B-142140, MAR. 9, 1960

B-142140, MAR. 9, 1960

TO MRS. MURIEL R. MOORE, AUTHORIZED CERTIFYING OFFICER, ADMINISTRATIVE OFFICE:

ON FEBRUARY 23, 1960, THE DIRECTOR, DEPARTMENTAL SERVICES DIVISION TRANSMITTED TO OUR OFFICE FOR ADVANCE DECISION A VOUCHER WHICH WAS BEFORE YOU FOR CERTIFICATION IN FAVOR OF MR. JOHN W. ELLIS, A DEPARTMENTAL EMPLOYEE. THE QUESTION IS WHETHER MR. ELLIS WAS ENTITLED TO PAYMENT AS PROPOSED ON THE VOUCHER FOR 15 DAYS MILITARY LEAVE IN 1957, WHEN HE ENLISTED IN THE REGULAR ARMY. (WE UNDERSTAND THAT THE PROPER REFERENCE FOR THE OFFICE OF THE COMPTROLLER WOULD BE NCA 12101.)

THE FILE SHOWS THAT ON FEBRUARY 13, 1957, MR. ELLIS SUBMITTED A REQUEST FOR RESIGNATION TO ENTER MILITARY SERVICE, WHICH WAS APPROVED AND JOURNALIZED AS "RESIGNATION - MILITARY" EFFECTIVE MARCH 25, 1957. PRIOR TO THE EFFECTIVE DATE, MR. ELLIS REQUESTED AND WAS GRANTED LEAVE WITHOUT PAY FROM MARCH 4 THROUGH MARCH 25. THE SUBMISSION INDICATES THAT MR. ELLIS WAS, AT THE TIME OF HIS ENTRY INTO MILITARY SERVICE, A MEMBER OF THE DISTRICT AIR NATIONAL GUARD. HOWEVER, HIS ENLISTMENT ORDERS ISSUED BY THE UNITED STATES ARMY RECRUITING MAIN STATION, BALTIMORE, SHOWS THAT MR. ELLIS ENLISTED ON MARCH 26, 1957, IN THE REGULAR ARMY IN THE GRADE OF PRIVATE (E-1) FOR A PERIOD OF THREE YEARS AND DID NOT REFER TO HIS MEMBERSHIP IN THE NATIONAL GUARD.

THE STATUTE PROVIDING MILITARY LEAVE FOR OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT, AS CODIFIED BY THE ACT OF AUGUST 10, 1956, 5 U.S.C. 30R, READS IN PERTINENT PART:

"/A) EACH RESERVE OF THE ARMED FORCES OR MEMBER OF THE NATIONAL GUARD WHO IS AN OFFICER OR EMPLOYEE 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 (EXCEPT A SUBSTITUTE EMPLOYEE IN THE POSTAL FIELD SERVICE), IS ENTITLED TO LEAVE OF ABSENCE FROM HIS DUTIES, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING FOR EACH DAY, BUT NOT MORE THAN 15 DAYS IN ANY CALENDAR YEAR, IN WHICH HE IS ON ACTIVE DUTY, OR IS ENGAGED IN FIELD OR COAST DEFENSE TRAINING UNDER SECTIONS 502-505 OF TITLE 32. * * *"

IT IS CLEAR FROM THE LANGUAGE OF THAT STATUTE AS WELL AS FROM THE LEGISLATIVE HISTORY THAT THE ACTIVE DUTY FOR WHICH A LEAVE OF ABSENCE WITHOUT LOSS OF PAY IS PROVIDED, INCLUDES ONLY ACTIVE DUTY AS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES, WHICH MUST BE DISTINGUISHED FROM SERVICE IN THE REGULAR ESTABLISHMENT. THERE IS NO AUTHORITY IN THIS OR ANY OTHER STATUTE FOR GRANTING 15 DAYS LEAVE WITH PAY TO AN EMPLOYEE FOR ACTIVE DUTY AS AN ENLISTEE IN THE REGULAR ESTABLISHMENT OF ONE OF THE ARMED FORCES. THE FACT THAT MR. ELLIS MAY HAVE BEEN A MEMBER OF THE NATIONAL GUARD AT THE TIME HE ENLISTED IN THE REGULAR ARMY (WHICH THE RECORD DOES NOT SHOW) WOULD NOT IN ITSELF ENTITLE HIM TO MILITARY LEAVE IN THESE CIRCUMSTANCES SINCE HIS ENLISTMENT IN THE REGULAR ARMY CLEARLY WAS AS AN INDIVIDUAL AND HAD NO CONNECTION WITH HIS NATIONAL GUARD STATUS.

THEREFORE, THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT AND THIS DECISION, BASED ON THE GROUNDS DISCUSSED ABOVE, RENDERS UNNECESSARY ANY COMMENT ON THE OTHER QUESTIONS PRESENTED.