B-148839, MAY 23, 1962, 41 COMP. GEN. 777

B-148839, MAY 23, 1962, 41 COMP. GEN. 777

POST OFFICE DEPARTMENT - EMPLOYEES - LEAVES OF ABSENCE - MILITARY - SUBSTITUTE EMPLOYEES--- POST OFFICE DEPARTMENT - EMPLOYEES - LEAVES OF ABSENCE - MILITARY - SUBSTITUTE EMPLOYEES--- OFFICERS AND EMPLOYEES - LIFE INSURANCE - MILITARY LEAVE EFFECT IN DETERMINING THE MILITARY LEAVE CREDIT FOR SUBSTITUTE POSTAL FIELD SERVICE EMPLOYEES UNDER THE ACT OF OCTOBER 4, 1961 ( PUBLIC LAW 87 378), WHICH, EFFECTIVE JANUARY 1, 1962, RETURNED THE CREDITING METHOD TO A CALENDAR YEAR BASIS, THE RECOGNITION IN THE LEGISLATIVE HISTORY OF THE ACT THAT THE PREVIOUS CHANGE FROM CALENDAR TO FISCAL YEAR BASIS HAD NECESSITATED POSTPONEMENT OF THE EFFECTIVE DATE FOR SUBSTITUTE POSTAL EMPLOYEES SO THAT THE CHANGE COULD BE MADE WITHOUT DISREGARD TO THE CONCEPT THAT SUBSTITUTE POSTAL EMPLOYEES EARN LEAVE THROUGH SERVICE, REQUIRES A SIMILAR ADJUSTMENT FOR SUBSTITUTE POSTAL FIELD SERVICE EMPLOYEES UNDER THE 1961 ACT; THEREFORE, SUBSTITUTE POSTAL FIELD SERVICE EMPLOYEES MAY DURING THE FISCAL YEAR 1962 USE THE MILITARY LEAVE EARNED DURING FISCAL YEAR 1961 AND MILITARY LEAVE EARNED BETWEEN JULY 1 AND DECEMBER 31, 1961, MAY BE USED BETWEEN JULY 1 AND DECEMBER 31, 1962, AND ON JANUARY 1, 1963, THE AMENDATORY ACT OF OCTOBER 4, 1961, WILL BECOME FULLY EFFECTIVE FOR SUCH EMPLOYEES. SUBSTITUTE POSTAL FIELD SERVICE EMPLOYEES WHO DURING THE FIRST 2 MONTHS OF FISCAL YEAR 1962 USED THE MAXIMUM AMOUNT OF MILITARY LEAVE AVAILABLE TO THEM UNDER THE LAW THEN IN EFFECT AND WHO SUBSEQUENTLY WERE RECALLED TO EXTENDED ACTIVE DUTY ARE NOT ELIGIBLE FOR FURTHER MILITARY LEAVE UNTIL JULY 1, 1962, BETWEEN WHICH DATE AND DECEMBER 31, 1962, THEY MAY BE GRANTED MILITARY LEAVE IF THEY QUALIFY UNDER 5 U.S.C. 30R; HOWEVER, IN VIEW OF THE SHORT PERIOD OF THEIR EMPLOYMENT AS SUBSTITUTES AFTER JULY 1, 1961, IT IS NOT LIKELY THAT THEY WILL HAVE WORKED FOR AT LEAST 520 HOURS (ONE-HALF OF 1040) DURING THE PERIOD JULY 1, 1961, TO DECEMBER 31, 1961, TO QUALIFY FOR MILITARY LEAVE AND, IN THE ABSENCE OF ANY AUTHORITY FOR THE GRANTING OF MILITARY LEAVE ON A CONSTRUCTIVE BASIS FOR TIME ACTUALLY SPENT IN MILITARY SERVICE, THE SUBSTITUTE POSTAL FIELD SERVICE EMPLOYEES WOULD NOT BE ENTITLED TO MILITARY LEAVE. ALTHOUGH EMPLOYEES COVERED BY THE FEDERAL EMPLOYEES GROUP LIFE INSURANCE ACT OF 1954, 5 U.S.C. 2091, NOTE, WHEN THEY ARE CALLED TO MILITARY SERVICE ARE ENTITLED TO CONTINUED COVERAGE DURING THE INITIAL GRANT OF MILITARY LEAVE, ONCE THE COVERAGE IS TERMINATED THE FACT THAT THE EMPLOYEE MAY BE ENTITLED TO A SUBSEQUENT GRANT OF ADDITIONAL MILITARY LEAVE DOES NOT REINSTATE HIS LIFE INSURANCE COVERAGE.

TO LEROY P. AFDEM, POST OFFICE DEPARTMENT, MAY 23, 1962:

YOU LETTER OF MAY 3, 1962, REFERENCE AIR:1LPA:AMQ, REQUESTS OUR DECISION WHETHER YOU PROPERLY MAY CERTIFY FOR PAYMENT THE ENCLOSED PAYROLL VOUCHER TO COMPENSATE MR. MELVIN E. SMITH AND MR. JOHN T. GUNSAULEY, SUBSTITUTE POSTAL FIELD SERVICE EMPLOYEES, FOR MILITARY LEAVE.

YOU STATE THE FACTS INVOLVED IN THE TWO CASES AS FOLLOWS:

MR. MELVIN E. SMITH, SUBSTITUTE SPECIAL DELIVERY MESSENGER, WAS PAID FOR 80 HOURS OF MILITARY LEAVE COVERING THE PERIOD JULY 1, 1961 1JULY 15, 1961, BASED ON THE HOURS WORKED DURING THE PREVIOUS FISCAL YEAR, UNDER THE PROVISIONS OF PUBLIC LAW 610, APPROVED JUNE 22, 1956, AS AMENDED BY PUBLIC LAW 86-559. HE WAS RECALLED TO EXTENDED ACTIVE DUTY ON SEPTEMBER 18, 1961 AND HE HAS NOW FILED A CLAIM FOR 80 HOURS OF MILITARY LEAVE COVERING THE PERIOD JANUARY 1, 1962 THROUGH JANUARY 12, 1962, BASED ON THE DECISION OF YOUR OFFICE, DATED NOVEMBER 21, 1961 AND SECTION 7 OF PUBLIC LAW 87-378, PROVIDING FOR THE GRANTING OF MILITARY LEAVE ON THE BASIS OF CALENDAR YEARS OF SERVICE. DURING THE PERIOD JANUARY 1, 1961 THROUGH SEPTEMBER 18, 1961, HE WAS IN A PAY STATUS 1,456 HOURS AND ALLOWING ONE HOUR OF MILITARY LEAVE FOR EACH 26 HOURS IN A PAY STATUS HE WOULD BE DUE 56 HOURS OF MILITARY LEAVE. HOWEVER, IT MAY BE THAT HE SHOULD RECEIVE 80 HOURS OF MILITARY LEAVE BASED ON 1,456 HOURS PRIOR TO ENTERING MILITARY SERVICE AND 600 HOURS OF CONSTRUCTIVE SERVICE WHILE IN THE MILITARY SERVICE (15 WEEKS AT 40 HOURS PER WEEK).

MR. JOHN T. GUNSAULEY, SUBSTITUTE CLERK, WAS PAID FOR 80 HOURS OF MILITARY LEAVE COVERING THE PERIOD AUGUST 7, 1961 THROUGH AUGUST 18, 1961, BASED ON THE HOURS WORKED DURING THE PRECEDING FISCAL YEAR. HE WAS RECALLED TO ACTIVE DUTY ON OCTOBER 1, 1961 AND HAS FILED A CLAIM FOR 80 HOURS OF MILITARY LEAVE COVERING THE PERIOD MARCH 5, 1962 THROUGH MARCH 16, 1962. DURING THE PERIOD JANUARY 1, 1961 THROUGH SEPTEMBER 30, 1961, HE WAS IN A PAY STATUS 1,754 HOURS, WHICH WOULD ENTITLE HIM TO 67 HOURS OF MILITARY LEAVE. HE IS CLAIMING 80 HOURS OF MILITARY LEAVE BASED ON THE 1,754 HOURS PRIOR TO ENTERING MILITARY SERVICE AND 520 HOURS OF CONSTRUCTIVE SERVICE AFTER ENTERING THE MILITARY SERVICE.

MILITARY LEAVE IS AUTHORIZED SUBSTITUTE POSTAL FIELD SERVICE EMPLOYEES UNDER THE PROVISIONS OF 5 U.S.C. 30R, IN PERTINENT PART, AS FOLLOWS:

* * * 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 THE SAME PURPOSE (MILITARY DUTY), ON THE BASIS OF ONE HOUR OF LEAVE FOR EACH PERIOD AGGREGATING 26 HOURS OF WORK PERFORMED IN THE CALENDAR YEAR NEXT BEFORE THE CALENDAR YEAR IN WHICH HE IS ORDERED TO THAT DUTY OR TRAINING. HOWEVER, HE IS NOT ENTITLED TO ANY LEAVE UNDER THIS SECTION UNLESS HE HAS WORKED AT LEAST 1,040 HOURS DURING THE CALENDAR YEAR NEXT BEFORE THAT YEAR IN WHICH HE IS ORDERED TO THAT DUTY OR TRAINING, AND HE MAY NOT BE PAID FOR MORE THAN 80 HOURS OF LEAVE UNDER THIS SECTION IN ANY CALENDAR YEAR.

ON JUNE 30, 1960, THE WORDS "CALENDAR YEAR" APPEARING IN 5 U.S.C. 30R WERE CHANGED TO "FISCAL YEAR.' SEE PUBLIC LAW 86-559, 74 STAT. 282. HOWEVER, BY SECTION 7 OF THE ACT OF OCTOBER 4, 1961, 75 STAT. 809 ( PUBLIC LAW 87-378), THE WORDS "FISCAL YEAR" WERE CHANGED BACK TO "CALENDAR YEAR," IN THE FOLLOWING MANNER:

SEC. 7. (A) SECTION 29 (A) OF THE ACT OF AUGUST 10, 1956, AS AMENDED (5 U.S.C 30R), IS AMENDED BY STRIKING OUT THE WORDS "FISCAL YEAR" WHEREVER THEY APPEAR THEREIN AND SUBSTITUTING THE WORDS ,CALENDAR YEAR" IN LIEU THEREOF.

(B) EXCEPT WITH RESPECT TO SUBSTITUTE POSTAL EMPLOYEES, THE AMENDMENTS MADE BY SUBSECTION (A) OF THIS SECTION SHALL BECOME EFFECTIVE AS OF JANUARY 1, 1961, AND WITH RESPECT TO SUBSTITUTE POSTAL EMPLOYEES SUCH AMENDMENTS SHALL BECOME EFFECTIVE AS OF JANUARY 1, 1962.

AT PAGES 6 AND 7 OF SENATE REPORT NO. 498, 87TH CONGRESS TO ACCOMPANY H.R. 5490, WHICH WAS ENACTED AS PUBLIC LAW 87-378, THE APPLICATION OF THAT AMENDMENT IS DISCUSSED AS FOLLOWS:

THE BILL PROPOSES TO REVERT TO THE CALENDAR YEAR BASIS FOR CREDITING THIS LEAVE. IN ACCORDANCE WITH A RECOMMENDATION FROM THE COMPTROLLER GENERAL, THE COMMITTEE SUGGESTS THAT THE CHANGE BE MADE RETROACTIVE TO JANUARY 1, 1961, FOR EMPLOYEES OTHER THAN SUBSTITUTE POSTAL EMPLOYEES AND PROSPECTIVE TO JANUARY 1, 1962, FOR SUBSTITUTE POSTAL EMPLOYEES. THE DIFFERENCE IN EFFECTIVE DATES IS NOT TO DISCRIMINATE AGAINST SUBSTITUTE POSTAL EMPLOYEES. INSTEAD, IT RECOGNIZES THAT THE LEAVE OF THESE EMPLOYEES IS COMPUTED ON THE BASIS OF THEIR SERVICE IN THE PRECEDING YEAR. THE 1960 CHANGE HAD CREATED QUITE A PROBLEM IN RESOLVING THE RIGHTS OF THE SUBSTITUTE POSTAL EMPLOYEES THAT WAS SOLVED BY A GENERAL ACCOUNTING OFFICE DECISION THAT, IN EFFECT, POSTPONED THE FULL OPERATION OF SUCH CHANGE FOR SUBSTITUTE POSTAL EMPLOYEES UNTIL THE FISCAL YEAR 1962. THE COMMITTEE EXPECTS THE COMPTROLLER TO MAKE AN APPROPRIATE ADJUSTMENT FOR SUBSTITUTE POSTAL EMPLOYEES DURING THE TRANSITION PERIOD SIMILAR TO THAT AUTHORIZED BY THE COMPTROLLER AT THE TIME OF THE CHANGE FROM A CALENDAR TO A FISCAL YEAR BASIS.

THE ADJUSTMENTS REFERRED TO IN THAT REPORT ARE THOSE AUTHORIZED BY 40 COMP. GEN. 231. UNDER THAT DECISION THE FULL EFFECT OF THE CHANGE REQUIRED BY SECTION 7 OF THE ACT OF JUNE 30, 1960, 74 STAT. 282--- CHANGE FROM CALENDAR TO FISCAL YEAR--- WAS POSTPONED FOR 12 MONTHS FROM THE EFFECTIVE DATE OF THE AMENDMENT IN ORDER THAT THE CHANGE COULD BE MADE WITHOUT DISREGARDING THE CONCEPT THAT SUBSTITUTE POSTAL FIELD SERVICE EMPLOYEES EARN MILITARY LEAVE THROUGH SERVICE. WE BELIEVE THAT THE LEGISLATIVE HISTORY OF THE AMENDMENT OF OCTOBER 4, 1961, REQUIRES US TO AUTHORIZE A SIMILAR ADJUSTMENT IN DETERMINING THE RIGHTS OF POSTAL FIELD SERVICES AS A RESULT THEREOF. THUS, SUBSTITUTE POSTAL FIELD SERVICE EMPLOYEES MAY USE THE MILITARY LEAVE THEY EARNED DURING FISCAL YEAR 1961 ( JULY 1, 1960-1JUNE 30, 1961) DURING FISCAL YEAR 1962 ( JULY 1, 1961-1JUNE 30, 1962). THE MILITARY LEAVE THEY EARNED BETWEEN JULY 1 AND DECEMBER 31, 1961, MAY BE USED BETWEEN JULY 1 AND DECEMBER 31, 1962, AND ON JANUARY 1, 1963, THE AMENDMENT OF OCTOBER 4, 1961, WILL BECOME FULLY EFFECTIVE.

REGARDING THE INDIVIDUAL CASES YOU PRESENTED, BOTH EMPLOYEES TOOK THE MAXIMUM AMOUNT OF MILITARY LEAVE AVAILABLE TO THEM DURING THE FIRST 2 MONTHS OF FISCAL YEAR 1962, UNDER THE TERMS OF THE LAW THEN IN EFFECT. THEY ARE, THEREFORE, NOT ELIGIBLE FOR FURTHER MILITARY LEAVE UNTIL JULY 1, 1962. BETWEEN THAT DATE AND DECEMBER 31, 1962, THEY MAY BE GRANTED MILITARY LEAVE IF THEY ARE QUALIFIED FOR SUCH UNDER 5 U.S.C. 30R; HOWEVER, IN VIEW OF THE SHORT PERIOD OF TIME THEY WERE EMPLOYED AS SUBSTITUTES IN THE POSTAL FIELD SERVICE AFTER JULY 1, 1961, IT DOES NOT APPEAR THEY HAVE QUALIFIED FOR MILITARY LEAVE, THAT IS, WORKED FOR AT LEAST 520 HOURS ( 1/2 OF 1040) DURING THE PERIOD JULY 1, 1961, TO DECEMBER 31, 1961. WE ARE AWARE OF NO AUTHORITY WHICH WOULD ALLOW MILITARY LEAVE TO BE GRANTED TO SUBSTITUTE POSTAL FIELD SERVICE EMPLOYEES ON A CONSTRUCTIVE BASIS FOR TIME ACTUALLY SPENT IN MILITARY SERVICE.

DEDUCTIONS FOR FEDERAL EMPLOYEES GROUP LIFE INSURANCE ARE TO BE MADE ONLY FOR THOSE PERIODS WHEN THE EMPLOYEE CONCERNED IS COVERED BY THE INSURANCE. SEE SECTION 5 OF THE FEDERAL EMPLOYEES GROUP LIFE INSURANCE ACT OF 1954, 68 STAT. 738, 5 U.S.C. 2095. SECTION 2 (C) OF THAT ACT, 68 STAT. 736, 5 U.S.C. 2091 (C) PROVIDES INSURANCE UNDER THE ACT SHALL CEASE WHEN AN EMPLOYEE IS ON ACTIVE MILITARY DUTY, UNLESS THE PERIOD OF MILITARY DUTY IS COVERED BY MILITARY LEAVE.

WE UNDERSTAND INFORMALLY FROM THE CIVIL SERVICE COMMISSION THAT, UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES GROUP LIFE INSURANCE ACT OF 1954 AND SECTION 37.3 (C) (1) OF ITS REGULATIONS, INSURANCE COVERAGE CONTINUES DURING AN INITIAL GRANT OF MILITARY LEAVE TO AN EMPLOYEE ENTERING MILITARY SERVICE, BUT SUCH COVERAGE ONCE TERMINATED IS NOT REINSTATED BECAUSE OF ANY SUBSEQUENT GRANT OF ADDITIONAL MILITARY LEAVE.

THE VOUCHER WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT ON THE BASIS OF THE PRESENT RECORD.