B-231760.2, Mar 15, 1991

B-231760.2, Mar 15, 1991

CIVILIAN PERSONNEL - Leaves Of Absence - Military leave - Eligibility Federal employees who were members of the California National Guard were called to military duty to provide logistical support to fire crews, but not to serve on fire crews themselves. Their requests for military leave under 5 U.S.C. Sec.6323(b) (1988) are denied since they were not called to provide military aid "to enforce the law," as that phrase is used in 5 U.S.C. Sec.6323(b) (1988).

The Honorable Robert K. Dornan House of Representatives:

Dear Mr. Dornan:

This is in response to your letter, dated October 19, 1990, requesting that we reconsider and reverse our previous decision, VA Employees, B-231760, Feb. 17, 1989, which held that Veterans Administration (VA) employees who were called to perform military duty as members of the California Army National Guard during the 1987 forest fire emergency in that state were not entitled to military leave under 5 U.S.C. Sec.6323(b) (1988).

In September 1987, a number of VA employees in California who were members of the California Army National Guard received orders to perform temporary military duty for firefighting purposes, but not as firefighters. Their role was to provide logistical support, such as transportation and food, to the various fire crews.

At the outset, the VA employees called to duty were charged annual leave during their absence from their civilian positions. They then sought to have that absence charged to military leave under section 6323(b). In our previous decision, we denied their requests because they were not called to provide military aid "to enforce the law," as required by the section. VA Employees, B-231760, supra.

Section 6328(b) was enacted in the context of the increased frequency of civil disturbances in major cities in 1968 which occasioned the need for an active duty call-up of Reservists and Guardsmen to help control the disturbances. Congress found that due to summer military training, few of the Reservists and Guardsmen called up had military leave time available. As a result, those who were federal employees had to use annual leave to cover such duty, or if it was unavailable, be placed in a leave-without- pay status. The section addresses this problem by authorizing up to 22 days paid leave for federal employees activated for State service in augmentation of available police. /1/

Recognizing the remedial purpose of the statute, we have construed it liberally. In 49 Comp.Gen. 233 (1969), we concluded that National Guard duty to prevent looting and other criminal activities in cases of disasters such as floods, earthquakes and hurricanes constituted military aid to enforce the law. We have also ruled that the National Guard's protection of the mail and assuring its unhindered distribution qualified as military aid to enforce the law. In so concluding, we pointed out that law enforcement was not limited to enforcement of the criminal law. Comp.Gen. 154 (1970).

In the present case, while the forest fires may be characterized as a natural "disaster" comparable to those discussed in 49 Comp.Gen. at 240, supra, there is nothing in the record which suggests that the National Guard's function in the field required the maintenance of law and order or the protection of property, i.e. the enforcing of the law, whether criminal or civil. Rather, the focus of their duties was to transport, feed, and support the fire crews. We do not see how we can construe this logistical support to fire crews as military aid "to enforce the law," even if that term is given the most liberal construction possible.

As you know Congress has provided in the Department of Defense Appropriations Act for 1991 that appropriated funds of any federal agency may be used for military leave to provide assistance to civil authorities in the protection or saving of life or property or prevention of injury, in addition to enforcing the law. /2/

However, this provision applies only to fiscal year 1991; it does not apply to service performed in prior years. We recognize that the 1991 enactment reflects Congress's judgment as to the appropriate scope of section 6328(b). However, that does not give us the authority to give the original language of the section any broader scope than in fact it had in 1987.

You may wish to consider the alternative of legislative relief for those called to duty in California in 1987. We would be happy to assist in the preparation of legislation for this purpose. If you would like us to do so or if we can assist you in any other way, please call Senior Associate General Counsel Seymour Efros at (202) 275-5881.

/1/ S. Rep. No. 1443, 90th Cong., 2d Sess. (1968).

/2/ Section 8086 of the Department of Defense Appropriations Act, 1991, Pub.L. 101-511, 104 Stat. 1856, 1895-1896 (Nov. 5, 1990).