B-122020, JUN. 1, 1955

B-122020, JUN. 1, 1955

TO THE SECRETARY OF THE ARMY:

AN EMPLOYEE OF THE WASHINGTON DISTRICT, CORPS OF ENGINEERS, U.S. ARMY, MR. CLEVELAND W. STAUFFER, WHO IS ALSO A CAPTAIN IN THE DISTRICT OF COLUMBIA AIR NATIONAL GUARD, HAS SUBMITTED A CLAIM FOR THE MONETARY VALUE OF ANNUAL LEAVE CHARGED HIM IN HIS CIVILIAN POSITION FOR THE 15 DAY PERIOD FROM NOVEMBER 19, 1953, TO DECEMBER 3, 1953.

THE BASIS FOR HIS CLAIM IS THAT HE SHOULD HAVE BEEN GRANTED MILITARY LEAVE FOR SUCH PERIOD BECAUSE HE WAS PERFORMING MILITARY DUTY (INCLUDING TRAVEL) AS A NATIONAL GUARD OFFICER DURING THE 18-DAY PERIOD FROM NOVEMBER 19, 1953, TO DECEMBER 6, 1953, IN COMPLIANCE WITH PARAGRAPH 1, SPECIAL ORDERS NO. 199, HEADQUARTERS, DISTRICT OF COLUMBIA NATIONAL GUARD, DATED NOVEMBER 2, 1953. THAT ORDER DIRECTED HIM, UNDER AUTHORITY OF SECTION 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 32 U.S.C. 65, TO PROCEED TO CHANUTE AIR FORCE BASE, ILLINOIS, ON OR ABOUT NOVEMBER 19, 1953, AND REPORT THERE ON NOVEMBER 21, 1953, AS A STUDENT TO ATTEND A COURSE OF INSTRUCTION LASTING TEN ACADEMIC DAYS.

APPARENTLY MR. STAUFFER WAS REFUSED MILITARY LEAVE FOR THE PERIOD FROM NOVEMBER 19, 1953, TO DECEMBER 3, 1953, AS A RESULT OF INSTRUCTIONS OF THE OFFICE OF CIVILIAN PERSONNEL, DEPARTMENT OF THE ARMY (3D IND., SAOCP PR, DATED MARCH 4, 1954, TO CHIEF OF ENGINEERS, SUBJECT: MILITARY LEAVE - AIR NATIONAL GUARD OFFICER), THAT "THE CASE OF MR. STAUFFER IS SUFFICIENTLY SYNONYMOUS WITH THE CASE DISCUSSED IN 28 C.G. 373, TO WARRANT THE CONCLUSION THAT HE IS NOT ENTITLED TO MILITARY LEAVE UNDER THE PROVISIONS OF 32 U.S.C. 75.'

IT THUS APPEARS THAT MR. STAUFFER WAS DENIED MILITARY LEAVE FOR THE PERIOD INVOLVED BECAUSE SUCH DENIAL WAS DEEMED TO BE REQUIRED BY OUR DECISION OF DECEMBER 20, 1948, 28 COMP. GEN. 373. IT IS OUR VIEW, HOWEVER, THAT LEGISLATION ENACTED SINCE THE DATE OF THAT DECISION (SECTIONS 714 (B) AND 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952- - SEE 50 U.S.C. 1124 (B) AND 10 U.S.C. 371, RESPECTIVELY) HAS CHANGED THE MILITARY LEAVE RIGHTS OF MEMBERS OF THE NATIONAL GUARD AND THAT SINCE JANUARY 1, 1953 (THE EFFECTIVE DATE OF THE 1952 ACT), SUCH MEMBERS WHO ARE OFFICERS OR EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA ARE ENTITLED TO MILITARY LEAVE OF ABSENCE FROM THEIR CIVILIAN DUTIES "ON ALL DAYS DURING WHICH THEY SHALL BE ORDERED TO ACTIVE DUTY FOR TRAINING, OR ACTIVE DUTY, OR TO DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR.'

ACCORDINGLY, SINCE WE MAY NOT ALLOW MR. STAUFFER'S CLAIM FOR THE MONETARY VALUE OF HIS ANNUAL LEAVE WHILE HE IS STILL EMPLOYED IN HIS CIVILIAN POSITION, BUT WOULD HAVE NO OBJECTION TO THE AMENDMENT OF HIS LEAVE RECORD TO CHARGE TO MILITARY LEAVE HIS ABSENCE FROM HIS CIVILIAN DUTIES DURING THE PERIOD FROM NOVEMBER 19, 1953, TO DECEMBER 3, 1953, HIS CASE IS BROUGHT TO YOUR ATTENTION FOR SUCH ACTION AS IS DEEMED PROPER.