STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
November 30, 1973
Dr. R. D. Gibb
Commissioner of Higher Education
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 73-40
Military leave for reservists SDCL 3-6-22.
Dear Dr. Gibb:
You have requested my official opinion as to the meaning of SDCL 3-6-22 as amended by Chapter 187, Laws of 1972, relating to Ready Reservists Military Leave for Annual Active Duty, and, specifically inquired as to whether or not this relates to fifteen (15) calendar days in one year or fifteen (15) working days.
SDCL 3-6-22, in part applicable here, reads as follows:
... Any person who is a duly qualified member of the "reserve component of the armed forces" ... in order to receive military training with the armed forces of the United States not to exceed fifteen (15) days in anyone calendar year, leaves the position ... such period of absence for military training shall be construed as an absence with leave . . . .
This type leave, commonly called military leave, is different in character from the reemployment rights of reservists who may be ordered to active duty. (1961-62 AGR 91). The statute permits an employee to be absent from his work position while performing reserve component training duties of fifteen (15) days in anyone calendar year. The State Personnel Board has adopted a regulation covering this matter, 3.2205(b) which reads as follows:
Military leave for training shall not exceed fifteen (15) working days in any calendar year, except as authorized by the Governor for emergency circumstances. Time in excess of fifteen (15) days must be charged to vacation time or leave without pay.
I assume for the purposes of this opinion that the above regulation was legally adopted. That being the case, it is my opinion the correct interpretation of SDCL 3-6-22 is that an employee is entitled to 15 working days in any calendar year when he meets the criteria therein set forth in the performance of military training duty.
Respectfully submitted,
Kermit A. Sande
Attorney General
