B-123384, JAN 13, 1971

B-123384, JAN 13, 1971

PART-TIME EMPLOYEES - MILITARY LEAVE WITH PAY DECISION HOLDING THAT PART-TIME EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE WITH PAY UNDER THE PROVISIONS OF 5 U.S.C. 6323. A PROVISION WHICH WOULD HAVE ESTABLISHED ELIGIBILITY GENERALLY FOR PART- TIME EMPLOYEES WITH REGULARLY SCHEDULED TOURS OF DUTY WAS CONSIDERED AND REJECTED BY THE CONGRESS IN 1956. FURTHER, IT SHOULD BE NOTED THAT THE TYPE OF APPOINTMENT IS NOT NECESSARILY CONTROLLING IF IN FACT AN EMPLOYEES TOUR OF DUTY IS LESS THAN FULL TIME. THEREFORE, PART TIME EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE WITH PAY UNDER 5 U.S.C. 6323.

TO MR. SECRETARY:

BY LETTER OF OCTOBER 20, 1970, THE ASSISTANT SECRETARY FOR ADMINISTRATION REQUESTED OUR DECISION WHETHER EMPLOYEES OF THE FOREST SERVICE SERVING UNDER CAREER OR CAREER-CONDITIONAL APPOINTMENTS WITH REGULARLY SCHEDULED PART-TIME TOURS OF DUTY ARE ENTITLED TO MILITARY LEAVE WITH PAY AS PROVIDED BY 5 U.S.C. 6323.

THE ASSISTANT SECRETARY'S LETTER READS IN PART AS FOLLOWS:

"IN YOUR DECISION 26 CG 610 IT WAS HELD THAT WAR SERVICE INDEFINITE APPOINTMENTS ' *** HAVE BEEN CONSIDERED IN THE CATEGORY OF PERMANENT APPOINTMENTS FOR VARIOUS PURPOSES, SUCH AS FOR ANNUAL AND SICK LEAVE PURPOSES, FOR WITHIN-GRADE SALARY ADVANCEMENT PURPOSES - WHICH NECESSARILY INCLUDES EFFICIENCY RATINGS - AND FOR CIVIL SERVICE RETIREMENT PURPOSES. HENCE, IT IS REASONABLE TO CONCLUDE THAT SAID CLASS OF EMPLOYEES LIKEWISE MAY BE CONSIDERED AS PERMANENT FOR PURPOSES OF RECEIVING MILITARY LEAVE WITH PAY UNDER THE AFOREMENTIONED MILITARY LEAVE STATUTES.'

"IN YOUR DECISION 20 CG 123 IT WAS HELD THAT EMPLOYEES WHO ARE APPOINTED FOR INDEFINITE PERIODS ' *** ALTHOUGH THEY WORK ONLY DURING THE SUMMER OR OTHER SEASON' ARE PROPERLY REGARDED AS PERMANENT EMPLOYEES AND ARE ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY.

"IN YOUR DECISION 46 CG 72, WHICH READS IN PART, ' *** CONGRESS, IN RESTRICTING ELIGIBILITY FOR MILITARY LEAVE TO 'PERMANENT AND TEMPORARY INDEFINITE' EMPLOYEES STATED THAT THE PURPOSE OF SUCH LANGUAGE WAS TO EXCLUDE FROM ELIGIBILITY EMPLOYEES HAVING PART-TIME, INTERMITTENT AND TEMPORARY APPOINTMENTS FOR PERIODS OF LESS THAN 1 YEAR *** '

"THESE COMPTROLLER GENERAL DECISIONS ALONG WITH 18 CG 538 AND 35 CG 5 APPEAR CONSISTENT IN DETERMINING THAT CRITERIA FOR ELIGIBILITY FOR MILITARY LEAVE OF ABSENCE WITH PAY HAVE BEEN THE TYPE AND LENGTH OF APPOINTMENT, NOT THE TOUR OF DUTY.

"WE BELIEVE IT IS LOGICAL AND EQUITABLE TO GRANT THIS LEAVE TO AN EMPLOYEE WITH CAREER STATUS AND A REGULARLY PRESCHEDULED PART-TIME TOUR OF DUTY SINCE IT IS GRANTED TO TERM EMPLOYEES, AND THOSE WITH INDEFINITE TOURS WHO MAY ONLY WORK DURING 'THE SUMMER OR OTHER SEASON.'"

THE VIEWS OF THE ASSISTANT SECRETARY ARE SUBSTANTIALLY THE SAME AS THOSE CONSIDERED IN OUR DECISION OF SEPTEMBER 10, 1970, B-123384 (COPY HEREWITH), WHEREIN WE HELD THAT PART-TIME CAREER OR CAREER-CONDITIONAL EMPLOYEES WHO HAVE REGULAR PREARRANGED TOURS OF DUTY WITHOUT TIME LIMIT ARE NOT ENTITLED TO MILITARY LEAVE WITH PAY UNDER 5 U.S.C. 6323. IN THAT DECISION WE POINTED OUT THAT THE LANGUAGE NOW CONTAINED IN 5 U.S.C. 6323(A) AND (C) SETTING FORTH THOSE EMPLOYEES FOR WHOM MILITARY LEAVE WITH PAY IS PROVIDED IS ESSENTIALLY THE SAME AS THAT CONTAINED IN THE STATUTE CONSIDERED IN OUR DECISION 35 COMP. GEN. 5 (1955). WE STATED FURTHER:

" *** MOREOVER, THE ACT OF JUNE 22, 1956, 70 STAT. 331, NOW CODIFIED AS 5 U.S.C. 6323(B), SPECIFICALLY PROVIDED MILITARY LEAVE FOR SUBSTITUTE EMPLOYEES IN THE POSTAL FIELD SERVICE WITHOUT COVERING OTHER PART-TIME EMPLOYEES. A PROVISION WHICH WOULD HAVE ESTABLISHED ELIGIBILITY GENERALLY FOR PART-TIME EMPLOYEES WITH REGULARLY SCHEDULED TOURS OF DUTY WAS CONSIDERED AND REJECTED. SEE HEARINGS ON H. R. 3744 BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, JUNE 7, 1956, AT PAGES 11-17. *** "

IT SHOULD BE NOTED THAT THE TYPE OF APPOINTMENT IS NOT NECESSARILY CONTROLLING IF IN FACT AN EMPLOYEE'S TOUR OF DUTY IS LESS THAN FULL TIME.

IN THE ABSENCE OF LEGISLATION SPECIFICALLY PROVIDING OTHERWISE WE MUST CONTINUE TO HOLD THAT PART-TIME EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE WITH PAY UNDER THE PROVISIONS OF 5 U.S.C. 6323.