Pennsylvania Advisory Opinions March 13, 1947: AGO 559 (March 13, 1947)

Advisory Opinion Text

United States Army Officers' Reserve Corps—State employes—Military leave-Three months reserve officers' training course—Acts of May 17, 1921, P. L. 869; April 5, 1929, P. L. 177; June 7, 1917, P. L. 600; July 12, 1935, P. L. 677: Military leaves of absence under the Act of June 17, 1917, P. L. 600, can be granted to the employes enumerated, viz., members of the United States Army Officers' Reserve Corps in time of war or contemplated war, and that when World War II has been technically and legally terminated, military leave will cease and all leaves of absence must be obtained under the provisions of the Act of July 12, 1935, P. L. 677, limiting leave to fifteen days, and sections 222 and 709(e) of the Act of April 9, 1929, P. L. 177, which require the approval of the Executive Board for all leaves beyond the thirty-day period.

Harrisburg, Pa., March 13, 1947.

Honorable Frank A. Robbins, Jr., Secretary of Public Assistance, Harrisburg, Pennsylvania.

Sir: This department is in receipt of your communication requesting advice relative to military leave of absence to attend a three months' reserve officer training course to State employes who are members of the United States Army Officers' Reserve Corps.

Specifically, you present the following question:

Can military leave of absence, with the privileges pertaining thereto, be granted to employes attending the above mentioned courses?

You inform us that it is your understanding that the Army intends (starting March 1947) to conduct three month training courses for reserve officers to refresh their knowledge of the latest materials and techniques. These training courses are not mandatory. The officer attending the course will be on temporary duty and will receive full pay and allowances from the Army for the period of attendance. At a later date the Army contemplates giving similar courses for enlisted men, as well as opening officer candidate schools for those enlisted men who are interested in acquiring a reserve commission. For composition of the Army of the United States, see 10 USCA, § 2.

Under our Formal Opinion No. 377, dated December 9, 1940, reported in 1939-1940 Op. Atty. Gen. 486, this department ruled that the benefits of the Act of June 7, 1917, P. L. 600, 65 P. S. § 111 et seq., providing for military leave, were at that time applicable.

Under our Formal Opinion No. 538, dated March 8, 1946, reported in 1945-1946 Op. Atty. Gen. 57, this department ruled that World War II had not been technically nor legally terminated, and as long as the war was not so terminated, the military leave provided for by the Act of June 7, 1917, P. L. 600, as amended, supra, would continue to be applicable to State employes who reenlisted for active duty in the military service, upon full compliance with the various provisions of the act. Said Formal Opinion No. 538 is applicable to State employes who are members of the United States Army Officers' Reserve Corps and attend a three months' reserve officer training course. For statement that state of war still exists, see President's Proclamation 2714, dated December 31, 1946.

If and when the war is technically and legally terminated, the provisions of the Act of June 7, 1917, P. L. 600, as amended, supra, providing for military leave, will cease to be applicable. Thereupon, the Act of July 12, 1935, P. L. 677, 65 P. S. § 114, relating to leave of absence to State officers and employes who are members of the reserve component of the United States Army, Navy or Marine Corps, will become applicable. This act provides as follows:

All officers and employes of the Commonwealth of Pennsylvania, or of any political subdivision thereof, members, either enlisted or commissioned, of any reserve component of the United States Army, Navy, or Marine Corps, shall be entitled to leave of absence from their respective duties without loss of pay, time, or efficiency rating on all days not exceeding fifteen in any one year during which they shall, as members of such reserve components, be engaged in the active service of the United States or in field training ordered or authorized by the Federal forces.

This act has been fully construed in our Formal Opinion No. 314, dated January 30, 1940, reported in 1939-1940 Op. Atty. Gen. 165, and Formal Opinion No. 362, dated August 6, 1940, reported in 1939-1940 Op. Atty. Gen. 389. In these opinions, leave with pay was limited to fifteen days in any one year. Thereafter, additional leave could only be obtained as provided for in §§ 222 and 709(e) of The Administrative Code of 1929, the Act of April 9, 1929, P. L. 177, as amended, 71 P. S. §§ 82 and 249, that is, with the approval of the Executive Board.

Only in the case of employes who are members of the Pennsylvania National Guard would this approval be unnecessary. See § 68 of the Act of May 17, 1921, P. L. 869, 51 P. S. § 95, which pertains to leave of absence with pay to members of the Pennsylvania National Guard. This act was construed to apply to per diem and hourly employes by Informal Opinion No. 1060, dated December 6, 1939, and Formal Opinion No. 379, dated December 16, 1940.

It is our opinion, therefore, that military leaves of absence, under the Act of June 17, 1917, P. L. 600, as amended, 65 P. S. § 111 et seq., and under our Formal Opinion No. 538, dated March 8, 1946, reported in 1945-1946 Op. Atty. Gen. 57, can be granted to the employes enumerated, viz., members of the United States Army Officers' Reserve Corps in time of war or contemplated war, and that when World War II has been technically and legally terminated, military leave will cease and all leaves of absence must be obtained under the provisions of the Act of July 12, 1935, P. L. 677, 65 P. S. § 114, limiting leave to fifteen days, and Sections 222 and 709(e) of The Administrative Code of 1929, the Act of April 9, 1929, P. L. 177, 71 P. S. §§ 82 and 249, which require the approval of the Executive Board for all leaves beyond the thirty-day period.

Very truly yours,

Department of Justice,

T. McKeen Chidsey, Attorney General.

M. Louise Rutheefoed, Deputy Attorney General.