A-88692, SEPTEMBER 10, 1937, 17 COMP. GEN. 237

A-88692, SEPTEMBER 10, 1937, 17 COMP. GEN. 237

LEAVES OF ABSENCE--- MILITARY--- OFFICERS' RESERVE CORPS IN INACTIVE DUTY STATUS A FEDERAL CIVILIAN EMPLOYEE OF THE OFFICERS' RESERVE CORPS ORDERED TO DUTY, WITH HIS CONSENT, FOR FIELD TRAINING IN AN INACTIVE DUTY STATUS, IS NOT ENTITLED TO MILITARY LEAVE WITH PAY FOR THE PERIOD INVOLVED, BUT PAYMENT OF THE COMPENSATION OF HIS CIVILIAN POSITION IS AUTHORIZED WHERE THERE IS AVAILABLE TO THE EMPLOYEE'S CREDIT ANNUAL LEAVE SUFFICIENT TO COVER THE ABSENCE INVOLVED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, SEPTEMBER 10, 1937:

YOUR LETTER OF AUGUST 26, 1937, IS AS FOLLOWS:

WE ARE SUBMITTING FOR YOUR DETERMINATION THE QUESTION AS TO WHETHER MR. THOMAS BAKER MATTHEWS, AN EMPLOYEE OF THE PUBLIC WORKS ADMINISTRATION AND A LIEUTENANT COLONEL WITH THE FIELD ARTILLERY RESERVE IS ENTITLED TO MILITARY LEAVE FROM AUGUST 10 TO AUGUST 15, INCLUSIVE. DURING THIS PERIOD MR. MATTHEWS, WHO HAS PERFORMED NO PREVIOUS MILITARY DUTY DURING THE CURRENT YEAR, WAS ORDERED TO DUTY, WITH HIS CONSENT, FOR FIELD TRAINING WITH THE NATIONAL GUARD ON AN INACTIVE DUTY STATUS.

CHAPTER 12 OF THE ACT OF MAY 12, 1917 (47 STAT. 72), PROVIDES THAT EMPLOYEES OF THE UNITED STATES ARE ENTITLED TO MILITARY LEAVE WITH PAY FROM THEIR CIVILIAN DUTIES "ON ALL DAYS DURING WHICH THEY SHALL BE ORDERED TO DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, FOR PERIODS NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR.' WHETHER THE WORD "DUTY" AS CONTAINED IN THE FOREGOING STATUTORY PROVISION COMPREHENDS INACTIVE AS WELL AS ACTIVE DUTY APPEARS TO DEPEND ON WHETHER CHAPTER 12, SUPRA, IS TO BE BROADLY CONSTRUED IN THE LIGHT OF THE INTENDMENT OF THE ACT, OR WHETHER IT IS TO BE NARROWLY CONSTRUED WHEN READ TOGETHER WITH SECTION 39 OF THE ACT OF JUNE 4, 1920 (39 STAT. 191).

SINCE THE PURPOSE OF CHAPTER 12, SUPRA, WAS TO ENABLE AN EMPLOYEE OF THE UNITED STATES TO DRAW DOUBLE COMPENSATION DURING THE PERIOD OF MILITARY DUTY, NOT EXCEEDING 15 DAYS IN ANY ONE CALENDAR YEAR, IT WOULD APPEAR THAT THE ACT SHOULD BE CONSTRUED TO EMBRACE THOSE EMPLOYEES WHO ARE ORDERED, WITH THEIR CONSENT, TO MILITARY DUTY ON INACTIVE DUTY STATUS; THAT IS, WITHOUT PAY AND ALLOWANCES THEREFOR WHICH THEY WOULD HAVE BEEN ENTITLED TO HAD THEY BEEN ON AN ACTIVE DUTY STATUS INSTEAD, PROVIDING THAT THEIR DUTY OTHERWISE QUALIFIES WITHIN THE ACT.

ON THE OTHER HAND, IF CHAPTER 12, SUPRA, IS READ TOGETHER WITH SECTION 39, SUPRA, WHICH AUTHORIZES THE PRESIDENT TO "ORDER RESERVE OFFICERS TO ACTIVE DUTY AT ANY TIME AND FOR ANY PERIOD; BUT EXCEPT IN TIME OF A NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS, NO RESERVE OFFICER SHALL BE EMPLOYED ON ACTIVE DUTY FOR MORE THAN 15 DAYS IN ANY CALENDAR YEAR WITHOUT HIS OWN CONSENT" , IT WOULD APPEAR THAT CHAPTER 12, SUPRA, MIGHT BE CONSTRUED TO MEAN THAT MILITARY LEAVE WITH PAY CAN BE GRANTED ONLY TO THOSE EMPLOYEES OF THE UNITED STATES WHO HAVE BEEN ORDERED TO ACTIVE DUTY.

ALTHOUGH THE LATTER CONSTRUCTION OF CHAPTER 12, SUPRA, WOULD APPEAR TO DEFEAT THE PURPOSE OF THE ACT, NEVERTHELESS SO LONG AS THERE IS SOME DOUBT AS TO WHICH INTERPRETATION IS THE PROPER ONE, WE DESIRE TO HAVE YOUR OPINION ON THIS MATTER.

IN DECISION OF JULY 15, 1929, 9 COMP. GEN. 13, 14, IT WAS HELD AS FOLLOWS:

UNDER THE ACT OF MAY 12, 1917, CITED, OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO SHALL BE MEMBERS OF THE OFFICERS' RESERVE CORPS ARE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATINGS ON ALL DAYS DURING WHICH "THEY SHALL BE ORDERED TO DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, FOR PERIODS NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR.' THE SERVICE WITHIN THE PURVIEW OF THE ACT ENTITLING TO LEAVE WITH PAY WAS THAT PROVIDED FOR IN SECTION 39 OF THE ACT OF JUNE 3, 1916, 39 STAT. 191. SEE 24 COMP. DEC. 82; ID. 158.

SEC. 39 IS AS FOLLOWS:

"INSTRUCTION OF OFFICERS OF THE OFFICERS' RESERVE CORPS.--- TO THE EXTENT PROVIDED FOR FROM TIME TO TIME BY APPROPRIATIONS FOR THIS SPECIFIC PURPOSE, THE SECRETARY OF WAR IS AUTHORIZED TO ORDER RESERVE OFFICERS TO DUTY WITH TROOPS OR AT FIELD EXERCISES OR FOR INSTRUCTION FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR, AND WHILE SO SERVING SUCH OFFICERS SHALL RECEIVE THE PAY AND ALLOWANCES OF THEIR RESPECTIVE GRADES IN THE REGULAR ARMY; * * *"

THIS SECTION WAS SUPERSEDED BY SECTION 37A, ACT OF JUNE 4, 1920, 41 STAT. 776. THIS STATUTE AUTHORIZES THE SECRETARY OF WAR TO ORDER RESERVE OFFICERS TO ACTIVE DUTY AT ANY TIME AND FOR ANY PERIOD, BUT IT IS PRESCRIBED THAT EXCEPT IN A NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS NO RESERVE OFFICER SHALL BE EMPLOYED ON ACTIVE DUTY FOR MORE THAN 15 DAYS IN ANY CALENDAR YEAR WITHOUT HIS OWN CONSENT. IT THUS APPEARS THAT THE MILITARY SERVICE ENTITLING TO LEAVE WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATINGS IS THAT WHICH MAY BE LEGALLY REQUIRED OF MEMBERS, AND DURING THE PERIOD WHEN "ORDERED TO DUTY" BY COMPETENT MILITARY AUTHORITY. TRAINING ON INACTIVE STATUS ON THE VOLUNTARY APPLICATION OF RESERVE OFFICERS AS PROVIDED FOR IN ARMY REGULATIONS 140-5 IS NOT WITHIN THE PURVIEW OF THE ACT OF MAY 12, 1917, AND DOES NOT ENTITLE MEMBERS THUS PERMITTED TO TRAIN TO ANY OF THE BENEFITS PRESCRIBED THEREIN. YOUR QUESTION IS ANSWERED ACCORDINGLY.

SEE ALSO 15 COMP. GEN. 110.

ACCORDINGLY, MR. MATTHEWS WOULD NOT BE ENTITLED TO MILITARY LEAVE WITH PAY FOR THE PERIOD IN QUESTION ON THE BASIS OF THE FACTS PRESENTED.

THE ACT OF MARCH 14, 1936, 49 STAT. 1161, GRANTS CIVILIAN OFFICERS AND EMPLOYEES "TWENTY-SIX DAYS' ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS.' THE STATUTE ALSO AUTHORIZES ACCRUAL OF ANNUAL LEAVE UP TO 86 DAYS. THERE WOULD BE NO LEGAL OBJECTION, OF COURSE, TO CHARGING THE PERIOD FROM AUGUST 10 TO 15, INCLUSIVE, 4 DAYS, 4 HOURS, AGAINST ANY ANNUAL LEAVE TO THE EMPLOYEE'S CREDIT, BUT TO GRANT HIM AN ADDITIONAL PERIOD OF LEAVE WITH PAY FOR THE PURPOSE OF PERMITTING HIM TO ACCOMPANY A FIELD ARTILLERY RESERVE ORGANIZATION DURING FIELD TRAINING IN AN INACTIVE DUTY STATUS, VOLUNTARILY ENTERED INTO, IS NOT AUTHORIZED BY LAW.