B-68195, DECEMBER 7, 1949, 29 COMP. GEN. 269

B-68195, DECEMBER 7, 1949, 29 COMP. GEN. 269

LEAVES OF ABSENCE - MILITARY - INVOLVING TWO CALENDAR YEARS AN EMPLOYEE-MEMBER OF THE NAVAL RESERVE, WHO WAS IN A CIVILIAN PAY STATUS UPON ENTERING FOR THE SECOND TIME WITHIN ONE CALENDAR YEAR A PERIOD OF TRAINING DUTY WHICH EXTENDED INTO THE SUBSEQUENT CALENDAR YEAR, MAY BE GRANTED THE MILITARY LEAVE AUTHORIZED "IN ANY ONE CALENDAR YEAR" BY SECTION 9 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, FOR THE FIRST FIFTEEN DAYS OF THE SECOND CALENDAR YEAR, PROVIDED THERE IS A RETURN TO CIVILIAN DUTY DURING THAT YEAR, EVEN THOUGH THE EMPLOYEE MAY HAVE BEEN IN A LEAVE-WITHOUT-PAY STATUS DUE TO THE EXHAUSTION OF HIS ACCRUED ANNUAL LEAVE AT THE END OF THE PRIOR CALENDAR YEAR. 10 COMP. GEN. 116, AND 11 ID. 469, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, DECEMBER 7, 1949:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 29, 1949, SUBMITTING FOR CONSIDERATION TWO QUESTIONS INVOLVING THE GRANTING OF MILITARY LEAVE TO CIVILIAN EMPLOYEES OF THE DEPARTMENT OF THE ARMY.

YOUR FIRST QUESTION CONCERNS AN EMPLOYEE WHO, AS A MEMBER OF THE NAVAL RESERVE, WAS ON TRAINING DUTY FROM APRIL 6 TO 22, 1948, FIFTEEN DAYS OF WHICH WERE COVERED BY MILITARY LEAVE, BUT WHO AGAIN WAS ORDERED TO TRAINING DUTY ON NOVEMBER 22, 1948, FOR A PERIOD OF 130 DAYS. SINCE THE SECOND PERIOD OF TRAINING DUTY EXTENDED INTO THE FOLLOWING CALENDAR YEAR, 1949, YOU REQUEST DECISION AS TO WHETHER THE FIFTEEN DAYS' MILITARY LEAVE, AUTHORIZED "IN ANY ONE CALENDAR YEAR" BY SECTION 9 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, 34 U.S.C. 853G, MAY BE GRANTED ON AND AFTER JANUARY 1, 1949, EVEN THOUGH THE EMPLOYEE WAS IN A LEAVE-WITHOUT-PAY STATUS AT THE END OF THE CALENDAR YEAR 1948.

IN RESPECT OF QUESTION NO. 1, YOU REFER TO SOMEWHAT SIMILAR SITUATIONS WHICH PREVIOUSLY WERE THE SUBJECT OF OFFICE DECISIONS, 10 COMP. GEN. 116, AND 11 ID. 469. THE FIRST DECISION HELD IN EFFECT THAT, UNDER THE MILITARY LEAVE STATUTES, A PERIOD OF AUTHORIZED TRAINING DUTY EXTENDING BEYOND THE END OF THE CALENDAR YEAR IN WHICH IT BEGINS MAY NOT BE DIVIDED INTO SEPARATE PERIODS CORRESPONDING TO CALENDAR YEARS FOR THE PURPOSE OF GRANTING A SECOND PERIOD OF FIFTEEN DAYS' MILITARY LEAVE. ALSO, THERE WAS INVOKED THE PRINCIPLE THAT AN EMPLOYEE ABSENT ON LEAVE WITHOUT PAY AT THE END OF ONE CALENDAR YEAR MAY NOT BE GRANTED LEAVE WITH PAY AT THE BEGINNING OF THE NEW CALENDAR YEAR UNLESS THERE BE A RETURN TO DUTY. THE SECOND DECISION INVOLVED AN EMPLOYEE WHO, BECAUSE OF THE CLOSING OF HIS OFFICE FOR THE WINTER, WAS ON LEAVE WITHOUT PAY AT THE TIME HE WAS CALLED FOR TRAINING DUTY, AND IT WAS HELD THAT, SINCE HE WAS NOT IN A DUTY OR PAY STATUS AT THE TIME HE WENT ON TRAINING DUTY, HE WAS NOT ENTITLED TO MILITARY LEAVE WITH PAY THEREFOR.

IT IS FOR NOTING IN THE INSTANT CASE, UNLIKE THE SITUATION CONSIDERED IN 10 COMP. GEN. 116, SUPRA, THAT THERE ARE TWO PERIODS OF TRAINING DUTY INVOLVED, BOTH ENTERED INTO DURING THE CALENDAR YEAR 1948 AND THE LATER ONE EXTENDING INTO THE CALENDAR YEAR 1949. ALSO, THE EMPLOYEE WAS IN A DUTY OR PAY STATUS WHEN HE ENTERED ON THE SECOND PERIOD OF TRAINING DUTY, AND HIS LEAVE-WITHOUT-PAY STATUS AT THE END OF THE CALENDAR YEAR 1948 WAS OCCASIONED BECAUSE THE DURATION OF HIS SECOND PERIOD OF TRAINING WAS SUCH AS TO EXHAUST HIS ANNUAL LEAVE. SUCH CIRCUMSTANCES CLEARLY ARE DISTINGUISHABLE FROM THOSE CONSIDERED IN 11 COMP. GEN. 469, SUPRA. HENCE, WHILE THE ABOVE DECISIONS PRECLUDED THE GRANTING TO THE INVOLVED EMPLOYEE OF MILITARY LEAVE WITH PAY FOR THE CALENDAR YEAR 1949, WHILE THE EMPLOYEE REMAINED ON TRAINING DUTY--- THE EMPLOYEE HAVING BEEN IN A LEAVE-WITHOUT- PAY STATUS ON DECEMBER 31, 1948--- THERE IS PERCEIVED NO OBJECTION TO THE SUBSTITUTION OF FIFTEEN DAYS' MILITARY LEAVE WITH PAY FOR THE LEAVE WITHOUT PAY COVERED BY THE TRAINING DUTY ON AND AFTER JANUARY 1, 1949, PROVIDED THERE HAS BEEN A RETURN TO CIVILIAN DUTY BY THE EMPLOYEE DURING THE CALENDAR YEAR 1949. THE FIRST QUESTION IS ANSWERED ACCORDINGLY.

YOUR SECOND QUESTION IS CONCERNED WITH THE COMPUTATION OF THE AUTHORIZED FIFTEEN DAYS' MILITARY LEAVE, AND THE REQUEST IS MADE FOR RECONSIDERATION OF OFFICE DECISION OF OCTOBER 27, 1947, 27 COMP. GEN. 245, ADDRESSED TO YOUR DEPARTMENT, WHICH HELD THAT SUCH LEAVE IS FOR COMPUTATION UPON A CALENDAR-DAY BASIS INSTEAD OF A WORKDAY BASIS EXCEPT FOR DAYS AT THE BEGINNING OR ENDING OF THE TRAINING DUTY PERIOD. THE REASONS PRESENTED IN YOUR LETTER IN SUPPORT OF THE POSITION THAT MILITARY LEAVE SHOULD BE GRANTED ON THE BASIS OF WORKDAYS RATHER THAN CALENDAR DAYS HAVE BEEN CAREFULLY CONSIDERED BUT THEY ARE NOT DEEMED SUFFICIENT TO WARRANT A CHANGE IN THE CONCLUSION REACHED IN THE DECISION OF OCTOBER 27, 1947. THAT CONNECTION, I THINK IT IS SIGNIFICANT THAT THE ACT OF JULY 1, 1947, 61 STAT. 238, WHICH AMENDED THE THEN EXISTING LAWS RELATING TO MILITARY LEAVE--- AND ALTHOUGH ENACTED TWO YEARS AFTER THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, PROVIDING FOR A CHANGE IN THE METHOD OF SALARY PAYMENT--- CONTAINS NO EXPRESS OR IMPLIED LANGUAGE THAT THE THERETOFORE METHOD OF CHARGING MILITARY LEAVE UPON A CALENDAR BASIS, WHICH WAS WELL KNOWN TO THE CONGRESS, WAS IN ANY WISE TO BE CHANGED.

WITH REFERENCE TO YOUR STATEMENT THAT EXCEPTIONS HAVE BEEN RAISED BY THIS OFFICE TO PAYMENTS FOR MILITARY LEAVE COMPUTED UPON A WORKDAY BASIS PRIOR TO RECEIPT OF THE DECISION OF OCTOBER 27, 1947, YOU MAY BE ADVISED THAT INSTRUCTIONS HAVE BEEN ISSUED FOR THE REMOVAL OF SUCH EXCEPTIONS WHERE IT APPEARS THAT THE PAYMENTS WERE MADE PRIOR TO OCTOBER 27, 1947, OR SUCH REASONABLE TIME THEREAFTER AS MAY HAVE BEEN REQUIRED FOR THE CHANGING OF ADMINISTRATIVE REGULATIONS TO ACCORD WITH SAID DECISION.