Office of the General Counsel

OPM Ref. # 1996-01103

Dear Mr.[xxx]:

This letter replies to your April 15, 1996 memorandum, with enclosures, regarding Mr. [xxx]s claim for entitlement to home leave. Mr. [xxx] sent his claim to the General Accounting Office (GAO), which referred his claim to this Office pursuant to Pub. L. 104-53, which transferred the GAOs claims function to the Executive branch.

Mr.[xxx] is a former service member who was hired overseas by the [agency] and who later transferred to a position with the [agency]. Although the record is not clear as to the dates of Mr.[xxx]s discharge and subsequent entry into the federal service as a civilian employee of the [agency], it is undisputed that Mr.[xxx] did not have an offer of federal employment at the time of his discharge and that at least four days elapsed between his discharge and federal employment. In a July 14, 1995 letter to the GAO, the [agency] supported Mr.[xxx]s claim for home leave. In comments included in your April 15 memorandum, your office respectfully disagreed with the [agency]s interpretation of the applicable statute and requested that we deny Mr.[xxx]s claim. We have considered the comments supplied by both your office and the [agency] and we agree with your office that Mr.[xxx] is not entitled to home leave, though not for precisely the same reasons.

Home leave is an entitlement to additional leave that is granted to employees who complete 24 months of continuous service overseas. 5 U.S.C. 6305. To qualify for this benefit, the employee must also qualify for the entitlement to accumulate up to 45 days of annual leave as provided in 5 U.S.C. 6304(b). 5 C.F.R. 630.602. Only two of those criteria potentially apply here.

Your office relied on section 6304(b)(2), which requires, among other things, that an employee meet each of three separate requirements. In summary, the requirements applicable in this case are that the individual was employed locally but was originally recruited from the United States, had been in "substantially continuous employment" by other agencies of the United States and whose conditions of employment provide for return transportation to the United States. Section 6304(b)(2). You state that, because the employee had a break in service of more than three days, he does not meet the requirement for substantially continuous employment. You note that you are relying on the definition of "break in service" and "substantially continuous service" issued by the Office of Personnel Management in the now-expired Federal Personnel Manual.

The [agency] asserts that section 6304(b)(2) does not apply to Mr. [xxx], but rather, that Mr.[xxx] qualifies for home leave based on the criteria in section 6304(b)(3), which states, "Individuals who are not normally residents of the area concerned and who are discharged from service in the armed forces to accept employment with an agency of the Government of the United States." The [agency] asserts that this standard applies to individuals who are discharged from the armed forces to seek employment and who are employed before the expiration of their return travel entitlement to the United States and within a reasonable amount of time to make it "substantially continuous". To support this interpretation, the [agency] compares home leave to living quarters allowances (LQA) and transportation agreements. The [agency] notes that both of these benefits may be negotiated with former service members applying for civilian positions overseas for up to a year, which is how long former members have to use their military entitlement to have their household goods shipped back to the United States. The [agency] suggests, but offers no evidence from the legislative history of statute authorizing home leave entitlement, that Congress intended that former service members would have the same entitlement to home leave as they do for LQA and transportation agreements.

We agree with the [agency] that (b)(3), and not (b)(2), applies to this case. However, we disagree with their analysis of that subsection and their conclusion that it entitles Mr. [xxx] to home leave. The "substantially continuous employment" test in (b)(2) applies only when an individual is moving from one civilian (or private sector) position to a civilian position in the federal service. However, members of the armed forces are not "employees", nor is their tenure in the armed services considered "employment". Through the definitions in section in 5 U.S.C. 6301(2), the term "employee", as used in section 6304, incorporates the definition of employee in 5 U.S.C. 2105, which expressly applies to persons appointed into the civil service. By contrast, subsection (b)(3) expressly provides applies to persons discharged from the armed forces. Therefore, if a civilian employee hired overseas claims entitlement to home leave based on prior military service, the applicable subsection is (b)(3).

As the [agency] noted, entitlement to home leave is authorized under specific statutory authority. Therefore, comparisons to other entitlements authorized under other statutes, such as LQA and transportation benefits, are of limited value. Moreover, when the language of a statute lends itself to a plain, unambiguous meaning, we will not resort to secondary sources for interpretation.

In this case, the [agency] would read the words "to accept employment with an agency" to mean to "to seek and find within a reasonable time employment with an agency". We believe the plain meaning of the statute requires uniformed members to have a firm offer of employment with an agency before the separate from the Armed Forces.

Both the [agency] and [agency] would graft the "substantially continuous employment" criteria from (b)(2) onto (b)(3). Since Congress purposely chose to use those words in (b)(2) and to omit them from (b)(3), we presume Congress did not intend to apply that criteria to persons who separate from the Armed Forces to accept employment with federal agencies. However, because the employee here did not have a firm offer of employment before separating from the Armed Forces, we need not address here the question of whether or how long a member who separates from the Armed Forces may delay entry into a civilian position and still qualify under (b)(3) for home leave.

Accordingly, Mr. [xxx]is not entitled to a home leave.

Very truly yours,

Paul Britner
Attorney-advisor