STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 14, 1971

Dr. Richard D. Gibb
Commissioner of Higher Education
State Capitol
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 71-46

Military leave for graduate assistant participating in ROTC program

Dear Dr. Gibb:

You have asked my official opinion as to whether or not a graduate assistant at a state university who is required to participate in field training under the Reserve Officer Training Corps program is entitled to military leave in accordance with SDCL 3-6-22.

SDCL 3-6-22 provides in part:

All ... employees of the state of South ,Dakota ... who (is) a duly qualified member of the "reserve component of the armed forces." who is a member of the ready reserve, ... in order to receive military training with the armed forces of the United States not to exceed fifteen days in anyone calendar year, leaves a position other than a temporary position in the employ of an employer, ... shall be construed as an absence with leave and within the discretion of the employer said leave may be with or without pay.

The question of whether the employee is permanent or temporary must be determined by the agency.

The reserve components of the armed forces are set forth in 10 USC Sec. 261 as follows: 1) the Army National Guard of the United States; 2) the Army Reserve; 3) the Naval Reserve; 4) the Marine Corps Reserve; 5) The Air National Guard of the United States; 6) The Air Force Reserve; 7) the Coast Guard Reserve.

In and of itself the Reserve Officers' Training Corps, R.O.T.C., is not a component of the armed forces. However, the ROTC Revitalization Act of 1964, 78 Stat. 1064, Pub. L. 88-647, added a requirement to the existing program of training. In providing for a course of advanced training leading to a commission in the armed forces of the United States, 10 USCA Sec. 2104, provided that in order to participate in the advanced course, a person must " ... enlist in a reserve component of an armed force under the jurisdiction of the Secretary of the Military Department concerned for the period prescribed by the Secretary; .. "

All persons who enter the advanced course of ROTC training must therefore be actual members of the army reserve. As such, they would be entitled to military leave under SDCL 3-6-22. There is, however, another category of person who has not as yet qualified for the advanced program but in preparation for such qualification also takes a form of summer training as a preliminary requirement for admission to the advanced course. This category of individual while he will subsequently be required to enlist as a reservist for six years, has not, at the time of such summer training done so. He would not be entitled to military leave.

Respectfully submitted,

Gordon Mydland
Attorney General