B-133972, OCTOBER 14, 1969, 49 COMP. GEN. 233

B-133972: Oct 14, 1969

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OR THE NATIONAL GUARD AS DESCRIBED IN 32 U.S.C. 101 IS ENTITLED TO 22 WORKDAYS OF LEAVE IN A CALENDAR YEAR PURSUANT TO 5 U.S.C. 6323(C) FOR ADDITIONAL PERIODS OF ACTIVE FEDERAL SERVICE IN AID OF LAW ENFORCEMENT MAY BE GRANTED ANNUAL LEAVE OR UNUSED MILITARY LEAVE UNDER 5 U.S.C. 6323(A) WHEN HIS SECTION 6323(C) LEAVE IS EXHAUSTED. ONLY IF THE LEAVE IS EXHAUSTED. THE DISCRETIONARY AUTHORITY OF AGENCY HEADS TO EXCUSE EMPLOYEES WHEN ABSENT WITHOUT CHARGE TO LEAVE MAY NOT BE USED TO INCREASE THE NUMBER OF DAYS AN EMPLOYEE IS EXCUSED TO PARTICIPATE IN RESERVE AND NATIONAL GUARD DUTY. OVERTIME EARNED IN CIVILIAN POSITION THE OVERTIME COMPENSATION AN EMPLOYEE WOULD HAVE EARNED HAD HE NOT BEEN REQUIRED TO PERFORM LAW ENFORCEMENT SERVICES AS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES OR THE NATIONAL GUARD IS FOR PAYMENT TO THE EMPLOYEE. 5 U.S.C. 6323(C) IN AUTHORIZING 22 WORKDAYS OF ADDITIONAL LEAVE IN A CALENDAR YEAR PROVIDES THAT THE COMPENSATION OF AN EMPLOYEE GRANTED THE SECTION 6323(C) LEAVE SHALL NOT BE REDUCED BY REASON OF THE ABSENCE.

B-133972, OCTOBER 14, 1969, 49 COMP. GEN. 233

LEAVES OF ABSENCE -- CIVILIANS ON MILITARY DUTY -- CIVIL DISORDERS -- LEAVE IN LIEU OF PUBLIC LAW 90-588 LEAVE A FEDERAL EMPLOYEE WHO AS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES AS DESCRIBED IN 10 U.S.C. 261, OR THE NATIONAL GUARD AS DESCRIBED IN 32 U.S.C. 101 IS ENTITLED TO 22 WORKDAYS OF LEAVE IN A CALENDAR YEAR PURSUANT TO 5 U.S.C. 6323(C) FOR ADDITIONAL PERIODS OF ACTIVE FEDERAL SERVICE IN AID OF LAW ENFORCEMENT MAY BE GRANTED ANNUAL LEAVE OR UNUSED MILITARY LEAVE UNDER 5 U.S.C. 6323(A) WHEN HIS SECTION 6323(C) LEAVE IS EXHAUSTED, BUT ONLY IF THE LEAVE IS EXHAUSTED. UNDER SECTION 6323(C), THE EMPLOYEE ENTITLED "TO LEAVE WITHOUT LOSS OF OR REDUCTION IN *** LEAVE" MAY NOT ELECT TO USE, NOR MAY HE VOLUNTARILY BE CHARGED ANNUAL LEAVE, OR ANY OTHER TYPE OF LEAVE FOR PERIODS OF SERVICE IN AID OF LAW ENFORCEMENT IF HE HAS SECTION 6323(C) LEAVE AVAILABLE FOR USE, EVEN TO AVOID A FORFEITURE OF LEAVE. LEAVES OF ABSENCE -- CIVILIANS ON MILITARY DUTY -- CIVIL DISORDERS -- ADMINISTRATIVE LEAVE WHEN A FEDERAL EMPLOYEE WHO AS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES OR THE NATIONAL GUARD PERFORMS LAW ENFORCEMENT SERVICES FOR A STATE OR THE DISTRICT OF COLUMBIA EXHAUSTS THE 22 DAYS OF ADDITIONAL LEAVE PROVIDED UNDER SECTION 5 U.S.C. 6323(C), HE MAY NOT BE GRANTED ADMINISTRATIVE LEAVE. THE DISCRETIONARY AUTHORITY OF AGENCY HEADS TO EXCUSE EMPLOYEES WHEN ABSENT WITHOUT CHARGE TO LEAVE MAY NOT BE USED TO INCREASE THE NUMBER OF DAYS AN EMPLOYEE IS EXCUSED TO PARTICIPATE IN RESERVE AND NATIONAL GUARD DUTY. THEREFORE, AN EMPLOYEE WHO HAS EXHAUSTED SECTION 6323(C) LEAVE MAY NOT BE FURTHER EXCUSED FROM DUTY WITHOUT LOSS OF PAY OR CHARGE TO LEAVE FOR PERFORMING MILITARY DUTY. LEAVES OF ABSENCE -- CIVILIANS ON MILITARY DUTY -- CIVIL DISORDERS -- OVERTIME EARNED IN CIVILIAN POSITION THE OVERTIME COMPENSATION AN EMPLOYEE WOULD HAVE EARNED HAD HE NOT BEEN REQUIRED TO PERFORM LAW ENFORCEMENT SERVICES AS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES OR THE NATIONAL GUARD IS FOR PAYMENT TO THE EMPLOYEE. 5 U.S.C. 6323(C) IN AUTHORIZING 22 WORKDAYS OF ADDITIONAL LEAVE IN A CALENDAR YEAR PROVIDES THAT THE COMPENSATION OF AN EMPLOYEE GRANTED THE SECTION 6323(C) LEAVE SHALL NOT BE REDUCED BY REASON OF THE ABSENCE. LEAVES OF ABSENCE -- CIVILIANS ON MILITARY DUTY -- CIVIL DISORDERS -- CHARGING LEAVE IN UNITS OF HOURS TO AVOID A DISPARITY IN BENEFITS FOR EMPLOYEES WHO WORK FIVE 8-HOUR DAY TOURS OF DUTY AND THOSE WHO WORK UNCOMMON TOURS OF DUTY, THE LEAVE BENEFITS PROVIDED IN 10 U.S.C. 6323(C), PRESCRIBING 22 ADDITIONAL DAYS OF MILITARY LEAVE FOR CIVILIAN EMPLOYEES WHO AS MEMBERS OF A RESERVE COMPONENT OF THE ARMED FORCES OR THE NATIONAL GUARD PERFORM LAW ENFORCEMENT SERVICES, SHOULD BE CONVERTED INTO HOURS AND CHARGED IN UNITS OF HOURS ON THE SAME BASIS AS ANNUAL AND SICK LEAVE IS CHARGED UNDER CHAPTER 63 OF 5 U.S.C. LEAVES OF ABSENCE -- CIVILIANS ON MILITARY DUTY -- CIVIL DISORDERS -- "FULL TIME MILITARY SERVICE" DEFINED THE TERM "FULL-TIME MILITARY SERVICE FOR HIS STATE" CONTAINED IN 5 U.S.C 6323(C) AND USED IN CONNECTION WITH THE 22 ADDITIONAL WORKDAYS OF LEAVE IN A CALENDAR YEAR PROVIDED UNDER SECTION 6323(C) FOR FEDERAL EMPLOYEES PERFORMING ACTIVE SERVICE IN AID OF LAW ENFORCEMENT AS MEMBERS OF A RESERVE COMPONENT OF THE ARMED FORCES OR THE NATIONAL GUARD, INCLUDES THE TIME FROM REPORTING WHEN ORDERED BY COMPETENT AUTHORITY TO SERVE IN THE ACTIVE MILITARY SERVICE OF THE STATE UNTIL RELIEVED BY PROPER ORDERS, WHICH TIME EMBRACES THE STANDBY STATUS NECESSITATED BY THE NEED TO TAKE OVER OR PERFORM WHEN ACTIVE SERVICE OR SKILL IS NEEDED AS WELL AS ACTUAL ENGAGEMENT IN LAW ENFORCEMENT DUTIES. LEAVES OF ABSENCE -- CIVILIANS ON MILITARY DUTY -- CIVIL DISORDERS -- SERVICES DUE TO NATURAL DISASTER WHERE THE NATIONAL GUARD IS USED TO ALLEVIATE THE RESULTS OF A DISASTER, THE MAINTENANCE OF LAW AND ORDER IS A PRIME FUNCTION OF THE MILITARY DUTIES ASSIGNED AND THE DUTIES ARE WITHIN THE CONTEMPLATION OF THE TERM "MILITARY AID TO ENFORCE THE LAW." ACCEPTABLE EVIDENCE OF THE PERFORMANCE OF SUCH DUTY BY FEDERAL EMPLOYEES AS MEMBERS OF A RESERVE COMPONENT OF THE ARMED FORCES OR THE NATIONAL GUARD UNDER 5 U.S.C. 6323(C) WOULD BE MILITARY ORDERS ISSUED BY COMPETENT AUTHORITY, OR A STATEMENT BY A COMMANDING OFFICER SHOWING THE AUTHORITY, EXTENT, AND NATURE OF THE SERVICE. ADMINISTRATIVE LEAVE MAY NOT BE GRANTED SHOULD THE ADDITIONAL 22 DAYS OF MILITARY LEAVE PROVIDED BY 5 U.S.C. 6323(C) BECOME EXHAUSTED, OR TO AVOID APPLYING THE PAY ADJUSTMENT PROVISIONS OF 5 U.S.C. 5519. LEAVES OF ABSENCE -- CIVILIANS ON MILITARY DUTY -- CIVIL DISORDERS -- ADJUSTMENTS OF CIVILIAN COMPENSATION, RETIREMENT, TAX, AND INSURANCE IN IMPLEMENTING 5 U.S.C. 5519, PROVIDING FOR CREDITING AMOUNTS RECEIVED BY A FEDERAL EMPLOYEE FOR SERVICE IN AID OF LAW ENFORCEMENT AS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES OR THE NATIONAL GUARD UNDER 5 U.S.C. 6323(C), THE GROSS AMOUNT OF MILITARY PAY RECEIVED FOR A DAY ON WHICH THE EMPLOYEE IS EXCUSED FROM CIVILIAN DUTY UNDER SECTION 6323(C) SHOULD BE DEDUCTED FROM THE CIVILIAN COMPENSATION FOR THE EXCUSED PERIOD, BUT THE MILITARY PAY RECEIVED FOR DAYS ON WHICH THE EMPLOYEE DOES NOT RECEIVE CIVILIAN COMPENSATION NEED NOT BE CREDITED AGAINST THE CIVILIAN COMPENSATION RECEIVED DURING THE PERIOD OF MILITARY SERVICE. CIVILIAN SERVICE RETIREMENT CONTRIBUTIONS SHOULD BE COMPUTED ON THE BASIS OF THE CIVILIAN COMPENSATION DUE THE EMPLOYEE AFTER HIS MILITARY LEAVE HAS BEEN CREDITED, AND ANY TAX QUESTIONS ARE FOR DETERMINATION BY THE INTERNAL REVENUE SERVICE. COMPENSATION -- ADJUSTMENT -- MILITARY DUTY TO ENFORCE THE LAW WHEN A FEDERAL EMPLOYEE WHO AS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES OR THE NATIONAL GUARD PERFORMS LAW ENFORCEMENT DUTY PURSUANT TO 5 U.S.C. 6323(C) IS UNABLE TO FURNISH DOCUMENTED INFORMATION OF THE MILITARY PAY RECEIVED FOR THE PURPOSE OF DETERMINING HIS CIVILIAN COMPENSATION ENTITLEMENT, THE MILITARY PAY INFORMATION SHOULD BE OBTAINED FROM THE MILITARY ORGANIZATION. IF THE EMPLOYEE'S CIVILIAN COMPENSATION CANNOT BE ADJUSTED TO ACCOUNT FOR THE MILITARY PAY CREDIT BEFORE PAYMENT IS MADE TO HIM, COLLECTION OF THE GROSS AMOUNT OF MILITARY PAY MAY BE MADE BY OFFSET AGAINST THE SUBSEQUENT CIVILIAN COMPENSATION HE RECEIVES, OR IN CASH. LEAVES OF ABSENCE -- CIVILIANS ON MILITARY DUTY -- CIVIL DISORDERS -- APPROPRIATION EFFECT THE MILITARY PAY CREDITED TO THE CIVILIAN COMPENSATION OF A FEDERAL EMPLOYEE PERFORMING LAW ENFORCEMENT SERVICE AS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES OR THE NATIONAL GUARD PURSUANT TO 6323(C) MAY REMAIN IN THE AGENCY APPROPRIATION AND AMOUNTS COLLECTED IN CASH MAY BE DEPOSITED IN THE APPROPRIATION FROM WHICH THE EMPLOYEE'S CIVILIAN COMPENSATION WAS PAID. LEAVES OF ABSENCE -- CIVILIANS ON MILITARY DUTY -- CIVIL DISORDERS -- ADJUSTMENTS OF CIVILIAN COMPENSATION, RETIREMENT, TAX, AND INSURANCE WHERE THE MILITARY PAY OF A FEDERAL EMPLOYEE WHO AS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES OR THE NATIONAL GUARD PERFORMS LAW ENFORCEMENT SERVICES PURSUANT TO 5 U.S.C. 6323(C) EXCEEDS HIS CIVILIAN COMPENSATION ENTITLEMENT, THE EMPLOYEE MAY RETAIN HIS DAILY MILITARY PAY TO THE EXTENT IT EXCEEDS THE CIVILIAN COMPENSATION FOR ANY DAY OR PART OF A DAY ON WHICH HE IS EXCUSED FROM CIVILIAN DUTY, ABSENT A REQUIREMENT FOR FORFEITURE OF MILITARY PAY IN 5 U.S.C. 5519, WHICH PROVIDES FOR CREDITING AMOUNTS RECEIVED FOR RESERVE OR NATIONAL GUARD DUTY. RETIREMENT AND TAXES ARE FOR DEDUCTION TO THE EXTENT OF THE REDUCED CIVILIAN COMPENSATION, IF ANY, DUE THE EMPLOYEE, HEALTH AND LIFE INSURANCE DEDUCTIONS SHOULD BE MADE TO THE EXTENT REQUIRED BY CIVIL SERVICE REGULATIONS WHEN THE CIVILIAN COMPENSATION DUE IS NOT SUFFICIENT TO COVER ALL DEDUCTIONS. PAY -- WITHHOLDING -- MEMBER'S CONSENT REQUIREMENT -- LAW ENFORCEMENT SERVICES THE PROVISION IN 5 U.S.C. 5519, FOR CREDITING TO THE CIVILIAN COMPENSATION OF A FEDERAL EMPLOYEE THE MILITARY PAY RECEIVED FOR THE PERFORMANCE OF LAW ENFORCEMENT SERVICES AS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES OR THE NATIONAL GUARD PURSUANT TO 5 U.S.C. 6323(C), DOES NOT AFFECT THE EMPLOYEE'S ENTITLEMENT TO MILITARY PAY AND, THEREFORE, THE MILITARY ORGANIZATION CONCERNED HAS NO AUTHORITY TO WITHHOLD THE MILITARY PAY DUE THE EMPLOYEE FOR THE PURPOSE OF CREDITING HIS CIVILIAN COMPENSATION WITHOUT HIS CONSENT, AND ALSO THE INTERNAL REVENUE SERVICE RULES MIGHT REQUIRE THE WITHHOLDING OF APPROPRIATE TAXES ON THE BASIS OF THE EMPLOYEE'S ENTITLEMENT TO MILITARY PAY WITHOUT REGARD TO THE AMOUNT WITHHELD FOR CREDIT TO THE CIVILIAN COMPENSATION OF THE EMPLOYEE. LEAVES OF ABSENCE -- CIVILIANS ON MILITARY DUTY -- CIVIL DISORDERS -- CIVILIAN AND MILITARY DUTIES ON SAME DAY A FEDERAL EMPLOYEE WHO HAVING PERFORMED ALL THE DUTIES OF HIS CIVILIAN POSITION ON THE DAY HE REPORTED FOR LAW ENFORCEMENT DUTY WITH HIS NATIONAL GUARD UNIT AS PROVIDED IN 5 U.S.C. 6323(C) FOR MEMBERS OF THE NATIONAL GUARD, AS WELL AS RESERVE COMPONENTS OF THE ARMED FORCES, IS ENTITLED TO RECEIVE BOTH CIVILIAN COMPENSATION AND MILITARY PAY FOR THE DAY. THE RULE THAT CIVILIAN COMPENSATION AND MILITARY PAY MAY NOT BE PAID FOR THE SAME DAY BECAUSE THE PERFORMANCE OF CIVILIAN DUTIES IS INCOMPATIBLE WITH THE REQUIREMENTS OF ACTIVE MILITARY SERVICE HAS NO APPLICATION TO THE DAY INVOLVED, AND NEITHER DOES 5 U.S.C. 5519 WHICH AUTHORIZES CREDITING MILITARY PAY TO THE CIVILIAN COMPENSATION ENTITLEMENT OF THE INDIVIDUAL WHO PERFORMS LAW ENFORCEMENT SERVICES.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 14, 1969:

YOUR LETTER OF JULY 31, 1969, PRESENTS FOR OUR CONSIDERATION SEVERAL QUESTIONS CONCERNING THE APPLICATION OF SUBSECTION 6323(C) AND SECTION 5519 OF TITLE 5, U.S.C. AS ADDED BY SECTION 2 OF PUBLIC LAW 90-588, APPROVED OCTOBER 17, 1968.

SUBSECTION 6323(C) PROVIDES AS FOLLOWS:

(C) EXCEPT AS PROVIDED BY SECTION 5519 OF THIS TITLE, AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE (EXCEPT A SUBSTITUTE EMPLOYEE IN THE POSTAL FIELD SERVICE) OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, PERMANENT OR TEMPORARY INDEFINITE, WHO--

(1) IS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES, AS DESCRIBED IN SECTION 261 OF TITLE 10, OR THE NATIONAL GUARD, AS DESCRIBED IN SECTION 101 OF TITLE 32; AND

(2) PERFORMS, FOR THE PURPOSE OF PROVIDING MILITARY AID TO ENFORCE THE LAW--

(A) FEDERAL SERVICE UNDER SECTION 331, 332, 333, 3500, OR 8500 OF TITLE 10, OR OTHER PROVISION OF LAW, AS APPLICABLE, OR

(B) FULL-TIME MILITARY SERVICE FOR HIS STATE, THE DISTRICT OF COLUMBIA, THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, OR A TERRITORY OF THE UNITED STATES; IS ENTITLED, DURING AND BECAUSE OF SUCH SERVICE, TO LEAVE WITHOUT LOSS OR, OR REDUCTION IN, PAY, LEAVE TO WHICH HE OTHERWISE IS ENTITLED, CREDIT FOR TIME OR SERVICE, OR PERFORMANCE OR EFFICIENCY RATING. LEAVE GRANTED BY THIS SUBSECTION SHALL NOT EXCEED 22 WORKDAYS IN A CALENDAR YEAR.

QUESTIONS 1(A) THROUGH 1(F) CONCERN THE MATTER OF GRANTING OTHER TYPES OF LEAVE IN LIEU OF OR IN ADDITION TO THE LEAVE AUTHORIZED BY SUBSECTION 6323(C). YOUR SPECIFIC QUESTIONS ARE AS FOLLOWS:

(A) WHEN AN EMPLOYEE PERFORMING ACTIVE FEDERAL SERVICE HAS EXHAUSTED HIS LEAVE UNDER 5 U.S.C. 6323(C), IS HE STILL ENTITLED TO USE HIS ANNUAL LEAVE OR UNUSED MILITARY LEAVE UNDER 5 U.S.C. 6323(A) FOR THE SAME TYPE OF DUTY?

PRIOR TO THE ENACTMENT OF PUBLIC LAW 90-588 WE HELD THAT EMPLOYEES WHO ARE REQUIRED TO PERFORM ACTIVE DUTY AS MILITARY RESERVISTS OR AS MEMBERS OF FEDERALIZED NATIONAL GUARD UNITS IN CONNECTION WITH THE CONTROL OF CIVIL DISORDERS MAY BE GRANTED MILITARY LEAVE UNDER 5 U.S.C. 6323(A), IF AVAILABLE, AND/OR ANNUAL LEAVE FOR THE PERIOD OF SUCH ABSENCE. 37 COMP. GEN. 255 (1957); 47 ID. 761 (1968). WHERE AN EMPLOYEE HAS EXHAUSTED THE LEAVE AUTHORIZED BY 5 U.S.C. 6323(C), WE SEE NO REASON WHY HE MAY NOT BE GRANTED ANNUAL LEAVE OR UNUSED MILITARY LEAVE UNDER 5 U.S.C. 6323(A) WHEN ORDERED TO PERFORM ADDITIONAL PERIODS OF ACTIVE FEDERAL SERVICE IN AID OF LAW ENFORCEMENT.

(B) WOULD THE ANSWER BE DIFFERENT IF HE HAS NOT EXHAUSTED HIS LEAVE UNDER 5 U.S.C. 6323(C)?

SUBSECTION 6323(C), QUOTED ABOVE, SPECIFICALLY PROVIDES THAT THE EMPLOYEE IS ENTITLED TO "LEAVE WITHOUT LOSS OF OR REDUCTION IN *** LEAVE TO WHICH HE OTHERWISE IS ENTITLED *** ." WE CONSTRUE SUCH LANGUAGE TO TO MEAN THAT AN EMPLOYEE WHO IS ORDERED TO PERFORM THE TYPE OF DUTY CONTEMPLATED BY SUBSECTION 6323(C) MAY NOT ELECT TO USE NOR MAY HE INVOLUNTARILY BE CHARGED ANNUAL LEAVE OR ANY OTHER TYPE OF LEAVE FOR SUCH ABSENCE IF HE HAS LEAVE UNDER 6323(C) AVAILABLE FOR HIS USE. CF. 27 COMP. GEN. 83 (1947) AND B-119969, MAY 20, 1954. WE BELIEVE THAT OUR CONSTRUCTION OF THE STATUTE COMPORTS WITH THE INTENT OF THE CONGRESS AS EVIDENCED BY THE FOLLOWING STATEMENT APPEARING ON PAGE 7 OF H. REPT. NO. 1560, 90TH CONG. 2D SESS.:

THE GRANTING OF LEAVE AND THE REDUCTION IN CIVILIAN PAY UNDER THESE PROVISIONS ARE MANDATORY, AND NEITHER THE AGENCY NOR THE EMPLOYEE WILL HAVE ANY DISCRETION IN THIS REGARD AS TO THE APPLICATION OF THE PROVISIONS INVOLVED.

THE NEXT QUESTION IS--

(C) IF ANNUAL LEAVE OR MILITARY LEAVE IS AVAILABLE TO AN EMPLOYEE WHO HAS NOT EXHAUSTED HIS LEAVE UNDER 5 U.S.C. 6323(C), IS THE EMPLOYING AGENCY ENTITLED TO REQUIRE THAT THE LEAVE UNDER 5 U.S.C. 6323(C) BE USED INSTEAD?

AS INDICATED IN CONNECTION WITH OUR DISCUSSION OF QUESTION 1(B), ABOVE, THE EMPLOYEE MUST BE CHARGED LEAVE UNDER SUBSECTION 6323(C).

(D) WOULD IT MAKE A DIFFERENCE WITH RESPECT TO ANNUAL LEAVE IN ANY OF THESE INSTANCES IF THE ACTIVE DUTY WERE NEAR THE END OF THE YEAR AND THE ANNUAL LEAVE WOULD BE FORFEITED IF NOT USED?

AS DISCUSSED ABOVE, THE PROVISIONS OF THE STATUTE ARE MANDATORY AND, THEREFORE, ANNUAL LEAVE MAY NOT BE SUBSTITUTED FOR LEAVE UNDER SUBSECTION 6323(C) EVEN TO AVOID A FORFEITURE THEREOF. CF. B-119969, MAY 20, 1954.

(E) WHEN A NATIONAL GUARDSMAN'S ACTIVE SERVICE IS FOR A STATE, MAY A REASONABLE AMOUNT OF ADMINISTRATIVE LEAVE BE AUTHORIZED IF HE HAS EXHAUSTED HIS LEAVE UNDER 5 U.S.C. 6323(C)?

IN OUR DECISION 47 COMP. GEN. 761 WE HELD THAT CIVILIAN EMPLOYEES OF THE GOVERNMENT WHO ARE CALLED TO PERFORM SHORT PERIODS OF ACTIVE DUTY AS MILITARY RESERVISTS OR AS MEMBERS OF FEDERALIZED NATIONAL GUARD UNITS IN CONNECTION WITH THE CONTROL OF CIVIL DISORDERS MAY NOT BE EXCUSED FROM DUTY WITHOUT LOSS OF PAY OR CHARGE TO LEAVE FOR MORE THAN THE 15 DAYS IN A CALENDAR YEAR AUTHORIZED BY 5 U.S.C. 6323(A). WE POINTED OUT THAT BY ENACTING SUBSECTION 6323(A) THE CONGRESS HAD SPECIFICALLY PROVIDED FOR EXCUSED ABSENCE WITHOUT LOSS OF PAY OR CHARGE TO LEAVE FOR CERTAIN TYPES OF RESERVE AND NATIONAL GUARD DUTY. WE THEN WENT ON TO SAY:

*** WE DO NOT BELIEVE THAT THE DISCRETIONARY AUTHORITY WHICH AGENCY HEADS HAVE TO EXCUSE EMPLOYEES WHEN ABSENT WITHOUT CHARGE TO LEAVE MAY BE USED TO INCREASE THE NUMBER OF DAYS AN EMPLOYEE IS EXCUSED FOR THE PURPOSE OF PARTICIPATING IN RESERVE AND NATIONAL GUARD ACTIVITIES WHICH OTHERWISE ARE COVERED BY 5 U.S.C. 6323. ***

WE BELIEVE THAT THE RATIONALE OF THAT DECISION IS EQUALLY APPLICABLE IN THE CASE OF LEAVE AUTHORIZED BY SUBSECTION 6323(C). ACCORDINGLY, WHEN AN EMPLOYEE HAS EXHAUSTED HIS LEAVE UNDER 6323(C) HE MAY NOT BE FURTHER EXCUSED FROM DUTY WITHOUT LOSS OF PAY OR CHARGE TO LEAVE FOR THE PURPOSE OF PERFORMING DUTY WHICH OTHERWISE WOULD BE COVERED BY SUBSECTION 6323(C). IN THIS REGARD, SEE OUR ANSWER TO QUESTION 1(A).

(F) ASSUMING THAT THE EMPLOYEE HAS A CHOICE IN ANY INSTANCE, WHEN A PARTICULAR KIND OF LEAVE HAS BEEN APPLIED FOR AND USED, IS ANY RETROACTIVE CHANGE POSSIBLE?

THIS QUESTION IS TOO GENERAL TO PERMIT OF A CATEGORICAL ANSWER. QUESTIONS 2(A) THROUGH 2(E) OF YOUR SUBMISSION ARE AS FOLLOWS:

(A) IS AN EMPLOYEE WHO IS ON SUCH LEAVE PAID FOR OVERTIME HOURS WHICH HE WOULD HAVE SERVED IF HE HAD NOT BEEN ON LEAVE?

(B) IF HE IS PAID FOR SUCH OVERTIME, WHICH MIGHT BE AS LITTLE AS TWO HOURS, IS A NONWORKDAY ON WHICH OVERTIME WOULD HAVE BEEN PERFORMED CHARGED AGAINST THE MAXIMUM 22 DAYS?

(C) IN THE CASE OF AN UNCOMMON TOUR OF DUTY, SUCH AS FOUR TEN-HOUR DAYS, IS LEAVE CHARGED ON A DAY-FOR-DAY BASIS WITHOUT REGARD TO THE NUMBER OF HOURS?

(D) WHAT CHARGES ARE PROPER FOR A 24-HOUR TOUR, STARTING ONE CALENDAR DAY AND ENDING THE NEXT?

(E) IS LEAVE CHARGED FOR A HOLIDAY WHICH IS INCLUDED WITHIN A PERIOD OF LEAVE UNDER 5 U.S.C. 6323(C)?

SUBSECTION 6323(C) PROVIDES THAT THE COMPENSATION OF AN EMPLOYEE GRANTED LEAVE UNDER THAT SUBSECTION SHALL NOT BE REDUCED BY REASON OF SUCH ABSENCE. SIMILAR LANGUAGE APPEARS IN 5 U.S.C. 6322 (COURT LEAVE) AND 5 U.S.C. 6323(A) (MILITARY LEAVE). UNDER THOSE PROVISIONS WE HAVE HELD THAT AN EMPLOYEE IS ENTITLED TO THE SAME COMPENSATION, INCLUDING OVERTIME, HE WOULD HAVE RECEIVED HAD HE RENDERED SERVICE IN HIS CIVILIAN POSITION ON THE DAYS HE WAS REQUIRED TO BE ABSENT ON COURT OR MILITARY LEAVE. COMP. GEN. 173 (1951). THE SAME RULE IS FOR APPLICATION IN THE CASE OF LEAVE GRANTED UNDER SUBSECTION 6323(C). QUESTION 2(A) IS ANSWERED ACCORDINGLY.

SUBSECTION 6323(C) PROVIDES THAT THE LEAVE GRANTED THEREUNDER SHALL NOT EXCEED 22 WORKDAYS IN A CALENDAR YEAR. THE TERM "WORKDAYS" IS NOT DEFINED IN THE STATUTE NOR IN THE LEGISLATIVE HISTORY THEREOF. HOWEVER, THE FOLLOWING STATEMENTS APPEAR ON PAGES 6 AND 7 OF H. REPT. NO. 1560, 90TH CONG., 2D SESS.:

THE MAXIMUM AMOUNT OF LEAVE TO BE GRANTED IS LIMITED TO NOT IN EXCESS OF 22 WORKDAYS IN A CALENDAR YEAR, WHICH ORDINARILY CORRESPONDS WITH A CALENDAR MONTH OF 30 DAYS EXCEPT IN THE CASE OF POSTAL FIELD SERVICE EMPLOYEES.

THE NEW SUBSECTION (D) PROVIDES SIMILAR LEAVE BENEFITS FOR SUBSTITUTE EMPLOYEES IN THE POSTAL FIELD SERVICE WHO ARE CALLED TO DUTY WITH THE RESERVE OR THE NATIONAL GUARD. HOWEVER, THE NEW PROVISION WILL APPLY ONLY TO A SUBSTITUTE EMPLOYEE WHO HAS WORKED AT LEAST 1,040 HOURS AS A SUBSTITUTE DURING THE IMMEDIATE PRECEDING CALENDAR YEAR. THE AMOUNT OF LEAVE TO BE GRANTED MAY NOT EXCEED 160 HOURS IN A CALENDAR YEAR. SUCH BENEFITS WILL ACCRUE TO SUBSTITUTE EMPLOYEES ON THE BASIS OF 1 HOUR OF LEAVE FOR EACH PERIOD AGGREGATING 13 HOURS OF SERVICE PERFORMED. THE 1,040 HOURS REPRESENT ONE-HALF OF AN ORDINARY WORK YEAR OF 2,080 HOURS FOR POSTAL EMPLOYEES. THE 160 HOURS, OR 20 8-HOUR DAYS, IS A LITTLE LESS THAN THE 22 WORKING DAYS PROVIDED FOR THE FULL-TIME EMPLOYEE UNDER SUBSECTION (C).

IT IS EVIDENT FROM THE ABOVE-QUOTED STATEMENTS THAT THE CONGRESS ENVISIONED A WORKDAY AS CONSISTING OF 8 HOURS. HOWEVER, IT MUST BE RECOGNIZED THAT MANY GOVERNMENT EMPLOYEES HAVE UNCOMMON TOURS OF DUTY WITH WORKDAYS OF OTHER THAN 8 HOURS. WHILE THE STATUTE LIMITS THE GRANTING OF LEAVE TO 22 WORKDAYS, THE GRANTING OF THE LEAVE IN UNITS OF DAYS WOULD CREATE A DISPARITY BETWEEN THE LEAVE BENEFITS OF THOSE EMPLOYEES WHO WORK A NORMAL TOUR OF DUTY CONSISTING OF FIVE 8-HOUR DAYS AND THOSE WHO WORK UNCOMMON TOURS OF DUTY. THEREFORE, IT IS OUR VIEW THAT THE LEAVE AUTHORIZED UNDER SUBSECTION 6323(C) SHOULD BE CONVERTED INTO HOURS AND CHARGED IN UNITS OF HOURS RATHER THAN DAYS. CF. 25 COMP. GEN. 151 (1945). THUS, AN EMPLOYEE WHO WORKS A NORMAL 40-HOUR WEEK WOULD BE ENTITLED TO A MAXIMUM OF 176 HOURS OF LEAVE IN A CALENDAR YEAR UNDER SUBSECTION 6323(C).

FURTHERMORE, IN THE ABSENCE OF ANYTHING IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-588 INDICATING A CONTRARY INTENT, WE BELIEVE THAT LEAVE UNDER 6323(C) SHOULD BE CHARGED ON THE SAME BASIS THAT ANNUAL AND SICK LEAVE IS CHARGED UNDER CHAPTER 63 OF 5 U.S.C. IN THAT REGARD SUBPARAGRAPH 2-4(A) OF CHAPTER 630, FEDERAL PERSONNEL MANUAL, READS AS FOLLOWS:

A. LEAVE DAYS. BOTH ANNUAL AND SICK LEAVE ARE CHARGED TO AN EMPLOYEE'S ACCOUNT ONLY FOR ABSENCE ON REGULAR WORKDAYS, THAT IS, DAYS ON WHICH HE WOULD OTHERWISE WORK AND RECEIVE PAY AT STRAIGHT-TIME RATES. LEAVE IS NOT CHARGED FOR ABSENCE ON DAYS FOR WHICH OVERTIME RATES WOULD BE PAID, HOLIDAYS, OR OTHER NONWORKDAYS.

EMPLOYEES WITH UNCOMMON TOURS OF DUTY SUCH AS THOSE WHO WORK 24-HOUR SHIFTS MAY HAVE THE LEAVE AUTHORIZED BY SUBSECTION 6323(C) ADJUSTED IN THE SAME MANNER AS THEIR ANNUAL AND SICK LEAVE UNDER SECTION 630.210 OF THE COMMISSION'S REGULATIONS. IN THAT REGARD SEE FPM SUPPLEMENT 990-2, BOOK 630, SUBCHAPTER 2, PARAGRAPH S2-6. QUESTIONS 2(B) THROUGH 2(E) ARE ANSWERED ACCORDINGLY.

YOUR THIRD QUESTION IS:

WHAT IS THE MEANING OF "FULL-TIME MILITARY SERVICE FOR HIS STATE" IN 5 U.S.C. 6323(C)(2)(B)? MAY IT INCLUDE EITHER A REGULAR PORTION OF EACH DAY OR A REGULAR SCHEDULE OF ONLY CERTAIN DAYS IN A WEEK?

THE TERM "FULL-TIME MILITARY SERVICE FOR HIS STATE" IS CONSTRUED TO INCLUDE THE TIME FROM REPORTING WHEN ORDERED BY COMPETENT AUTHORITY TO SERVE IN THE ACTIVE MILITARY SERVICE OF THE STATE UNTIL RELIEVED BY APPROPRIATE ORDERS. BY NECESSITY THE MEMBER WOULD HAVE TO BE AVAILABLE FOR FULL-TIME SERVICE AND THUS, STANDBY STATUS TO TAKE OVER OR PERFORM WHEN ACTIVE SERVICE OR SKILL IS NEEDED WOULD BE INCLUDED IN THE MEANING OF FULL-TIME MILITARY SERVICE AS WELL AS ACTUAL ENGAGEMENT. IN THE ABSENCE OF SPECIFIC CASES IT APPEARS UNNECESSARY TO DETERMINE WHETHER APPARENT LESSER PERIODS THAN FULL-TIME, AS INDICATED IN THE QUESTION, MEET THE REQUIREMENTS OF THE STATUTE.

YOUR FOURTH QUESTION CONSISTS OF 4 SUBQUESTIONS AS FOLLOWS:

4(A) IS NATIONAL GUARD DUTY IN CASES OF DISASTER SUCH AS FLOODS, EARTHQUAKES AND HURRICANES, WHICH WE UNDERSTAND GENERALLY INCLUDE DUTIES OF PREVENTING LOOTING AND OTHER CRIMINAL OFFENSES, COVERED BY THE TERM "MILITARY AID TO ENFORCE THE LAW"?

IT IS OUR UNDERSTANDING THAT WHERE THE NATIONAL GUARD IS USED FOR THE PURPOSE OF ALLEVIATING THE RESULTS OF DISASTER, THAT MAINTENANCE OF LAW AND ORDER IS A PRIME FUNCTION OF THE ASSIGNED MILITARY DUTIES. THEREFORE QUESTION 4(A) IS ANSWERED IN THE AFFIRMATIVE.

4(B) WHAT WOULD BE ACCEPTABLE EVIDENCE THAT DUTY WAS TO BE PERFORMED "FOR THE PURPOSE OF PROVIDING MILITARY AID TO ENFORCE THE LAW"?

A COPY OF MILITARY ORDERS ISSUED BY COMPETENT AUTHORITY OR A STATEMENT BY THE MEMBERS' COMMANDING OFFICER SHOWING THE AUTHORITY, EXTENT AND NATURE OF THE SERVICE WOULD BE SUFFICIENT. SEE 43 COMP. GEN. 293 (1963).

4(C)(1) IF DISASTER DUTY IS NOT COVERED BY 5 U.S.C. 6323(C), MAY AGENCIES COVER REQUIRED ABSENCES BY GRANTING ADMINISTRATIVE LEAVE?

IN VIEW OF OUR ANSWER TO 4(A) ABOVE, NO ANSWER IS REQUIRED.

4(C)(2) IF THE LEAVE AUTHORIZED BY 5 U.S.C. 6323(C) IS AVAILABLE FOR THIS DUTY AND IS EXHAUSTED, MAY AGENCIES THEN GRANT ADMINISTRATIVE LEAVE? MAY THEY AUTHORIZE ADMINISTRATIVE LEAVE INSTEAD OF LEAVE UNDER 5 U.S.C. 6323(C) FOR A SHORT PERIOD OF ABSENCE IN ORDER TO AVOID THE COMPLICATIONS INVOLVED IN APPLYING THE PROVISIONS OF 5 U.S.C. 5519? BOTH QUESTIONS ARE ANSWERED IN THE NEGATIVE IN ACCORDANCE WITH OUR ANSWERS TO QUESTIONS 1(E) AND 1(B), ABOVE.

IN QUESTION 5 YOU ASK WHETHER THE MILITARY LEAVE PROVIDED BY 5 U.S.C. 6323(C) OR THAT PROVIDED BY FORMER 39 D.C. CODE 608 (RESTATED IN PUBLIC LAW 90-623 WITH ERRONEOUS CODE DESIGNATION OF 5 U.S.C. 6323(C)) IS APPROPRIATE WHEN THE D.C. NATIONAL GUARD IS ASSEMBLED ON ALL DAY BASIS FOR CIVIL DISTURBANCE DUTY. SINCE 5 U.S.C. 6323(C)(2)(B) SPECIFICALLY REFERS TO SERVICE FOR "THE DISTRICT OF COLUMBIA" WE BELIEVE THAT WHEN THE D.C. NATIONAL GUARD IS ORDERED TO DUTY TO PERFORM THE KIND OF SERVICES FOR WHICH MILITARY LEAVE IS PROVIDED BY 5 U.S.C. 6323(C) THE MILITARY LEAVE SHOULD BE CHARGED TO THE LEAVE SPECIFIED THEREIN AND AN APPROPRIATE ADJUSTMENT MADE IN CIVILIAN PAY AS PROVIDED IN 5 U.S.C. 5519.

QUESTIONS 6(A) THROUGH 6(I) ARE AS FOLLOWS:

(A) IS THIS OFFSET OF MILITARY PAY ON A DAY-FOR-DAY BASIS?

(B) IS IT TO REPRESENT GROSS PAY, OR NET PAY?

(C) IF DEDUCTIONS HAVE ALREADY BEEN MADE FROM MILITARY PAY, HOW IS CREDIT AGAINST CIVILIAN PAY TO BE HANDLED? FOR EXAMPLE, IF INCOME TAX IS WITHHELD FROM MILITARY PAY, MUST ADJUSTMENT TO NORMAL WITHHOLDING BE MADE FOR CIVILIAN PAY? OR, IF FICA TAX IS WITHHELD FROM MILITARY PAY, HOW IS CIVILIAN PAY TO BE CALCULATED, SINCE CIVIL SERVICE RETIREMENT WITHHOLDING MUST BE AGAINST NORMAL BASE PAY FOR THE CIVILIAN POSITION; OR, HOW CAN THE EMPLOYEE BE REIMBURSED FOR THE FICA DEDUCTION?

(D) IN VIEW OF THE POTENTIAL DIFFICULTY IN ASCERTAINING PROPER PAY AMOUNTS FOR CREDIT, DOES THE RESPONSIBILITY LIE WITH THE MILITARY FOR FURNISHING NEEDED INFORMATION, OR MAY THE CIVILIAN AGENCY BASE OFFSET CREDIT ON INFORMATION SUPPLIED BY THE EMPLOYEE?

(E) BECAUSE OF LAG IN RECEIPT OF PAY INFORMATION, OFFSET WILL IN MOST CASES HAVE TO BE MADE IN PAY PERIODS SUBSEQUENT TO THOSE DURING WHICH MILITARY SERVICE IS PERFORMED. UNDER SUCH CIRCUMSTANCES, MAY CASH COLLECTION ACTION BE SUBSTITUTED FOR PAYROLL OFFSET, IN A MANNER SIMILAR TO THAT FOR HANDLING STATE JURY FEES?

(F) HOW ARE OFFSETS (OR COLLECTIONS) TO BE RECORDED, WITH REGARD TO AGENCY APPROPRIATIONS?

(G) SHOULD THE MILITARY PAY EXCEED THE CIVILIAN PAY FOR THE PERIOD OF LEAVE INVOLVED, IS THE EMPLOYEE ENTITLED TO RETAIN THE EXCESS MILITARY PAY? IF NOT, HOW IS COLLECTION TO BE ACCOMPLISHED? ALSO, IF THERE IS NO REMAINING CIVILIAN PAY DUE OR THE AMOUNT IS INSUFFICIENT TO SATISFY THE FULL WITHHOLDINGS NORMALLY REQUIRED FROM THE CIVILIAN PAY (E.G., TAXES, GROUP LIFE INSURANCE, RETIREMENT, ETC.), IS THE EMPLOYEE INDEBTED FOR THE SHORTAGE?

(H) SINCE TITLE 38 EMPLOYEES ARE PAID ON A 7-DAY A WEEK BASIS, WITH TWO ADMINISTRATIVE NON-DUTY DAYS WEEKLY, MUST OFFSET OF MILITARY PAY BE MADE AGAINST CIVILIAN PAY FOR THESE NON-DUTY DAYS?

(I) UNDER THE LAW CAN APPROPRIATE PAYROLL PERSONNEL OF THE NATIONAL GUARD OR THE RESERVES WITHHOLD FROM MILITARY PAY THAT PORTION OF SUCH PAY WHICH IS SUBJECT TO OFFSET AGAINST CIVILIAN PAY, AND TRANSFER THIS AMOUNT TO THE CIVILIAN AGENCY? THIS WOULD ELIMINATE THE NECESSITY FOR OFFSET AGAINST CIVILIAN PAY IN SUBSEQUENT PAYROLL PERIODS, OR THE NECESSITY FOR COLLECTION (PARTICULARLY SHOULD THE FUNDS HAVE ALREADY BEEN SPENT OR THE EMPLOYEE HAVE BEEN SEPARATED), AND MAY ELIMINATE CERTAIN OF THE DEDUCTION PROBLEMS.

THOSE QUESTIONS DEAL WITH PROBLEMS WHICH MAY ARISE IN IMPLEMENTING 5 U.S.C. 5519, AS ADDED BY PUBLIC LAW 90-588, WHICH PROVIDES:

AN AMOUNT (OTHER THAN A TRAVEL, TRANSPORTATION, OR PER DIEM ALLOWANCE) RECEIVED BY AN EMPLOYEE OR INDIVIDUAL FOR MILITARY SERVICE AS A MEMBER OF THE RESERVE OR NATIONAL GUARD FOR A PERIOD FOR WHICH HE IS ENTITLED TO LEAVE UNDER SECTION 6323 (C) OR (D) OF THIS TITLE SHALL BE CREDITED AGAINST THE PAY PAYABLE TO THE EMPLOYEE OR INDIVIDUAL WITH RESPECT TO HIS CIVILIAN POSITION FOR THAT PERIOD.

THE WORDING OF THAT SECTION IS SIMILAR TO THAT CONTAINED IN 5 U.S.C. 5515 WHICH REQUIRES THAT PAY RECEIVED BY A FEDERAL EMPLOYEE FOR JURY SERVICE IN A STATE COURT BE CREDITED AGAINST THE PAY PAYABLE BY THE UNITED STATES. THE DECISIONS WE HAVE RENDERED WITH REGARD TO THE IMPLEMENTATION OF THAT SECTION ARE GIVEN SOME WEIGHT IN DETERMINING THE RULES TO BE APPLIED UNDER SECTION 5519. HOWEVER, THE DIFFERENCES BETWEEN JURY FEES AND MILITARY PAY DO NOT PERMIT THE APPLICATION OF THE RULES ESTABLISHED UNDER SECTION 5515 IN ALL CASES. FURTHER, THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-588 MUST BE CONSIDERED IN ARRIVING AT A DETERMINATION OF WHAT PROCEDURES MUST BE FOLLOWED WITH REGARD TO THE CREDITING OF MILITARY PAY AGAINST CIVILIAN PAY. THE FOLLOWING EXCERPTS FROM PAGE 7 OF H. REPT. NO. 1560, 90TH CONG., 2D SESS. ARE RELEVANT:

SECTION 2(B) ADDS A NEW SECTION 5519 TO TITLE 5, U.S.C. TO REQUIRE THAT THE AMOUNT RECEIVED BY AN EMPLOYEE FOR MILITARY SERVICE AS A MEMBER OF THE RESERVE OR THE NATIONAL GUARD ON ANY WORKDAY FOR WHICH HE IS ENTITLED TO LEAVE UNDER THE NEW SUBSECTIONS (C) OR (D) OF SECTION 6323, SHALL BE CREDITED AGAINST HIS CIVILIAN PAY. IT IS TO BE NOTED THAT THE LEAVE IS TO BE GRANTED ONLY FOR WORKDAYS, AND THAT THE CIVILIAN PAY OF THE EMPLOYEE WILL BE REDUCED ONLY BY THE AMOUNT THAT HE RECEIVES FOR MILITARY SERVICE ON THE WORKDAY. THE CIVILIAN PAY WILL NOT BE REDUCED BY ANY AMOUNT THE INDIVIDUAL MAY RECEIVE FOR MILITARY SERVICE FOR DAYS THAT ARE NOT WORKDAYS. NOR WILL CIVILIAN PAY BE REDUCED BY ANY AMOUNTS RECEIVED FOR TRAVEL TRANSPORTATION OR PER DIEM ALLOWANCE INCIDENT TO THE MILITARY SERVICE.

THE COMMITTEE BELIEVES, HOWEVER, THAT THE ADDITIONAL COST THAT WILL BE INCURRED WILL BE OF NO GREAT SIGNIFICANCE IN VIEW OF THE REQUIREMENT THAT THE AMOUNT RECEIVED FOR SUCH MILITARY SERVICE BE CREDITED TOWARD CIVILIAN PAY ON WORKDAYS FOR THE EMPLOYEES WHO RECEIVE THE BENEFIT OF THE ADDITIONAL LEAVE UNDER THIS LEGISLATION WHEN SERVING WITH THE RESERVE OR THE NATIONAL GUARD.

IN VIEW OF THE ABOVE, MILITARY PAY FOR A DAY ON WHICH THE EMPLOYEE IS EXCUSED FROM CIVILIAN DUTY UNDER 5 U.S.C. 6323(C) SHOULD BE DEDUCTED FROM THE CIVILIAN PAY FOR THE PERIOD DURING WHICH HE IS SO EXCUSED. MILITARY PAY RECEIVED FOR SERVICE FOR DAYS ON WHICH THE EMPLOYEE DOES NOT RECEIVE CIVILIAN PAY NEED NOT BE CREDITED AGAINST CIVILIAN PAY RECEIVED DURING THE PERIOD OF MILITARY SERVICE. CF. 26 COMP. GEN. 888 (1947). QUESTION 6(A) IS ANSWERED ACCORDINGLY.

REGARDING QUESTION 6(B) THE GROSS AMOUNT RECEIVED BY AN EMPLOYEE ON ACCOUNT OF MILITARY DUTY MUST BE CREDITED TO HIS CIVILIAN PAY. CF. 44 COMP. GEN. 577 (1965).

QUESTION 6(C) RELATES PRIMARILY TO TAX MATTERS WHICH ARE WITHIN THE JURISDICTION OF THE INTERNAL REVENUE SERVICE, TREASURY DEPARTMENT. THEREFORE, WE ARE NOT IN A POSITION TO PROVIDE YOU A COMPLETE ANSWER TO THAT QUESTION. HOWEVER, REGARDING THE DEDUCTION OF CIVIL SERVICE RETIREMENT CONTRIBUTIONS, WE BELIEVE THAT IT WOULD BE MORE IN KEEPING WITH THE INTENT OF SECTION 5519 TO COMPUTE SUCH DEDUCTIONS ON THE BASIS OF THE CIVILIAN PAY DUE THE EMPLOYEE AFTER CREDITING HIS MILITARY PAY. RECOGNIZE THAT A CONTRARY CONCLUSION WAS REACHED WITH REGARD TO CREDITING OF JURY FEES RECEIVED FROM STATE COURTS IN 20 COMP. GEN. 279 (1940). ALTHOUGH WE DO NOT BELIEVE THAT A CHANGE IN THAT RULE WITH REGARD TO COURT LEAVE IS REQUIRED, IN VIEW OF THE DIFFERENT CONDITIONS WHICH APPLY IN CASES ARISING UNDER SECTION 5519, WE BELIEVE IT IS THE BETTER VIEW THAT MILITARY PAY RECEIVED BY AN INDIVIDUAL ON LEAVE AUTHORIZED BY 5 U.S.C. 6323(C) REDUCES HIS ENTITLEMENT TO CIVILIAN PAY AND ALSO HIS REQUIRED CONTRIBUTION TO THE CIVIL SERVICE RETIREMENT FUND IN THE SAME MANNER AS NONPAY STATUS REDUCES SUCH CONTRIBUTION. IF THAT VIEW WERE NOT TAKEN, AN EMPLOYEE WHOSE MILITARY PAY WAS ALMOST EQUAL TO OR EXCEEDED HIS CIVILIAN PAY WOULD BE IN DEBT TO THE GOVERNMENT FOR RETIREMENT CONTRIBUTIONS BASED ON HIS FULL NORMAL SALARY.

CONCERNING QUESTION 6(D), SPECIFIC INFORMATION AS TO THE MILITARY PAY ENTITLEMENT OF EMPLOYEES SHOULD BE OBTAINED FROM THE MILITARY ORGANIZATION CONCERNED IF THE EMPLOYEE IS UNABLE TO PRODUCE SPECIFIC AND DOCUMENTED INFORMATION FROM WHICH HIS CIVILIAN PAY ENTITLEMENT MAY BE DETERMINED.

IF A CIVILIAN PAYROLL FOR THE PERIOD DURING WHICH THE EMPLOYEE IS ON MILITARY DUTY AND ENTITLED TO LEAVE UNDER 5 U.S.C. 6323(C) CANNOT BE ADJUSTED TO ACCOUNT FOR THE MILITARY PAY CREDIT BEFORE PAYMENT IS MADE TO THE EMPLOYEE, COLLECTION OF THE GROSS AMOUNT OF MILITARY PAY MAY BE MADE BY OFFSET AGAINST SUBSEQUENT CIVILIAN PAY OR IN CASH. QUESTION 6(E) IS ANSWERED ACCORDINGLY.

REGARDING QUESTION 6(F), AMOUNTS CREDITED ON ACCOUNT OF MILITARY PAY RECEIVED BY AN EMPLOYEE MAY REMAIN IN AGENCY APPROPRIATIONS AND AMOUNTS COLLECTED IN CASH MAY BE DEPOSITED IN THE APPROPRIATION FROM WHICH THE EMPLOYEE'S CIVILIAN PAY WAS PAID. CF. 36 COMP. GEN. 591 (1957).

REGARDING QUESTION 6(G), WE FIND NO INDICATION IN SECTION 5519 OR IN THE HISTORY THEREOF WHICH REQUIRES THE FORFEITURE OF MILITARY PAY. ACCORDINGLY, AN EMPLOYEE IS ENTITLED TO RETAIN HIS DAILY MILITARY PAY TO THE EXTENT THAT IT EXCEEDS HIS CIVILIAN PAY ENTITLEMENT FOR ANY DAY OR PART OF A DAY HE IS EXCUSED FROM CIVILIAN DUTY UNDER 5 U.S.C. 6323(C). FURTHER, IN LINE WITH OUR ANSWERS TO PRIOR QUESTIONS, EMPLOYEES CONCERNED ARE CONSIDERED TO RECEIVE REDUCED CIVILIAN PAY AS A RESULT OF THE CREDITING OF MILITARY PAY. THUS, RETIREMENT AND PRESUMABLY TAXES WILL BE DEDUCTED ONLY TO THE EXTENT OF THE REDUCED CIVILIAN PAY, IF ANY, DUE THE INDIVIDUAL. HEALTH AND LIFE INSURANCE DEDUCTIONS SHOULD BE MADE TO THE EXTENT REQUIRED BY THE COMMISSION'S REGULATIONS WHICH ARE APPLICABLE IN CASE CIVILIAN PAY DUE IT NOT SUFFICIENT TO COVER ALL DEDUCTIONS.

QUESTION 6(H) IS TOO GENERAL TO PERMIT AN ANSWER AT THIS TIME. SUGGEST, HOWEVER, THAT FULL DETAILS OF THIS MATTER BE SUBMITTED HERE PRIOR TO APPLICATION OF THE OTHER RULES STATED HEREIN TO THE CASE COVERED BY THIS QUESTION.

AS INDICATED ABOVE THE PROVISIONS OF SECTION 5519 DO NOT AFFECT THE EMPLOYEE'S ENTITLEMENT TO MILITARY PAY. IN THE CIRCUMSTANCES IT DOES NOT APPEAR THAT THE MILITARY ORGANIZATION CONCERNED WOULD HAVE AUTHORITY TO WITHHOLD MILITARY PAY OTHERWISE DUE FOR PURPOSES OF CREDITING IT TO CIVILIAN PAY WITHOUT THE CONSENT OF THE INDIVIDUAL. FURTHER, THE INTERNAL REVENUE SERVICE RULES MIGHT REQUIRE WITHHOLDING OF APPROPRIATE TAXES ON THE BASIS OF THE EMPLOYEE'S ENTITLEMENT TO MILITARY PAY WITHOUT REGARD TO THE AMOUNT WITHHELD FOR CREDIT TO THE CIVILIAN PAY OF THE EMPLOYEE, QUESTION 6(I) IS ANSWERED ACCORDINGLY.

THE ADDITIONAL QUESTION PRESENTED IN THE LETTER OF YOUR ASSISTANT GENERAL COUNSEL DATED AUGUST 1, 1969, INVOLVES AN EMPLOYEE WHO WAS REQUIRED TO PERFORM NATIONAL GUARD DUTY COVERED BY 5 U.S.C. 6323(C) BEGINNING AT 7 P.M. ON A REGULAR WORKDAY (APRIL 3) AND ENDING AT MIDNIGHT APRIL 5 (A SATURDAY AND NONWORKDAY). THE EMPLOYEE PERFORMED ALL THE DUTIES OF HIS CIVILIAN POSITION BEFORE REPORTING FOR DUTY WITH HIS MILITARY UNIT AND UNDER THE RULES AND PROCEDURES APPLICABLE TO MILITARY PAY, HE WAS ENTITLED TO A FULL DAY'S MILITARY PAY FOR THAT DAY. AN INDIVIDUAL IS NORMALLY NOT ENTITLED TO RECEIVE BOTH CIVILIAN AND MILITARY PAY FOR THE SAME DAY BECAUSE THE PERFORMANCE OF CIVILIAN DUTIES IS CONSIDERED TO BE INCOMPATIBLE WITH THE REQUIREMENTS OF ACTIVE MILITARY SERVICE. HOWEVER, IN THE CASE PRESENTED THE INDIVIDUAL HAD PERFORMED HIS CIVILIAN DUTIES BEFORE HE ENTERED ON ACTIVE MILITARY DUTY. WE DO NOT BELIEVE THAT THE PROVISIONS OF 5 U.S.C. 5519 REGARDING THE CREDITING OF MILITARY PAY TO THE INDIVIDUAL'S CIVILIAN PAY ENTITLEMENT NEED BE APPLIED IN THE CIRCUMSTANCES ON APRIL 3 SINCE THE EMPLOYEE CONCERNED WAS NOT EXCUSED FROM HIS CIVILIAN DUTIES OR SUBJECT TO MILITARY CONTROL WHILE PERFORMING SUCH DUTIES. WHILE THE GUARD DUTY PAY IS FOR DEDUCTION FROM HIS CIVIL SERVICE PAY FOR APRIL 4 (FRIDAY), NO DEDUCTION IS TO BE MADE FOR APRIL 5, A NONWORKDAY FOR WHICH HE RECEIVED NO CIVIL SERVICE PAY.

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