HON. VITO J. CASTELLANO, MAJ. GEN. Chief of Staff Division of Military and Naval Affairs

This is in reply to your letter of July 18, 1977 in which you ask whether a State employee who has exhausted all military leave with salary which is available to him pursuant to the relevant provisions of the Military Law, may utilize the provisions of sections 21.2 and 21.6 of the Rules and Regulations of the Department of Civil Service (4 NYCRR §§ 21.2 and 21.6), and thereby charge his ordered military leave time to vacation or personal leave credits.

You note that in a previous opinion (1962 Atty. Gen. 8) I have stated that under Military Law, § 242(5) there is a maximum aggregate period of 30 days for which military leave with pay may be received in any one calendar year. That opinion specifically related the conclusion reached therein "to additional salary benefits pursuant to subdivision 5" of Military Law, § 242. Neither the 1962 opinion nor the several opinions cited therein state that vacation or personal leave may not be used as suggested in your inquiry.

Subdivision (f) of section 21.2 of the Rules and Regulations of the Department of Civil Service provides:

"The time at which vacation may be drawn by an employee shall be subject to the prior approval of the appointing authority."

Subdivision (c) of section 21.6 provides in part:

"Personal leave may be drawn only at a time convenient to and approved in advance by the appointing authority; * * *."

Other than these limitations I find no impediment to the use of vacation or personal leave under the circumstances which you have described.