U.S. Department of Commerce - Office of the Secretary U.S. Department of commerce seal


   
 
HR Practitioners banner

Home > HR Practitioners > Compensation & Leave

Military Leave

Military leave is time off with full pay for certain types of active or inactive duty in the National Guard or as a Reservist of the Armed Forces.

Definitions

Contingency Operation is a military operation that is: (1) designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or (2) results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of title 10, United States Code (U.S.C.), chapter 15 of title 10, U.S.C., or any other provision of law during a war or during a national emergency as declared by the President or Congress.

Funeral Honors Duty is an approved absence from official duty, with pay, to perform at the funeral of a veteran. Funeral ceremony duties include the folding of a United States flag and presentation of the flag to the veteran’s family and the playing of Taps.

Military Leave is an approved absence from official duty, with pay, for an employee who is a member of the National Guard or a reserve component of the Armed Forces. Military leave is authorized for days which the employee is ordered to active duty or inactive duty training, or is engaged in field or coast defense training under 32 U.S.C. 502-505 and 5 U.S.C. 6323.

Military Duty is any period of active duty for training or for service in the Armed Forces of the United States, or inactive duty training in the Armed Forces of the United States. Military duty also covers full-time training or other full-time duty performed by a member of the National Guard under 32 U.S.C. 316, 503, 504, and 505, and inactive duty training performed by a member of the National Guard under 32 U.S.C. 502 or 37 U.S.C 206 or 1202.

Leave of Absence for Military Duty means military leave, annual leave, accrued compensatory time, LWOP, or any combination of these, depending on the circumstances and nature of the military duty.

Reservists and members of the National Guards are entitled to LWOP, if necessary, to perform military training duties.

Types of Military Duty

Military leave will be granted in connection with military duty in the specified organizations as described below:

A. 5 U.S.C. 6323 (a) authorizes 120 hours (15 days) of military leave per fiscal year (FY). This type of military leave is applicable to members of the Army, Naval, Marine Corps, Air Force, or the Coast Guard Reserves, including the National Guard of the District of Columbia (DC).

Applicable Uses. This type of military leave may be used for active duty, active and inactive duty training, or engaging in field or coast defense training at encampments, maneuvers, outdoor target practice, or other exercises. Inactive duty training is authorized training performed by members of a Reserve component not on active duty and performed in connection with the prescribed activities of the Reserve component. It consists of regularly scheduled unit training periods, additional training periods, and equivalent training. (For additional information, see Department of Defense Instruction Number 1215.6, March 14, 1997.)

Crediting the Leave. Eligible employees are to be credited with this type of military leave at the beginning of, or upon the first appointment in the FY, regardless of how long the employee is expected to be employed or whether he or she is expected to go on active duty before separation. The leave is not “credited or entered” in the employee’s leave record of the time and attendance report. However, as each hour is reported as used, the balance of what has been used will be reflected in the leave record.

Maximum Accruals. Full-time employee may accrue 120 hours (15 days) of military leave under this authority. Unused military leave may be carried over into a succeeding FY year providing for a maximum balance of up to 240 hours (or 30 days) during a FY. If the carried over military leave is unused by the end of the current FY, it is forfeited and may not be restored for use.

Part-time employees and employees on uncommon tours of duty accrue military leave on a prorated basis, proportional to the number of hours in the employee's regularly scheduled biweekly pay period.

Charging Military Leave. Although this type of military leave is generally referenced in 8-hour workdays, it is measured in increments of one hour. The minimum charge is one hour. An employee is charged military leave only for hours that the employee would have worked and received pay.

An employee who requests military leave for inactive duty training (usually 2, 4, or 6 hours in length) is charged only for the amount of military leave necessary to cover the period of military training and necessary travel. Hours in the regularly scheduled workday that are not chargeable to military leave must be worked or charged to another category of leave; e.g., annual leave, LWOP, compensatory time, as appropriate.

Non-Duty Days. Members of the Reserve and National Guard are not charged military leave for non-duty days (i.e., weekends and holidays) that occur within the period of military service.

Salary Payments - Employees on military leave under 5 U.S.C. 6323 (a) are entitled to retain both their military and Federal civilian pay.

B. 5 U.S.C. 6323 (b) authorizes 176 hours (22 days) per calendar year (CY). This military leave is referred to as “emergency military leave” and is ordered by the President, the Secretary of Defense, or a State Governor.

Applicable Uses. This type of military leave is applicable to employees who perform military duties in support of civil authorities in the protection of life and property or who perform full-time military service as a result of a call or order to active duty in support of a contingency operation.

Effective November 24, 2003, all employees who are activated in support of the national emergency declared by the President (resulting from the terrorists attacks on the World Trade Center and the Pentagon) are entitled to the 176 hours of military leave under this authority.

Crediting the Leave. This type of military leave is credited on a CY basis and unused leave may not be “carried over” to a new year. The leave is not “credited or entered” in the employee’s leave record of the time and attendance report. As it is used, the balance of what has been used will be reflected in the leave record. The leave is not “credited or entered” in the employee’s leave record of the time and attendance report. However, as each hour is reported as used, the balance of what has been used will be reflected in the leave record.

Maximum Accruals. Full-time employee may accrue 176 hours (22 days) of military leave under this authority. Unused military leave may not be carried over into a succeeding CY year.

Part-time employees and employees on uncommon tours of duty accrue military leave on a prorated basis, proportional to the number of hours in the employee's regularly scheduled biweekly pay period.

Charging Military Leave. Although this type of military leave is generally referenced in 8-hour workdays, it is measured in increments of one hour. The minimum charge is one hour. An employee is charged military leave only for hours that the employee would have worked and received pay.

Non-Duty Days. This type of military leave is not charged for weekends and holidays.

Salary Payments - Employees on military leave authorized under 5 U.S.C. 6323 (b) are not entitled to retain both their Federal civilian and military salary payments. These employees are subject to the dual compensation restriction and receive the difference between their military and Federal civilian pay (or the greater of the two) for the 22-day period, which allows the mobilized Federal employee who makes more money in his/her civilian position to receive the difference. Military pay received (excluding travel, transportation, or per diem) must be offset against the pay the employee received from his/her civilian position.

Bureaus or operating units have the discretion to continue to pay the employee the full Federal civilian pay during the 22 workdays of military leave. However, at the end of the 22-day period of military leave, the employee must refund an amount equal to the amount of military pay received (less any travel, transportation, or per diem allowances) up to the amount of the Federal civilian pay for the time period that corresponds to the 22 workdays of military leave.

If an employee elects to use personal accrued and available leave (e.g., accrued annual leave, available compensatory time off or credit hours) in lieu of the military leave, the pay offset is not applicable and the employee is entitled to retain both full military and Federal civilian pay. This period of absence may not be charged to sick leave.

C. 5 U.S.C. 6323(c) authorizes unlimited military leave. This type of military leave is applicable to members of the DC National Guard for certain types of duty (i.e., serving in a parade or encampment) ordered or authorized under title 39 of the DC Code. An employee must have a Uniform Service Status code of 8 (retired military and DC National Guard) or 9 (DC National guard) established in the National Finance Center to be eligible for this type of military leave.

Applicable Uses. This type of military leave is limited to serving in a parade or encampment, or drills and training under the authority of the Commanding General of the DC National Guard. It is not appropriate for extended active duty in connection with the current national emergency resulting from the terrorist attacks on the World Trade Center and the Pentagon.

Crediting the Leave. This type of military leave is credited on a CY basis and unused leave may not be “carried over” to a new year. The leave is not “credited or entered” in the employee’s leave record of the time and attendance report. As it is used, the balance of what has been used will be reflected in the leave record. The leave is not “credited or entered” in the employee’s leave record of the time and attendance report. However, as each hour is reported as used, the balance of what has been used will be reflected in the leave record.

Maximum Accruals. Full-time employee may accrue 176 hours (22 days) of military leave under this authority. Unused military leave may not be carried over into a succeeding CY year; each CY starts with a zero balance.

Salary Payments. Employees on military leave authorized under 5 U.S.C. 6323 (c) are entitled to the greater of the Federal civilian or military pay, but not both. Any salary payments the employee receives while on this type of military leave (other than travel, transportation, or per diem) is to be credited against the salary pay received in the Federal civilian position during the employee’s absence to perform the military duty. If an employee elects to use personal accrued and available leave (e.g., accrued annual leave, available compensatory time off) in lieu of the military leave, the pay offset is not applicable and the employee is entitled to retain both full military and Federal civilian pay.

D. 5 U.S.C. 6323(d) authorizes 352 hours (44 days) of military leave. This type of military leave is applicable for Reserve and National Guard Technicians only. The active duty orders for this type of military leave must cite 10 U.S.C. 12315, 12301(b), or 12301(d) for an employee to be eligible for this entitlement.

Applicable Uses. This type of military leave is for active duty without pay for participation in noncombat operations outside the United States, its territories, and possessions. This military leave is not appropriate for extended active duty in connection with the current national emergency resulting from the terrorist attacks on the World Trade Center and the Pentagon.

Crediting the Leave. This type of military leave is credited on a CY basis and unused leave may not be “carried over” to a new year. The leave is not “credited or entered” in the employee’s leave record of the time and attendance report. As it is used, the balance of what has been used will be reflected in the leave record. The leave is not “credited or entered” in the employee’s leave record of the time and attendance report. However, as each hour is reported as used, the balance of what has been used will be reflected in the leave record.

Maximum Accruals. Full-time employee may accrue 352 hours (144 days) of military leave under this authority. Unused military leave may not be carried over into a succeeding CY year.

Salary Payments. Employees on this type of military leave retain their Federal civilian pay and do not receive military pay since they are on active duty without pay.

Absence for Draft Registration or Physical Examination

Employees will be excused from duty without charge to leave or loss of pay to register for military duty pursuant to statutory requirement. The excused time for this purpose shall not exceed one day, including travel time.

Time off must be granted to employees for the purpose of a physical examination incidental to entry into the armed forces or in connection with member-ship in a reserve component of the Armed Forces or the National Guard. In the event that the absence exceeds one workday, the employee will be required to submit a statement showing the necessity for such additional absence. If an employee requests and receives orders to take the examination at an induction station other than the nearest location resulting in an absence of more than one day, the time in excess of one day will be charged to annual leave, restored annual leave, accrued compensatory time, accrued compensatory time for travel, credit hours (if applicable), or LWOP.

Conversion of Annual Leave or LWOP to Military Leave

An employee ordered to military duty while on annual leave is entitled to request that the annual leave be converted to military leave for the days stated in the orders. Properly authorized military orders must be provided to substantiate the conversion.

An employee ordered to military duty while on extended LWOP may not have the LWOP converted to military leave. However, an employee's eligibility for military leave is not affected if he or she is granted LWOP for a period immediately before or after military duty to attend to personal matters (37 Comp. Gen. 608).

Eligibility for Military Leave

Any full-time and part-time employee meeting the following requirements is entitled to military leave:

  • Is a member of a Reserve component of the Armed Forces or the National Guard;
  • Is serving in a permanent, temporary indefinite, temporary pending establishment of a register (TAPER), or term appointment; and
  • If part-time, has a scheduled tour of duty between 16 and 32 hours per week (as defined in 5 U.S.C. 3401(2)). Note that military leave under 5 U.S.C. 6323(a) is prorated for part-time career employees and employees on an uncommon tour of duty.

Employees with temporary appointments of less than one year, with temporary appointments not to exceed one year, or with intermittent work schedules are not entitled to military leave.

An employee's eligibility for military leave is not dependent on return to duty in his/her civilian position (37 Comp. Gen. 608).

Evidence of Duty Performed While on Military Leave

An employee granted military leave is required to furnish a copy of his or her military orders, properly endorsed to show duty performed, or other official evidence of duty performed. In the case of an employee granted military leave under 5 U.S.C. 6323(d), the military orders must show one of the title 10 authorities (i.e., 12301(b) or 12301(d)) and the period of active duty that the employee consented to serve without pay.

Excused Absence Upon Return from Active Military Service

Federal employees who are members of the National Guard or Reserves and who are returning from active duty in support of the Global War on Terrorism (under Executive Order 13223) are entitled to five (5) days of excused absence, without loss of pay or personal leave, to ease the transition to civilian life. The five (5) days of excused absence is applicable each time the employee returns from deployment. Employees who have returned to work and have not taken the five (5) days of excused absence for a second or subsequent deployment may be granted such time off, as long as the time is mutually agreeable to the employee and his/her supervisor.

Lump Sum Payments

An employee may elect to receive to a lump-sum payment for any unused annual leave when he or she separates enters on active duty in the armed forces. Generally, a lump-sum payment will equal the pay the employee would have received had he or she remained employed until expiration of the period covered by the annual leave. An employee who enters into active military duty may also elect to have his/her annual leave remain to their credit until they return to their civilian position.

Military Leave Not Used for All Types of Military Duty

Military leave may not be granted for the following types of military duty:

  • Summer training as members of Reserve Officers Training Corps when employees must be carried in a LWOP status;
  • Temporary Coast Guard Reserve (see 23 Comptroller General 916);
  • Participation in parades by members of the State National Guard;
  • Training with a State defense organization or a State military organization which is not part of the National Guard, or any other organization created by the State in the absence of the State National Guard during an emergency (23 Comptroller General 92);
  • Civil Air Patrol established as a civilian auxiliary of the United States Air Force (Act of May 1948, 62 Stat. 274);
  • Time taken on a workday for traveling to the location where training is scheduled to take place, unless military orders encompass the period of travel time required (see unpublished Comptroller General decision B-138990, April 22, 1959); or
  • Active duty as a commissioned officer in the Reserve Corps of the U.S. Public Health Service or the NOAA Corps.

Pay Status During Period of Military Leave

An employee is entitled to any premium pay normally received for his or her regularly scheduled shift or tour of duty (i.e., overtime, night differential, standby, etc). An agency or work unit may not deny an employee any premium pay to which he or she is normally entitled by re-scheduling the employee to a shift that excludes premium pay because the employee has been ordered to military duty.

Reduction in Force (RIF)

Employees performing active military duty are protected from RIF actions and may not be discharged from employment for a period of 1 year following separation (or 6 months in the case of a Reservist called to active duty under 10 U.S.C. 12304 for more than 30 days, but less than 181 days, or ordered to an initial period of active duty for training of not less than 12 consecutive weeks). RIF actions are applicable for poor performance or conduct issues, or for suitability purposes.

Requesting Adjustments to Military Orders

In cases where the absence of employees in connection with military activities threatens to deplete the staff of a Department office to a point where it will be extremely difficult or impossible to operate, the head of the unit concerned should discuss (with the appropriate military authorities) the possibility of having a sufficient number of employees excused to continue adequate operation of the work unit affected. If this matter cannot be settled at the local level, it should be referred to the head of the operating unit for further action.

Transfer of Military Leave

When an employee transfers from one Federal agency to another, any unused military leave authorized under 5 U.S.C 6323(a) is credited to the employee for use during the remainder of the FY and for carryover into the succeeding FY, as appropriate. If an employee is separated and not reemployed during the FY in which separated, any unused military leave under 5 U.S.C. 6323(a) may be credited to the employee if reemployed in the Federal service during the FY which immediately follows the FY in which he/she separated. If the employee does not return to duty during the same or succeeding FY in which separated, any unused military leave under 5 U.S.C. 6323(a) is forfeited.

When an employee transfers from one Federal agency to another, any unused military leave under 5 U.S.C 6323(b) or (d) is available to the employee for use during the remainder of the CY. If an employee is separated and not reemployed during the CY in which separated, any unused military leave under 5 U.S.C. 6323(b) is forfeited.

The transfer of military leave for employees moving to the DC government from the Federal government or from the DC government to the Federal government without a break in service is treated in accordance with the provisions as outlined above.

Use of Other Types of Leave

In accordance with the Uniformed Service Employment and Reemployment Rights Act (USERRA) and regulations at 5 CFR 353.208 implementing USERRA, an performing service (i.e., active duty or active/inactive duty training) with the uniformed services is entitled to use any accrued annual leave, military leave, earned compensatory time off for travel, or accrued sick leave (consistent with the statutory and regulatory criteria for using sick leave), during such service. Employees must request the use of leave and may use such leave intermittently with LWOP while on active duty or active/inactive duty training.

Mandatory Approval of Leave Requests for Military Service

When an employee has followed leave procedures and provided acceptable evidence to his/her leave-approving official (i.e., properly authorized military orders), approval of leave requests for military service may be mandatory.

An eligible employee must be granted, upon request, military leave to which he or she is entitled for performance of active duty or active duty for training. With the exception of military leave granted under 5 U.S.C. 6323(b) and 5 U.S.C. 6323 (c), accrued annual leave, accumulated compensatory time, or LWOP shall not be granted for such active duty until the employee has used all available military leave.

If a full or part-time employee (other than a temporary appointee) who is a reservist or National Guardsmember is not entitled to or has exhausted his or her military leave, he or she shall be granted annual leave, restored annual leave, accrued compensatory time, accrued compensatory time off for travel, accumulated credit hours, or LWOP, as requested, for performance of active or inactive duty.

In the case where a reservist or National Guardsmember is ordered to an initial period of active duty of not less than three months, the employee may be granted annual leave, restored annual leave, accrued compensatory time, accrued compensatory time off for travel, accumulated credit hours, or LWOP, as requested, after first exhausting military leave. However, if an employee is to continue on active duty for an extended period (usually more than one year) he or she shall be separated after exhausting any requested military leave since the employee's entitlements, if eligible for restoration, would be the same as if continued in a leave status.

An employee who is entitled to 176 hours (22 workdays) of military leave under 5 U.S.C. 6323(b) may be granted accrued annual leave or accumulated compensatory time prior to exhausting the military leave available under 5 U.S.C. 6323(b). However, unused military leave under 5 U.S.C. 6323(a) may only be granted once all military leave under 5 U.S.C. 6323(b) is exhausted (49 Comp. Gen. 233).

When leave authorized by 5 U.S.C. 6323 (a) or (b) is exhausted, an agency head may not exercise his or her authority to excuse the employee for absence without charge to annual leave, accrued compensatory time, or LWOP in order to increase the number of days the employee is entitled or may accrue and accumulate for military duty (49 Comp. Gen. 233).

A temporary employee (appointed for less than one year) may be granted accrued annual leave, accumulated compensatory time, or LWOP for performance of active or inactive duty.

References

5 U.S.C. 5519 and 5 U.S.C. 6323
Public Law 106-554, December 21, 2000
Public Law 108-136, November 24, 2003
Comptroller General decisions:

    • B-227222 (Entitlements, issued 11/05/78);

    • B-211249 (Incompatibility with Civilian Service, issued 09/20/83); and

    • B-241272 (Duty into New Leave Year, issued 02/15/91)

Updated December 2008