B-63271, FEBRUARY 19, 1947, 26 COMP. GEN. 610

B-63271, FEBRUARY 19, 1947, 26 COMP. GEN. 610

LEAVES OF ABSENCE - MILITARY - WAR SERVICE INDEFINITE EMPLOYEES; EMPLOYEES APPOINTED UNDER SECTION 2, REGULATION VIII, TEMPORARY CIVIL SERVICE REGULATIONS WAR SERVICE INDEFINITE EMPLOYEES ARE TO BE REGARDED AS PERMANENT EMPLOYEES ENTITLED TO MILITARY LEAVE WITH PAY UNDER THE STATUTES RELATING TO THE GRANTING OF SUCH LEAVE TO CIVILIAN OFFICERS AND EMPLOYEES FOR TRAINING AS MEMBERS OF THE NATIONAL GUARD (32 U.S.C. 75), THE OFFICERS RESERVE CORPS OF THE ARMY (10 U.S.C. 371), AND THE NAVAL RESERVE (34 U.S.C. 853G). EMPLOYEES RECEIVING APPOINTMENTS UNDER SECTION 2, REGULATION VIII, OF THE TEMPORARY CIVIL SERVICE REGULATIONS ARE TO BE REGARDED AS TEMPORARY EMPLOYEES NOT ENTITLED TO MILITARY LEAVE WITH PAY UNDER THE STATUTES RELATING TO THE GRANTING OF SUCH LEAVE TO CIVILIAN OFFICERS AND EMPLOYEES FOR TRAINING AS MEMBERS OF THE NATIONAL GUARD (32 U.S.C. 75), THE OFFICERS RESERVE CORPS OF THE ARMY (10 U.S.C. 371), AND THE NAVAL RESERVE (34 U.S.C. 853G).

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, FEBRUARY 19, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 23, 1947, AS FOLLOWS:

MANY EMPLOYEES OF THE VETERANS' ADMINISTRATION APPOINTED, SUBSEQUENT TO MARCH 15, 1942, UNDER THE PROVISIONS OF THE EXECUTIVE ORDER 9063, DATED FEBRUARY 16, 1942, ARE HOLDING WAR SERVICE APPOINTMENTS UNLESS SUCH APPOINTMENTS HAVE BEEN CONVERTED TO PERMANENT STATUS. SOME OF THE WAR SERVICE INDEFINITE APPOINTEES AND OTHER EMPLOYEES APPOINTED UNDER THE PROVISIONS OF SECTION 2, REGULATION VIII OF THE TEMPORARY CIVIL SERVICE REGULATIONS, DATED FEBRUARY 4, 1946, ARE MEMBERS OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA OR OF A STATE. THEY ARE BEING ORDERED TO DUTY BY COMPETENT AUTHORITY TO ENGAGE IN COAST DEFENSE TRAINING FOR PERIODS OF FIFTEEN DAYS. OTHER WAR SERVICE INDEFINITE AND SECTION 2, REGULATION VIII EMPLOYEES, WHO ARE MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES, HAVE BEEN ORDERED TO DUTY BY PROPER MILITARY AUTHORITY FOR COURSES OF INSTRUCTIONS NOT TO EXCEED FIFTEEN DAYS DURING THE CALENDAR YEARS OF 1946 AND 1947.

SECTION 2, REGULATION VIII, OF THE TEMPORARY CIVIL SERVICE REGULATIONS PROVIDES:

"PENDING ESTABLISHMENT OF REGISTER.--- WHENEVER THERE ARE NO ELIGIBLES UPON A REGISTER FOR ANY GRADE IN WHICH A VACANCY EXISTS AND THE PUBLIC INTEREST REQUIRES THAT THE VACANCY BE FILLED BEFORE ELIGIBLES CAN BE CERTIFIED BY THE COMMISSION, THE COMMISSION MAY AUTHORIZE TEMPORARY APPOINTMENT PROVIDED THAT THE AGENCY DETERMINES THAT THE STANDARDS PRESCRIBED BY THE COMMISSION ARE MET. SUCH APPOINTMENT SHALL CONTINUE ONLY FOR SUCH PERIOD AS MAY BE NECESSARY TO MAKE APPOINTMENT THROUGH CERTIFICATION, AND IN NO CASE, WITHOUT PRIOR APPROVAL OF THE COMMISSION, SHALL EXTEND BEYOND THIRTY DAYS FROM THE DATE OF THE RECEIPT BY THE APPOINTING OFFICER OF THE COMMISSION'S CERTIFICATION OF ELIGIBLES.'

EMPLOYEES APPOINTED UNDER SECTION 2, REGULATION VIII, MENTIONED ABOVE ARE APPOINTED FOR INDEFINITE PERIODS AND ARE CONSIDERED PERMANENT FOR THE PURPOSE OF GRANTING LEAVE AS INDICATED UNDER THE PROVISIONS OF SECTION IV, CIVIL SERVICE CIRCULAR NO. 549, DATED FEBRUARY 1, 1946, QUOTED BELOW:

"APPOINTMENTS UNDER SECTION 2 OF REGULATION VIII SHALL BE TEMPORARY IN NATURE AND PERSONS OBTAINING SUCH APPOINTMENT SHALL NOT BE REGARDED AS OCCUPYING PERMANENT POSITIONS FOR THE PURPOSE OF SECTION VII OF THE CLASSIFICATION ACT OF MARCH 4, 1923, AS AMENDED, AND SHALL NOT BY VIRTUE OF SUCH APPOINTMENTS BE SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT. FOR REDUCTION IN FORCE PURPOSES SUCH EMPLOYEES SHALL BE IN GROUP B. TRIAL PERIOD SHALL NOT BE REQUIRED AND SUCH TEMPORARY EMPLOYEES SHALL NOT BE SUBJECT TO THE PROVISIONS OF REGULATION XII WITH RESPECT TO REMOVALS. SINCE SUCH APPOINTMENTS ARE NOT "LIMITED TO DEFINITE PERIODS OF TIME NOT EXCEEDING ONE YEAR," APPOINTEES SHALL BE SUBJECT TO THE PROVISIONS OF THE LEAVE REGULATIONS THAT PERTAIN TO "PERMANENT" EMPLOYEES.'

IN YOUR DECISION OF APRIL 12, 1946 (B-53211) AND (B-53211) MAY 22, 1946 (25 COMP. GEN. 794) IT WAS HELD THAT SINCE PERSONS HOLDING "INDEFINITE WAR SERVICE APPOINTMENTS" AS DEFINED BY THE CIVIL SERVICE COMMISSION ARE, IN FACT,"PERMANENT" EMPLOYEES WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS, IT FOLLOWS THAT THEY ARE ENTITLED TO THE BENEFITS OF THE HOLIDAY PAY STATUTE OF 1938 REGARDLESS OF THE PERIOD OF THEIR ACTUAL SERVICE.

IN VIEW OF PREVIOUS RULINGS THAT INDEFINITE WAR SERVICE APPOINTEES ARE CONSIDERED PERMANENT EMPLOYEES WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS, IT IS RESPECTFULLY REQUESTED THAT A RULING BE FURNISHED WITH REFERENCE TO THE AUTHORITY TO APPROVE MILITARY LEAVE WITH PAY FOR A WAR SERVICE INDEFINITE EMPLOYEE APPOINTED UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 9063 DATED FEBRUARY 16, 1942, WHO HAS HAD ORDERS TO REPORT FOR MILITARY TRAINING.

INASMUCH AS YOUR DECISION OF OCTOBER 31, 1938 (A-98756) (18 COMP. GEN. 403) HELD THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE WITH PAY, A DECISION IS RESPECTFULLY REQUESTED AS TO THE AUTHORITY TO APPROVE MILITARY LEAVE WITH PAY FOR EMPLOYEES APPOINTED UNDER THE PROVISIONS OF SECTION 2, REGULATION VIII, WHO ARE CONSIDERED PERMANENT FOR LEAVE PURPOSES UNDER THE PROVISIONS OF SECTION 1.1 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS FOR GOVERNMENT EMPLOYEES EFFECTIVE JULY 1, 1946.

THE THREE STATUTES CONTROLLING THE GRANTING OF MILITARY LEAVE TO CIVILIAN OFFICERS AND EMPLOYEES FOR TRAINING WHILE MEMBERS OF THE NATIONAL GUARD (32 U.S.C. 75), THE OFFICERS RESERVE CORPS OF THE ARMY (10 U.S.C. 371), AND THE NAVAL RESERVE (34 U.S.C. 853G), CONTAIN SIMILAR WORDING. FOR INSTANCE, THE STATUTE APPLICABLE TO THE NATIONAL GUARD (SECTION 80, ACT OF JUNE 3, 1916, 39 STAT. 203), IS 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 ACT.

THE DECISIONS OF THIS OFFICE REPEATEDLY HAVE HELD THAT TEMPORARY EMPLOYEES ARE NOT WITHIN THE CONTEMPLATION OF THE MILITARY LEAVE STATUTES- -- THE TERMS USED THEREIN HAVING RELATION TO REGULAR OR PERMANENT EMPLOYEES ONLY--- AND THAT GENERAL RULE WAS REAFFIRMED AFTER THE EFFECTIVE DATE OF THE ACT OF MARCH 14, 1936, 49 STAT. 1161, GRANTING ANNUAL LEAVE TO TEMPORARY EMPLOYEES. 6 COMP. GEN. 178, 275; 16 ID. 105, 119; 18 ID. 403; 20 ID. 123, 163.

THE CRITERION FOR DETERMINING WHETHER AN EMPLOYEE IS TEMPORARY OR PERMANENT FOR PURPOSES OF APPLYING THE MILITARY LEAVE STATUTES NEVER HAS BEEN CONFINED TO ANY ONE CHARACTERISTIC OF EMPLOYMENT; RATHER, ALL ELEMENTS APPLICABLE THERETO IN GENERAL ARE FOR CONSIDERATION IN REACHING THAT DETERMINATION.

THE SPECIFIC DESIGNATION OF AN EMPLOYEE AS TEMPORARY UNDER RULES AND REGULATIONS OF THE CIVIL SERVICE COMMISSION HAS BEEN HELD AS SUFFICIENT TO EXCLUDE AN EMPLOYEE FROM THE TERMS OF SAID MILITARY LEAVE STATUTES REGARDLESS OF THE LENGTH OF THE EMPLOYMENT, WHEREAS AN EMPLOYEE DESIGNATED AS EMERGENCY WHOSE APPOINTMENT IS MADE WITHOUT REGARD TO CIVIL SERVICE RULES AND REGULATIONS AND IS NOT LIMITED AS TO TIME, HAS BEEN CONSIDERED AS COMING WITHIN THE STATUTES. SEE 14 COMP. GEN. 28; 20 ID. 163; 21 ID. 369.

WAR SERVICE INDEFINITE APPOINTMENTS MADE UNDER AUTHORITY OF THE WAR SERVICE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION, ALTHOUGH LIMITED TO THE DURATION OF THE WAR AND SIX MONTHS THEREAFTER, HAVE BEEN CONSIDERED IN THE CATEGORY OF PERMANENT APPOINTMENTS FOR VARIOUS PURPOSES, SUCH AS FOR ANNUAL AND SICK LEAVE PURPOSES, FOR WITHIN-GRADE SALARY ADVANCEMENT PURPOSES--- WHICH NECESSARILY INCLUDES EFFICIENCY RATINGS--- AND FOR CIVIL SERVICE RETIREMENT PURPOSES. HENCE, IT IS REASONABLE TO CONCLUDE THAT SAID CLASS OF EMPLOYEES LIKEWISE MAY BE CONSIDERED AS PERMANENT FOR PURPOSES OF RECEIVING MILITARY LEAVE WITH PAY UNDER THE AFOREMENTIONED MILITARY LEAVE STATUTES.

REFERRING TO APPOINTMENTS UNDER SECTION 2, REGULATION VIII OF THE TEMPORARY CIVIL SERVICE REGULATIONS, IT APPEARS THAT WHILE SUCH EMPLOYEES ARE CONSIDERED AS PERMANENT FOR PURPOSES OF ANNUAL AND SICK LEAVE BENEFITS, THEY SPECIFICALLY ARE DESIGNATED AS TEMPORARY AND, UNDER CIVIL SERVICE CIRCULAR NO. 549, QUOTED IN PART IN YOUR LETTER, THEY ARE NOT REGARDED AS OCCUPYING PERMANENT POSITIONS FOR THE PURPOSE OF WITHIN-GRADE SALARY ADVANCEMENTS UNDER SECTION 7 OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1490, AS AMENDED, AND ARE NOT SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT, 41 STAT. 614. THUS, IT IS EVIDENT THAT THE MERE DESIGNATION OF AN APPOINTMENT AS PERMANENT FOR ANNUAL AND SICK LEAVE PURPOSES IS NOT SUFFICIENT TO OVERCOME OTHER BASIC CHARACTERISTICS APPLICABLE TO TEMPORARY APPOINTMENTS.

THE HOLIDAY PAY STATUTE OF JUNE 29, 1938, 52 STAT. 1246, IN RESPECT OF WHICH THE DECISIONS REFERRED TO IN YOUR LETTER--- 25 COMP. GEN. 715, 794-- - WERE RENDERED, CONTAINS ENTIRELY DIFFERENT LANGUAGE AND INVOLVES A SEPARATE AND DISTINCT SUBJECT MATTER FROM THAT OF THE MILITARY LEAVE STATUTES AND MAY NOT FORM THE BASIS FOR VARYING THE RULES ESTABLISHED IN DECISIONS OF THIS OFFICE WITH RESPECT TO THE LATTER. ACCORDINGLY, IT IS CONCLUDED THAT EMPLOYEES RECEIVING TEMPORARY APPOINTMENTS UNDER SECTION 2, REGULATION VIII OF THE TEMPORARY CIVIL SERVICE REGULATIONS, ARE NOT WITHIN THE PURVIEW OF THE MILITARY LEAVE STATUTES AND, THEREFORE, THERE IS NOT AUTHORITY TO APPROVE MILITARY LEAVE WITH PAY IN RESPECT OF SAID EMPLOYEES WHO MAY BE ORDERED BY PROPER MILITARY AUTHORITY FOR TRAINING PURPOSES UNDER THE APPLICABLE STATUTES.