B-209209-OM, MAY 27, 1983

B-209209-OM, MAY 27, 1983

SUBJECT: GAO POLICY CONCERNING THE USE OF MILITARY LEAVE - B-209209-OM.,

DIRECTOR, GENERAL SERVICES AND CONTROLLER

THE DIRECTOR, OFFICE OF FINANCIAL MANAGEMENT (OFM), REQUESTED ANSWERS TO 12 QUESTIONS CONCERNING THE USE OF MILITARY LEAVE BY GAO EMPLOYEES WHEN THEY ARE PERFORMING MILITARY DUTIES AS RESERVISTS OR MEMBERS OF THE NATIONAL GUARD. THE FIRST SIX QUESTIONS INVOLVE THE RELATIONSHIP OF MILITARY LEAVE TO ANNUAL LEAVE OR FLEX TIME UNDER THE ALTERNATIVE WORK SCHEDULES PROGRAM. ALTHOUGH THERE ARE SOME RULES DEFINING THIS RELATIONSHIP, OTHER ASPECTS OF THE RELATIONSHIP ARE LEFT TO AGENCY DISCRETION. FOR THOSE ASPECTS THAT ARE NOT YET DEFINED, OFM, PERSONNEL, AND ANY OTHER NECESSARY APPROVING AUTHORITY SHOULD COORDINATE TO DEVELOP A GAO POLICY.

QUESTIONS 7A AND 7B INVOLVE WHETHER MILITARY LEAVE SHOULD BE CHARGED FOR HOLIDAYS OCCURRING AT THE BEGINNING, WITHIN, OR AT THE END OF A PERIOD OF THE EMPLOYEE'S ACTIVE DUTY. HOLIDAYS OCCURRING AT THE BEGINNING OR END OF THE PERIOD OF ACTIVE DUTY ARE NOT CHARGED AGAINST MILITARY LEAVE, AND A HOLIDAY OCCURRING WITHIN A PERIOD OF ACTIVE DUTY IS CHARGED AGAINST MILITARY LEAVE.

QUESTIONS 8 AND 9 INVOLVE WHETHER INACTIVE DUTY TRAINING BY THE EMPLOYEE CAN BE CHARGED AGAINST MILITARY LEAVE. IT CANNOT BECAUSE AN EMPLOYEE IS ELIGIBLE TO USE MILITARY LEAVE ONLY WHEN HE IS ON ACTIVE DUTY.

QUESTIONS 10 AND 11 INVOLVE THE RATE AT WHICH EMPLOYEES ACCRUE MILITARY LEAVE. THE ACCRUAL RATE IS NOT AFFECTED BY WHETHER AN EMPLOYEE IS AN ACTIVE OR INACTIVE RESERVIST. BOTH CATEGORIES ACCRUE 15 DAYS OF MILITARY LEAVE A YEAR AND BOTH ACCRUE A FULL 15 DAYS REGARDLESS OF WHEN DURING THE YEAR THEY BECOME ELIGIBLE FOR MILITARY LEAVE. PRORATION IS ONLY NECESSARY FOR A PART-TIME EMPLOYEE.

THE LAST QUESTION INVOLVES WHETHER MILITARY LEAVE TRANSFERS BETWEEN AGENCIES. IT DOES. THE ATTACHED ANALYSIS EXPLAINS THE ANSWERS.

ANALYSIS

PUBLIC LAW 96-431, OCTOBER 1, 1980, 94 STAT. 1850, AMENDED 5 U.S.C. SEC. 6323, WHICH AUTHORIZES MILITARY LEAVE FOR CIVILIAN EMPLOYEES OF THE GOVERNMENT. THE OFFICE OF PERSONNEL MANAGEMENT HAS ISSUED FEDERAL PERSONNEL MANUAL (FPM) LETTER 630-30, APRIL 23, 1982, COPY ATTACHED, DEALING WITH THE IMPLEMENTATION OF THE AMENDMENT. FPM LETTER 630-30, WITH ITS ATTACHMENT OF QUESTIONS AND ANSWERS CONCERNING MILITARY LEAVE AS AFFECTED BY PUBLIC LAW 96-431, IS A GOOD DESCRIPTION OF THE CURRENT MILITARY LEAVE SITUATION, AND IT WAS SPECIFICALLY APPROVED BY THE COMPTROLLER GENERAL BEFORE IT WAS ISSUED. SOME OF THE ANSWERS TO THE 12 QUESTIONS ASKED BY THE DIRECTOR, OFM, ARE CONTAINED IN IT. ALTHOUGH SOME SUBSTANTIVE CHANGES REGARDING MILITARY LEAVE WERE MADE BY PUBLIC LAW 96-431, IT DID NOT CHANGE THE RULES FOR CHARGING MILITARY LEAVE ESTABLISHED BY PRIOR DECISIONS. THOSE PRIOR DECISIONS ARE DISCUSSED FROM THIS PERSPECTIVE.

IT SHOULD BE NOTED AT THIS POINT THAT THE TERM MILITARY LEAVE MAY ACTUALLY REFER TO ANY OF THREE DISTINCT KINDS OF MILITARY LEAVE, EACH HAVING A DIFFERENT STATUTORY ORIGIN. THE THREE KINDS ARE FOUND IN 5 U.S.C. SECS. 6323(A), (B), AND (C) (SUPP. IV, 1980), WHICH RESPECTIVELY CORRESPOND TO PARAGRAPHS 4(A) AND (B), 4(C), AND 2, CHAPTER 10, OF COMPTROLLER GENERAL'S ORDER (CGO) 2630.1, JANUARY 27, 1982. THERE ARE DIFFERENCES ASSOCIATED WITH EACH KIND OF MILITARY LEAVE, INCLUDING RULES FOR CHARGING. HOWEVER, THE TERM MILITARY LEAVE FOR THE REST OF THIS ATTACHMENT WILL REFER ONLY TO THE KIND OF MILITARY LEAVE IN 5 U.S.C. SEC. 6323(A) (SUPP. IV, 1980) AND PARAGRAPHS 4(A) AND (B), CHAPTER 10, CGO 2630.1, UNLESS OTHERWISE SPECIFICALLY INDICATED. THIS WAS THE ONLY KIND OF LEAVE AFFECTED BY PUBLIC LAW 96-431, WHICH APPEARS TO BE THE SUBJECT OF OFM CONCERN.

THE FIRST QUESTION IS:

"1. WHAT ARE THE GUIDELINES AS TO WHEN MILITARY LEAVE SHOULD BE CHARGED? THAT IS, IF A RESERVIST IS RECEIVING MILITARY PAY, SHOULD THAT BE A DAY OF MILITARY LEAVE EVEN IF THE RESERVIST WANTS TO FLEX OR TAKE ANNUAL LEAVE?"

THIS IS AN AREA IN WHICH AGENCIES HAVE DISCRETION TO ESTABLISH POLICY. SEE 41 COMP.GEN. 320, 326-328 (1961). WE HAVE FOUND NO LEGAL OBJECTION TO AN AGENCY PRACTICE OF ALLOWING EMPLOYEES TO SUBSTITUTE ANNUAL LEAVE FOR MILITARY LEAVE IF THEY SO DESIRE. B-156474, APRIL 27, 1965; B-142808-OM., JUNE 17, 1960. HOWEVER, WE HAVE ALSO DECIDED THAT AN AGENCY MAY REQUIRE THAT EMPLOYEES EXHAUST THEIR MILITARY LEAVE BEFORE TAKING ANNUAL LEAVE (B-86636-OM., JUNE 17, 1949), AND WE HAVE STATED THAT AN EMPLOYEE HAS NO RIGHT TO ELECT WHICH DAYS OF ABSENCE FROM HIS CIVILIAN POSITION WILL BE CHARGED TO MILITARY LEAVE AND WHICH DAYS TO ANNUAL LEAVE. B-86636, JANUARY 26, 1959. SINCE GAO APPARENTLY HAS NO CURRENT POLICY IN THIS RESPECT, YOU MAY WISH TO COORDINATE WITH THE DIRECTOR OF PERSONNEL WHO HAS OVERALL ADMINISTRATIVE RESPONSIBILITY WITH REGARD TO LEAVE POLICIES (SEE CGO 2630.1, CHAPTER 3), IN EFFECTING THE ESTABLISHMENT OF A POLICY.

A DIFFERENCE IN CHARGING MILITARY LEAVE UNDER 5 U.S.C. SEC. 6323(B) AND PARA. 4(C), CHAPTER 10, CGO 2630.1, IS THAT AGENCIES HAVE NO DISCRETION IN ITS USE. WHEN AN EMPLOYEE IS PERFORMING THE KIND OF MILITARY DUTY APPROPRIATE FOR THAT KIND OF MILITARY LEAVE, THE EMPLOYEE MAY NOT ELECT TO USE NOR MAY HE BE INVOLUNTARILY CHARGED ANNUAL OR ANY OTHER TYPE OF LEAVE IN LIEU THEROF. 49 COMP.GEN. 233, 236-237 (1969). B-198929-OM., FEBRUARY 25, 1981.

THE SECOND QUESTION IS:

"2. HOW DID CONGRESS INTEND RESERVISTS TO USE MILITARY LEAVE IN CONJUNCTION WITH OTHER LEAVE? THAT IS, DID CONGRESS INTEND FOR RESERVISTS TO TRY TO MAXIMIZE THE NUMBER OF DAYS OF MILITARY LEAVE FOR TRAINING WITHOUT USING AN UNDUE AMOUNT OF OTHER LEAVE?"

THIS QUESTION IS VERY CLOSELY RELATED TO THE FIRST QUESTION.

WE DO NOT SEE THAT CONGRESS INTENDED ANY CHANGES IN THE WAY MILITARY LEAVE WAS CHARGED IN CONJUNCTION WITH OTHER LEAVE, SO THE ANSWER TO THE FIRST QUESTION WILL GENERALLY APPLY TO THIS ONE.

THE THIRD QUESTION IS:

"3. CAN OFM ADMINISTRATIVELY RULE THAT ANY UNUSED MILITARY LEAVE BALANCE WILL BE USED BEFORE ANNUAL LEAVE OR FLEXTIME?"

YES. B-86636-OM., JUNE 17, 1949. HOWEVER, IT APPEARS THAT THE ESTABLISHMENT OF POLICY IN THIS AREA SHOULD BE MADE AS SUGGESTED IN THE ANSWER TO QUESTION 1.

THE FOURTH QUESTION IS:

"4. CAN AN INDIVIDUAL INTERMIX MILITARY LEAVE, ANNUAL LEAVE AND FLEXTIME SO AS TO AVOID COUNTING THE WEEKENDS FALLING WITHIN THE PERIOD OF MILITARY DUTY?"

AN EMPLOYEE CAN INTERMIX LEAVE BUT HE CANNOT AVOID THE CHARGE FOR MILITARY LEAVE FOR WEEKENDS FALLING IN THE PERIOD OF MILITARY DUTY. B-141593, JANUARY 7, 1960.

THE FIFTH QUESTION IS:

"5. IF A 2-1/2 WEEK PERIOD OF MILITARY LEAVE BEGINS ON THURSDAY, CAN AN INDIVIDUAL TAKE ANNUAL LEAVE ON THURSDAY, FLEX FRIDAY AND BEGIN MILITARY LEAVE ON MONDAY?"

IF THE AGENCY DISCRETIONARY POLICY ALLOWS THE EMPLOYEE TO ELECT TO SUBSTITUTE ANNUAL LEAVE OR FLEX TIME FOR MILITARY LEAVE, THURSDAY AND FRIDAY COULD BE CHARGED AS DESCRIBED. HOWEVER, THE ANSWER TO QUESTION 4 REQUIRES THAT THE FOLLOWING SATURDAY AND SUNDAY BE CHARGED TO MILITARY LEAVE.

THE SIXTH QUESTION IS:

"6. CAN WE REQUIRE PEOPLE TO USE MILITARY LEAVE WHEN ON ACTIVE DUTY BEFORE USING ANNUAL LEAVE, FLEXTIME OR GOING ON MILITARY FURLOUGH (LWOP)? FOR EXAMPLE, ONE INDIVIDUAL TOOK MILITARY FURLOUGH IN FY 81 WITHOUT USING ANY MILITARY LEAVE, CARRIED OVER 15 DAYS OF MILITARY LEAVE TO FY 82, AND USED 22 DAYS OF MILITARY LEAVE IN THE SUMMER OF 1982."

YES, FOR THE SAME REASON AS GIVEN IN THE ANSWER TO QUESTION 3.

QUESTION 7A IS:

"7A. IS A HOLIDAY OCCURRING AT THE BEGINNING OR END OF A PERIOD OF ACTIVE DUTY CHARGED AGAINST MILITARY LEAVE?"

NO. MATTER OF LEWIS, B-188145, NOVEMBER 15, 1977. QUESTION 7B ABOUT MILITARY LEAVE WAS:

"7B. IS A HOLIDAY OCCURRING WITHIN A PERIOD OF ACTIVE DUTY CHARGED AGAINST MILITARY LEAVE?"

YES. MATTER OF CAMPBELL, 60 COMP.GEN. 381, 384 (1981).

THE EIGHTH AND NINTH QUESTIONS WILL BE ANSWERED TOGETHER. THE QUESTIONS ARE:

"8. SHOULD MILITARY LEAVE BE RESTRICTED ONLY TO PERIODS OF ACTIVE DUTY TRAINING OR IS IT APPROPRIATE TO USE FOR IRREGULAR PERIODS OF INACTIVE TRAINING NORMALLY CONDUCTED ON WEEKENDS OR EVENINGS? FOR EXAMPLE, CAN AN INDIVIDUAL USE MILITARY LEAVE WHEN DIRECTED TO THE RESERVE CENTER WITHOUT PAY OR ORDERS FOR AN IG INSPECTION?

"9. WHEN INACTIVE DUTY TRAINING (IDT) OCCURS DURING THE WEEK, CAN MILITARY LEAVE BE USED?"

MILITARY LEAVE MAY BE CHARGED ONLY FOR PERIODS OF ACTIVE DUTY. IT MAY NOT BE USED FOR ANY KIND OF INACTIVE DUTY TRAINING, REGARDLESS OF WHEN THE INACTIVE DUTY TRAINING OCCURS. MATTER OF VOIGT, B-202564, JULY 31, 1981.

THE TENTH QUESTION IS:

"10. IS AN EMPLOYEE WHO IS A MEMBER OF THE INACTIVE RESERVES ENTITLED TO 15 DAYS OF MILITARY LEAVE A YEAR?"

YES. THE LAW DOES NOT DIFFERENTIATE BETWEEN COMPONENTS OF THE RESERVE FOR PURPOSES OF ACCRUING MILITARY LEAVE. THE ONLY FACTOR AFFECTING THE RATE OF ACCRUAL OF MILITARY LEAVE IS WHETHER THE EMPLOYEE IS A FULL-TIME OR PART-TIME EMPLOYEE.

THE ELEVENTH QUESTION IS:

"11. IN THE CASE OF A RESERVIST WHO IS A MEMBER OF THE ACTIVE RESERVES ON OCTOBER 1 BUT THEN GOES INACTIVE, IS IT CORRECT TO ACCRUE MILITARY LEAVE FOR THE WHOLE 15 DAYS WHETHER OR NOT THE PERSON COMPLETES A FULL YEAR OR IS A PRO-RATION REQUIRED? IS A PERSON ENTITLED TO 15 DAYS OF MILITARY LEAVE FOR LESS THAN A FULL YEAR PARTICIPATION IN THE RESERVES? CURRENTLY, OFM INTENDS TO GIVE AN INDIVIDUAL THE FULL 15 DAYS OF MILITARY LEAVE AT THE BEGINNING OF THE FISCAL YEAR OR WHENEVER HE JOINS THE RESERVES EVEN IF THAT IS SEPTEMBER 30."

THE ANSWER TO QUESTION 10 SHOWED THAT BEING AN INACTIVE OR ACTIVE RESERVIST HAD NO EFFECT ON THE RATE OF ACCRUAL OF MILITARY LEAVE. QUESTIONS AND ANSWERS 6 AND 7 TO THE ATTACHMENT TO FPM LETTER 630-30 SHOW THAT MILITARY LEAVE ELIGIBILITY FOR ONLY PART OF A FISCAL YEAR DOES NOT AFFECT THE RATE OF ACCRUAL OF MILITARY LEAVE. A RESERVIST BECOMING ELIGIBLE ON THE LAST DAY OF THE FISCAL YEAR FOR MILITARY LEAVE ACCRUES THE FULL 15 DAYS. SINCE MILITARY LEAVE MAY BE USED ONLY FOR PERIODS OF ACTIVE DUTY, THE INACTIVE RESERVIST WOULD BE ELIGIBLE FOR THAT LEAVE ONLY IF HE IS ORDERED TO ACTIVE DUTY.

THE TWELFTH QUESTION IS:

"12. WHEN A RESERVIST TRANSFERS BETWEEN AGENCIES, DOES ANY UNUSED MILITARY LEAVE TRANSFER WITH HIM?"

YES, CONSISTENT WITH THE ADVICE GIVEN IN THE QUESTIONS AND ANSWERS 8 AND 9 TO THE ATTACHMENT TO FPM LETTER 630-30.