B-68893, DECEMBER 31, 1947, 27 COMP. GEN. 353

B-68893, DECEMBER 31, 1947, 27 COMP. GEN. 353

LEAVES OF ABSENCE - MILITARY - EXCESS LEAVE, LEAVE ON SIXTH DAY OF WORKWEEK, ETC. AN EMPLOYEE RECEIVING CIVILIAN COMPENSATION EXCEEDING $2,000 PER ANNUM WHO, PRIOR TO THE ACT OF JULY 1, 1947, PERMITTING THE CONCURRENT RECEIPT OF CIVILIAN COMPENSATION AND PAY AND ALLOWANCES AS A MEMBER OF THE OFFICERS' RESERVE CORPS, WAS GRANTED MILITARY LEAVE IN EXCESS OF THE 15 CALENDAR DAYS ALLOWED BY THE ACT OF MAY 12, 1917, MAY HAVE SUCH EXCESS LEAVE CONVERTED TO ANNUAL LEAVE AND RETAIN HIS CIVILIAN COMPENSATION, PROVIDED MILITARY PAY AND ALLOWANCES WERE NOT RECEIVED FOR SUCH DAYS; BUT, IF SUCH PAY AND ALLOWANCES WERE RECEIVED FOR SUCH DAYS, THE DUAL COMPENSATION RESTRICTIONS WOULD PRECLUDE THE PAYMENT OF CIVILIAN COMPENSATION THEREFOR, AND WOULD REQUIRE THAT SUCH DAYS BE CONVERTED TO LEAVE WITHOUT PAY. MILITARY LEAVE OF ABSENCE WITH PAY AUTHORIZED BY THE ACT OF MAY 12, 1917, AS AMENDED BY THE ACT OF JULY 1, 1947, MAY BE TAKEN INTERMITTENTLY, A DAY AT A TIME, OR AS OTHERWISE DIRECTED UNDER ORDERS ISSUED BY COMPETENT MILITARY AUTHORITY. A CIVILIAN EMPLOYEE REGULARLY SCHEDULED TO WORK SIX 8-HOUR DAYS PER WEEK IS ENTITLED UNDER THE ACT OF MAY 12, 1917, AS AMENDED, GRANTING TO MEMBERS OF THE OFFICERS' RESERVE CORPS MILITARY LEAVE OF ABSENCE WITHOUT LOSS OF PAY, TO RECEIVE OTHERWISE PROPER OVERTIME COMPENSATION FOR THE SIXTH DAY OF THE WEEK ON WHICH HE WAS ABSENT ON MILITARY LEAVE AS A MEMBER OF THE OFFICERS' RESERVE CORPS.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, DECEMBER 31, 1947:

IN COMPLIANCE WITH OFFICE LETTERS PF AUGUST 28 AND NOVEMBER 7, 1947, THERE WERE FORWARDED HERE UNDER YOUR DEPARTMENT'S LETTER OF DECEMBER 1, 1947, PHOTOSTATIC COPY OF ACTIVE DUTY TRAINING ORDERS ISSUED TO CHARLES B. EDWARDS, FIRST LIEUTENANT, OFFICERS' RESERVE CORPS (AN EMPLOYEE OF THE FEDERAL BUREAU OF INVESTIGATION), AND A COPY OF HIS " INDIVIDUAL FLIGHT RECORD" COVERING AERIAL FLIGHTS PERFORMED DURING THE PERIOD JANUARY 3 TO SEPTEMBER 26, 1947, FOR USE IN CONNECTION WITH YOUR REQUEST OF AUGUST 14, 1947, FOR A DECISION UPON CERTAIN MATTERS DISCUSSED THEREIN AS FOLLOWS:

THE FOLLOWING IS QUOTED FROM A MEMORANDUM DEALING WITH MILITARY LEAVE FOR A CLERK IN THE FEDERAL BUREAU OF INVESTIGATION:

" FEDERAL BUREAU OF INVESTIGATION CLERK CHARLES B. EDWARDS IS A MEMBER OF THE OFFICERS' RESERVE CORPS. HE IS EMPLOYED AS A NIGHT CLERK AT $2,168.28 PER ANNUM. HE WAS ORDERED TO TAKE ACTIVE TRAINING ON THE FOLLOWING OCCASIONS: JANUARY 3, 1947, 1 DAY MILITARY LEAVE; JANUARY 10, 1947, 1 DAY MILITARY LEAVE; FEBRUARY 17, 1947, 3 HOURS MILITARY LEAVE; FEBRUARY 28, 1947, 3 HOURS MILITARY LEAVE; MARCH 19, 1947, 1 DAY MILITARY LEAVE; APRIL 2, 1947, 1 HOUR MILITARY LEAVE; APRIL 14, 1947, 1 HOUR MILITARY LEAVE; AND JUNE 1 THROUGH JUNE 15, 1947, 15 DAYS MILITARY LEAVE.

"COUNTING THE ABOVE PERIODS AS REPORTED, EDWARDS HAS TAKEN 19 CALENDAR DAYS OF MILITARY LEAVE, WHICH IS 4 DAYS OVER THE LIMIT OF 15 DAYS OF MILITARY LEAVE PERMITTED PER CALENDAR YEAR.

"HE RECEIVES COMPENSATION FROM THE BUREAU OVER THE $2000 CEILING AND THEREFORE ANY TIME OVER 15 CALENDAR DAYS MUST BE LEAVE WITHOUT PAY. FOR LEAVE PURPOSES, ANY DEBT IS COMPUTED BY FIGURING THE TIME BACKWARDS FROM THE LAST DAY OF OVERDRAWN LEAVE. THEREFORE, TAKING THE FIGURE 19 DAYS AND COUNTING BACK FROM JUNE 15, HIS LAST DAY OF MILITARY TRAINING, THE 4 DAYS OVER THE 15 ALLOWABLE WOULD BE JUNE 12 THROUGH JUNE 15, 1947. THIS PERIOD OF CALENDAR DAYS INCLUDES SATURDAY JUNE 14, 1947 AND SUNDAY JUNE 15, FOR WHICH HE DID NOT RECEIVE PAY FROM THIS BUREAU, SINCE OVERTIME PAY WAS DEDUCTED FOR SATURDAY JUNE 14, AS HE WAS NOT PRESENT FOR DUTY, AND SUNDAY WAS A NON-WORK DAY. IT SHOULD ALSO BE POINTED OUT THAT HE DID NOT RECEIVE PAY FROM THE BUREAU FOR SUNDAY JUNE 1, SATURDAY JUNE 7, AND SUNDAY, JUNE 8, ALTHOUGH THOSE 3 DAYS WERE COUNTED IN THE 19 CALENDAR DAYS. ALSO, IT IS VERY POSSIBLE THAT EMPLOYEES WILL BE ORDERED FOR TRAINING ON SATURDAY AND SUNDAY AND THE BUREAU WILL HAVE NO KNOWLEDGE OF SAME. SUCH EMPLOYEES WOULD NOT BE CHARGED WITH MILITARY LEAVE FOR THOSE DAYS.

"THE COMPTROLLER GENERAL'S DECISION DATED APRIL 9, (10) 1930, (A 31168) (A-31224, 9 COMP. GEN. 448) STATES THAT MEMBERS OF THE OFFICERS' RESERVE CORPS ARE TO BE GRANTED LEAVE OF ABSENCE FOR ALL DAYS DURING WHICH THE EMPLOYEE IS ORDERED TO RESERVE TRAINING DUTY, NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING. ALSO STATES THAT SUNDAYS AND HOLIDAYS OCCURRING WITHIN THE PERIOD OF ABSENCE SHOULD BE INCLUDED.

"IT IS NOTED AT THE TIME OF THE ABOVE DECISION GOVERNMENT EMPLOYEES WERE PAID ON A 30-DAY BASIS, RATHER THAN ON A 40-HOUR WEEK. ALSO, THE RATE OF PAY NOW PLACES THE MAJORITY OF EMPLOYEES ABOVE THE $2000PER ANNUM NECESSITATING LEAVE WITHOUT PAY FOR PERIODS OVER 15 CALENDAR DAYS. VIEW OF THIS, THERE APPEARS TO BE A QUESTION AS TO WHETHER DAYS OF MILITARY TRAINING WHICH FALL ON NON-WORK DAYS ( SATURDAY AND SUNDAYS) SHOULD BE COUNTED UNDER SUCH CIRCUMSTANCES.'

AMONG THE QUESTIONS PRESENTED IN THIS SITUATION ARE:

1. MAY MILITARY LEAVE BE TAKEN INTERMITTENTLY, A DAY AT A TIME, AT INTERVALS AS INDICATED IN THIS CASE?

2. IS AN EMPLOYEE ENTITLED TO OVERTIME IF HE NORMALLY WOULD HAVE WORKED A REGULAR SCHEDULE IN EXCESS OF 40 HOURS, EXCEPT FOR THE FACT THAT HE WAS ORDERED TO MILITARY TRAINING?

3. IS THE RULE IN THE CITED DECISION STILL IN EFFECT, THAT IS, MILITARY LEAVE IS COMPUTED ON A CALENDAR DAY BASIS AND THE COMPENSATION OTHERWISE PAYABLE TO THE EMPLOYEE WITHIN THE ALLOWABLE 15 DAYS SHALL CONTINUE TO BE PAID HIM WHEN ORDERED ON MILITARY DUTY FOR TRAINING PURPOSES?

ANY OTHER COMMENTS OR SUGGESTIONS ON THE PROBLEM PRESENTED IN THE CASE OF MR. EDWARDS WILL BE APPRECIATED.

THE MILITARY LEAVE LAW IN EFFECT PRIOR TO JULY 1, 1947--- THE PERIOD PRIMARILY INVOLVED HERE--- IS CONTAINED IN 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), 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 SHALL, 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 PROVISIONS OF THE 1917 ACT SO AS TO INCLUDE MEMBERS OF THE ENLISTED RESERVE CORPS. SECTION 1 (B) OF THE SAID ACT, 61 STAT. 239, AMENDED THE 1917 ACT BY PROVIDING INTER ALIA THAT NO EXISTING LAW SHALL PREVENT ANY MEMBER OF THE OFFICERS' RESERVE CORPS OR ENLISTED RESERVE CORPS FROM RECEIVING THE PAY INCIDENT TO HIS EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE "IN ADDITION TO" ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE LAWS RELATING TO THE OFFICERS' RESERVE CORPS.

BEFORE CONSIDERING THE SPECIFIC QUESTIONS IN OUR LETTER, IT MAY BE APPROPRIATE TO DISCUSS BRIEFLY CERTAIN POINTS WHICH ARE INDIRECTLY PRESENTED IN THE FIRST THREE PARAGRAPHS OF THE MEMORANDUM QUOTED IN YOUR LETTER, CONCERNING THE GRANTING OF MORE THAN 15 DAYS' MILITARY LEAVE DURING THE PERIOD JANUARY 3 TO JUNE 15, 1947, AND THE POSSIBLE VIOLATION OF DUAL COMPENSATION STATUTES.

WHILE IT IS STATED THAT MR. EDWARDS "HAS TAKEN 19 CALENDAR DAYS OF MILITARY LEAVE" DURING THE PERIOD JANUARY 3 THROUGH JUNE 15, 1947, THE ONLY PERIOD IN WHICH IT APPEARS THAT HE WAS "ORDERED TO DUTY" WITH TROOPS OR AT FIELD EXERCISES OR FOR TRAINING, IS THE PERIOD COVERED BY SPECIAL ORDERS NO. 80, HEADQUARTERS FOURTH AIR FORCE, HAMILTON FIELD, CALIFORNIA, DATED MAY 28, 1947, WHICH DIRECTED CERTAIN AIR CORPS RESERVE OFFICERS--- INCLUDING FIRST LIEUTENANT CHARLES B. EDWARDS--- TO ACTIVE DUTY FOR TRAINING FOR A PERIOD OF 15 DAYS FROM JUNE 1 TO 15, 1947. IT IS APPARENT, AS SUGGESTED IN THE MEMORANDUM, THAT SINCE THE STATUTE LIMITS THE MILITARY LEAVE OF ABSENCE WHICH MAY BE GRANTED MEMBERS OF THE OFFICERS' RESERVE CORPS TO "PERIODS NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR," MR. EDWARDS LEGALLY COULD NOT HAVE BEEN GRANTED MILITARY LEAVE, AS SUCH, IN EXCESS OF 15 DAYS DURING THE CALENDAR YEAR 1947. CONSEQUENTLY, UPON THE BASIS OF THE PRESENT RECORD, IT MUST BE CONCLUDED THAT MR. EDWARDS WAS "ORDERED TO DUTY" DURING THE PERIOD JUNE 1 TO 15, 1947, AND, HENCE, ENTITLED TO MILITARY LEAVE OF ABSENCE WITHOUT LOSS OF PAY DURING THAT PERIOD ONLY. IT FOLLOWS, OF COURSE, THAT THE FOUR DAYS' ABSENCE DURING THE PERIOD JANUARY 3, TO APRIL 14, 1947, MAY NOT BE CONSIDERED MILITARY LEAVE OF ABSENCE. SUCH CONCLUSION NATURALLY RAISES THE QUESTION AS TO THE EMPLOYEE'S LEAVE AND PAY STATUS ON THE FOUR DAYS THAT HE WAS CARRIED AS ABSENT ON MILITARY LEAVE. WHILE IT IS NOT STATED WHETHER MR. EDWARDS RECEIVED MILITARY PAY AND ALLOWANCES FOR THE DAYS HE WAS ABSENT ON MILITARY LEAVE PRIOR TO JUNE 1, 1947, IT MAY BE STATED THAT IF THE EMPLOYEE RECEIVED NO PAY AND ALLOWANCES AS A MEMBER OF THE OFFICERS' RESERVE CORPS ON SUCH DAYS THERE WOULD BE NO OBJECTION TO CORRECTING HIS LEAVE RECORD AT THE TIME TO SHOW SUCH ABSENCE AS ANNUAL LEAVE INSTEAD OF MILITARY LEAVE, AND, IN SUCH EVENT, HE WOULD BE ENTITLED TO RETAIN THE COMPENSATION OF HIS CIVILIAN POSITION. HOWEVER, SINCE THE PERIOD HERE INVOLVED IS PRIOR TO THE ACT OF JULY 1, 1947, AND AS THE EMPLOYEE'S CIVILIAN COMPENSATION IS AT A RATE IN EXCESS OF $2,000 PER ANNUM, IF HE RECEIVED MILITARY PAY AND ALLOWANCES FOR THOSE DAYS, IN ADDITION TO THE COMPENSATION OF HIS CIVILIAN POSITION, SUCH DUAL PAYMENT WOULD, AS SUGGESTED IN YOUR MEMORANDUM, VIOLATE THE DUAL COMPENSATION STATUTES AND HE WOULD NOT BE ENTITLED TO COMPENSATION AS A CIVILIAN EMPLOYEE ON THOSE DAYS. 16 COMP. GEN. 1103. ALSO, IN SUCH EVENT, THE ABSENCE ON THOSE DAYS WOULD BE CHARGED AS LEAVE WITHOUT PAY. CF. SECTION 1 (B) OF THE ACT OF JULY 1, 1947, AND DECISION TO THE SECRETARY OF THE ARMY DATED OCTOBER 27, 1947, B-68095, 27 COMP. GEN. 245, QUESTION AND ANSWER NO. 4.

WITH RESPECT TO THE FIRST QUESTION PRESENTED, AS TO WHETHER MILITARY LEAVE MAY BE TAKEN INTERMITTENTLY A DAY AT A TIME, IT APPEARS TO HAVE BEEN RECOGNIZED IN THE SAID DECISION OF OCTOBER 27, 1947 (QUESTION NO. 2), THAT THE ACT OF MAY 12, 1917, AS AMENDED, PERMITS MILITARY LEAVE TO BE TAKEN INTERMITTENTLY, A DAY AT A TIME, OR AS OTHERWISE DIRECTED UNDER ORDERS ISSUED BY COMPETENT MILITARY AUTHORITY. ACCORDINGLY, QUESTION NO. 1 IS ANSWERED IN THE AFFIRMATIVE.

IN DECISION OF MAY 30, 1944, 23 COMP. GEN. 904, THERE WAS CONSIDERED THE QUESTION WHETHER AN HOURLY EMPLOYEE OF THE WAR DEPARTMENT WHO WAS REQUIRED TO WORK REGULARLY SIX 8-HOUR DAYS PER WEEK, AND WHO WAS CALLED FOR JURY DUTY ON THE SIXTH WORK DAY, WAS ENTITLED TO OTHERWISE PROPER OVERTIME COMPENSATION FOR THE SIXTH DAY UNDER THE ACT OF JUNE 29, 1940, 54 STAT. 689, PROVIDING THAT THE COMPENSATION OF AN EMPLOYEE OF THE GOVERNMENT CALLED FOR JURY SERVICE "SHALL NOT BE DIMINISHED" BY REASON OF SUCH ABSENCE, EXCEPT AS OTHERWISE PROVIDED THEREIN, NOR SHALL THE PERIOD OF SUCH ABSENCE BE DEDUCTED FROM THE TIME ALLOWED FOR ANY LEAVE OF ABSENCE AUTHORIZED BY LAW. THE ACT OF MAY 12, 1917, SUPRA, ENTITLES EMPLOYEES OF THE GOVERNMENT TO LEAVE ABSENCE "WITHOUT LOSS OF PAY" FOR ALL DAYS THEY ARE ORDERED TO DUTY WITH TROOPS, ETC., NOT IN EXCESS OF 15 DAYS EACH CALENDAR YEAR. WHILE THE ABSENCE IN ONE CASE IS CHARGED TO "COURT LEAVE" (SEE SECTION 30.24 OF THE CURRENT REGULATIONS RELATING TO ANNUAL AND SICK LEAVE OF GOVERNMENT EMPLOYEES), AND IN THE OTHER CASE TO ,MILITARY LEAVE" (SEE B-68195, OCTOBER 27, 1947), THE PURPOSE SOUGHT TO BE ACCOMPLISHED UNDER BOTH ACTS IS IDENTICAL IN THAT IT WAS INTENDED THAT SUCH EMPLOYEES SHOULD RECEIVE THE SAME COMPENSATION THEY OTHERWISE WOULD HAVE RECEIVED BUT FOR THE FACT THAT THEY WERE ABSENT ON MILITARY OR COURT LEAVE. HENCE, ASSUMING THAT MR. EDWARDS WAS REGULARLY SCHEDULED TO WORK SIX 8-HOUR DAYS PER WEEK DURING THE PERIOD JUNE 1 TO 15, 1947, HE WOULD BE ENTITLED TO OTHERWISE PROPER OVERTIME COMPENSATION FOR THE SIXTH DAY (IN THIS CASE SATURDAY, JUNE 7 AND 14, 1947), ALTHOUGH HE WAS ABSENT ON MILITARY LEAVE ON THOSE DAYS. ACCORDINGLY, QUESTION NO. 2 IS ANSWERED IN THE AFFIRMATIVE. WHILE QUESTION NO. 3 REFERS TO THE RULE SET FORTH IN DECISION OF APRIL 10, 1930 (A-31168), 9 COMP. GEN. 449, IT IS ASSUMED THAT IT WAS INTENDED TO REFER TO DECISION A-31224, 9 COMP. GEN. 448, PERTAINING TO THE INCLUSION OF SUNDAYS AND HOLIDAYS OCCURRING WITHIN A CONTINUOUS 15- DAY PERIOD OF MILITARY LEAVE. THAT DECISION WAS DISCUSSED IN DECISION OF OCTOBER 27, 1947, B-68195, AND IT WAS CONCLUDED THAT THE ACT OF JULY 1, 1947, MADE NO CHANGE IN THE PRIOR STATUTE WITH RESPECT TO INCLUDING AS A PART OF THE 15 DAYS' MILITARY LEAVE, SUNDAYS, HOLIDAYS AND OTHER NON WORKDAYS OCCURRING WITHIN THE PERIOD OF ABSENCE. IT WAS POINTED OUT IN THAT DECISION THAT THE RULE ENUNCIATED IN 9 COMP. GEN. 448,

* * * NEED NOT BE APPLIED AS REQUIRING THAT NON-WORKDAYS BE CHARGED TO MILITARY LEAVE WHERE THEY ARE NOT WHOLLY WITHIN A PERIOD OF ABSENCE ON 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.