B-147862, JAN. 8, 1962

B-147862, JAN. 8, 1962

TO MRS. MARGARET Z. ESTES, U.S. GENERAL ACCOUNTING OFFICE:

YOUR LETTER OF DECEMBER 29, 1961, A-P-MZE, PRESENTS SEVERAL QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE CASE OF RONALD J. HOLTE, WHO TOOK THE OATH OF OFFICE AND ENTERED UPON DUTY IN THE FIELD OPERATIONS DIVISION, SAN FRANCISCO, CALIFORNIA, ON DECEMBER 11, 1961.

MR. HOLTE, AFTER WORKING THREE FULL DAYS (DECEMBER 11, 12, AND 13, 1961), WAS SEPARATED AT THE CLOSE OF BUSINESS ON THE 13TH APPARENTLY BECAUSE OF HIS RECALL TO ACTIVE DUTY IN THE ARMED FORCES. WE UNDERSTAND FROM THE INFORMATION TRANSMITTED WITH YOUR LETTER THAT MR. HOLTE ACTUALLY COMMENCED TRAVEL TO THE PLACE OF REPORTING FOR ACTIVE MILITARY DUTY ON DECEMBER 14, 1961.

WHILE A VOUCHER AUTHORIZING PAYMENT TO MR. HOLTE FOR THREE DAYS SALARY FOR SERVICES RENDERED ON DECEMBER 11, 12, AND 13 WAS CERTIFIED FOR PAYMENT, YOU ARE WITHHOLDING DELIVERY OF THE CHECK REPRESENTING SALARY FOR THOSE THREE DAYS PENDING OUR DETERMINATION OF HIS ENTITLEMENT THERETO. ALSO, YOU SAY THAT ON DECEMBER 27, 1961, THE PAYROLL, LEAVE AND RETIREMENT SECTION RECEIVED STANDARD FORM 52, REQUEST FOR PERSONNEL ACTION, PROPOSING SEPARATION-MILITARY FOR MR. HOLTE EFFECTIVE DECEMBER 25, 1961, WITH THE GRANT OF MILITARY LEAVE WITH PAY FROM DECEMBER 11 TO 25, 1961.

THE SPECIFIC QUESTIONS PRESENTED ARE ENUMERATED IN YOUR LETTER AS FOLLOWS:

"1. IS IT PROPER FOR A RESERVIST OF THE ARMED FORCES, ORDERED TO ACTIVE MILITARY DUTY, AND UNDER THE JURISDICTION OF THE MILITARY GOVERNMENT, TO ACCEPT EMPLOYMENT AS A CIVILIAN EMPLOYEE WITH THE FEDERAL GOVERNMENT, EFFECTIVE ON THE SAME DATE?

"2. IF THE APPOINTMENT IS VALID, IS THE RESERVIST ENTITLED TO THE GRANT OF 15 DAYS MILITARY LEAVE WITH PAY, UNDER PROVISIONS OF 5 U.S.C. 30R?

"3. IF A GRANT OF 15 DAYS MILITARY LEAVE IS PROPER, SHOULD SUCH LEAVE BEGIN ON DECEMBER 11, OR DECEMBER 14, 1961?

"4. IF GRANT OF MILITARY LEAVE IS NOT PROPER BUT THE APPOINTMENT VALID, IS THE EMPLOYEE ENTITLED TO COMPENSATION FOR THE THREE DAYS HE WORKED WHILE IN AN ACTIVE DUTY STATUS WITH THE ARMED FORCES?

IT IS WELL ESTABLISHED THAT A MEMBER OF THE RESERVE FORCES WHO IS ORDERED TO REPORT FOR ACTIVE DUTY AT A POINT AWAY FROM HIS HOME IS NOT REGARDED AS BEING ON ACTIVE DUTY FOR PAY PURPOSES UNTIL HE NECESSARILY COMMENCES TRAVEL TO THE PLACE OF REPORTING FOR SUCH DUTY. SEE DECISION OF JANUARY 26, 1960, B-141482. COMPARE 28 COMP. GEN. 343, 20 COMP. GEN. 309. THAT CONNECTION SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807 (REDESIGNATED AS SECTION 201 (D) ( BY THE ACT OF MARCH 31, 1955, 69 STAT. 19, 37 U.S.C. 232 (D) SAYS THAT "IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES CALLED OR ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF THIRTY DAYS, ACTIVE DUTY SHALL INCLUDE THE TIME REQUIRED TO PERFORM TRAVEL FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME BY THE MODE OF TRANSPORTATION AUTHORIZED IN ORDERS FOR SUCH MEMBERS.' THE IMPLEMENTING REGULATIONS ARE TO THE SAME EFFECT AS THE QUOTED STATUTORY PROVISION. SEE ARMY REGULATIONS 37-104, 20-21.

SINCE MR. HOLTE DID NOT COMMENCE TRAVEL UNDER HIS MILITARY ORDERS UNTIL DECEMBER 14, 1961, HE WOULD NOT BE REGARDED AS BEING ON ACTIVE DUTY PRIOR TO THAT DATE AND WOULD NOT BE ENTITLED TO ACTIVE DUTY MILITARY PAY PRIOR TO THAT DATE. IN VIEW THEREOF AND SINCE THERE IS NO EVIDENCE THAT AT THE TIME OF HIS APPOINTMENT MR. HOLTE WITHHELD THE FACT THAT HE HAD BEEN ORDERED TO REPORT FOR ACTIVE DUTY ON DECEMBER 15, 1961, WE SEE NO LEGAL OBJECTION TO YOUR RELEASING THE CHECK TO HIM REPRESENTING SALARY FOR THREE DAYS CIVILIAN SERVICE RENDERED ON DECEMBER 11, 12, AND 13. MOREOVER, SINCE MR. HOLTE APPARENTLY WOULD NOT HAVE BEEN SEPARATED ON DECEMBER 13, 1961, WERE IT NOT FOR HIS ENTRY ON ACTIVE MILITARY DUTY, HE WOULD APPEAR TO BE ENTITLED TO MILITARY LEAVE UNDER THE APPLICABLE STATUTORY PROVISION. SEE 5 U.S.C. 30R. IN THIS CONNECTION MR. HOLTE COULD NOT LAWFULLY BE GRANTED MILITARY LEAVE FOR THE 11TH, 12TH, AND 13TH, SINCE HE RENDERED FULL TIME CIVILIAN SERVICE ON THOSE DAYS AND DID NOT COMMENCE TRAVEL UNDER HIS MILITARY ORDERS UNTIL DECEMBER 14. IT FOLLOWS THAT DECEMBER 14 SHOULD BE REGARDED AS THE FIRST DAY OF THE PERIOD OF MILITARY LEAVE TO WHICH HE IS ENTITLED. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.