Office of the General Counsel

SUPERCEDED by OPM Compensation Policy Mamorandum,CPM 2001-2 issued on January 25, 2001. Please refer in CPM 2001-2 to the discussion of "Minimum Charge for Military Leave."

Date: November 9, 1998
Matter of: [xxx]
File Number: S98001924

OPM Contact: Jo-Ann Chabot

This is a claim for restoration of military leave that was charged to the claimant for the weekends while he was on reserve duty. For the reasons stated below, this claim cannot be approved.

The claimant, a federal employee, also is an officer in the naval reserve. During Fiscal Years 1996 and 1997, the claimant was ordered to report for military reserve duty during the following periods:

• June 10 - 21, 1996;
• April 7 - 18, 1997; and
• June 9 - 20, 1997.

The claimant's employing agency charged him military leave for the nonwork, i.e., weekend, days that fell in the middle of each period of military reserve duty. Thus, the claimant was charged military leave for the following Saturdays and Sundays:

• June 15, 1996 and June 16, 1996;
• April 12, 1997 and April 13, 1997; and
• June 14, 1997 and June 15, 1997.

The claimant states that, when he takes annual leave for a two-week vacation, he is charged only for the work days missed; he is not charged annual leave for the non-work days (weekends or legal holidays) that occur in the middle of the two-week vacation period. Thus, the claimant believes that he should not be charged military leave for the nonwork days that occur within his military reserve duty. He also has requested that OPM overrule the previous Comptroller General and General Accounting Office decisions that interpret the term "days" in 5 U.S.C.  6323(a)(1) as calendar days rather than work days.

Section 6323 of title 5, United States Code governs military leave for federal employees. Section 6323(a)(1), provides:

Subject to paragraph (2) of this subsection,⁽¹⁾ an employee as defined by section 2105 of this title or an individual employed by the government of the District of Columbia, permanent or temporary indefinite, is entitled to leave without loss in pay, time, or performance or efficiency rating for active duty or engaging in field or coast defense training under sections 502-505 of title 32 as a Reserve of the armed forces or member of the National Guard. Leave under this subsection accrues for an employee or individual at the rate of 15 days per fiscal year and, to the extent that it is not used in a fiscal year, accumulates for use in the succeeding fiscal year until it totals 15 days at the beginning of a fiscal year.

Section 6323(a)(1) does not distinguish between work days and nonwork days.

Statutory provisions governing the accrual and accumulation of annual leave, 5 U.S.C. 6303 and 6303, also do not make any distinction between work days and nonwork days.⁽²⁾ However, 5 U.S.C.  6302(a) specifies that annual and sick leave days "are days on which an employee would otherwise work and receive pay and are exclusive of holidays and nonworkdays established by Federal statute, Executive order, or administrative order." Thus, the statute itself specifies that the use of annual and sick leave is limited to work days.

Section 6323(a)(1), the statute governing the claimant's leave for participating in military reserve duty, does not include a similar provision. In contrast to subsection (a)(1), however, subsection (b) of section 6323 specifies that employees who are on military reserve duty specifically for the purposes of providing military aid to enforce the law, or assisting civil authorities in protecting or saving lives or property or preventing injury, are entitled to not more than 22 "workdays" of military leave. Subsection (d)(1) of section 6323 likewise provides that certain military technicians who enter on active duty without pay to participate in noncombat operations outside the United States, its territories and possessions, are entitled to not more than 44 "workdays" of military leave. Subsection (a)(1) predates subsections (b) and (d)(1).⁽³⁾ Section 6302(a), regarding annual and sick leave, as well as subsections (b) and (d)(1) of section 6323, clearly reflect that Congress was well aware of how to limit the use of certain categories of leave to workdays, and that Congress enacted such limits when it desired to do so.

Based on common understanding and usage of the word "days" and on an extensive review of the legislative history of 5 U.S.C.  6323, previous Comptroller General and General Accounting Office decisions consistently interpreted the word "days" to mean calendar days rather than workdays. Matter of Military Leave, 71 Comp. Gen. 513 (1992); Matter of George McMillian, B-211249 (September 20, 1983); To the Attorney General, B-133674 (December 30, 1957); To the Secretary of the Army, 29 Comp. Gen. 269 (1949) and 27 Comp. Gen. 245 (1949). There is nothing in the legislative history of section 6323, including its most recently enacted amendments, to suggest that those decisions should be overruled. Moreover, under the recognized rules of statutory construction we should give the words of the statute their ordinary and obvious meaning, unless otherwise defined. Burgo v. General Dynamics Corporation, 122 F. 3d 140 (2d Cir. 1997). Section 6323 does not include any definition of the term "day." The ordinary and obvious meaning of "day" still is a calendar day. Burgo v. General Dynamics Corporation, supra; Reid v. Universal Maritime Service Corporation, 41 F. 3d 1452 (4th Cir. 1994).

Accordingly, the claim for retroactive restoration of military leave is denied.

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.

^1. Paragraph 2 concerns the leave accrual rate for part-time employees. The claimant is a full-time employee.

^2. Section 6303 specifies that, for each bi-weekly pay period, annual leave accrues in increments of one-half day for employees with less than three years' service to one day for employees with 15 or more years of service. Section 6304(a) provides that except for the circumstances described in succeeding subsections of section 6304, annual leave which is not used by an employee accumulates for use in succeeding years until it totals not more than 30 days at the beginning of the first full bi-weekly pay period.

^3. Act of June 3, 1916 (Pub. L. 64-85), Ch. 134, 80, 39 Stat. 203; Pub. L. 90-588,  2(a), 82 Stat. 1151 (October 17, 1968); Pub. L. 104-106, Title X,  l039, 110 Stat 432 (February 10, 1996).