B-134171, SEP. 23, 1970

B-134171, SEP. 23, 1970

LEAVES OF ABSENCE - CIVILIAN ON MILITARY DUTY - POSTAL STRIKE DECISION TO POSTMASTER GENERAL AUTHORIZING PAY FOR MILITARY LEAVE TO A STRIKING POSTAL EMPLOYEE WHO WAS CALLED TO NATIONAL GUARD DUTY DURING THE WORK STOPPAGE. POSTAL EMPLOYEE WHO WAS ABSENT WITHOUT LEAVE WHEN CALLED TO NATIONAL GUARD DUTY BY PRESIDENTIAL PROCLAMATION 3972 AND WHO REMAINED ON MILITARY DUTY WHEN HIS FELLOW EMPLOYEES RETURNED TO WORK MAY BE GRANTED MILITARY LEAVE AND PAID COMPENSATION FOR THE PERIOD OF MILITARY DUTY SINCE ACTIVE DUTY DURING STRIKE FALLS WITHIN PURVIEW OF "MILITARY AID TO ENFORCE THE LAW" UNDER 5 U.S.C. 6323(C). THE AMOUNT RECEIVED BY THE EMPLOYEE FOR MILITARY SERVICE SHOULD BE CREDITED AGAINST COMPENSATION PAYABLE IN THE CIVILIAN POSITION.

TO MR. POSTMASTER GENERAL:

BY LETTER OF JULY 8, 1970, YOUR GENERAL COUNSEL INQUIRED AS TO THE PROPRIETY OF AND APPROPRIATE AUTHORITY FOR GRANTING MR. ARTHUR T. SCHNEIDER PAY FOR MILITARY LEAVE UNDER THE PROVISIONS OF 5 U.S.C. 6323, IN VIEW OF THE FACT THAT AT THE TIME HE WAS ORDERED TO ACTIVE DUTY IN THE NATIONAL GUARD HE WAS ABSENT WITHOUT LEAVE FROM HIS CIVILIAN POSITION.

MR. SCHNEIDER, AN EMPLOYEE OF THE JAMAICA, NEW YORK, POST OFFICE, WAS ABSENT WITHOUT LEAVE STARTING ON MARCH 18, 1970. FROM 6 A.M. ON THAT DATE UNTIL 6 A.M. ON MARCH 25, 1970, WHEN HIS FELLOW EMPLOYEES RETURNED TO WORK, AN ILLEGAL WORK STOPPAGE EXISTED AT THAT FACILITY. ON MARCH 24, 1970, PURSUANT TO PRESIDENTIAL PROCLAMATION 3972 OF MARCH 23, 1970, MR. SCHNEIDER WAS ORDERED TO ACTIVE DUTY WITH THE NEW YORK NATIONAL GUARD. REMAINED ON ACTIVE DUTY BEYOND MARCH 25, 1970, RETURNING TO HIS CIVILIAN DUTIES IMMEDIATELY UPON RELEASE FROM SUCH ACTIVE DUTY. IN THIS CONNECTION, YOUR GENERAL COUNSEL STATES THAT IT IS THE OPINION OF YOUR DEPARTMENT THAT HAD MR. SCHNEIDER NOT BEEN UNDER ORDERS OF THE NATIONAL GUARD, HE WOULD HAVE RETURNED TO HIS CIVILIAN DUTIES, ALONG WITH HIS FELLOW EMPLOYEES, ON MARCH 25, 1970.

THE FACT THAT MR. SCHNEIDER WAS NOT IN A PAY STATUS AT THE TIME HE WAS ORDERED TO NATIONAL GUARD DUTY DOES NOT PRECLUDE HIS BEING ENTITLED TO MILITARY LEAVE PAY UNDER THE PROVISIONS OF 5 U.S.C. 6323. ALTHOUGH WE HAVE HELD IN INDIVIDUAL CASES THAT A PAY STATUS IMMEDIATELY PRIOR TO THE BEGINNING OF MILITARY SERVICE OR RETURN TO A PAY STATUS IMMEDIATELY AFTERWARDS WAS A "REQUISITE" TO ENTITLEMENT TO MILITARY LEAVE WITH PAY, WE LATER MADE IT CLEAR IN 37 COMP. GEN. 608 (1958), THAT SUCH LEAVE OR PAY STATUS IMMEDIATELY PRIOR TO OR AFTER MILITARY DUTY IS NOT SOLELY DETERMINATIVE OF WHETHER AN EMPLOYEE SHOULD BE GRANTED MILITARY LEAVE PAY. RATHER, WE INDICATED IN THAT DECISION THAT THE CONTROLLING TEST SHOULD BE WHETHER, BUT FOR THE ACTIVE DUTY, THE EMPLOYEE WOULD HAVE BEEN IN A CIVILIAN PAY STATUS. ALSO, SEE B-166993, JUNE 18, 1969, WHERE AN EMPLOYEE RECEIVED ORDERS TO ACTIVE MILITARY DUTY AS A RESERVE OFFICER IN THE ARMY JUDGE ADVOCATE GENERAL'S CORPS DURING A PERIOD IN WHICH HE WAS ON LEAVE-WITHOUT-PAY STATUS INCIDENT TO POSTOPERATIVE CARE, AND IT WAS HELD THAT MILITARY LEAVE COULD BE GRANTED REGARDLESS OF THE FACT THAT HE DID NOT ACTUALLY RETURN TO A PAY STATUS PRIOR TO HIS REPORTING DATE ON APRIL 7, 1969. IN THAT INSTANCE IT APPEARED FROM THE RECORD THAT THE EMPLOYEE WOULD HAVE RETURNED TO HIS CIVILIAN POSITION ON OR ABOUT APRIL 7 HAD HE NOT BEEN REQUIRED TO REPORT FOR MILITARY DUTY ON THAT DATE.

THE LETTER FROM YOUR GENERAL COUNSEL STATES THAT IT IS THE OPINION OF THE POST OFFICE DEPARTMENT IN THIS CASE THAT MR. SCHNEIDER WOULD HAVE RETURNED TO HIS CIVILIAN DUTIES AT THE JAMAICA, NEW YORK, POST OFFICE, UPON THE CONCLUSION OF THE WORK STOPPAGE THERE ON MARCH 25, 1970, BUT FOR HIS CONTINUED ACTIVE DUTY IN THE NATIONAL GUARD ON THAT DATE. IN LIGHT OF THAT FINDING, AND IN VIEW OF THE ABOVE-CITED DECISIONS, IT IS OUR CONCLUSION THAT MR. SCHNEIDER MAY PROPERLY BE PAID UNDER 5 U.S.C. 6323 FOR MILITARY LEAVE BEGINNING ON MARCH 25, 1970.

YOU FURTHER REQUEST THAT WE INDICATE WHETHER SUCH LEAVE SHOULD PROPERLY BE GRANTED PURSUANT TO SUBSECTION (A) OR THE FIRST SUBSECTION (C) OF 5 U.S.C. 6323. SUBSECTION (A) PROVIDES:

"AN EMPLOYEE *** IS ENTITLED TO LEAVE WITHOUT LOSS IN PAY, TIME OR PERFORMANCE OR EFFICIENCY RATING FOR EACH DAY, NOT IN EXCESS OF 15 DAYS IN A CALENDAR YEAR, IN WHICH HE IS ON ACTIVE DUTY OR IS ENGAGED IN FIELD OR COAST DEFENSE TRAINING UNDER SECTIONS 502-505 OF TITLE 32 AS A RESERVE OF THE ARMED FORCES OR A MEMBER OF THE NATIONAL GUARD." SUBSECTION (C) PROVIDES:

"EXCEPT AS PROVIDED BY SECTION 5519 OF THIS TITLE, AN EMPLOYEE *** WHO-

"(1) IS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES *** OR THE NATIONAL GUARD *** 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 ***

IS ENTITLED, DURING AND BECAUSE OF SUCH SERVICE, TO LEAVE WITHOUT LOSS OF, 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."

IN B-133972, SEPTEMBER 2, 1970, A COPY OF WHICH IS FORWARDED HEREWITH, WE CONCLUDED THAT THE MILITARY SERVICE ARISING OUT OF PRESIDENTIAL PROCLAMATION 3972 CALLING MEMBERS OF THE NATIONAL GUARD TO ACTIVE DUTY DURING THE POSTAL STRIKE WAS PERFORMED UNDER SECTION 333 OF TITLE 10, UNITED STATES CODE, AND THUS FALLS WITHIN THE PURVIEW OF "MILITARY AID TO ENFORCE THE LAW" AS PROVIDED FOR IN 5 U.S.C. 6323(C). IT FOLLOWS THAT THE AMOUNT RECEIVED BY MR. SCHNEIDER FOR MILITARY SERVICE AS MEMBER OF THE NATIONAL GUARD FOR A PERIOD OF LESS THAN OR EQUAL TO 22 DAYS SHOULD BE CREDITED ..END :