CLERK TRAINEES FOR PERIODS OF 14 MONTHS RATHER THAN LIMITING SUCH APPOINTMENTS TO PERIODS OF ONE YEAR, THE LIMIT PLACED GENERALLY UPON TEMPORARY APPOINTMENTS BY CIVIL SERVICE REGULATION 316.401, DID NOT CHANGE THE NATURE OF THOSE APPOINTMENTS FROM TEMPORARY TO PERMANENT OR TEMPORARY INDEFINITE. CF. 46 COMP. GEN. 72 (1966).

IN THE INSTANT CASE MR. SCOTT WAS GIVEN A TEMPORARY APPOINTMENT. UNDERSTAND THAT FOR SUCH APPOINTMENT TO BE CONVERTED TO A REGULAR EXCEPTED APPOINTMENT AS AN ATTORNEY IT WAS NECESSARY FOR HIM TO PASS THE BAR EXAMINATION AND BE APPROVED BY THE QUALIFYING OFFICIAL, WHO IS THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS. WHILE MR. SCOTT HAD BEEN ADMITTED TO THE BAR AT THE TIME HE COMMENCED HIS MILITARY TRAINING, HIS APPOINTMENT AS AN ATTORNEY HAD NOT YET BEEN APPROVED BY THE QUALIFYING OFFICIAL.

SINCE ACTUALLY MR. SCOTT'S TEMPORARY APPOINTMENT WAS NOT CONVERTED TO A REGULAR EXCEPTED APPOINTMENT UNTIL JULY 4, 1971, THERE IS NO BASIS FOR ANY ENTITLEMENT TO MILITARY LEAVE AND, THEREFORE, HIS CLAIM IS DISALLOWED.

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