B-68195, OCTOBER 27, 1947, 27 COMP. GEN. 245

B-68195, OCTOBER 27, 1947, 27 COMP. GEN. 245

LEAVES OF ABSENCE - MILITARY - ACT OF JULY 1, 1947 AN EMPLOYEE WHO IS ORDERED TO REPORT FOR MILITARY TRAINING DUTY WHILE ON ANNUAL LEAVE GRANTED AS PART OF HIS 30-DAY ADVANCE PERIOD PRIOR TO SEPARATION BY REDUCTION IN FORCE IS ENTITLED, AS A MATTER OF RIGHT, TO HAVE MILITARY LEAVE AUTHORIZED BY THE ACT OF MAY 12, 1917, AS AMENDED BY THE ACT OF JULY 1, 1947, SUBSTITUTED FOR SUCH ANNUAL LEAVE UP TO THE DATE PREVIOUSLY FIXED AS THE SEPARATION DATE, AND ANY RESULTING ANNUAL LEAVE TO THE EMPLOYEE'S CREDIT ON THE DATE OF SEPARATION IS REQUIRED TO BE PAID IN A LUMP SUM. COMPARE 17 COMP. GEN. 174; 19 ID. 716. ( AMPLIFIED BY 27 COMP. GEN. 414.) CIVILIAN EMPLOYEE MEMBERS OF THE OFFICERS' RESERVE CORPS OR THE ENLISTED RESERVE CORPS, WHO ARE GRANTED ANNUAL LEAVE UPON THE EXPIRATION OF THE 15 DAYS' MILITARY LEAVE AUTHORIZED BY THE ACT OF MAY 12, 1917, AS AMENDED BY THE ACT OF JULY 1, 1947, FOR THE PURPOSE OF PERFORMING FURTHER MILITARY DUTY, ARE ENTITLED, IN VIEW OF THEIR CIVILIAN POSITIONS FOR THE PERIOD OF SUCH ANNUAL LEAVE IN ADDITION TO THE PAY AND ALLOWANCES AUTHORIZED FOR THE MILITARY DUTY, WITHOUT REGARD TO THE DUAL COMPENSATION LAWS. EMPLOYEE MEMBERS OF THE ENLISTED RESERVE CORPS WHO WERE PREVIOUSLY GRANTED LEAVE WITHOUT PAY FOR THE ENTIRE PERIOD OF THEIR MILITARY TRAINING WHICH COMMENCED IMMEDIATELY PRIOR TO JULY 1, 1947--- THE DATE OF THE ACT GRANTING MEMBERS OF SUCH CORPS, MILITARY DUTY, WITHOUT REGARD TO THE DUAL COMPENSATION LAWS--- MAY BE REGARDED AS HAVING BEEN CONSTRUCTIVELY RESTORED TO A PAY STATUS EFFECTIVE JULY 1, 1947, BY SUBSTITUTING ANNUAL OR MILITARY LEAVE, OR A COMBINATION OF BOTH, FOR LEAVE WITHOUT PAY PREVIOUSLY GRANTED. THE 15-DAYS' MILITARY LEAVE GRANTED TO EMPLOYEE MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES AND THE NATIONAL GUARD WHILE ENGAGED IN MILITARY TRAINING BY THE ACT OF MAY 12, 1917, AS AMENDED, AND SECTION 80 OF THE NATIONAL DEFENSE ACT, AS AMENDED, HAS REFERENCE TO CALENDAR DAYS RATHER THAN TO WORKDAYS; HOWEVER, NON-WORKDAYS NEED NOT BE CHARGED TO MILITARY LEAVE, THAT IS, UNLESS THE ABSENCE EXTENDS FOR A PERIOD INCLUDING TIME BOTH BEFORE AND AFTER THE NON-WORKDAYS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, OCTOBER 27, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 17, 1947, REQUESTING DECISION ON SEVERAL QUESTIONS WHICH HAVE ARISEN UNDER PUBLIC LAW 153, APPROVED JULY 1, 1947, EXTENDING AND EQUALIZING MILITARY LEAVE BENEFITS FOR CIVILIAN EMPLOYEES WHO ARE MEMBERS OF RESERVE COMPONENTS OF THE ARMED FORCES AND THE NATIONAL GUARD. FOR CLARIFICATION, THE LAST THREE QUESTIONS PRESENTED WILL BE CONSIDERED FIRST. QUESTION 3, 4, AND 5 READ AS FOLLOWS:

QUESTION NO. 3--- MAY MILITARY LEAVE BE SUBSTITUTED FOR ANNUAL LEAVE GRANTED AS A PART OF THE 30-DAY NOTICE PERIOD PRIOR TO A SEPARATION BY REDUCTION IN FORCE, IN THE EVENT THAT AN EMPLOYEE IS ORDERED TO MILITARY TRAINING DUTY DURING SUCH NOTICE PERIOD? IN THIS CONNECTION 17 COMP. GEN. 174 AND 19 ID. 716 HAVE BEEN CONSIDERED.

QUESTION NO. 4--- IF THE ANSWER TO QUESTION NO. 3 IS IN THE NEGATIVE AS INDICATED BY THE ABOVE CITED DECISIONS, WOULD NOT THE CONTINUANCE OF THE EMPLOYEE ON ANNUAL LEAVE BE A VIOLATION OF THE DUAL COMPENSATION STATUTES IN SOME INSTANCES, AS PROVIDED IN 3 COMP. GEN. 116, ID. 246 AND 16 ID. 1103?

QUESTION NO. 5--- IF THE ANSWER TO QUESTION NO. 3 IS AFFIRMATIVE, IS SUCH SUBSTITUTION MANDATORY?

THE THIRD AND FOURTH PARAGRAPHS UNDER THE SUBHEADING," ORDNANCE STORES AND EQUIPMENT FOR RESERVE OFFICERS' TRAINING CORPS," APPEARING IN THE MILITARY APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1918, APPROVED MAY 12, 1917, 40 STAT. 71, 72 (10 U.S.C. 371), READ AS FOLLOWS:

PROVIDED FURTHER, THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO SHALL BE MEMBERS OF THE OFFICERS' RESERVE CORPS SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING, ON ALL DAYS DURING WHICH THEY SHALL BE ORDERED TO DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR.

PROVIDED FURTHER, THAT MEMBERS OF THE OFFICERS' RESERVE CORPS WHO ARE IN THE EMPLOY OF THE UNITED STATES GOVERNMENT OR OF THE DISTRICT OF COLUMBIA AND WHO ARE ORDERED TO DUTY BY PROPER AUTHORITY WHEN RELIEVED FROM DUTY, BE RESTORED TO THE POSITIONS HELD BY THEM WHEN ORDERED TO DUTY.

SECTION 1 (A) OF PUBLIC LAW 153, APPROVED JULY 1, 1947, 61 STAT. 238, AMENDED THE SAID THIRD AND FOURTH PARAGRAPHS OF THE ACT OF MAY 12, 1917, SUPRA,"BY INSERTING IN EACH SUCH PARAGRAPH AFTER THE WORDS,"THE OFFICERS' RESERVE CORPS' THE WORDS "OR THE ENLISTED RESERVE CORPS.'"

SECTION 80 OF THE ACT OF JUNE 3, 1916, 39 STAT. 203 (32 U.S.C. 75), APPLICABLE TO MEMBERS OF THE NATIONAL GUARD, PROVIDED AS FOLLOWS:

ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA WHO SHALL BE MEMBERS OF THE NATIONAL GUARD SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING ON ALL DAYS DURING WHICH THEY SHALL BE ENGAGED IN FIELD OR COAST-DEFENSE TRAINING ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF THIS TITLE.

SECTION 2 OF THE ACT OF JULY 1, 1947, 61 STAT. 239, AMENDED THE SAID SECTION 80 AS FOLLOWS:

SECTION 80 OF THE ACT OF JUNE 3, 1916 (39 STAT. 203; 32 U.S.C. 75), IS HEREBY AMENDED BY STRIKING OUT THE PERIOD AS IT APPEARS AT THE END OF THE SAID SECTION, SUBSTITUTING A COMMA THEREFOR, AND ADDING THE FOLLOWING: "FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR: PROVIDED, THAT ALL MEMBERS OF THE NATIONAL GUARD WHO ARE IN THE EMPLOY OF THE UNITED STATES GOVERNMENT OR OF THE DISTRICT OF COLUMBIA AND WHO ARE ORDERED TO DUTY BY PROPER AUTHORITY SHALL, WHEN RELIEVED FROM DUTY, BE RESTORED TO THE POSITIONS HELD BY THEM WHEN ORDERED TO DUTY: AND PROVIDED FURTHER, THAT NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE NATIONAL GUARD FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE NOR FROM RECEIVING THE PAY INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE PROVISIONS OF LAW RELATING TO THE NATIONAL GUARD, NOR AS PROHIBITING HIM FROM PRACTICING HIS CIVILIAN PROFESSION OR OCCUPATION BEFORE OR IN CONNECTION WITH ANY DEPARTMENT OF THE FEDERAL GOVERNMENT.'

ALSO, SECTION 3 OF THE SAID 1947 ACT, 61 STAT. 239, AMENDED SECTION 9 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1177, AS AMENDED, SO AS TO EXTEND REEMPLOYMENT RIGHTS TO MEMBERS OF THE NAVAL RESERVE.

IT WILL BE NOTED THAT THE PRIMARY PURPOSE OF THE ACT OF JULY 1, 1947, WAS TO EQUALIZE THE RIGHTS TO MILITARY LEAVE OF ABSENCE, REEMPLOYMENT AND DUAL COMPENSATION FOR EMPLOYEES OF THE UNITED STATES AND DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE OFFICERS' RESERVE CORPS, NAVAL RESERVE OR NATIONAL GUARD AND TO EXTEND SUCH BENEFITS TO MEMBERS OF THE ENLISTED RESERVE CORPS. HOWEVER, THE SAID ACT OF JULY 1, 1947, MADE NO CHANGE IN THE PROVISION IN THE ACT OF MAY 12, 1917, THAT MEMBERS OF THE OFFICERS' RESERVE CORPS "SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING" ON ALL DAYS DURING WHICH THEY ARE ORDERED TO DUTY WITH TROOPS, ET CETERA, FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR.

IN DECISION OF AUGUST 19, 1937, 17 COMP. GEN. 174, REFERRED TO IN QUESTION NO. 3, SUPRA, A NUMBER OF CASES WERE CONSIDERED INVOLVING THE RIGHTS OF CERTAIN EMPLOYEES WHO, AFTER HAVING BEEN GRANTED ALL ACCRUED ANNUAL LEAVE TO THEIR CREDIT WITH NOTICE THAT UPON THE EXPIRATION OF SUCH LEAVE THEY WERE TO BE SEPARATED FROM THE SERVICE OR PLACED ON FURLOUGH WITHOUT PAY BECAUSE OF REDUCTION IN FORCE, HAD BEEN ORDERED TO TRAINING DUTY AS MEMBERS OF THE OFFICER'S RESERVE CORPS PRIOR TO THE EXPIRATION OF THE PERIOD OF THEIR ACCRUED ANNUAL LEAVE. THE QUESTION THERE PRESENTED WAS WHETHER THE PERIOD OF ACCRUED ANNUAL LEAVE WITH PAY MIGHT BE EXTENDED BEYOND THE DATE ORIGINALLY FIXED FOR SEPARATION OR FURLOUGH BY A NUMBER OF DAYS EQUAL TO THE PERIOD OF MILITARY TRAINING DUTY. IN THAT DECISION IT WAS STATED:

THERE IS NO REQUIREMENT OF LAW THAT THE CIVILIAN PAY STATUS OF ANY OF THE EMPLOYEES MUST BE EXTENDED SOLELY FOR THE PURPOSE OF GRANTING MILITARY LEAVE WITH PAY. THE STATUTE SAVES AN EMPLOYEE FROM LOSS OF PAY HE OTHERWISE WOULD HAVE RECEIVED UNDER HIS APPOINTMENT AS A CIVILIAN OFFICER OR EMPLOYEE OF THE GOVERNMENT, BUT DOES NOT REQUIRE A MODIFICATION OF NECESSARY ADMINISTRATIVE ACTION FURLOUGHING OR SEPARATING AN EMPLOYEE SO AS TO INCREASE THE AMOUNT OF PAY THE EMPLOYEE OTHERWISE WOULD HAVE RECEIVED. IN DECISION OF FEBRUARY 9, 1940, 19 COMP. GEN. 716, ALSO REFERRED TO IN QUESTION NO. 3, THERE WAS CONSIDERED, INTER ALIA, THE QUESTION (NO. 3) OF WHETHER AN EMPLOYEE WHO, AFTER SEPARATION FROM AN ACTIVE DUTY STATUS BUT WHILE STILL IN A LEAVE-WITH-PAY STATUS, WAS ORDERED TO FIFTEEN DAYS' MILITARY TRAINING DUTY AS A MEMBER OF THE OFFICERS' RESERVE CORPS WAS ENTITLED TO MILITARY LEAVE OF ABSENCE RESTORING HIM TO A DUTY STATUS FOR SUCH PERIOD OF TRAINING DUTY SO AS TO EXTEND THE PERIOD HE WOULD BE CARRIED ON THE PAY ROLLS IN A LEAVE-WITH-PAY STATUS. IN THAT DECISION IT WAS STATED, IN PERTINENT PART, AS FOLLOWS:

* * * WHEN THE TENURE OF CIVILIAN EMPLOYMENT OR AN APPOINTMENT HAS ONCE BEEN ADMINISTRATIVELY FIXED BY NOTICE TO THE EMPLOYEE OF THE TERMINATION OF HIS DUTY AND/OR PAY STATUS BY FURLOUGH WITHOUT PAY OR SEPARATION FROM THE SERVICE, THERE CAN BE NO LOSS TO THE EMPLOYEE EITHER IN PAY, TIME, OR EFFICIENCY, BY REFUSAL OF AN ADMINISTRATIVE OFFICE TO EXTEND THE PERIOD OF THE EMPLOYMENT OR APPOINTMENT BECAUSE OF SICKNESS, MILITARY DUTY, OR COURT DUTY OCCURRING DURING THE PERIOD OF LEAVE GRANTED PRIOR TO TERMINATION OF SERVICES BY FURLOUGH OR OTHERWISE.

ACCORDINGLY * * * YOU ARE ADVISED THAT WHERE, DUE TO LACK OF APPROPRIATIONS OR WORK, THE DATE OF FURLOUGH WITHOUT PAY OR SEPARATION FROM THE SERVICE OF AN EMPLOYEE HAS ONCE BEEN FIXED ADMINISTRATIVELY SO AS TO PERMIT THE EMPLOYEE TO TAKE HIS ACCRUED UNUSED ANNUAL LEAVE AS CONTEMPLATED BY SECTIONS 8 AND 9 OF THE ANNUAL LEAVE REGULATIONS, OF WHICH THE EMPLOYEE HAS HAD NOTICE, THERE IS NO REQUIREMENT OF LAW THAT THE PAY STATUS OF THE EMPLOYEE BE EXTENDED BEYOND THE DATE ALREADY FIXED FOR THE COMMENCEMENT OF THE FURLOUGH OR THE SEPARATION FROM THE SERVICE FOR THE PURPOSE OF GRANTING ANY OTHER FORM OF LEAVE OF ABSENCE WITH PAY, WHETHER FOR SICKNESS, OR MILITARY DUTY, OR FOR THE PURPOSE OF PERFORMING WITNESS OR JURY DUTY FOR THE GOVERNMENT. THE RULE IS THE SAME WHETHER THE APPLICATION FOR EXTENSION OF LEAVE ON ACCOUNT OF SUBPOENA FOR COURT DUTY, SICKNESS, ETC., IS RECEIVED IN THE ADMINISTRATIVE OFFICE PRIOR OR SUBSEQUENT TO THE TERMINATION DATE PROPERLY FIXED ADMINISTRATIVELY.

WHILE THE SAID DECISIONS MAKE NO DISTINCTION BETWEEN CASES INVOLVING "SEPARATIONS" FROM THE SERVICE AND "FURLOUGHS," THE RULE APPLIED IN SUCH DECISIONS, ESPECIALLY WITH RESPECT TO SEPARATIONS FROM THE SERVICE, SHOULD BE EXAMINED IN VIEW OF THE SUBSEQUENTLY ENACTED PROVISIONS OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845. THE LATTER ACT PROVIDES, INTER ALIA, THAT CIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES GOVERNMENT OR THE DISTRICT OF COLUMBIA WHO ARE SEPARATED FROM THE SERVICE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH THEY ARE ENTITLED UNDER EXISTING LAW. UNDER THE ACT OF MAY 12, 1947, AS AMENDED, SUPRA, SUCH EMPLOYEES ARE ENTITLED TO "LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING" FOR ALL DAYS DURING WHICH THEY ARE ORDERED TO DUTY WITH TROOPS, ET CETERA, FOR PERIODS NOT EXCEEDING FIFTEEN DAYS IN ANY CALENDAR YEAR. THE "LEAVE OF ABSENCE" AUTHORIZED UNDER THE LATTER ACT IS NOT CHARGEABLE AGAINST AN EMPLOYEE'S ACCUMULATED OR CURRENT ANNUAL LEAVE BUT GENERALLY IS RECORDED AS A CHARGE TO "MILITARY LEAVE" IN THE SAME MANNER AS "COURT LEAVE" IS RECORDED UNDER SECTION 30.24 OF THE CURRENT REGULATIONS RELATING TO ANNUAL AND SICK LEAVE OF GOVERNMENT EMPLOYEES. HAS BEEN RECOGNIZED THAT THE RIGHT TO MILITARY LEAVE OF ABSENCE UNDER THE SAID ACT OF MAY 12, 1917, IS A RIGHT GRANTED BY STATUTE WHICH LEGALLY MAY NOT BE DENIED BY ADMINISTRATIVE ACTION, WHERE TO DO SO WOULD RESULT IN LOSS TO THE EMPLOYEE OF PAY, TIME, OR EFFICIENCY RATING. 12 COMP. GEN. 241, 242, HENCE, THE QUESTION HERE INVOLVED IS PRIMARILY ONE OF WHETHER ADMINISTRATIVE FAILURE TO GRANT AN EMPLOYEE MILITARY LEAVE IN LIEU OF ANNUAL LEAVE UNDER THE CONDITIONS STATED WOULD RESULT IN A LOSS OF PAY, TIME, OR EFFICIENCY RATING.

PRIOR TO THE SAID ACT OF DECEMBER 21, 1944, AUTHORIZING PAYMENT IN A LUMP SUM FOR ALL UNUSED ANNUAL LEAVE TO AN EMPLOYEE'S CREDIT ON THE DATE OF SEPARATION FROM THE SERVICE, AN EMPLOYEE WHO REPORTED FOR MILITARY TRAINING DUTY PRIOR TO THE DATE ADMINISTRATIVELY FIXED FOR HIS SEPARATION FROM THE SERVICE SUFFERED NO LOSS OF PAY BY REASON OF ADMINISTRATIVE FAILURE TO SUBSTITUTE MILITARY LEAVE FOR ANNUAL LEAVE FOR THE PERIOD OF TRAINING DUTY WHICH OCCURRED PRIOR TO THE ADMINISTRATIVELY FIXED SEPARATION DATE. WHILE THE DATE OF SEPARATION USUALLY WAS FIXED ADMINISTRATIVELY SO AS TO PERMIT AN EMPLOYEE TO TAKE ALL ACCUMULATED AND ACCRUED ANNUAL LEAVE TO HIS CREDIT, THERE WAS NO REQUIREMENT WHEN THE CITED DECISIONS WERE RENDERED THAT THE SEPARATION DATE BE EXTENDED SOLELY FOR THE PURPOSE OF GRANTING ANNUAL LEAVE NOT TAKEN PRIOR TO SEPARATION, NOR WAS THERE ANY STATUTORY AUTHORITY PRIOR TO THE ACT OF DECEMBER 21, 1944, PERMITTING PAYMENT TO BE MADE FOR UNUSED ANNUAL LEAVE TO AN EMPLOYEE'S CREDIT ON THE EFFECTIVE DATE OF SEPARATION. HENCE, ADMINISTRATIVE FAILURE TO SUBSTITUTE MILITARY LEAVE FOR ANNUAL LEAVE WAS IMMATERIAL UNDER SUCH CIRCUMSTANCES, SINCE FAILURE TO DO SO DID NOT RESULT IN A LOSS OF PAY TO THE EMPLOYEE. HOWEVER, IT NOW IS MATERIAL WHETHER MILITARY LEAVE IS SUBSTITUTED FOR ANNUAL LEAVE UNDER SUCH CIRCUMSTANCES, SINCE AN EMPLOYEE IS ENTITLED UNDER THE ACT OF DECEMBER 21, 1944, TO BE PAID IN A LUMP SUM FOR ALL UNUSED LEAVE TO HIS CREDIT UPON SEPARATION FROM THE SERVICE. THE FAILURE TO SUBSTITUTE MILITARY LEAVE FOR ANNUAL LEAVE IN THE CASE OF AN EMPLOYEE WHO REPORTS FOR MILITARY TRAINING DUTY WHILE IN AN ANNUAL LEAVE STATUS PRIOR TO SEPARATION WOULD HAVE THE EFFECT OF REQUIRING THE EMPLOYEE TO CHARGE SUCH ABSENCE TO ANNUAL LEAVE, INSTEAD OF MILITARY LEAVE, WHICH IS CONTRARY TO THE PROVISIONS OF THE ACT OF MAY 12, 1917, AS AMENDED, AUTHORIZING SUCH ABSENCE TO BE CHARGED TO MILITARY LEAVE. IT IS APPARENT THAT IF SUCH ABSENCE IS CHARGED TO MILITARY LEAVE AS REQUIRED BY THE ACT OF MAY 12, 1917, AS AMENDED, RATHER THAN TO ANNUAL LEAVE, THE EMPLOYEE WOULD HAVE UNUSED ANNUAL LEAVE TO HIS CREDIT ON THE DATE FIXED FOR HIS SEPARATION EQUAL TO THE NUMBER OF DAYS' ANNUAL LEAVE OTHERWISE CHARGEABLE FOR THE ABSENCE FROM THE DATE HE REPORTED FOR MILITARY TRAINING DUTY TO THE DATE ADMINISTRATIVELY FIXED FOR HIS SEPARATION FROM THE SERVICE. TO DENY THE EMPLOYEE PAYMENT IN A LUMP SUM FOR SUCH UNUSED LEAVE TO HIS CREDIT ON THE DATE OF SEPARATION WOULD CONTRAVENE NOT ONLY THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, BUT ALSO THE PROVISIONS OF THE ACT OF MAY 12, 1917, SAVING EMPLOYEES WHO PERFORM MILITARY TRAINING DUTY FROM LOSS OF CIVILIAN PAY. IT FOLLOWS THAT WHERE AN EMPLOYEE IS ORDERED TO REPORT FOR MILITARY TRAINING DUTY WHILE ON ANNUAL LEAVE GRANTED AS A PART OF THE ,30-DAY-NOTICE PERIOD" PRIOR TO SEPARATION BY REDUCTION IN FORCE, MILITARY LEAVE IS REQUIRED TO BE SUBSTITUTED FOR ANNUAL LEAVE GRANTED AS A PART OF SUCH 30-DAY NOTICE PERIOD, BUT NOT FOR ANY PERIOD BEYOND THE PREVIOUSLY FIXED SEPARATION DATE, AND THE EMPLOYEE IS ENTITLED TO BE PAID FOR ANY RESULTING ANNUAL LEAVE TO HIS CREDIT ON THE DATE ADMINISTRATIVELY FIXED FOR HIS SEPARATION. ON SUCH BASIS, YOUR QUESTIONS 3 AND 5 ARE ANSWERED IN THE AFFIRMATIVE. WITH RESPECT TO QUESTION NO. 4, SECTION 1 (B) OF THE ACT OF JULY 1, 1947, SUPRA, 61 STAT. 239, AMENDED THE ACT OF MAY 12, 1917, TO READ AS FOLLOWS:

* * * THAT NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE OFFICERS' RESERVE CORPS OR THE ENLISTED RESERVE CORPS FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE NOR FROM RECEIVING THE PAY INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE LAWS RELATING TO THE OFFICERS' RESERVE CORPS AND ENLISTED RESERVE CORPS, NOR AS PROHIBITING HIM FROM PRACTICING HIS CIVILIAN PROFESSION OR OCCUPATION BEFORE OR IN CONNECTION WITH ANY DEPARTMENT OF THE FEDERAL GOVERNMENT.

THE STATED PURPOSE OF SUCH AMENDMENT WAS TO PERMIT MEMBERS OF THE OFFICERS' RESERVE CORPS AND ENLISTED RESERVE CORPS TO ACCEPT EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE AND RECEIVE THE PAY INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO THE PAY AND ALLOWANCES INCIDENT TO THEIR MILITARY SERVICE TO THE SAME EXTENT AS IS AUTHORIZED FOR PERSONNEL OF THE NAVAL RESERVE UNDER SECTION 4 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, 52 STAT. 1176. SEE, ALSO, THE SIMILAR PROVISION IN THE NAVAL RESERVE ACT OF FEBRUARY 28, 1925, 43 STAT. 1081. IN DECISION OF FEBRUARY 17, 1937, 16 COMP. GEN. 767, WHICH CONSIDERED THE SAID PROVISION IN THE NAVAL RESERVE ACT OF FEBRUARY 28, 1925, IT WAS STATED (QUOTING FROM SYLLABUS):

A CIVILIAN EMPLOYEE MEMBER OF THE FLEET MARINE CORPS RESERVE ORDERED TO TRAINING DUTY FOR A PERIOD IN EXCESS OF 15 DAYS, IS ENTITLED, UNDER THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, TO BOTH THE SALARY OR COMPENSATION OF HIS CIVILIAN POSITION AND THE PAY AND ALLOWANCES OF HIS RATING IN THE RESERVE NOT ONLY FOR 15 DAYS OF MILITARY LEAVE, BUT, ALSO, FOR SUCH AUTHORIZED ANNUAL LEAVE AS MAY HAVE BEEN GRANTED TO HIM.

ALSO, SEE 20 COMP. GEN. 151.

IN VIEW OF THE PROVISION NOW CONTAINED IN THE AMENDED ACT OF MAY 12, 1917, SUPRA, MEMBERS OF THE OFFICERS' RESERVE CORPS OR ENLISTED RESERVE CORPS (OR NATIONAL GUARD--- SEE SECTION 2 OF THE ACT OF JULY 1, 1947), WHO ARE GRANTED ANNUAL LEAVE UPON EXPIRATION OF THE FIFTEEN DAYS' MILITARY LEAVE AUTHORIZED BY LAW, FOR THE PURPOSE OF PERFORMING FURTHER MILITARY DUTY, ARE ENTITLED TO RECEIVE THE COMPENSATION OF THEIR CIVILIAN POSITION FOR THE PERIOD OF SUCH ANNUAL LEAVE IN ADDITION TO THE PAY AND ALLOWANCES AUTHORIZED FOR THE MILITARY DUTY, WITHOUT REGARD TO THE DUAL COMPENSATION LAWS. QUESTION 4 IS ANSWERED ACCORDINGLY.

QUESTION NO. 1 READS AS FOLLOWS:

QUESTION NO. 1--- SINCE THE EFFECTIVE DATE OF THE NEW LAW WAS 1 JULY 1947, MAY 15 DAYS MILITARY LEAVE BE SUBSTITUTED FROM AND AFTER THAT DATE IN LIEU OF LEAVE WITHOUT PAY PREVIOUSLY GRANTED TO AN EMPLOYEE CALLED FOR 90 DAYS TRAINING DUTY WITH THE ENLISTED RESERVE CORPS, BEGINNING 1 MAY 1947?

IT IS ASSUMED THAT THE "90 DAYS TRAINING DUTY" REFERRED TO IN QUESTION NO. 1 INVOLVES "DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION" (CF. 20 COMP. GEN. 375), AS PRESCRIBED UNDER THE ACT OF MAY 12, 1917, AS AMENDED, SUPRA, AND THAT THE EMPLOYEE WAS IN A STATUS ENTITLING HIM TO THE COMPENSATION OF HIS CIVILIAN POSITION IMMEDIATELY PRIOR TO REPORTING FOR TRAINING DUTY MAY 1, 1947. CF. 11 COMP. GEN. 469. SINCE THE EMPLOYEE HERE INVOLVED REPORTED FOR MILITARY DUTY WITH THE ENLISTED RESERVE CORPS, PRESUMABLY HE COULD NOT HAVE BEEN GRANTED ACCRUED ANNUAL LEAVE TO HIS CREDIT AND CONTINUED IN A PAY STATUS WITHOUT VIOLATING THE DUAL COMPENSATION LAWS. HENCE, EVEN THOUGH THE EMPLOYEE HAD ACCRUED ANNUAL LEAVE TO HIS CREDIT, UNDER THEN EXISTING LAW HE WAS REQUIRED TO APPLY FOR LEAVE WITHOUT PAY FOR THE ENTIRE 90 DAY PERIOD OF MILITARY TRAINING DUTY. HOWEVER, THE ACT OF JULY 1, 1947, EXTENDED MILITARY LEAVE OF ABSENCE, DUAL COMPENSATION, ET CETERA, BENEFITS TO MEMBERS OF THE ENLISTED RESERVE CORPS EFFECTIVE JULY 1, 1947, AND IT SEEMS UNREASONABLE TO ASSUME THAT SUCH BENEFITS WERE TO BE DENIED MEMBERS OF THE ENLISTED RESERVE CORPS MERELY BECAUSE THEIR PERIOD OF TRAINING DUTY COMMENCED IMMEDIATELY PRIOR TO JULY 1, 1947, WHICH NECESSARILY REQUIRED THAT THEY REQUEST LEAVE WITHOUT PAY FOR THE PURPOSE OF PERFORMING SUCH MILITARY DUTY. ON THE CONTRARY, THE SAID ACT GRANTS MEMBERS OF THE ENLISTED RESERVE CORPS, EFFECTIVE JULY 1, 1947, A RIGHT TO MILITARY LEAVE OF ABSENCE, WITHOUT LOSS OF PAY, AND, IN EFFECT, TO ANNUAL LEAVE WITH PAY FOR ADDITIONAL MILITARY DUTY, WITHOUT REGARD TO THE DUAL COMPENSATION STATUTES. THE FACT THAT THAT THE EMPLOYEE HERE INVOLVED PREVIOUSLY HAD BEEN GRANTED LEAVE WITHOUT PAY FOR THE PURPOSE OF REPORTING FOR MILITARY TRAINING DUTY WOULD NOT HAVE PRECLUDED ADMINISTRATIVE CANCELLATION OF THE LEAVE WITHOUT PAY AND RESTORATION TO A PAY STATUS, TO GIVE EFFECT TO THE STATUTE, BY RESTORING HIM TO A DUTY STATUS AND GRANTING EITHER MILITARY OR ANNUAL LEAVE IN LIEU OF LEAVE WITHOUT PAY--- NO QUESTION OF LEAVE WITHOUT PAY OR FURLOUGH INCIDENT TO REDUCTION IN FORCE BEING INVOLVED. UNDER SUCH CIRCUMSTANCES, TO GIVE EFFECT TO THE STATUTE, AND SINCE THE PRECISE SITUATION HERE PRESENTED WILL AFFECT ONLY THOSE EMPLOYEES WHO REPORTED FOR MILITARY TRAINING DUTY IMMEDIATELY PRIOR TO JULY 1, 1947, THERE WOULD APPEAR TO BE NO OBJECTION TO TREATING SUCH EMPLOYEES AS HAVING BEEN RESTORED TO A PAY STATUS EFFECTIVE JULY 1, 1947, BY SUBSTITUTING ANNUAL OR MILITARY LEAVE, OR A COMBINATION OF BOTH, FOR LEAVE WITHOUT PAY PREVIOUSLY GRANTED. ACCORDINGLY, QUESTION NO. 1 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION NO. 2 READS AS FOLLOWS:

QUESTION NO. 2--- DOES THE 15 DAY STATUTORY LIMITATION ON MILITARY LEAVE INCLUDE DAYS ON WHICH THE EMPLOYEE WOULD OTHERWISE NOT BE REQUIRED TO WORK, OR IS SUCH LEAVE CHARGED IN THE SAME MANNER AS ANNUAL AND SICK LEAVE? IN OTHER WORDS, DOES THE 15 DAY LIMITATION MEAN "CALENDAR" DAYS OR ,WORK" DAYS?

THE WORD "DAYS" AS USED IN STATUTES GENERALLY HAS BEEN REGARDED AS REFERRING TO "CALENDAR DAYS," IN THE ABSENCE OF A CLEAR INTENT TO THE CONTRARY. HOPEVILLE V. JONES, 20 S.E.2D 599; KUZNITSKY V. MURPHY, 44 N.E.2D 893. THE FIFTEEN DAYS' MILITARY LEAVE OF ABSENCE AUTHORIZED TO BE GRANTED EACH CALENDAR YEAR TO MEMBERS OF THE OFFICERS' RESERVE CORPS UNDER THE ACT OF MAY 12, 1917, AND TO MEMBERS OF THE NAVAL RESERVE UNDER THE NAVAL RESERVE ACT OF FEBRUARY 28, 1925 (AS SUPERSEDED BY THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176), HAS BEEN VIEWED AS HAVING REFERENCE TO "CALENDAR" DAYS. IN DECISION OF APRIL 9, 1930, 9 COMP. GEN. 448, WHEREIN VARIOUS STATUTES GRANTING LEAVE TO EMPLOYEES OF THE GOVERNMENT WERE REFERRED TO AND DISCUSSED, IT WAS POINTED OUT THAT CERTAIN STATUTES GRANTING EMPLOYEES A SPECIFIED NUMBER OF DAYS OF LEAVE A YEAR SPECIFICALLY EXCLUDED SUNDAYS AND HOLIDAYS IN COMPUTING LEAVE OF ABSENCE, WHILE OTHER STATUTES MADE NO REFERENCE TO SUNDAYS AND HOLIDAYS, AND THAT THE VIEW CONSISTENTLY HAD BEEN TAKEN THAT, IF IT WAS INTENDED THAT SUCH LEAVE OF ABSENCE SHOULD BE EXCLUSIVE OF SUNDAYS AND HOLIDAYS, APPROPRIATE LANGUAGE TO THAT EFFECT WOULD HAVE BEEN INCORPORATED IN THE LEGISLATION.

IN VIEW OF THE DECISIONS OF THE ACCOUNTING OFFICERS CONSTRUING THE PRIOR ACTS AS HAVING REFERENCE TO CALENDAR DAYS, AND THE FACT THAT THE ACT OF JULY 1, 1947, MADE NO CHANGE IN THE EARLIER STATUTES IN THAT RESPECT, THIS OFFICE IS NOT JUSTIFIED IN CONCLUDING THAT THE CONGRESS INTENDED GRANTING FIFTEEN DAYS' MILITARY LEAVE, EXCLUDING SUNDAYS, HOLIDAYS, AND OTHER NON- WORKDAYS "OCCURRING WITHIN THE PERIOD OF ABSENCE," AS STATED IN THE SYLLABUS OF THE SAID DECISION OF APRIL 9, 1930. THAT RULE, HOWEVER, NEED NOT BE APPLIED AS REQUIRING THAT NON WORKDAYS BE CHARGED TO MILITARY LEAVE, THAT IS, UNLESS THE ABSENCE EXTENDS FOR A PERIOD INCLUDING TIME BOTH BEFORE AND AFTER THE NON WORKDAYS. FOR EXAMPLE, SATURDAY BEING A NON -WORKDAY, AN EMPLOYEE WOULD NOT BE CHARGED WITH MILITARY LEAVE BECAUSE HE ATTENDED A DRILL OR ENGAGED IN CERTAIN MILITARY EXERCISES WHILE NOT REQUIRED TO WORK ON THAT DAY. BUT IF HIS MILITARY DUTIES REQUIRED HIM TO BE ABSENT FROM HIS CIVILIAN EMPLOYMENT FROM WEDNESDAY THROUGH THE SECOND FOLLOWING WEDNESDAY, INCLUSIVE, HE WOULD BE CHARGED WITH FIFTEEN DAYS' MILITARY LEAVE, ON A CALENDAR DAY BASIS, NOTWITHSTANDING THAT SATURDAYS AND SUNDAYS FALLING WITHIN SUCH PERIOD WERE SO-CALLED NON-WORKDAYS. LIKEWISE, SATURDAY AND SUNDAY BEING NON-WORKDAYS, AN EMPLOYEE ABSENT MONDAY ON MILITARY LEAVE OR ABSENT ON FRIDAY BUT RETURNING TO WORK ON MONDAY WOULD BE CHARGED ONLY ONE DAY NOTWITHSTANDING THAT HE MAY ALSO HAVE HAD MILITARY TRAINING ON THE NON-WORKDAYS SATURDAY AND SUNDAY, BUT IF ABSENT FRIDAY THROUGH MONDAY HE WOULD BE CHARGED FOUR DAYS SINCE THE NON- WORKDAYS FELL WHOLLY WITHIN THE PERIOD OF ABSENCE. THAT APPLICATION OF THE STATUTE IS IN CONSONANCE WITH THE LONG FOLLOWED ADMINISTRATIVE PRACTICE OF CHARGING SICK LEAVE BEFORE THE SICK LEAVE STATUTE WAS CHANGED TO EXPRESSLY EXCLUDE NON-WORKDAYS. QUESTION NO. 2 IS ANSWERED ACCORDINGLY.