B-116410, FEBRUARY 4, 1954, 33 COMP. GEN. 337

B-116410, FEBRUARY 4, 1954, 33 COMP. GEN. 337

LEAVES OF ABSENCE - MILITARY, NAVAL, ETC., PERSONNEL - ACCRUAL AND MANNER OF CREDITING - FRACTIONAL DAYS THE LEAVE COMPUTATION METHOD IN PARAGRAPH 14102, MARINE CORPS MANUAL, WHICH PROVIDES FOR CREDITING LEAVE AT THE RATE OF ONE-HALF DAY'S LEAVE FOR EACH CONSECUTIVE SIX-DAY PERIOD COMMENCING WITH THE FIRST DAY OF THE MONTH UP TO THE 24TH DAY AND AN ADDITIONAL ONE-HALF DAY'S LEAVE FOR THE PERIOD FROM THE 25TH TO THE 31ST DAY OF THE MONTH AND ALSO PROVIDES THAT WHEN THE SUM OF THE TOTAL LEAVE CREDITS RESULTS IN A FRACTIONAL PART OF A DAY CREDIT WILL BE GIVEN FOR A FULL DAY, IS A PRACTICAL ADMINISTRATIVE SOLUTION OF THE FRACTIONAL COMPUTATION PROBLEM POSED BY THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, AND LEAVE PAYMENTS COMPUTED IN ACCORDANCE WITH SUCH FORMULA WILL NOT BE QUESTIONED.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COLONEL T. A. SMITH, UNITED STATES MARINE CORPS, FEBRUARY 4, 1954:

BY FIRST ENDORSEMENT OF JULY 14, 1953, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF JULY 8, 1953, REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT FOR UNUSED LEAVE COMPUTED IN ACCORDANCE WITH EXISTING REGULATIONS ALLOWING ONE DAY'S LEAVE CREDIT WHEN THE COMPUTATION RESULTS IN A FRACTIONAL DAY OF LEAVE, UNDER CIRCUMSTANCES SIMILAR TO THOSE IN THE CASE OF WILLIAM F. BRYANT, TECHNICAL SERGEANT, USMC.

WHILE THIS OFFICE ORDINARILY DOES NOT RENDER A DECISION TO A DISBURSING OFFICER ON A QUESTION INVOLVED IN A VOUCHER WHICH IS BEFORE HIM FOR PAYMENT UNLESS SUCH VOUCHER IS SUBMITTED HERE WITH THE REQUEST FOR DECISION (SEE 22 COMP. GEN. 588, AND PARAGRAPH 76051-3, MARINE CORPS MANUAL), A DECISION WILL BE RENDERED ON THE PRESENT RECORD SINCE IT APPEARS THAT THE LEGAL QUESTION INVOLVED WAS CLEARLY RAISED IN THE AUDIT EXCEPTION ISSUED AGAINST THE PAYMENT MADE TO SERGEANT BRYANT AND YOU STATE THAT YOUR OFFICE HAS BEFORE IT FOR PAYMENT SEVERAL MILITARY PAY ORDERS COVERING UNUSED LEAVE COMPUTED ON THE SAME BASIS AS IN THE BRYANT CASE.

IT APPEARS THAT BRYANT WAS DISCHARGED ON AUGUST 9, 1951, AFTER SERVING FOR A PERIOD OF TWO EARS; THAT DURING THE TWO YEARS HE USED 18 DAYS' LEAVE; AND THAT UPON DISCHARGE HE WAS PAID FOR 43 DAYS, BASED ON AGGREGATE CREDITS OF 61 DAYS' LEAVE FOR THE PERIOD FROM AUGUST 10, 1949, TO AUGUST 9, 1951, COMPUTED IN ACCORDANCE WITH PARAGRAPH 14102, MARINE CORPS MANUAL. THE AUDIT EXCEPTION AGAINST SUCH PAYMENT STATED THAT ONLY 60 DAYS' LEAVE COULD ACCRUE FOR THE 24 MONTHS OF SERVICE.

SECTION 3 (A) OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, PROVIDES TAT " EACH MEMBER OF THE ARMED FORCES SHALL BE ENTITLED TO LEAVE AT THE RATE OF TWO AND ONE-HALF CALENDAR DAYS FOR EACH MONTH ACTIVE SERVICE" EXCLUDING CERTAIN PERIODS NOT MATERIAL HERE.

SECTION 4 (E) OF THE ACT, AS AMENDED, 37 U.S.C. 33 (E), STATES THAT:

DETERMINATION OF THE NUMBER OF CALENDAR DAYS OF LEAVE TO WHICH A MEMBER OR FORMER MEMBER IS ENTITLED, INCLUDING THE NUMBER OF CALENDAR DAYS OF ABSENCE FROM DUTY OR VACATION IS TO BE COUNTED OR CHARGED AGAINST SUCH LEAVE, SHALL BE MADE IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE RESPECTIVE SECRETARIES * * * .

PARAGRAPH 14102, MARINE CORPS MANUAL, PROVIDES FOR CREDITING LEAVE AT THE RATE OF ONE-HALF DAY'S LEAVE FOR EACH CONSECUTIVE 6-DAY PERIOD COMMENCING WITH THE FIRST DAY OF THE MONTH UP TO THE 24TH DAY AND AN ADDITIONAL ONE- HALF DAY'S LEAVE FOR THE PERIOD FROM THE 25TH TO THE 31ST DAY OF THE MONTH. ALSO, IT IS PROVIDED THAT WHENEVER THE SUM OF THE TOTAL CREDITS RESULTS IN A FRACTIONAL PART OF A DAY, CREDIT WILL BE GIVEN FOR A FULL DAY.

THE AUDIT EXCEPTION WAS ON THE BASIS THAT SINCE THE ENLISTED MAN SERVED EXACTLY 24 MONTHS, ONLY 60 DAYS' LEAVE COULD ACCRUE TO HIM. HOWEVER, THE UNIT OF A "MONTH" AS USED IN THE STATUTE REASONABLY MAY BE CONSIDERED AS A CALENDAR MONTH AND SINCE THE STATUTE DIRECTS THAT LEAVE SHALL BE ALLOWED AT THE "RATE" OF 2 1/2 DAYS A MONTH IT WAS NECESSARY THAT REGULATIONS BE PROMULGATED TO PROVIDE A MEANS OF DETERMINING THE AMOUNT OF LEAVE WHICH IS TO BE CREDITED FOR FRACTIONAL PARTS OF A MONTH. IN THAT SITUATION IT WOULD APPEAR WITHIN THE DISCRETION VESTED IN THE SECRETARIES CONCERNED TO PROVIDE FOR CREDITING LEAVE ON THE BASIS OF FRACTIONAL PARTS OF A MONTH USING THE FIRST DAY OF A CALENDAR MONTH AS THE STARTING POINT. WHILE THE FORMULA PRESCRIBED IN THE REGULATIONS FOR CREDITING LEAVE FOR FRACTIONAL MONTHS MAY RESULT IN SOME MEMBER BEING CREDITED DURING THE PERIODS OF THEIR ENLISTMENT OR TOURS OF ACTIVE DUTY WITH LEAVE SLIGHTLY IN EXCESS OF THAT WHICH WOULD BE CREDITED UNDER THE METHOD USED IN STATING THE AUDIT EXCEPTION, SUCH FORMULA HAS BEEN ADOPTED BY THE UNIFORMED SERVICES AS A PRACTICAL ADMINISTRATIVE SOLUTION OF THE FRACTIONAL COMPUTATION PROBLEM POSED BY THE STATUTE AND THIS OFFICE CANNOT SAY AS A MATTER OF LAW THAT SUCH REGULATIONS ARE NOT WITHIN THE AUTHORITY GRANTED BY SECTION 4 (E) OF THE ACT.

THE AUDIT EXCEPTION IN QUESTION WILL BE WITHDRAWN ACCORDINGLY, AND THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO SIMILAR PAYMENTS, IF OTHERWISE CORRECT.