B-130985, APR. 30, 1957

B-130985, APR. 30, 1957

TO HONORABLE ROBERT E. MCLAUGHLIN, CHAIRMAN, NATIONAL CAPITAL HOUSING AUTHORITY:

ON MARCH 7, 1957, YOUR EXECUTIVE DIRECTOR, REQUESTED OUR DECISION CONCERNING THE GRANTING OF MILITARY LEAVE TO AN EMPLOYEE OF THE NATIONAL CAPITAL HOUSING AUTHORITY, WHO IS A MEMBER OF THE DISTRICT OF COLUMBIA NATIONAL GUARD. HE QUESTIONS THE PROPRIETY OF GRANTING MILITARY LEAVE TO THE EMPLOYEE FOR (1) OCCASIONS THAT ARE NOT PARADES OR ENCAMPMENTS IN THE STRICT SENSE, OR (2) OCCASIONS, THE ORDERS FOR WHICH ARE OF A "UNIT," "SPECIAL," OR "BAND" NATURE AND NOT BASED ON FORMAL ORDERS OF THE COMMANDING GENERAL, NOTWITHSTANDING THE CERTIFICATES ISSUED BY THE D.C. NATIONAL GUARD.

THE APPLICABLE STATUTE, NAMELY, THE ACT OF MARCH 1, 1889, 25 STAT. 779, AS AMENDED, 39 DISTRICT OF COLUMBIA CODE 608 PROVIDES AS FOLLOWS:

"ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NATIONAL GUARD SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY OR TIME, ON ALL DAYS OF ANY PARADE OR ENCAMPMENT ORDERED FOR AUTHORIZED UNDER THE PROVISIONS OF THIS TITLE. THIS SECTION SHALL BE CONSTRUED AS COVERING ALL DAYS OF SERVICE WHICH THE NATIONAL GUARD, OR ANY PORTION THEREOF, MAY BE ORDERED TO PERFORM BY THE COMMANDING GENERAL.'

THE FIRST QUESTION INVOLVES THE MILITARY DUTY OF THE EMPLOYEE ON OCCASIONS IN WHICH HE PARTICIPATED IN BAND CONCERTS AND OTHER FUNCTIONS OF THE 91ST ARMY BAND OF THE D.C. NATIONAL GUARD, WHICH MAY NOT HAVE BEEN PARADES OR ENCAMPMENTS IN THE STRICT SENSE OF THE TERM AS USED IN THE STATUTE. IN CONNECTION WITH THE SECOND QUESTION, THE EXECUTIVE DIRECTOR SAYS THAT INFORMATION OBTAINED BY TELEPHONE FROM THE ADJUTANT GENERAL'S OFFICE OF THE D.C. NATIONAL GUARD INDICATES THAT FORMAL ORDERS ISSUED BY "ORDER OF THE COMMANDING GENERAL" ARE LABELED EITHER "GENERAL" OR ,OPERATION" ORDERS, AND THAT "UNIT," "SPECIAL," OR "BAND" ORDERS IN SOME CASES MAY BE ISSUED UNDER GENERAL AUTHORIZATION, OR UNDER INHERENT AUTHORITY OF THE UNIT COMMANDER, WITHOUT FORMAL ORDERS BEING ISSUED BY THE COMMANDING GENERAL. THUS, AS YOUR EXECUTIVE DIRECTOR POINTS OUT, THE QUESTION ARISES AS TO WHETHER THE CERTIFICATE ISSUED BY THE D.C. NATIONAL GUARD SHOULD BE ACCEPTED AS FULFILLING THE REQUIREMENT OF THE STATUTE OR WHETHER THE GRANTING OF MILITARY LEAVE SHOULD BE RESTRICTED TO THOSE OCCASIONS WHERE A SPECIFIC "GENERAL" OR "OPERATION" ORDER HAS BEEN ISSUED BY THE COMMANDING GENERAL.

IT APPEARS THAT THE PRESENT PROCEDURE OF THE D.C. NATIONAL GUARD, UNDER THE ABOVE QUOTE STATUTE, IS TO ISSUE A CERTIFICATE TO THE PERSON CONCERNED WHICH SHOWS HE PERFORMED DUTY ON THE DAYS SHOWN THEREON UNDER AUTHORITY OF THE STATUTE. THERE IS PRINTED AT THE TOP OF THE CERTIFICATE THE STATEMENT "THIS CERTIFICATE MUST BE USED ONLY FOR DUTY PERFORMED UNDER AN ORDER FROM HEADQUARTERS, D.C. NATIONAL GUARD.' ALSO, WE NOTE THAT THE ADJUTANT GENERAL, HEADQUARTERS DISTRICT OF COLUMBIA NATIONAL GUARD, IN THE LETTER DATED FEBRUARY 26, 1957, TO YOUR EXECUTIVE DIRECTOR STATES THAT "UNITS ARE INSTRUCTED NOT TO ISSUE AUTHORIZATION FOR MILITARY LEAVE UNLESS THIS HEADQUARTERS ORDERS SAME.' UNDER THIS PROCEDURE THE CERTIFICATES ARE AUTHORIZED TO BE ISSUED BY THE UNITS ONLY FOR DUTY UNDER "HEADQUARTERS ORDERS.' MOREOVER, BY LETTER DATED APRIL 24, 1957, THE COMMANDING GENERAL, D.C. NATIONAL GUARD, HAS INFORMED US THAT ALL ORDERS ISSUED BY THE HEADQUARTERS "ARE ORDERS OF THE COMMANDING GENERAL, DISTRICT OF COLUMBIA NATIONAL GUARD.' THEREFORE, THE CERTIFICATE MAY BE ACCEPTED AS FULFILLING THE REQUIREMENTS OF THE STATUTE AND AS ELIMINATING THE NECESSITY FOR AN ADMINISTRATIVE DETERMINATION OF THE TYPE OF DUTY PERFORMED THEREUNDER. HOWEVER, WHERE IT IS OBVIOUS AN ERROR MAY HAVE BEEN MADE IN ISSUING THE CERTIFICATE, THE HEADQUARTERS, D.C. NATIONAL GUARD, SHOULD BE REQUESTED TO VERIFY THE CORRECTNESS OF THAT CERTIFICATE. SEE RESTRICTIONS IN 6 COMP. GEN. 635, 8 ID. 210, 15 ID. 633, AND 19 ID. 687, REFERRED TO BY YOUR EXECUTIVE DIRECTOR.