B-165816, NOV 3, 1970, 50 COMP GEN 330
Highlights
DURING WHICH TIME HE IS ENTITLED TO THE SPECIAL PAY AUTHORIZED IN 37 U.S.C. 310(A). IS NOT AFFECTED BY THE FACT THAT THE SHIP TO WHICH ASSIGNED OPERATES IN AND OUT OF A DESIGNATED HOSTILE FIRE AREA. THE "CONTINUOUS PERIOD" REQUIREMENT IN SECTION 701(F) FOR ACCRUING EXCESS LEAVE IS SATISFIED. PROVIDED THE ABSENCE DURING ANY PART OF THE 120 DAYS FROM THE DESIGNATED AREA IS FOR PERIODS OF LESS THAN A CALENDAR MONTH. 1970: FURTHER REFERENCE IS MADE TO LETTER DATED SEPTEMBER 3. A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO SPECIAL PAY UNDER 37 U.S.C. 310(A) FOR A CONTINUOUS PERIOD OF 120 DAYS CAN ACCUMULATE 90 DAYS' LEAVE UNDER 10 U.S.C. 701(F). "WHILE HE IS SERVING ON BOARD A SHIP WHICH IS OPERATING IN A DESIGNATED HOSTILE FIRE AREA AND IS ABSENT FROM SUCH AREA ONLY FOR PERIODS OF LESS THAN A CALENDAR MONTH DURING ANY ONE MONTH OR MORE FOR WHICH HE WAS ENTITLED TO HOSTILE FIRE PAY.".
B-165816, NOV 3, 1970, 50 COMP GEN 330
LEAVES OF ABSENCE - MILITARY PERSONNEL - EXCESS LEAVE ACCRUAL - "CONTINUOUS PERIOD" INTERRUPTIONS - HOSTILE FIRE PAY AREA DUTY THE RIGHT OF A MEMBER OF THE UNIFORMED SERVICES TO ACCUMULATE 90 DAYS' LEAVE UNDER 10 U.S.C. 701(F) WHILE SERVING ON BOARD A SHIP WHICH OPERATES IN A DESIGNATED FIRE AREA FOR A CONTINUOUS PERIOD OF AT LEAST 120 DAYS, DURING WHICH TIME HE IS ENTITLED TO THE SPECIAL PAY AUTHORIZED IN 37 U.S.C. 310(A), IS NOT AFFECTED BY THE FACT THAT THE SHIP TO WHICH ASSIGNED OPERATES IN AND OUT OF A DESIGNATED HOSTILE FIRE AREA. SINCE CREW MEMBERS QUALIFY FOR HOSTILE FIRE PAY FOR EACH MONTH OF THE 4-MONTH PERIOD OF DUTY IN A HOSTILE FIRE AREA, THE "CONTINUOUS PERIOD" REQUIREMENT IN SECTION 701(F) FOR ACCRUING EXCESS LEAVE IS SATISFIED, PROVIDED THE ABSENCE DURING ANY PART OF THE 120 DAYS FROM THE DESIGNATED AREA IS FOR PERIODS OF LESS THAN A CALENDAR MONTH.
TO THE SECRETARY OF THE NAVY, NOVEMBER 3, 1970:
FURTHER REFERENCE IS MADE TO LETTER DATED SEPTEMBER 3, 1970, FROM THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT) REQUESTING A DECISION WHETHER, UNDER THE CIRCUMSTANCES STATED, A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO SPECIAL PAY UNDER 37 U.S.C. 310(A) FOR A CONTINUOUS PERIOD OF 120 DAYS CAN ACCUMULATE 90 DAYS' LEAVE UNDER 10 U.S.C. 701(F), "WHILE HE IS SERVING ON BOARD A SHIP WHICH IS OPERATING IN A DESIGNATED HOSTILE FIRE AREA AND IS ABSENT FROM SUCH AREA ONLY FOR PERIODS OF LESS THAN A CALENDAR MONTH DURING ANY ONE MONTH OR MORE FOR WHICH HE WAS ENTITLED TO HOSTILE FIRE PAY." THE REQUEST WAS ASSIGNED SUBMISSION NUMBER SS-N-1093 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.
THE ASSISTANT SECRETARY STATES THAT THE SHIP ON WHICH DUTY IS PERFORMED WAS NOT ASSIGNED TO A HOSTILE FIRE AREA UNDER ORDERS CONTEMPLATING AS ASSIGNMENT IN THE AREA OF AT LEAST 120 DAYS BUT DOES IN FACT OPERATE IN AND OUT OF THE AREA FOR 120 DAYS. A REPRESENTATIVE SITUATION OF CERTAIN NAVY SHIPS DEPLOYED FOR DUTY IN A HOSTILE FIRE PAY AREA IS DESCRIBED IN THE ASSISTANT SECRETARY'S LETTER AS A SHIP WHICH, WHILE DEPLOYED OVERSEAS, OPERATED IN AND OUT OF THE DESIGNATED HOSTILE FIRE AREA FOR 5 CONSECUTIVE MONTHS. MEMBERS ABOARD THAT SHIP DURING THAT PERIOD RECEIVED HOSTILE FIRE PAY FOR ALL 5 MONTHS. IT IS STATED THAT AT NO TIME DURING SUCH PERIOD WAS THE SHIP OUT OF THE DESIGNATED HOSTILE FIRE AREA FOR MORE THAN 3 WEEKS.
THE AUTHORITY FOR MEMBERS OF THE ARMED FORCES TO ACCUMULATE UP TO 90 DAYS OF LEAVE - 30 DAYS IN EXCESS OF THE 60 DAYS AUTHORIZED IN 10 U.S.C. 701(B) - IS CONTAINED IN SUBSECTION (F) OF SECTION 701, TITLE 10, U.S. CODE, AS ADDED BY THE ACT OF JANUARY 2, 1968, PUBLIC LAW 90 245, 81 STAT. 782, WHICH PROVIDES AS FOLLOWS:
(F) UNDER UNIFORM REGULATIONS TO BE PRESCRIBED BY THE SECRETARY CONCERNED, AND APPROVED BY THE SECRETARY OF DEFENSE, A MEMBER WHO SERVES ON ACTIVE DUTY FOR A CONTINUOUS PERIOD OF AT LEAST 120 DAYS IN AN AREA IN WHICH HE IS ENTITLED TO SPECIAL PAY UNDER SECTION 310(A) OF TITLE 37 MAY ACCUMULATE 90 DAYS' LEAVE. LEAVE IN EXCESS OF 60 DAYS ACCUMULATED UNDER THIS SUBSECTION IS LOST UNLESS IT IS USED BY THE MEMBER BEFORE THE END OF THE FISCAL YEAR AFTER THE FISCAL YEAR IN WHICH THE SERVICE TERMINATED.
REGULATIONS IMPLEMENTING THE ABOVE LAW PROVIDED IN PARAGRAPH IV A, DEPARTMENT OF DEFENSE INSTRUCTION NO. 1327.4, MARCH 20, 1968, THAT PERSONNEL WHO SERVE ON ACTIVE DUTY FOR A CONTINUOUS PERIOD OF AT LEAST 120 DAYS AFTER JANUARY 1, 1968, IN AN AREA IN WHICH THEY ARE ENTITLED TO SPECIAL PAY UNDER THE PROVISIONS OF 37 U.S.C. 310(A) MAY ACCUMULATE 90 DAYS' LEAVE AT THE RATE OF 2-1/2 DAYS PER MONTH FOR EACH MONTH OF SUCH SERVICE. ARTICLE 3020120, BUREAU OF NAVAL PERSONNEL MANUAL, IS TO THE SAME EFFECT AND INCLUDES AN APPROPRIATE PROVISION RELATING TO LOSS OF SUCH EXCESS LEAVE IF NOT USED WITHIN THE STATED TIME LIMITATION.
IN OUR DECISION OF FEBRUARY 19, 1969, 48 COMP. GEN. 546, CITED IN THE ASSISTANT SECRETARY'S LETTER, WE CONSIDERED SEVERAL QUESTIONS RAISED IN AN ADDENDUM TO DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 426, WITH RESPECT TO THE IMPLEMENTATION OF PUBLIC LAW 90-245 BY THE ABOVE-MENTIONED DEPARTMENT OF DEFENSE INSTRUCTION OF MARCH 20, 1968. QUESTION A OF THE ADDENDUM ASKED WHAT CONSTITUTES "A CONTINUOUS PERIOD OF AT LEAST 120 DAYS IN AN AREA IN WHICH *** (A MEMBER) IS ENTITLED TO SPECIAL PAY UNDER SECTION 310(A) OF TITLE 37," IN CONSIDERING SITUATIONS INVOLVING BRIEF INTERRUPTED SERVICE AS THE RESULT OF MEDICAL EVACUATION, SERVICE IMPOSED TEMPORARY DUTY OUTSIDE THE DESIGNATED AREA, EMERGENCY LEAVE, ETC.
AFTER CONSIDERING THE HOSTILE FIRE PAY ENTITLEMENTS PROVISIONS IN 37 U.S.C. 310(A) AND IMPLEMENTING REGULATIONS CONTAINED IN TABLE 1-10-1, RULE 1, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, WE SAID THAT SINCE HOSTILE FIRE PAY FOR MEMBERS ON PERMANENT DUTY IN A DESIGNATED HOSTILE FIRE AREA ACCRUES ON A MONTHLY BASIS, WE AGREED WITH THE COMMITTEE'S VIEW THAT THE "CONTINUOUS PERIOD" FOR ACCRUING EXCESS LEAVE CONTINUED THROUGH ABSENCES FROM THE DESIGNATED AREA FOR PERIODS OF LESS THAN A CALENDAR MONTH.
A RIGHT TO ACCUMULATE 90 DAYS' LEAVE UNDER 10 U.S.C. 701(F) ACCRUES TO A MEMBER WHO "SERVES" ON ACTIVE DUTY FOR A "CONTINUOUS PERIOD" OF AT LEAST 120 DAYS IN AN AREA IN WHICH HE IS ENTITLED TO SPECIAL PAY UNDER 37 U.S.C. 310(A). CONCERNING ENTITLEMENT OF NAVY PERSONNEL ABOARD SHIP TO ACCRUE EXCESS LEAVE WHILE OPERATING IN A HOSTILE FIRE AREA, THE FOLLOWING REMARKS WERE MADE DURING THE COURSE OF HEARINGS ON H.R. 1341 (WHICH BECAME PUBLIC LAW 90-245); "MR. MORGAN. NOW, DOES THIS APPLY TO NAVY PERSONNEL ABOARD SHIP THAT ARE THERE FOR LESS THAN A YEAR? I THINK THE CUTOFF IS 120 DAYS? COMMANDER JEX. 120 DAYS; YES SIR." SEE PAGE 5466 OF HEARINGS (NO. 28) DATED OCTOBER 4, 1967, SUBCOMMITTEE NO. 3, HOUSE ARMED SERVICES COMMITTEE. WE FIND NOTHING IN THE LAW OR THE REGULATIONS WHICH WOULD REQUIRE, AS A PREREQUISITE FOR ACCRUING EXCESS LEAVE, THAT THE SHIP'S ORDERS CONTEMPLATE AN ASSIGNMENT IN THE HOSTILE FIRE AREA OF AT LEAST 120 DAYS.
IN LINE WITH OUR ANSWER TO QUESTION A IN 48 COMP. GEN. 546, 550, IT IS OUR VIEW THAT SO LONG AS THE SHIP OPERATES IN AND OUT OF THE DESIGNATED HOSTILE FIRE AREA FOR AT LEAST 120 DAYS AND THE CREW MEMBERS OF THAT SHIP QUALIFY UNDER THE LAW AND REGULATIONS FOR HOSTILE FIRE PAY FOR EACH MONTH OF THAT 4-MONTH PERIOD, THE "CONTINUOUS PERIOD" REQUIREMENT IN 10 U.S.C. 701(F) FOR ACCRUING EXCESS LEAVE WOULD BE SATISFIED, PROVIDED THE ABSENCE DURING ANY PART OF THE 120 DAYS FROM THE DESIGNATED AREA IS FOR PERIODS OF LESS THAN A CALENDAR MONTH. FOR THE REASONS INDICATED, CREW MEMBERS OF THE SHIP IN THE SITUATION PRESENTED IN THE ASSISTANT SECRETARY'S LETTER WOULD BE ENTITLED TO ACCUMULATE UP TO 90 DAYS' LEAVE. THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.