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B-117972, FEBRUARY 24, 1955, 34 COMP. GEN. 401

B-117972 Feb 24, 1955
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HOLDING THAT SUBSISTENCE ALLOWANCE MAY NOT BE PAID TO COAST GUARD ENLISTED MEN ASSIGNED TO LIGHTSHIPS AND REMOTE SHORE STATIONS DURING PERIODS OF COMPENSATORY ABSENCES AND THAT ABSENCES IN EXCESS OF 48 HOURS (LIBERTY) ARE REQUIRED TO BE CHARGED TO REGULAR LEAVE IS MODIFIED BY SUSPENDING THE EFFECTIVE DATE UNTIL THE END OF THE PRESENT SESSION OF CONGRESS TO AFFORD THE SECRETARY OF THE TREASURY AN OPPORTUNITY TO SUBMIT THE MATTER FOR LEGISLATIVE ACTION. 34 COMP. HAVE REQUESTED FURTHER CONSIDERATION OF THE MATTER INVOLVED IN DECISION OF SEPTEMBER 9. THE SYLLABUS OF THE DECISION IS AS FOLLOWS: SUBSISTENCE ALLOWANCE MAY NOT BE PAID TO COAST GUARD ENLISTED MEN ASSIGNED TO LIGHTSHIPS AND REMOTE SHORE STATIONS DURING PERIODS OF COMPENSATORY ABSENCE.

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B-117972, FEBRUARY 24, 1955, 34 COMP. GEN. 401

LEAVES OF ABSENCE - COMPENSATORY ABSENCES - CHARGING TO REGULAR LEAVE; SUBSISTENCE ALLOWANCE DECISION B-117972, SEPTEMBER 9, 1954, 34 COMP. GEN. 117, HOLDING THAT SUBSISTENCE ALLOWANCE MAY NOT BE PAID TO COAST GUARD ENLISTED MEN ASSIGNED TO LIGHTSHIPS AND REMOTE SHORE STATIONS DURING PERIODS OF COMPENSATORY ABSENCES AND THAT ABSENCES IN EXCESS OF 48 HOURS (LIBERTY) ARE REQUIRED TO BE CHARGED TO REGULAR LEAVE IS MODIFIED BY SUSPENDING THE EFFECTIVE DATE UNTIL THE END OF THE PRESENT SESSION OF CONGRESS TO AFFORD THE SECRETARY OF THE TREASURY AN OPPORTUNITY TO SUBMIT THE MATTER FOR LEGISLATIVE ACTION. 34 COMP. GEN. 117, MODIFIED AS TO EFFECTIVE DATE.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE TREASURY, FEBRUARY 24, 1955:

YOUR LETTER OF NOVEMBER 10, 1954, AND A PRIOR LETTER DATED OCTOBER 19, 1954, FROM THE ACTING SECRETARY OF THE TREASURY, HAVE REQUESTED FURTHER CONSIDERATION OF THE MATTER INVOLVED IN DECISION OF SEPTEMBER 9, 1954(B- 117972), 34 COMP. GEN. 117. THE SYLLABUS OF THE DECISION IS AS FOLLOWS:

SUBSISTENCE ALLOWANCE MAY NOT BE PAID TO COAST GUARD ENLISTED MEN ASSIGNED TO LIGHTSHIPS AND REMOTE SHORE STATIONS DURING PERIODS OF COMPENSATORY ABSENCE; FURTHERMORE, ABSENCES IN EXCESS OF 48 HOURS (LIBERTY) ARE REQUIRED TO BE CHARGED TO REGULAR LEAVE, IN WHICH EVENT MEMBERS WILL BE ENTITLED TO SUBSISTENCE ALLOWANCE AS AUTHORIZED BY EXECUTIVE ORDER NO. 10119 FOR "PERIODS OF AUTHORIZED LEAVE.'

IN HIS LETTER OF OCTOBER 19, 1954, THE ACTING SECRETARY ADVISED THAT UPON RECEIPT OF THE DECISION OF SEPTEMBER 9, 1954, EXISTING AUTHORITY FOR GRANTING COMPENSATORY ABSENCE TO COAST GUARD MILITARY PERSONNEL WAS CANCELED BY COAST GUARD MESSAGE "ALDIST 77.' IN VIEW OF THE LONGSTANDING PRACTICE AND THE CONSEQUENT DIFFICULTIES ASSOCIATED WITH ANY CONTEMPLATED RECOVERY OF OVERPAYMENTS, HE REQUESTED, HOWEVER, THAT THE EFFECTIVE DATE OF THE DECISION BE FIXED AS SEPTEMBER 22, 1954, THE DATE OF THE COAST GUARD MESSAGE.

IN YOUR LETTER OF NOVEMBER 10, 1954, YOU REFER TO THE REQUEST IN THE LETTER OF OCTOBER 19TH, BUT ADVISE THAT A FURTHER STUDY OF THE MATTER HAS LED YOU TO THE CONCLUSION THAT THERE IS A STRONG LEGAL BASIS FOR THE VIEW THAT COMPENSATORY ABSENCE FOR INDEFINITE PERIODS MAY BE GRANTED TO MILITARY PERSONNEL OF THE COAST GUARD WITHOUT BEING CHARGED TO THEIR REGULAR LEAVE ACCOUNT AND THAT THE GRANT OF SUCH COMPENSATORY LEAVE IS CONSISTENT WITH THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED. YOU ASK THAT THE ARGUMENTS ADVANCED IN AN ENCLOSED MEMORANDUM IN SUPPORT OF THAT VIEW BE CONSIDERED.

THE ARGUMENTS ADVANCED REST PRIMARILY ON THE PREMISES THAT COMPENSATORY ABSENCE IN EFFECT IS MERELY A PERIOD OF EXTENDED LIBERTY AND THAT THE GRANT OF LIBERTY IS DISCRETIONARY, SO THAT NO LIMIT OR PERIOD OF DURATION NEED BE ATTACHED. THE ARGUMENT PROCEEDS THAT IF REGULAR WEEKEND PERIODS OF LIBERTY ARE PERMISSIBLE, THEY MAY BE ACCUMULATED AND GRANTED AT ONE TIME IN GREATER AMOUNTS AND, INFERENTIALLY, BY TRANSPOSING LIBERTY, AS SUCH, INTO COMPENSATORY ABSENCE, IT IS LEGALLY UNOBJECTIONABLE TO GRANT SUBSTANTIAL PERIODS OF ABSENCE FROM DUTY WITH PAY AND ALLOWANCES WITHOUT MAKING ANY CORRESPONDING CHARGE AGAINST THE PERSON'S LEAVE ACCOUNT AS REQUIRED BY THE ARMED FORCES LEAVE ACT OF 1946 AND THE REGULATIONS ISSUED PURSUANT TO THAT ACT. THE MEMORANDUM FURTHER ADVERTS TO THE FACT THAT THE PRACTICE OF GRANTING COMPENSATORY ABSENCES HAS EXISTED BOTH PRIOR AND SUBSEQUENT TO THE EFFECTIVE DATE OF THE ARMED FORCES LEAVE ACT OF 1946 AND IT IS STATED SUCH PRACTICE HAS NOT BEEN QUESTIONED.

WHILE THESE ARGUMENTS MAY HAVE SOME MERIT, IT IS NECESSARY TO EMPHASIZE THE FACT THAT THE CONCEPT OF GRANTING PERMISSION TO OFFICERS AND ENLISTED MEMBERS OF THE ARMED FORCES TO BE ABSENT FROM DUTY WAS MATERIALLY ALTERED BY THE ARMED FORCES LEAVE ACT OF 1946. WHERE PERMISSION TO BE ABSENT FROM DUTY WITH PAY PREVIOUSLY WAS VESTED IN LARGE MEASURE IN THE ADMINISTRATIVE BRANCH, THE 1946 ACT PRESCRIBED A PRECISE AND DEFINITE SUBSTITUTE IN THE FORM OF A SPECIFIED AMOUNT OF LEAVE ACCRUING ONLY IN ACCORDANCE WITH THE EXPRESS PROVISIONS OF THE STATUTE AND IMPLEMENTING REGULATIONS. SHOULD THE MATTER OF EXTENDED ABSENCES IN THE COAST GUARD, EITHER IN THE FORM OF LIBERTY OR COMPENSATORY ABSENCE BE NOW BROUGHT TO THE ATTENTION OF THE CONGRESS, SUCH PRACTICE MIGHT PROPERLY BE CHALLENGED AS CONFERRING GREATER BENEFITS TO INDIVIDUAL MEMBERS OF THE COAST GUARD THAN TO MEMBERS OF THE OTHER UNIFORMED SERVICES. IT MAY BE NOTED, ALSO, THAT THE SPECIFIC QUESTION UNDER CONSIDERATION WAS NEVER BROUGHT DIRECTLY TO THE ATTENTION OF THE ACCOUNTING OFFICERS BUT CAME TO LIGHT IN CONSIDERING THE SUBMISSION RESULTING IN THE DECISION OF SEPTEMBER 9, 1954, THE QUESTION PRESENTED BEING WHETHER ENLISTED MEMBERS OF THE COAST GUARD ARE ENTITLED TO A SUBSISTENCE ALLOWANCE DURING PERIODS OF COMPENSATORY ABSENCES. THE FACT THAT THE PRACTICE CONTINUED AFTER THE EFFECTIVE DATE OF THE LEAVE ACT OF 1946 WITHOUT BEING QUESTIONED THUS FURNISHES NO BASIS FOR THE ASSUMPTION THAT THE PRACTICE WAS KNOWN TO THE CONGRESS OR THE ACCOUNTING OFFICERS.

AUTHORIZED ABSENCE FROM DUTY WITH PAY AND ALLOWANCES IS GRANTED TO MILITARY PERSONNEL FOR THE PURPOSE OF REST AND TO PROVIDE PERIODS OF RELAXATION FROM ROUTINE DUTIES AS WELL AS FOR TRAVEL AND HEALTHFUL RECREATION. THIS IS CONSIDERED TO BE ESSENTIAL TO THE EFFICIENCY AND MORALE OF THE ARMED FORCES, AND ONE OF THE PRIMARY OBJECTIVES OF THE ARMED FORCES LEAVE ACT OF 1946 WAS UNIFORMITY OF LEAVE POLICIES FOR ALL MEMBERS OF THE SEVERAL BRANCHES OF THE ARMED FORCES, INCLUDING THE MILITARY MEMBERS OF THE COAST GUARD. SECTION 3 (A) OF THE ACT. 60 STAT. 963, 37 U.S.C. 31A (A), PRESCRIBES A FIXED AMOUNT OF ANNUAL LEAVE FOR ALL MILITARY PERSONNEL, OFFICERS AND ENLISTED MEMBERS ALIKE, AND DIRECTS THAT THE REGULATIONS TO BE ISSUED BY THE SEVERAL SECRETARIES CONCERNED "SHALL PROVIDE EQUAL TREATMENT FOR OFFICERS AND ENLISTED MEN, SHALL ESTABLISH TO THE FULLEST EXTENT PRACTICABLE UNIFORM POLICIES FOR THE SEVERAL BRANCHES OF THE ARMED FORCES, AND SHALL PROVIDE THAT LEAVE SHALL BE TAKEN ANNUALLY AS ACCRUING TO THE EXTENT CONSISTENT WITH MILITARY REQUIREMENTS AND OTHER EXIGENCIES.' SEE, ALSO, SECTION 4 OF THE ACT, 60 STAT. 964 (SECTION 4 (E), AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 749) 37 U.S.C. 33 (E).

SECTION 4 (B) OF THE ACT, 61 STAT. 748, 37 U.S.C. 33 (B), PROVIDES THAT--

(B) AFTER AUGUST 31, 1946, MEMBERS OF THE ARMED FORCES WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR WHEN DIRECTED BY THE SECRETARY TO BE ABSENT FROM DUTY TO AWAIT ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS FOR ANY PERIOD IN EXCESS OF THE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT, SHALL RECEIVE THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT SO ABSENT; WHEN ABSENT WITH LEAVE FOR OTHER CAUSES, MEMBERS SHALL BE ENTITLED DURING SUCH ABSENCE NOT EXCEEDING THE AGGREGATE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT TO THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT ON LEAVE AND TO ANY ADDITIONAL ALLOWANCE OR ALLOWANCES OTHERWISE PROVIDED BY LAW FOR MEMBERS WHILE ON LEAVE. WHEN THE SECRETARY AUTHORIZES MEMBERS TO BE ABSENT IN EXCESS OF THE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT, THEY SHALL NOT BE ENTITLED TO ANY PAY OR ALLOWANCES DURING SUCH ABSENCE. WHEN ABSENT WITHOUT LEAVE OR ABSENT OVER LEAVE, THEY SHALL FORFEIT ALL PAY AND ALLOWANCES DURING SUCH ABSENCE, UNLESS SUCH ABSENCE IS EXCUSED AS UNAVOIDABLE. * * *

UNDER THESE STATUTORY PROVISIONS, THE MILITARY PERSONNEL OF THE COAST GUARD HAVE BEEN ENTITLED, FROM THE EFFECTIVE DATE OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, TO THE SAME LEAVE OF ABSENCE BENEFITS AND PRIVILEGES AS ARE PRESCRIBED IN THAT ACT FOR OTHER MEMBERS OF THE ARMED FORCES. AS INDICATED IN THE DECISION OF SEPTEMBER 9, 1954, THE MORALE PROBLEM WHICH ARISES FROM LONG AND CONTINUOUS DUTY AT ISOLATED AND INACCESSIBLE POSTS OF DUTY IS COMMON TO ALL BRANCHES OF THE ARMED FORCES AND IS NOT A MATTER PECULIAR TO THE COAST GUARD SERVICE.

A CONTENTION ALSO MADE TO JUSTIFY CONTINUATION OF THE PRACTICE IS THAT COMPENSATORY ABSENCE FROM DUTY, WITHOUT CHARGE TO ACCRUING ANNUAL LEAVE, GRANTED TO COAST GUARD MILITARY PERSONNEL IN LIEU OF UNUSED PERIODS OF LIBERTY AROSE UNDER ADMINISTRATIVE REGULATIONS GOVERNING THE FORMER LIGHTHOUSE SERVICE. HOWEVER, NO SPECIFIC STATUTORY AUTHORITY EXISTED FOR SUCH PRACTICE UNTIL THE PASSAGE OF THE ACT OF JUNE 29, 1949, 63 STAT. 299, 33 U.S.C. 746A, AUTHORIZING "COMPENSATORY ABSENCE FROM DUTY WHEN CONDITIONS OF EMPLOYMENT RESULT IN CONFINEMENT BECAUSE OF ISOLATION OR IN LONG PERIODS OF CONTINUOUS DUTY" IN THE CASE OF CERTAIN CIVILIAN EMPLOYEES OF THE COAST GUARD. THAT LAW DOES NOT AUTHORIZE COMPENSATORY ABSENCE FOR MILITARY PERSONNEL OF THE COAST GUARD AND, IN VIEW OF SUCH OMISSION, IT SEEMS CLEAR THAT THE CONGRESS DID NOT INTEND BY THAT ACT TO EXTEND OR GRANT ANY LEAVE BENEFITS TO COAST GUARD MILITARY PERSONNEL IN ADDITION TO THOSE PREVIOUSLY PRESCRIBED IN THE ARMED FORCES LEAVE ACT OF 1946.

MOST CAREFUL CONSIDERATION HAS BEEN GIVEN TO THIS MATTER AND TO THE ARGUMENTS SUBMITTED, BUT IN VIEW OF THE EXPRESS AND UNAMBIGUOUS TERMS OF THE ARMED FORCES LEAVE ACT OF 1946, WE FIND NO SUFFICIENT BASIS TO MODIFY THE GENERAL CONCLUSIONS REACHED IN THE DECISION OF SEPTEMBER 9, 1954. HOWEVER, WE ARE NOT UNMINDFUL OF THE SITUATION THAT PERHAPS AT LEAST ONE OF THE INDUCEMENTS PREVIOUSLY HELD OUT TO COAST GUARD MEMBERS WHO HAVE BEEN DETAILED TO REMOTE PLACES WAS THE PROMISE OF A PERIOD OF COMPENSATORY ABSENCE, OR OF THE ILL EFFECTS CAUSED BY THE ABRUPT CANCELLATION OF THAT PRIVILEGE. IN VIEW OF ALL THE COMPLICATIONS WHICH ARISE IN THE CASE, IT IS BELIEVED THAT A SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENTS OF THE PERTINENT STATUTES WILL BE ATTAINED BY SUSPENDING THE EFFECTIVE DATE OF THE DECISION UNTIL THE END OF THE PRESENT SESSION OF CONGRESS, TO AFFORD YOUR DEPARTMENT AN OPPORTUNITY TO SUBMIT THE MATTER FOR LEGISLATIVE ACTION.

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