B-133972, JUL. 24, 1968

B-133972: Jul 24, 1968

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AN EMPLOYEE OF THE INTERSTATE COMMERCE COMMISSION WHO IS ALSO A MEMBER OF THE DISTRICT OF COLUMBIA NATIONAL GUARD FOR HIS ABSENCE WHILE ON ACTIVE MILITARY DUTY IN CONNECTION WITH THE CIVIL DISORDERS IN WASHINGTON. BIRCHMAN WAS ORDERED TO ACTIVE DUTY EFFECTIVE THAT DAY FOR AN INDEFINITE PERIOD OF TIME. THE DISTRICT OF COLUMBIA NATIONAL GUARD WAS CALLED TO DUTY PURSUANT TO THE DIRECTION OF THE PRESIDENT AS A FEDERALIZED NATIONAL GUARD UNIT. THE EXCUSED ABSENCE AUTHORIZED FOR CIVILIAN EMPLOYEES WHO WERE MEMBERS OF THE DISTRICT OF COLUMBIA NATIONAL GUARD BY SECTION 49 OF THE ACT OF MARCH 1. BIRCHMAN'S ABSENCE ON MILITARY DUTY UNDER THE ORDERS OF APRIL 5 WAS PROPERLY CHARGED AGAINST THE 15 DAYS OF MILITARY LEAVE AUTHORIZED BY 5 U.S.C. 6323 FOR NATIONAL GUARD MEMBERS CALLED TO ACTIVE FEDERAL DUTY.

B-133972, JUL. 24, 1968

TO MR. TIERNEY:

WE REFER TO YOUR LETTER OF JUNE 26, 1968, CONCERNING THE CHARGING OF LEAVE TO MR. BRUCE L. BIRCHMAN, AN EMPLOYEE OF THE INTERSTATE COMMERCE COMMISSION WHO IS ALSO A MEMBER OF THE DISTRICT OF COLUMBIA NATIONAL GUARD FOR HIS ABSENCE WHILE ON ACTIVE MILITARY DUTY IN CONNECTION WITH THE CIVIL DISORDERS IN WASHINGTON, D.C., IN APRIL OF THIS YEAR AND FOR HIS ABSENCE WHILE ATTENDING THE ANNUAL SUMMER ENCAMPMENT OF THE DISTRICT OF COLUMBIA NATIONAL GUARD.

AS INDICATED IN THE ORDERS OF APRIL 5, 1968, BY WHICH MR. BIRCHMAN WAS ORDERED TO ACTIVE DUTY EFFECTIVE THAT DAY FOR AN INDEFINITE PERIOD OF TIME, THE DISTRICT OF COLUMBIA NATIONAL GUARD WAS CALLED TO DUTY PURSUANT TO THE DIRECTION OF THE PRESIDENT AS A FEDERALIZED NATIONAL GUARD UNIT. THE EXCUSED ABSENCE AUTHORIZED FOR CIVILIAN EMPLOYEES WHO WERE MEMBERS OF THE DISTRICT OF COLUMBIA NATIONAL GUARD BY SECTION 49 OF THE ACT OF MARCH 1, 1889, 25 STAT. 779 (RENUMBERED SECTION 52 BY THE ACT OF FEBRUARY 18, 1909, 35 STAT. 634), DID NOT COVER ABSENCES OF CIVILIAN EMPLOYEES WHILE ON DUTY IN A FEDERALIZED STATUS. SEE GENERALLY, 44 COMP. GEN. 224. THEREFORE, MR. BIRCHMAN'S ABSENCE ON MILITARY DUTY UNDER THE ORDERS OF APRIL 5 WAS PROPERLY CHARGED AGAINST THE 15 DAYS OF MILITARY LEAVE AUTHORIZED BY 5 U.S.C. 6323 FOR NATIONAL GUARD MEMBERS CALLED TO ACTIVE FEDERAL DUTY.

THE EXCUSED ABSENCE AUTHORIZED BY SECTION 49 OF THE ACT OF MARCH 1, 1889, AS AMENDED, WAS CONSIDERED TO BE AVAILABLE AMONG OTHER THINGS FOR USE DURING DISTRICT OF COLUMBIA NATIONAL GUARD ANNUAL ENCAMPMENTS. 19 COMP. GEN. 687; 44 ID. 224. HOWEVER, SECTION 8 OF THE ACT OF SEPTEMBER 6, 1966, PUBLIC LAW 89-554, SPECIFICALLY REPEALED SECTION 49 OF THE 1889 ACT. NOTE THAT THE EXPLANATION FOR THAT REPEAL IN THE HOUSE AND SENATE REPORTS ON THE PENDING LEGISLATION WHICH BECAME PUBLIC LAW 89-554 WAS THAT SECTION 49 HAD BEEN SUPERSEDED BY SECTION 29 OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70 STAT. 632; S.REPT. 1380, 89TH CONG., 2D SESS. PAGE 300; H.REPT. 901, 89TH CONG., 1ST SESS. PAGE 280. WE NOTE FURTHER THAT SECTION 7 (F) OF PUBLIC LAW 89-554 PROVIDES:

"THE ENACTMANT OF THIS ACT DOES NOT INCREASE OR DECREASE THE PAY, ALLOWANCES, COMPENSATION, OR ANNUITY OF ANY PERSON.'

SINCE SECTION 49 OF THE 1889 ACT WAS NOT IN FACT SUPERSEDED BY THE ACT OF AUGUST 10, 1956, AND SINCE ITS REPEAL WOULD DECREASE THE EXCUSED ABSENCES ALLOWABLE TO CERTAIN EMPLOYEES OF THE UNITED STATES AND THE DISTRICT OF COLUMBIA, IT SEEMS REASONABLE TO CONCLUDE THAT THE REPEAL OF THAT SECTION WAS UNINTENTIONAL. THE QUESTION AS TO WHETHER SUCH A SHOWING OF CONGRESSIONAL INTENT WOULD SERVE AS A BASIS FOR A CONCLUSION THAT SECTION 49 WAS NOT REPEALED WILL NOT BE CONSIDERED AT THIS TIME IN VIEW OF THE FACT THAT SECTIONS 1 (17) AND 6 (E) OF THE BILL H.R. 17864, 90TH CONG., 2D SESS. IF ENACTED, WOULD REINSTATE THE PROVISIONS OF SECTION 49 OF THE 1889 ACT RETROACTIVE TO SEPTEMBER 6, 1966, THE DAY THEY WERE REPEALED.

WE BELIEVE THAT EMPLOYEE ABSENCES FOR DISTRICT OF COLUMBIA NATIONAL GUARD DUTY OTHERWISE COVERED BY SECTION 49 OF THE 1889 ACT SHOULD BE TREATED AS IF THAT SECTION IS STILL IN EFFECT UNTIL THE CONGRESS HAS HAD AN OPPORTUNITY TO CONSIDER H.R. 17864 OR SIMILAR LEGISLATION. IF THE PROVISIONS CONTAINED IN THAT SECTION ARE NOT REINSTATED BY ENACTMENT OF H.R. 17864 OR SIMILAR LEGISLATION, WE WILL REEXAMINE THE STATUS OF EMPLOYEE ENTITLEMENT TO EXCUSED ABSENCE UNDER THAT SECTION FURTHER AT A LATER DATE.

FOR THE REASONS STATED, MR. BIRCHMAN'S ABSENCE WHILE HE WAS ATTENDING THE ANNUAL ENCAMPMENT OF THE DISTRICT OF COLUMBIA NATIONAL GUARD SHOULD TENTATIVELY BE CHARGED TO UNLIMITED MILITARY LEAVE SIMILAR TO THE PRACTICE IN PRIOR YEARS.