B-155252, OCTOBER 22, 1964, 44 COMP. GEN. 224

B-155252, OCTOBER 22, 1964, 44 COMP. GEN. 224

DISTRICT OF COLUMBIA - EMPLOYEES - LEAVES OF ABSENCE - MILITARY. DISTRICT OF COLUMBIA - EMPLOYEES - LEAVES OF ABSENCE - MILITARY. DISTRICT OF COLUMBIA - EMPLOYEES - LEAVES OF ABSENCE - MILITARY. LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - RIGHT V. ADMINISTRATIVE DISCRETION. NATIONAL GUARD - ENCAMPMENT STATUS A DISTRICT OF COLUMBIA EMPLOYEE, A MEMBER OF THE DISTRICT OF COLUMBIA NATIONAL GUARD, ORDERED TO ACTIVE DUTY FOR 6 MONTHS DURING THE EARLY PART OF A YEAR, AND WHO IS ENTITLED TO BE EXCUSED FROM HIS EMPLOYMENT WITHOUT CHARGE TO LEAVE OR COMPENSATION (MILITARY LEAVE) UNDER EITHER 39 D.C. CODE 608 PERTAINING TO PARADES OR ENCAMPMENTS, OR 5 U.S.C. 3 OR AUTHORIZING 15 DAYS MILITARY LEAVE IN ANY CALENDAR YEAR FOR CIVILIAN EMPLOYEES ORDERED TO ACTIVE DUTY OR DEFENSE TRAINING, MAY BE GRANTED 15 DAYS MILITARY LEAVE UNDER 5 U.S.C. 3 OR WITHOUT AFFECTING HIS ENTITLEMENT UNDER 39 D.C. CODE 608, THE 15 DAYS MILITARY LEAVE PRESCRIBED BY 5 U.S.C. 3 OR NOT BEING APPLICABLE TO THE ABSENCES FOR WHICH ALLOWED LEAVE IS PROVIDED BY 39 D.C. CODE 608; THEREFORE, IF THE EMPLOYEE UPON HIS RETURN FROM MILITARY DUTY IS REQUIRED TO SERVE 15 DAYS ON FIELD DUTY IN THE DISTRICT OF COLUMBIA NATIONAL GUARD, HE WOULD BE ENTITLED TO MILITARY LEAVE PURSUANT TO 39 D.C. CODE 608, ALTHOUGH NOT ENTITLED TO ADDITIONAL MILITARY LEAVE UNDER 5 U.S.C. 3 OR DURING THE SAME CALENDAR YEAR. WHEN AN EMPLOYEE OF THE DISTRICT OF COLUMBIA GOVERNMENT WHO AS A MEMBER OF THE DISTRICT OF COLUMBIA NATIONAL GUARD IS ORDERED TO AN ENCAMPMENT UNDER THE ACT OF JUNE 3, 1916, AS AMENDED, 32 U.S.C. 502, WHICH REQUIRES AT LEAST 15 DAYS OF ENCAMPMENT OR MANEUVERS EACH YEAR, SUCH ORDER ALSO FULFILLS THE REQUIREMENT IN 39 D.C. CODE 607, ENACTED IN 1889; THAT AT LEAST 6 CONSECUTIVE DAYS OF CAMP DUTY BE PERFORMED EACH YEAR, THE EARLIER STATUTORY PROVISION PERTAINING TO THE ENCAMPMENT OF THE DISTRICT OF COLUMBIA NATIONAL GUARD NOT HAVING BEEN SUPERSEDED BY THE LATER STATUTORY PROVISIONS APPLICABLE TO THE TRAINING AND ENCAMPMENT OF THE NATIONAL GUARD IN GENERAL. WHEN A DISTRICT OF COLUMBIA EMPLOYEE WHO IS A MEMBER OF THE DISTRICT OF COLUMBIA NATIONAL GUARD PROCEEDS TO THE TRAINING AREA IN ADVANCE OF THE USUAL GROUP AND RETURNS AFTER THE COMPLETION OF THE TRAINING PERIOD, HE IS ENTITLED TO MILITARY LEAVE FOR THE ENTIRE PERIOD, EVEN THOUGH IN EXCESS OF 15 DAYS, THE DUTY BEFORE AND AFTER THE ANNUAL FIELD TRAINING AND INCIDENT TO THE ENCAMPMENT BEING PART OF THE "ENCAMPMENT" ORDERED OR AUTHORIZED UNDER 39 D.C. CODE 608. MILITARY LEAVE AS AUTHORIZED BY 5 U.S.C. 3 OR AND 39 D.C. CODE 608 IS A RIGHT, AND IF A CIVILIAN EMPLOYEE PERFORMS MILITARY DUTY FOR WHICH MILITARY LEAVE MAY BE GRANTED UNDER EITHER OF THE PROVISIONS, THERE IS NO ADMINISTRATIVE AUTHORITY TO DENY THE LEAVE. THE TERM "ENCAMPMENT" AS USED IN 39 D.C. CODE 608 MEANS THE CAMP DUTY PRESCRIBED BY 39 D.C. CODE 607, AS WELL AS THE FIELD TRAINING PRESCRIBED BY 32 U.S.C. 502, AND ANY DUTY REASONABLY CONNECTED THEREWITH, AND IF ANY DOUBT SHOULD ARISE INVOLVING A SPECIFIC ENCAMPMENT IT MAY BE PRESENTED FOR CONSIDERATION.

TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, OCTOBER 22, 1964:

WE REFER TO THE LETTER OF SEPTEMBER 23, 1964 FROM THE ACTING PRESIDENT OF THE BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, CONCERNING THE NUMBER OF DAYS AN EMPLOYEE MAY BE ABSENT WITHOUT LOSS OF PAY OR ANNUAL LEAVE UNDER THE PROVISIONS OF 39 D.C. CODE 608 AND 5 U.S.C. 3 OR, WHILE HE IS ON MILITARY DUTY AS A MEMBER OF THE DISTRICT OF COLUMBIA NATIONAL GUARD.

SECTION 608 OF TITLE 39 OF THE DISTRICT OF COLUMBIA CODE, SECTION 49 OF THE ACT OF MARCH 1, 1889, CH. 328, 25 STAT. 779, AS AMENDED PROVIDES:

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 OR 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.

SECTION 29 OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 632, AS AMENDED, 5 U.S.C. 3 OR, PROVIDES 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. * * *

THE QUESTIONS PRESENTED ARE QUOTED AND ANSWERED AS FOLLOWS:

1. IF A DISTRICT EMPLOYEE GOES ON ACTIVE DUTY FOR 6 MONTHS IN THE EARLY PART OF THE YEAR, CAN HE BE GRANTED 15 DAYS OF MILITARY LEAVE AS PART OF SUCH MILITARY SERVICE? UPON HIS RETURN FROM SUCH MILITARY SERVICE AND IF IN THE SAME CALENDAR YEAR HE IS REQUIRED TO SPEND FIFTEEN CALENDAR DAYS IN FIELD TRAINING IN THE D.C. NATIONAL GUARD, IS HE ENTITLED TO 15 ADDITIONAL DAYS OF MILITARY LEAVE IN SUCH CALENDAR YEAR?

A MEMBER OF THE DISTRICT OF COLUMBIA NATIONAL GUARD IS ENTITLED TO BE EXCUSED FROM CIVILIAN EMPLOYMENT WITHOUT CHARGE TO LEAVE OR COMPENSATION (MILITARY LEAVE) UNDER EITHER OF THE ABOVE STATUTORY PROVISIONS DEPENDING ON THE TYPE OF MILITARY DUTY INVOLVED. THE 15 DAY LIMIT PRESCRIBED BY 5 U.S.C. 30R IS NOT APPLICABLE TO ABSENCES FOR WHICH LEAVE UNDER SECTION 39- 608 OF THE D.C. CODE MAY BE ALLOWED. 27 COMP. GEN. 78. HOWEVER, EVEN THOUGH AN ENCAMPMENT MAY BE ORDERED UNDER THE ACT OF JUNE 3, 1916, AS AMENDED, 32 U.S.C. 502, WHICH REQUIRES AT LEAST 15 DAYS OF ENCAMPMENT OR MANEUVERS EACH YEAR WE FEEL THAT SUCH ORDER ALSO FULFILLS THE REQUIREMENT IN 39 D.C. CODE 607, ENACTED IN 1889, THAT AT LEAST 6 CONSECUTIVE DAYS OF CAMP DUTY BE PERFORMED EACH YEAR.

WE DO NOT VIEW THE EARLIER STATUTORY PROVISION PERTAINING TO ENCAMPMENT OF THE D.C. NATIONAL GUARD AS HAVING BEEN SUPERSEDED BY THE LATER STATUTORY PROVISIONS APPLICABLE TO THE TRAINING AND ENCAMPMENT OF THE NATIONAL GUARD IN GENERAL. 2 COMP. GEN. 1.

ALTHOUGH THE EMPLOYEE WOULD NOT BE ENTITLED TO ADDITIONAL MILITARY LEAVE DURING THE SAME CALENDAR YEAR UNDER 5 U.S.C. 30R, HE WOULD BE ENTITLED TO MILITARY LEAVE FOR DUTY AUTHORIZED TO BE PERFORMED UNDER 39 D.C. CODE 608. BOTH PARTS OF YOUR FIRST QUESTION ARE ANSWERED IN THE AFFIRMATIVE.

2. IF A DISTRICT EMPLOYEE WHO IS A MEMBER OF THE D.C. NATIONAL GUARD PROCEEDS TO THE TRAINING AREA IN ADVANCE OF THE USUAL GROUP AND RETURNS AFTER SUCH TRAINING, WOULD HE BE ENTITLED TO MILITARY LEAVE FOR ALL OF SUCH DAYS EVEN THOUGH IT MAY EXCEED 15 DAYS, FOR EXAMPLE 20 DAYS.

WE ASSUME THAT THE MILITARY DUTY REFERRED TO OCCURRED OUTSIDE THE DISTRICT OF COLUMBIA. ALTHOUGH MILITARY LEAVE MAY BE GRANTED FOR AN ENCAMPMENT UNDER 39 D.C. CODE 608 OR 5 U.S.C. 3 OR, REGARDLESS OF WHERE HELD, THE OTHER DUTIES, SUCH AS PARADES, DRILLS, ESCORTS, ETC., FOR WHICH A MEMBER OF THE D.C. NATIONAL GUARD MAY BE ALLOWED MILITARY LEAVE MUST BE PERFORMED WITHIN THE DISTRICT OF COLUMBIA IF THE EMPLOYEE CONCERNED IS TO BECOME ENTITLED TO MILITARY LEAVE. 19 COMP. GEN. 687. HOWEVER, IT APPEARS THAT DUTY PERFORMED BY A MEMBER OF THE D.C. NATIONAL GUARD BEFORE AND AFTER THE GUARD'S ANNUAL FIELD TRAINING AND INCIDENT TO THE ENCAMPMENT REASONABLY MAY BE CONSIDERED AS A PART OF THE "ENCAMPMENT" ORDERED OR AUTHORIZED UNDER 39 D.C. CODE 608. YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.

3. IF YOUR ANSWERS TO QUESTION 1 AND 2 ARE IN THE AFFIRMATIVE, COULD THE DISTRICT ADMINISTRATIVELY LIMIT SUCH DAYS OR WOULD THE NUMBER BE UNLIMITED? HOW WOULD THE TERM ENCAMPMENT" BE DEFINED?

MILITARY LEAVE AS AUTHORIZED BY 5 U.S.C. 3 OR BY 39 D.C. CODE 608 IS A RIGHT OF THE EMPLOYEE CONCERNED AND IF MILITARY DUTY IS PERFORMED FOR WHICH MILITARY LEAVE MAY BE GRANTED UNDER EITHER OF THOSE PROVISIONS THERE IS NO ADMINISTRATIVE AUTHORITY TO DENY SUCH LEAVE. THE FIRST PART OF YOUR THIRD QUESTION IS ANSWERED ACCORDINGLY.

IN REPLY TO THE SECOND PART OF YOUR THIRD QUESTION IT APPEARS THAT THE TERM "ENCAMPMENT" AS IT IS USED IN 39 D.C. CODE 608 MEANS THE CAMP DUTY PRESCRIBED BY SECTION 607 OF THE SAME TITLE OF THAT CODE AS WELL AS THE FIELD TRAINING PRESCRIBED BY 32 U.S.C. 502, AND ANY DUTY REASONABLY CONNECTED THEREWITH. IF ANY DOUBT SHOULD ARISE INVOLVING A SPECIFIC ENCAMPMENT IT MAY BE PRESENTED FOR OUR CONSIDERATION.

IN VIEW OF THE INDICATION IN YOUR LETTER THAT MEMBERS OF THE D.C. NATIONAL GUARD WHO ARE ALSO CIVILIAN EMPLOYEES OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA SHOULD NOT RECEIVE ANY MORE MILITARY LEAVE FOR ENCAMPMENTS THAN MEMBERS OF THE NATIONAL GUARD OF MARYLAND OR VIRGINIA, YOU MAY WISH TO CONSIDER REQUESTING THE CONGRESS TO AMEND THE D.C. CODE TO THAT EFFECT.