B-7999, FEBRUARY 1, 1940, 19 COMP. GEN. 687

B-7999, FEBRUARY 1, 1940, 19 COMP. GEN. 687

LEAVES OF ABSENCE - MILITARY - NATIONAL GUARD - EXTENT OF MILITARY LEAVE WHICH MAY BE AUTHORIZED SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 203, ALLOWS MILITARY LEAVE WITH PAY TO CIVILIAN OFFICERS AND EMPLOYEES WHO ARE MEMBERS OF THE NATIONAL GUARD ON "ALL DAYS DURING WHICH THEY SHALL BE ENGAGED IN FIELD OR COAST-DEFENSE TRAINING ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF THIS ACT," AND THERE IS NO LIMIT ON THE NUMBER OF DAYS OF SUCH LEAVE WHICH MAY BE GRANTED FOR THE SPECIFIED PURPOSES. STATUTES AUTHORIZING MILITARY LEAVE FOR CIVILIAN OFFICERS AND EMPLOYEES ORDERED TO ACTIVE DUTY AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY, OR AS MEMBERS OF THE NAVAL RESERVE, AND LIMITING SUCH LEAVE TO 15 DAYS IN ANY 1 CALENDAR YEAR, DISTINGUISHED. THERE IS NO LIMIT ON THE NUMBER OF DAYS MILITARY LEAVE WITH PAY WHICH MAY BE GRANTED CIVILIAN OFFICERS AND EMPLOYEES WHO ARE MEMBERS OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA WHEN ORDERED TO ACTIVE DUTY OF THE KIND FOR WHICH SUCH LEAVE IS AUTHORIZED UNDER THE ACT OF MARCH 1, 1899, AS AMENDED (APPLICABLE EXCLUSIVELY TO DISTRICT OF COLUMBIA NATIONAL GUARD), OR WHEN ORDERED TO ENGAGE IN THE "FIELD OR COAST-DEFENSE TRAINING" SPECIFIED UNDER SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 203 (APPLICABLE TO THE NATIONAL GUARD THROUGHOUT THE COUNTRY).

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, FEBRUARY 1, 1940:

I HAVE YOUR LETTER OF JANUARY 9, 1940, AS FOLLOWS:

SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916 (39 STAT. 203; 32 U.S.C. SEC. 75) PROVIDES THAT:

"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.'

SAID SECTION DOES NOT PRESCRIBE IN TERMS THE NUMBER OF DAYS LEAVE THAT MAY BE GRANTED. IN A DECISION OF JULY 17, 1924 (4 COMP. GEN. 65), THE HOLDING THAT ATTENDANCE AT RIFLE MATCHES BY MEMBERS OF THE NATIONAL GUARD DID NOT CONSTITUTE FIELD OR COAST-DEFENSE TRAINING WITHIN THE MEANING OF SAID SECTION 80, SUPRA, WAS BASED ON THE PROVISIONS OF SECTION 92 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, REQUIRING THE PARTICIPATION OF NATIONAL GUARD UNITS IN ENCAMPMENTS, MANEUVERS, OR OTHER EXERCISES, INCLUDING OUTDOOR TARGET PRACTICE, AT LEAST 15 DAYS TRAINING IN EACH YEAR, AND OF SECTION 94 PROVIDING FOR ENCAMPMENTS, ETC., FOR FIELD OR COAST- DEFENSE INSTRUCTION.

IN CONSIDERING THE EFFECT OF CERTAIN SECTIONS OF THE NAVAL RESERVE ACT THEN IN FORCE, GRANTING LEAVE TO OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NAVAL RESERVE, WHILE ENGAGED UNDER ORDERS ON TRAINING DUTY "FOR PERIODS NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR," THE COMPTROLLER GENERAL IN DECISION OF AUGUST 8, 1935 (15 COMP. GEN. 110), QUOTED EXTRACTS FROM A SENATE REPORT AND THE CONGRESSIONAL RECORD, INDICATING THE INTENTION OF THE CONGRESS TO PLACE NAVAL RESERVISTS WHO ARE GOVERNMENT EMPLOYEES ON A PARITY, SO FAR AS CONCERNED THE GRANTING OF MILITARY LEAVE, WITH THE NATIONAL GUARD.

THE NAVAL RESERVE ACT REFERRED TO IN SAID DECISION PLACED A MAXIMUM LIMIT OF 15 DAYS LEAVE FOR TRAINING DUTY IN ANY ONE CALENDAR YEAR, WHILE SUCH A LIMITATION IS NOT FOUND IN SPECIFIC TERMS IN THE PROVISIONS OF THE ACT, GRANTING LEAVE TO LIKE EMPLOYEES WHO ARE MEMBERS OF THE NATIONAL GUARD.

IN ORDER THAT THE NAVY DEPARTMENT MAY BE IN A POSITION TO DETERMINE THE EXTENT OF THE LEAVE THAT MAY BE GRANTED IN SUCH CASES, DECISION IS REQUESTED AS TO WHETHER CIVILIAN EMPLOYEES OF THE NAVY DEPARTMENT AND ITS FIELD SERVICES WHO ARE MEMBERS OF THE NATIONAL GUARD ARE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING IN EXCESS OF 15 DAYS IN ANY ONE CALENDAR YEAR, WHEN ENGAGED IN FIELD OR COAST-DEFENSE TRAINING ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916 ABOVE QUOTED, AND IF SO, THE LIMITATION, IF ANY, ON THE NUMBER OF DAYS TO WHICH SUCH EMPLOYEES ARE ENTITLED TO LEAVE FOR THE PURPOSES AND UNDER THE PROVISIONS OF SAID SECTION.

DECISIONS OF THE COMPTROLLER GENERAL OF JULY 3, 1922 (2 COMP. GEN. 1), MARCH 26, 1927 (6 COMP. GEN. 635), AND JANUARY 18, 1936 (15 COMP. GEN. 633), HOLD THAT GOVERNMENT EMPLOYEES WHO ARE MEMBERS OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA ARE ENTITLED TO LEAVE IN ADDITION TO THAT PROVIDED BY SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, WITHOUT LOSS OF TIME OR PAY WHILE PROPERLY IN THE PERFORMANCE OF SUCH NATIONAL GUARD DUTIES AS ARE INDICATED IN THE ACT OF MARCH 1, 1889 (25 STAT. 779), AS AMENDED BY THE ACTS OF JULY 1, 1902 (32 STAT. 605), AND FEBRUARY 18, 1909 (35 STAT. 634). IT IS ASSUMED FROM SAID DECISIONS THAT, AS THERE IS NO LIMITATION IMPOSED IN THE LAST CITED ACTS ON THE EXTENT OF MILITARY LEAVE THAT MAY BE GRANTED, THE EMPLOYEES CONCERNED ARE ENTITLED TO SUCH NUMBER OF DAYS AS THEY ARE ACTUALLY ENGAGED IN THE PERFORMANCE OF THE NATIONAL GUARD DUTIES CONTEMPLATED BY SAID ACTS. CONFIRMATION OF THIS UNDERSTANDING, IF CORRECT, IS REQUESTED.

SECTION 52 (FORMERLY SECTION 49) OF THE ACT OF MARCH 1, 1889, 25 STAT. 779, AS AMENDED BY THE ACT OF FEBRUARY 18, 1909, 35 STAT. 634, PROVIDES:

THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NATIONAL GUARD SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY OR TIME, ON ALL DAYS OF ANY PARADE OR ENCAMPMENT ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF THIS ACT.

THE ACT OF JULY 1, 1902, 32 STAT. 614, UNDER THE CAPTION," MILITIA OF THE DISTRICT OF COLUMBIA," PROVIDES AT PAGE 615:

* * * THAT SECTION FORTY-NINE OF "AN ACT TO PROVIDE FOR THE ORGANIZATION OF THE MILITIA OF THE DISTRICT OF COLUMBIA," APPROVED MARCH FIRST, EIGHTEEN HUNDRED AND EIGHTY-NINE, SHALL BE CONSTRUED AS COVERING ALL DAYS OF SERVICE WHICH THE NATIONAL GUARD, OR ANY PORTION THEREOF, MAY BE ORDERED TO PERFORM BY THE COMMANDING GENERAL. SEE TITLE 20, SECTION 1493, CODE OF THE DISTRICT OF COLUMBIA.

SAID QUOTED STATUTES ARE APPLICABLE EXCLUSIVELY TO THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA. SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 203, QUOTED IN YOUR LETTER, IS APPLICABLE GENERALLY TO THE NATIONAL GUARD THROUGHOUT THE COUNTRY, INCLUDING THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA. ALL OF THESE REFERRED-TO STATUTES ARE STILL IN FORCE.

THE PROVISIONS OF SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, CLEARLY ALLOW MILITARY LEAVE OF ABSENCE WITH PAY TO CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO ARE MEMBERS OF THE NATIONAL GUARD ON "ALL DAYS DURING WHICH THEY SHALL BE ENGAGED IN FIELD OR COAST-DEFENSE TRAINING ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF THIS ACT.' ITALICS SUPPLIED.) UNLIKE THE STATUTES GRANTING MILITARY LEAVE OF ABSENCE WITH PAY TO CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO ARE ORDERED TO ACTIVE DUTY AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY (ACT OF MAY 12, 1917, 40 STAT. 72), OR AS MEMBERS OF THE NAVAL RESERVE (SEC. 9 OF THE ACT OF JUNE 25, 1938, 52 STAT. 1177), THE QUOTED STATUTES (39 STAT. 203; 35 STAT. 634; 32 STAT. 615) DO NOT LIMIT THE GRANTING OF MILITARY LEAVE OF ABSENCE WITH PAY TO 15 DAYS IN ANY CALENDAR YEAR TO CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO ARE ORDERED TO ACTIVE MILITARY DUTY AS MEMBERS OF THE NATIONAL GUARD FOR THE PURPOSES STATED IN THE STATUTES. THE DECISION OF AUGUST 8, 1935, 15 COMP. GEN. 110, TO WHICH YOU REFER, WAS NOT INTENDED TO, AND DOES NOT, HOLD THAT MILITARY LEAVE OF ABSENCE UNDER THE NATIONAL GUARD STATUTES IS LIMITED TO 15 DAYS IN ANY CALENDAR YEAR.

ANSWERING THE QUESTION PRESENTED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER, YOU ARE ADVISED THAT CIVILIAN EMPLOYEES OF THE NAVY DEPARTMENT AND ITS FIELD SERVICES WHO ARE MEMBERS OF THE NATIONAL GUARD ARE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES WITHOUT LOSS OF PAY, TIME OR EFFICIENCY RATING, WHILE "ENGAGED IN FIELD OR COAST-DEFENSE TRAINING ORDERED OR AUTHORIZED" UNDER THE PROVISIONS OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AND THAT THERE IS NO LIMIT FIXED UPON THE NUMBER OF DAYS TO WHICH THE EMPLOYEES ARE ENTITLED TO SUCH LEAVE FOR THE PURPOSES INDICATED, NAMELY, WHILE "ENGAGED IN FIELD OR COAST-DEFENSE TRAINING ORDERED OR AUTHORIZED UNDER THE PROVISIONS" OF THE NATIONAL DEFENSE ACT OF 1916. SEE 1 COMP. GEN. 256; 4 ID. 65; 9 ID. 48; 15 ID. 633, 636; 16 ID. 953.

CONSIDERATION WILL NOW BE GIVEN THE MATTER SET FORTH IN THE CONCLUDING PARAGRAPH OF YOUR LETTER. IN DECISION OF JULY 3, 1922, 2 COMP. GEN. 1, CITED BY YOU, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

POST OFFICE DEPARTMENT EMPLOYEES WHO ARE MEMBERS OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA MAY BE GRANTED LEAVE OF ABSENCE, WITHOUT LOSS OF PAY OR TIME, TO PARTICIPATE IN PARADES OR ENCAMPMENTS, OR ON ALL DAYS OF SERVICE ORDERED BY THE COMMANDING GENERAL, AS AUTHORIZED BY THE ACT OF MARCH 1, 1889, 25 STAT. 779, AS AMENDED BY THE ACTS OF JULY 1, 1902, 32 STAT. 615, AND FEB. 18, 1909, 35 STAT. 634, AS WELL AS FOR FIELD OR COAST- DEFENSE TRAINING AUTHORIZED FOR ALL THE NATIONAL GUARD BY ACT OF JUNE 3, 1916, 39 STAT. 203.

THE RULE STATED IN THAT DECISION WAS QUALIFIED BY THE DECISION OF MARCH 26, 1927, 6 COMP. GEN. 635, ALSO CITED BY YOU. THE LATTER DECISION WAS ADHERED TO IN DECISION OF MAY 5, 1927, A-17476, WHEREIN IT WAS STATED, IN PERTINENT PART, AS FOLLOWS:

THAT TARGET PRACTICE IN THE DISTRICT OF COLUMBIA, PROPERLY AUTHORIZED OR ORDERED, IS A MILITARY DUTY WITHIN THE MEANING OF THE ACT OF MARCH 1, 1889, AS AMENDED, HAS NOT BEEN QUESTIONED. THE FACT THAT THE SITE OF THE TARGET RANGE FOR THE USE OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA HAS BEEN CHANGED TO ANOTHER LOCATION IN THE DISTRICT OF COLUMBIA IS IMMATERIAL.

THE WORDS "OR OTHER DUTIES, AS HE MAY DEEM PROPER" IN SAID SECTION 41 OR 44 SHOULD BE CONSTRUED IN CONNECTION WITH THE DUTIES SPECIFICALLY ENUMERATED THEREIN, AND AS SO CONSTRUED REFERS TO DUTIES OF A SIMILAR CHARACTER. THE DUTIES SPECIFICALLY ENUMERATED,"DRILLS, INSPECTIONS, PARADES, ESCORT," ARE DUTIES WHICH THE LAW CONTEMPLATES SHALL BE PERFORMED IN THE DISTRICT OF COLUMBIA, AND LIKEWISE THE "OTHER DUTIES" WHICH MAY BE PRESCRIBED. IF THE DUTIES SPECIFIED OR IMPLIED IN THE ACT OF MARCH 1, 1889, AS AMENDED, MAY BE PERFORMED IN NEW JERSEY UNDER ORDERS OF THE COMMANDING GENERAL, THERE IS APPARENTLY NO REASON WHY THEY MIGHT NOT BE PERFORMED IN CALIFORNIA OR SOME OTHER DISTANT PLACE IF HE SHOULD SO ORDER.

IT IS APPARENT THAT SAID ACT OF MARCH 1, 1889, AS AMENDED, DID NOT INTEND TO CONFER ON THE COMMANDING GENERAL THE AUTHORITY CLAIMED.

THERE IS NO REASON TO CHANGE OR MODIFY THE DECISION OF MARCH 26, 1927, AND IT IS THEREFORE ADHERED TO. SEE, ALSO, 8 COMP. GEN. 210.

THE THIRD DECISION OF THIS OFFICE CITED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, NAMELY, THE DECISION DATED JANUARY 18, 1936, 15 COMP. GEN. 633, HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

A FEDERAL EMPLOYEE MEMBER OF THE DISTRICT OF COLUMBIA NATIONAL GUARD WHO IS ORDERED TO ATTEND A MILITARY SERVICE SCHOOL UNDER SECTION 99 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 207, IS NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY.

IN VIEW OF THE FOREGOING I HAVE TO ADVISE THAT YOUR UNDERSTANDING AS EXPRESSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS CONFIRMED SUBJECT TO THE QUALIFICATION THAT THE "DUTIES CONTEMPLATED BY SAID ACTS" (QUOTING FROM YOUR LETTER) ARE LIMITED TO ACTIVE MILITARY DUTY TO WHICH MEMBERS OF THE DISTRICT OF COLUMBIA NATIONAL GUARD CLEARLY MAY BE ORDERED TO PERFORM IN THE DISTRICT OF COLUMBIA BY THE COMMANDING GENERAL UNDER THE ACT OF MARCH 1, 1889, AS AMENDED, OR ACTIVE MILITARY DUTY WHEN ,ENGAGED IN FIELD OR COAST-DEFENSE TRAINING ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF THIS TITLE," PURSUANT TO SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, SUPRA. ..END :