B-147560, NOV. 22, 1961

B-147560, NOV. 22, 1961

TO THE SECRETARY OF THE ARMY:

ON NOVEMBER 7, 1961, THE UNDER SECRETARY OF THE ARMY REQUESTED OUR DECISION WHETHER MR. OTIS G. LEM, AN EMPLOYEE OF THE UNITED STATES ARMY ENGINEER DISTRICT, LITTLE ROCK, ARKANSAS, MAY BE GRANTED MILITARY LEAVE FOR HIS ABSENCE FROM HIS CIVILIAN POSITION FOR MILITARY TRAINING DUTY, AUGUST 1 THROUGH 12, 1960, OR WHETHER HE MUST BE CHARGED ANNUAL LEAVE FOR THAT ABSENCE BECAUSE THE MILITARY DUTY OCCURRED DURING A PERIOD WHEN HE WAS SERVING IN HIS CIVILIAN POSITION UNDER A TEMPORARY LIMITED APPOINTMENT.

MR. LEM WAS APPOINTED IN THE FEDERAL SERVICE ON OCTOBER 16, 1956, IN GRADE WB-3. THAT APPOINTMENT AND TWO SUBSEQUENT APPOINTMENTS AT HIGHER GRADES (WB-5 AND WB-7) WERE TEMPORARY APPOINTMENTS PENDING THE ESTABLISHMENT OF A REGISTER AND WERE OF INDEFINITE TENURE. SEE SECTION 2.302 (A), CIVIL SERVICE REGULATIONS. THE CIRCUMSTANCES UNDER WHICH MR. LEM RECEIVED A TEMPORARY LIMITED APPOINTMENT ARE RELATED AS FOLLOWS IN THE UNDER SECRETARY'S LETTER:

"IN JULY 1960, AN EMERGENCY AROSE IN CONNECTION WITH SUBSURFACE INVESTIGATIONS FOR PROPOSED MISSILE LAUNCHING SITES, AND IT WAS IMPERATIVE FOR THE DISTRICT ENGINEER TO AUGMENT THE STAFF OF CORE DRILL OPERATORS FOR A TEMPORARY PERIOD. MR. LEM WAS QUALIFIED AND AVAILABLE TO PERFORM THE HIGHER GRADE DUTIES BUT BECAUSE HE WAS SERVING UNDER TEMPORARY APPOINTMENT PENDING ESTABLISHMENT OF A REGISTER HE WAS NOT ELIGIBLE FOR PROMOTION UNDER REGULATIONS OF THE CIVIL SERVICE COMMISSION. CONSEQUENTLY, HIS TEMPORARY APPOINTMENT PENDING ESTABLISHMENT OF A REGISTER WAS TERMINATED BY THE INSTALLATION ON 10 JULY 1960, AND THE FOLLOWING DAY HE WAS GIVEN A NEW TEMPORARY JOB APPOINTMENT LIMITED TO A PERIOD NOT TO EXCEED 10 NOVEMBER 1960. THE TEMPORARY JOB APPOINTMENT IN GRADE W-11 CONTINUED UNTIL 30 OCTOBER 1960 ON WHICH DATE MR. LEM WAS GIVEN A CAREER-CONDITIONAL APPOINTMENT IN GRADE W-7.'

SECTION 29 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, AS AMENDED, 5 U.S.C. 30R, PROVIDES IN PERTINENT PART:

"/A) EACH RESERVE OF THE ARMED FORCES OR MEMBER OF THE NATIONAL GUARD WHO IS AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA, PERMANENT OR TEMPORARY INDEFINITE, WITHOUT REGARD TO CLASSIFICATION OR TERMINOLOGY PECULIAR TO THE CIVIL SERVICE SYSTEM (EXCEPT A SUBSTITUTE EMPLOYEE IN THE POSTAL FIELD SERVICE), IS ENTITLED TO LEAVE OF ABSENCE FROM HIS DUTIES, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING FOR EACH DAY, BUT NOT MORE THAN 15 DAYS IN ANY CALENDAR YEAR, IN WHICH HE IS ON ACTIVE DUTY, OR IS ENGAGED IN FIELD OR COAST DEFENSE TRAINING UNDER SECTIONS 502-505 OF TITLE 32. * * *"

THE LANGUAGE IN THE ABOVE CODIFIED PROVISION CONCERNING THE CLASS OF EMPLOYEES ENTITLED TO LEAVE BENEFITS THEREUNDER WAS DERIVED FROM THE ACT OF JULY 1, 1947, 61 STAT. 238, WHICH PROVIDED IN SECTION 4 AS FOLLOWS:

"THE WORDS "OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA" AS USED IN THE THIRD PARAGRAPH, SUBHEADING "ORDNANCE STORES AND EQUIPMENT FOR RESERVE OFFICERS' TRAINING CORPS," OF THE ACT OF MAY 12, 1917 (40 STAT. 72; 10 U.S.C. ANNOTATED 371), AS NOW OR HEREAFTER AMENDED, * * * SHALL BE CONSTRUED TO MEAN ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, PERMANENT OR TEMPORARY INDEFINITE, WITHOUT REGARD TO CLASSIFICATIONS OR TERMINOLOGY PECULIAR TO THE FEDERAL CIVIL SERVICE SYSTEM.'

THE PURPOSE OF THAT PROVISION IS STATED ON PAGE 3 OF HOUSE REPORT NO 483, 80TH CONGRESS TO ACCOMPANY H.R. 1845, WHICH BECAME THE ACT OF JULY 1, 1947, AS FOLLOWS:

"THE OBJECT IN INSERTING THE WORD "INDEFINITE" FOLLOWING THE WORD "TEMPORARY" IN THE THIRD LINE FROM THE BOTTOM OF SECTION 4, IS TO CLARIFY THE RIGHT TO MILITARY LEAVE OF 15 DAYS PER YEAR AND TO PRECLUDE THE EXTENSION OF THIS RIGHT TO PART-TIME EMPLOYEES. IT IS NOT INTENDED IN THIS LEGISLATION TO GIVE THE RIGHT OF MILITARY LEAVE TO PART-TIME OR INTERMITTENT EMPLOYEES WHOSE EMPLOYMENT IS LIMITED TO A BRIEF PERIOD OF TIME. IF THIS PROVISION WERE TO BE CONSTRUED TO GIVE PART-TIME AND INTERMITTENT EMPLOYEES A RIGHT TO A 15-DAY MILITARY LEAVE DURING THAT PERIOD OF PART-TIME EMPLOYMENT, THE APPROPRIATIONS AND FUNDS AVAILABLE FOR DOING THAT SMALL PIECE OF PART-TIME WORK WOULD NEVER BE ADEQUATE, AND IT IS NOT CONTEMPLATED BY EITHER THE WAR OR NAVY DEPARTMENT TO GIVE PART-TIME OR INTERMITTENT EMPLOYEES A RIGHT TO 15 DAYS' ANNUAL LEAVE WITH PAY. * *

SENATE REPORT NO. 327, 80TH CONGRESS, TO ACCOMPANY H.R. 1845 DISCUSSES THAT SECTION AT PAGE 2 AS FOLLOWS:

"THIS BILL CLARIFIES WHICH TYPE OF EMPLOYEES ARE ENTITLED TO MILITARY LEAVE. IN THE PAST, TEMPORARY INDEFINITE EMPLOYEES, WHO MIGHT WORK FOR MANY YEARS FOR THE GOVERNMENT, WERE NOT ENTITLED TO SUCH LEAVE. THIS BILL PERMITS PERMANENT AND TEMPORARY INDEFINITE EMPLOYEES TO RECEIVE MILITARY LEAVE. IT EXCLUDES, HOWEVER, THE PURELY TEMPORARY EMPLOYEES, WHO ARE THOSE EMPLOYED FOR A DEFINITE TOUR OF DUTY FOR PERIODS OF LESS THAN 1 YEAR, AND PART TIME OR INTERMITTENT EMPLOYEES.'

MR. LEM WOULD HAVE BEEN ENTITLED TO APPROPRIATE MILITARY LEAVE WHILE HE WAS EMPLOYED UNDER TEMPORARY INDEFINITE APPOINTMENTS FROM OCTOBER 16, 1956, TO JULY 10, 1960. HE WAS AGAIN ENTITLED TO ALLOWABLE MILITARY LEAVE AFTER HIS CAREER CONDITIONAL APPOINTMENT OF OCTOBER 30, 1960. ALTHOUGH HIS APPOINTMENT IN GOVERNMENT SERVICE FROM JULY 11 TO OCTOBER 30, 1960, WAS A TEMPORARY LIMITED APPOINTMENT, YET IN VIEW OF HIS CONTINUOUS SERVICE WITH THE GOVERNMENT AND IN VIEW OF THE PROVISION OF THE APPLICABLE LAW WHICH GRANTS MILITARY LEAVE TO PERMANENT OR TEMPORARY INDEFINITE EMPLOYEES "WITHOUT REGARD TO CLASSIFICATION OR TERMINOLOGY PECULIAR TO THE CIVIL SERVICE SYSTEM" WE DO NOT BELIEVE THAT MR. LEM LOST HIS RIGHT TO MILITARY LEAVE WHEN HE ACCEPTED A TEMPORARY LIMITED APPOINTMENT ON JULY 11, 1960.

THEREFORE, MR. LEM'S ABSENCE ON MILITARY DUTY BETWEEN AUGUST 1 AND 12, 1960, MAY BE CHARGED TO MILITARY LEAVE RATHER THAN ANNUAL LEAVE.