B-244455, Dec 00, 1991

B-244455, Dec 00, 1991

DIGEST: A Retired Regular Army officer who is also a civilian employee is not also a member of the Retired Reserve of the Army. Thus, the employee is not entitled to accrue and use military leave under 5 U.S.C. Sec. 6323(a) (1988), when he is recalled to active duty from his retired status.

Cecil C. Money:

This replies to your letter of May 31, 1991, inquiring whether retired Regular Army officers are members of the Reserves and thus entitled to accrue and use military leave under 5 U.S.C. Sec. 6323(a) (1988).

From the information you submitted it appears you are a retired chief warrant officer (W-3) of the Regular Army, and you were recalled to active duty incident to operation Desert Storm. Apparently, you are also a federal civilian employee, and you state that guidance provided by the Office of Personnel Management (OPM) indicates that retired regular officers such as yourself do not qualify for military leave from their civilian positions when recalled to active duty.

Although we are not issuing a Comptroller General's decision in your case, we are providing the following information that may be of assistance to you.

You contend, in effect, that upon retirement an officer or warrant officer in the Regular Army, becomes a member of the Retired Reserve of the Army. Your argument is based on the premise that because 10 U.S.C. Sec. 675, which states the authority for calling a member of the Retired Reserve to active duty without his consent, refers to section 688, which primarily deals with calling retired regular members and members of the Retired Reserve to active duty, the reference must mean that the Retired Reserve includes retired Regular members. Therefore, you reason that when you were called to active duty from retirement, you were called as a reserve member and you are entitled to military leave under 5 U.S.C. Sec. 6323(a), which is available to reserve members.

Section 675 of title 10, U.S. Code, to which you refer, provides that a member in the Retired Reserve may be ordered to active duty without his consent, but only as provided in section 672(a) or section 688 of title 10. Section 672(a) deals with ordering reserve units and reserve members not assigned to units organized to serve as a unit to active duty, and appears to have no application to you. Section 688, to which you refer and which is cited in your orders as authority for ordering you to active duty, provides authority to order to active duty among others, "a retired member of the Regular Army" and "a member of the Retired Reserve who has completed at least 20 years of active service." Thus, section 688 recognizes that a retired member of the Regular Army and a member of the Retired Reserve are in different categories.

In addition 10 U.S.C. Sec. 274 specifically defines the Retired Reserve as follows:

"The Retired Reserve consists of Reserves--

"(1) who are or have been retired under section 3911, 6323, or 8911 of this title or under section 291 of title 14; or

"(2) who--

"(A) have been transferred to it upon their request;

"(B)retain their status as Reserves; and

"(C) are otherwise qualified."

Since you were retired as a Regular and not a Reserve, you do not appear to be a member of the Retired Reserve as defined by section 274. Rather, you appear to be a retired Regular who was recalled to serve on active duty under section 688 in that status. See in this regard Army Regulation 601-10, effective Dec. 21, 1988, Mobilization of Retired Members of the Army which makes it clear that Regular Army retirees and Reserve retirees with 20 years service are two separate categories of members available for recall under 10 U.S.C. Sec. 688. AR 601-10, para. 1-4. The regulation also makes it clear that the status the member holds as a retiree (Regular or Reserve) before recall to active duty is the status in which the member serves on active duty incident to recall. AR 601-10, para. 1-5.

The statute providing military leave, to which you refer, provides such leave to an employee "for active duty" "as a Reserve of the armed forces." Since a Regular retired member recalled to active duty for service as a Regular does not appear to fall within the category of members for which section 6323(a) provides leave, the OPM guidance you referred to appears correct.

You also enclosed a Comptroller General's decision, 49 Comp.Gen. 444 (1970), with your letter concerning a retired Regular naval officer who was a civilian employee. The question in that case was whether that retired officer would be concurrently entitled to active duty military pay and any kind of civilian compensation if he were called to active duty. Although that case did not directly concern whether a retired Regular officer could be a member of the Retired Reserve, it noted at page 445 that "the employee in question is not a reservist or member of the National Guard and, therefore, the provisions of 5 U.S.C. Sec. 6323(a) for granting 15 days military leave, etc., have no application to him." This appears consistent with the guidance you referred to from OPM and our discussion above.

You also refer to the fact that the orders calling you to active duty were issued from the U.S. Army Reserve Personnel Center as an indication that you are a member of the Reserve. We note that AR 601 10, para. 1-7d, assigns this responsibility to the Personnel Center, presumably for administrative convenience, and that would not be a determining factor in establishing your status on active duty.

If after reviewing the above, you still believe you are entitled to military leave under 5 U.S.C. Sec. 6323(a), you may file a claim for it with your civilian employer. If it is not resolved to your satisfaction, you may appeal the claim to the Claims Group of our Office under the procedures set out in 4 C.F.R. Part 31 (1991).

Copies of the cited provisions of AR 601-10 and 4 C.F.R. Part 31 are enclosed for your convenience.

I regret the delay in responding.