B-154080, JUL. 16, 1964

B-154080, JUL. 16, 1964

TO MISS ETHELREDA C. FESMIRE, AUTHORIZED CERTIFYING OFFICER, NATIONAL LABOR RELATIONS BOARD:

ON MAY 1, 1964, YOU REQUESTED OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT A PAYROLL FOR 15 DAYS OF MILITARY LEAVE FOR MR. MORTON H. SKLAR FOR THE PERIOD NOVEMBER 6 TO 20, 1963.

THE FACTS AS STATED BY YOU ARE AS FOLLOWS:

"ON AUGUST 12, 1963, MR. SKLAR RECEIVED AN EXCEPTED APPOINTMENT NOT TO EXCEED MAY 11, 1964, AS A LAW CLERK (TRAINEE) GS-7.

"ON OCTOBER 21, 1963, MR. SKLAR RECEIVED ORDERS TO REPORT FOR 5 MONTHS' MILITARY DUTY EFFECTIVE NOVEMBER 6, 1963. DUE TO THE FACT THAT HIS APPOINTMENT CARRIED A TIME LIMITATION HE WAS NOT GRANTED 15 DAYS' MILITARY LEAVE BUT WAS GRANTED LEAVE WITHOUT PAY FOR MILITARY PURPOSES FROM NOVEMBER 5, 1963, NOT TO EXCEED APRIL 4, 1964.

"IN NOVEMBER 1963 THE WASHINGTON NEWSPAPERS CARRIED MR. SKLAR'S NAME AMONG THOSE WHO HAD PASSED THE RECENT BAR EXAMINATION FOR THE DISTRICT OF COLUMBIA AND HE WAS SO NOTIFIED WHILE STATIONED AT FORT KNOX, KENTUCKY. ON FEBRUARY 13, 1964, WHILE STILL ON MILITARY DUTY MR. SKLAR WAS ADMITTED TO THE BAR OF THE DISTRICT OF COLUMBIA. UPON SUBMISSION OF THE COPY OF HIS CERTIFICATE OF ADMISSION, AN S.F. 50 WAS ISSUED CONVERTING MR. SKLAR TO AN EXCEPTED APPOINTMENT (CONDITIONAL) GS-9 WITH THE TITLE OF GENERAL ATTORNEY EFFECTIVE FEBRUARY 17, 1964; THE S.F. 50 WAS DATED APRIL 7, 1964.

"INCUMBENTS OF LAW CLERK (TRAINEE) POSITIONS ARE GRADUATES OF LAW SCHOOLS WHO ARE IN RECEIPT OF LL.B. DEGREE. UPON ADMISSION TO THE BAR THE INCUMBENT IS APPOINTED TO AN ATTORNEY POSITION UNDER AN EXCEPTED APPOINTMENT. APPOINTMENTS OF LAW CLERKS (TRAINEE) ARE GIVEN WITH THE UNDERSTANDING THAT THE INCUMBENT WILL BECOME A PERMANENT EMPLOYEE UPON PROOF OF ADMISSION TO THE BAR.

"MR. SKLAR WAS DISCHARGED FROM MILITARY DUTY APRIL 5, 1964, RETURNED TO DUTY STATUS APRIL 6, 1964, AND CARRIED IN A LEAVE-WITHOUT-PAY STATUS FROM APRIL 6 THROUGH APRIL 19, 1964, WITH A PHYSICAL RETURN TO ACTIVE DUTY APRIL 20, 1964. * * *"

FIRST, WE NOTE THAT ON APRIL 7, 1964, MR. SKLAR WAS RETROACTIVELY PROMOTED, EFFECTIVE FEBRUARY 17, 1964, TO A GRADE GS-9 EXCEPTED APPOINTMENT (CONDITIONAL). IT IS A LONG-ESTABLISHED RULE THAT PROMOTIONS MAY NOT BE MADE RETROACTIVELY. THEREFORE, THE CORRECT DATE OF HIS CONVERSION AND PROMOTION APPEARS TO BE APRIL 7, 1964, THE DATE OF THE ADMINISTRATIVE ACTION. SEE 40 COMP. GEN. 207, 209.

SECTION 29 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, AS AMENDED, 5 U.S.C. 30R, PROVIDES IN PERTINENT PART THAT:

"/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. * * *"

SINCE MR. SKLAR DID NOT HOLD A PERMANENT OR TEMPORARY INDEFINITE APPOINTMENT WHEN HE ENTERED MILITARY DUTY OR AT ANY TIME THEREAFTER PRIOR TO THE COMPLETION OF HIS MILITARY DUTY AND RETURN TO A CIVILIAN STATUS, HE WAS NOT ENTITLED TO MILITARY LEAVE UNDER 5 U.S.C. 30R (A). THEREFORE, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.

IN REGARD TO YOUR QUESTION CONCERNING THE 90-DAY QUALIFYING PERIOD FOR ANNUAL LEAVE, WE NOTE ALSO THAT MR. SKLAR HAD NO RESTORATION RIGHTS UNDER SECTION 9 OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, 62 STAT. 614, AS AMENDED, 50 U.S.C. APP. 459, SINCE HE DID NOT ENTER ON MILITARY DUTY WHILE SERVING UNDER EITHER A CAREER OR CAREER CONDITIONAL APPOINTMENT IN A POSITION IN THE COMPETITIVE SERVICE OR AN APPOINTMENT WITHOUT TIME LIMITATION OUTSIDE THE COMPETITIVE SERVICE, AS SPECIFIED IN 5 CFR 35.201 (1963 SUPP.).

CONSEQUENTLY, MR. SKLAR'S ABSENCE IN THE ARMED FORCES MUST BE REGARDED AS A BREAK IN SERVICE, AND HE THUS IS REQUIRED TO SERVE A NEW QUALIFYING PERIOD OF 90 DAYS IN ORDER TO EARN ANNUAL LEAVE. SEE 31 COMP. GEN. 581, 587.