B-158925, APR. 27, 1966
Highlights
WHEN HE WAS CALLED TO ACTIVE DUTY AS AN AIR FORCE RESERVE OFFICER IN JULY 1951. HE AGREED TO REMAIN ON ACTIVE DUTY IN THE AIR FORCE AS A RESERVE OFFICER FOR AN INDEFINITE PERIOD AND WAS NOT RELEASED UNTIL 1965. THAT SECTION PROVIDES: "EACH PERSON COVERED BY SUBSECTION (A) OF THIS SECTION WHO IS ORDERED TO ACTIVE DUTY. OR TO DUTY UNDER SECTIONS 502-505 OF TITLE 32 IS ENTITLED. WE HAVE HELD THAT THE RIGHT TO RESTORATION GIVEN BY 5 U.S.C. 30R/B) IS A RIGHT SEPARATE FROM AND IN ADDITION TO THE RESTORATION RIGHTS GIVEN FORMER EMPLOYEES BY SECTION 9/G//2) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT. APP. 459/G//2) AND THAT THE RIGHT GIVEN BY 5 U.S.C. 30R/B) IS NOT DEFEATED BY THE LENGTH OF TIME THE FORMER EMPLOYEE HAS BEEN IN MILITARY SERVICE. 43 COMP.
B-158925, APR. 27, 1966
TO ADMINISTRATOR, FEDERAL AVIATION AGENCY:
WE REFER TO YOUR LETTER OF APRIL 8, 1966, CONCERNING THE RIGHT OF A FORMER EMPLOYEE OF THE CIVIL AERONAUTICS ADMINISTRATION TO BE RESTORED TO A CIVILIAN POSITION IN THE FEDERAL AVIATION AGENCY AFTER AN EXTENDED PERIOD OF ACTIVE DUTY AS A RESERVE OFFICER OF THE UNITED STATES AIR FORCE.
ACCORDING TO THE FACTS PRESENTED THE FORMER EMPLOYEE HELD THE POSITION OF AIR TRAFFIC CONTROLLER, GRADE GS-7, WITH YOUR PREDECESSOR AGENCY, THE CIVIL AERONAUTICS ADMINISTRATION, WHEN HE WAS CALLED TO ACTIVE DUTY AS AN AIR FORCE RESERVE OFFICER IN JULY 1951. HE AGREED TO REMAIN ON ACTIVE DUTY IN THE AIR FORCE AS A RESERVE OFFICER FOR AN INDEFINITE PERIOD AND WAS NOT RELEASED UNTIL 1965. SUBSEQUENTLY, HE APPLIED TO YOUR AGENCY FOR RESTORATION TO THE POSITION HE FORMERLY HELD UNDER THE PROVISION OF 5 U.S.C. 304/B). THAT SECTION PROVIDES:
"EACH PERSON COVERED BY SUBSECTION (A) OF THIS SECTION WHO IS ORDERED TO ACTIVE DUTY, OR TO DUTY UNDER SECTIONS 502-505 OF TITLE 32 IS ENTITLED, UPON RELEASE FROM DUTY, TO BE RESTORED TO THE POSITION HELD BY HIM WHEN ORDERED TO DUTY.'
SUBSECTION (A) COVERS LEAVE OF ABSENCE FOR OFFICERS OR EMPLOYEES OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA, PERMANENT OR TEMPORARY INDEFINITE, WITHOUT REGARD TO CLASSIFICATION OR TERMINOLOGY PECULIAR TO THE CIVIL SERVICE SYSTEM, WHILE ON ACTIVE DUTY OR ENGAGED IN FIELD OR COAST DEFENSE TRAINING UNDER SECTIONS 502-505 OF TITLE 32, AS RESERVES IN THE ARMED FORCES OR MEMBERS OF THE NATIONAL GUARD.
WE HAVE HELD THAT THE RIGHT TO RESTORATION GIVEN BY 5 U.S.C. 30R/B) IS A RIGHT SEPARATE FROM AND IN ADDITION TO THE RESTORATION RIGHTS GIVEN FORMER EMPLOYEES BY SECTION 9/G//2) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, APPROVED JUNE 24, 1948, CH. 625,62 STAT. 614, AS AMENDED, 50 U.S.C. APP. 459/G//2) AND THAT THE RIGHT GIVEN BY 5 U.S.C. 30R/B) IS NOT DEFEATED BY THE LENGTH OF TIME THE FORMER EMPLOYEE HAS BEEN IN MILITARY SERVICE. 43 COMP. GEN. 439. SEE ALSO THE REPORT OF THE COMMITTEE ON THE ARMED SERVICES, HOUSE OF REPRESENTATIVES DATED MARCH 1, 1966, ON THE BILL H.R. 11509, 89TH CONGRESS, HOUSE REPORT NO. 1303, 89TH CONGRESS, 2ND SESSION, PAGES 6 AND 7.
WE HAVE NO AUTHORITY, HOWEVER, TO DIRECT THAT A PARTICULAR FORMER EMPLOYEE OF AN AGENCY BE RESTORED TO DUTY TO THE POSITION HELD BY HIM PRIOR TO ENTRY INTO THE MILITARY SERVICE. IN THE ABSENCE OF A PROVISION OF LAW VESTING SUCH AUTHORITY IN A PARTICULAR OFFICIAL THE RESPONSIBILITY OF REINSTATING ELIGIBLE INDIVIDUALS IS THAT OF THE HEADS OF THE GOVERNMENT DEPARTMENTS AND AGENCIES INVOLVED. OUR JURISDICTION WITH REGARD TO RESTORATIONS MADE BY OTHER GOVERNMENT DEPARTMENTS AND AGENCIES UNDER THAT PROVISION OF LAW EXTENDS ONLY TO RATES OF COMPENSATION AND OTHER BENEFITS WHICH MAY BE ALLOWED TO RESTORED EMPLOYEES.