B-162806, FEB. 21, 1968

B-162806, FEB. 21, 1968

ARMED SERVICES - LEAVE - DISABILITY RETIREMENT DECISION TO FORMER ARMY MEMBER REAFFIRMING DECISION OF JANUARY 4, 1968, THAT LEAVE DEDUCTED WHILE MEMBER WAS AT HOME AWAITING ORDERS PENDING DISABILITY RETIREMENT WAS IN ACCORD WITH LEAVE LAW.

TO MR. EDWARD C. MITCHELL:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 15, 1968, AND ENCLOSURE, IN EFFECT REQUESTING RECONSIDERATION OF OUR DECISION OF JANUARY 4, 1968, B- 162806, RELATIVE TO YOUR CLAIM FOR PAYMENT FOR ACCRUED LEAVE DEDUCTED FROM YOUR LEAVE BALANCE FOR THE PERIOD IN 1953 THAT YOU WERE AWAITING ORDERS AT YOUR HOME PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS.

YOU WERE ADVISED IN THE DECISION OF JANUARY 4, 1968, THAT SECTION 4 (E) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY THE ACT OF AUGUST 4, 1947, 37 U.S.C. 33 (E) (1952 ED.), PROVIDED, DURING THE PERIOD OF YOUR CLAIM, THAT DETERMINATION OF THE NUMBER OF CALENDAR DAYS OF LEAVE TO WHICH A MEMBER OR FORMER MEMBER WAS ENTITLED, INCLUDING THE NUMBER OF CALENDAR DAYS OF ABSENCE FROM DUTY OR VACATION TO BE COUNTED OR CHARGED AGAINST SUCH LEAVE, WOULD BE MADE IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE RESPECTIVE SECRETARIES AND THAT ALL DECISIONS BY THE SECRETARIES UNDER THIS SECTION "SHALL BE FINAL AND CONCLUSIVE AND SHALL NOT BE SUBJECT TO REVIEW BY ANY COURT OR BY ANY OFFICER OF THE UNITED STATES.'

YOU WERE ALSO ADVISED THAT SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946 CONTEMPLATED THAT WHENEVER A MEMBER OF THE ARMED FORCES WAS "DIRECTED BY THE SECRETARY TO BE ABSENT FROM DUTY TO AWAIT ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS," A CHARGE FOR LEAVE FOR THE NUMBER OF DAYS INVOLVED WOULD BE MADE FOR SUCH ABSENCE TO THE EXTENT "OF THE NUMBER OF DAYS' EAVE" CREDITABLE TO THE MEMBER UNDER THAT ACT.

IT WAS CONCLUDED IN THE DECISION OF JANUARY 4, 1968, THAT SINCE YOU WERE AUTHORIZED TO BE ABSENT FROM DUTY IN AN AWAITING ORDERS STATUS WITHIN THE CONTEMPLATION OF THIS PROVISION OF LAW, SUCH LEAVE CHARGE APPEARS TO HAVE BEEN IN ACCORDANCE WITH THE LEAVE LAW.

IN YOUR LETTER OF JANUARY 15, 1968, YOU POINT OUT THAT SPECIAL ORDERS 65 DATED MARCH 20, 1953, HEADQUARTERS, U.S. ARMY HOSPITAL, CAMP ATTERBURY, INDIANA, RELEASED YOU FROM DUTY IN THE ARMY BY REASON OF PHYSICAL DISABILITY AND NOT ON THE BASIS OF A DISABILITY RETIREMENT. IT APPEARS TO BE YOUR BELIEF THAT SINCE YOU WERE RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY YOU ARE ENTITLED TO PAYMENT FOR THE ACCRUED LEAVE DEDUCTED FROM YOUR LEAVE BALANCE FOR THE PERIOD YOU WERE AWAITING ORDERS AT YOUR HOME PURSUANT TO SPECIAL ORDERS 37 DATED FEBRUARY 13, 1953.

IN THE DECISION OF FEBRUARY 4, 1953, 32 COMP. GEN. 348, WE HELD THAT A MEMBER OF THE MILITARY SERVICE WHO HAS BEEN FOUND BY A PHYSICAL EVALUATION BOARD TO BE UNFIT TO PERFORM THE DUTIES OF HIS RANK OR GRADE AND WHO IS GIVEN ORDERS TO A DESIGNATED PLACE TO AWAIT FURTHER ORDERS IN CONNECTION WITH DISABILITY RETIREMENT PROCEEDINGS IS ON AUTHORIZED ABSENCE FROM DUTY, AND UNDER SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, THE PERIOD SPENT AT HOME OR ELSEWHERE IS REQUIRED TO BE CHARGED AGAINST THE MEMBER'S LEAVE BALANCE TO THE EXTENT POSSIBLE. SEE ALSO THE DECISION OF JUNE 24, 1952, 31 COMP. GEN. 678.

OUR RECORDS DID NOT SHOW WHETHER YOU HAD BEEN RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY OR RETIRED FOR DISABILITY UNTIL WE RECEIVED YOUR LETTER OF JANUARY 15, 1968, WITH COPIES OF YOUR ORDERS OF FEBRUARY 13, 1953, AND MARCH 20, 1953. HOWEVER, OUR DECISION OF JANUARY 4, 1968, B-162806, WAS NOT PREDICATED ON A RETIREMENT FOR DISABILITY. WAS BASED ON YOUR STATEMENTS AND OTHER EVIDENCE IN THE RECORD WHICH INDICATED THAT PRIOR TO ISSUANCE OF THE ORDERS OF FEBRUARY 13, 1953, YOU HAD APPEARED BEFORE A MEDICAL BOARD AND A PHYSICAL EVALUATION BOARD FOR PHYSICAL DISABILITY EVALUATION AND THAT IT HAD BEEN DETERMINED THAT YOU WERE PHYSICALLY UNFIT FOR FURTHER ACTIVE SERVICE. ON THAT BASIS AND AT YOUR ELECTION YOU WERE ORDERED ON FEBRUARY 13, 1953, TO PROCEED TO YOUR HOME TO AWAIT FURTHER ORDERS BY THE SECRETARY OF THE ARMY AS TO THE DISPOSITION TO BE MADE IN YOUR CASE. THUS, IT APPEARED THAT DURING THE PERIOD INVOLVED YOU WERE AWAITING FURTHER ORDERS AT HOME PENDING A DETERMINATION WHETHER YOU SHOULD BE RETIRED FOR PHYSICAL DISABILITY OR RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY.

WE ARE OF THE OPINION THAT THE LAW CONTEMPLATES THAT LEAVE WILL BE CHARGED TO THE EXTENT OF THE NUMBER OF DAYS' LEAVE TO THE MEMBER'S CREDIT WHILE HE IS ABSENT UNDER ORDERS AWAITING ACTION ON DISABILITY RETIREMENT PROCEEDINGS ON THE BASIS THAT HE IS PHYSICALLY UNFIT FOR FURTHER ACTIVE DUTY AND SUCH CHARGE IS NOT CONTINGENT ON A FINDING THAT THE MEMBER SHOULD BE GIVEN A DISABILITY RETIREMENT. IF THE ULTIMATE DETERMINATION IS THAT THE MEMBER SHOULD BE RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY BUT THAT HE DOES NOT QUALIFY FOR DISABILITY RETIREMENT, THE LAW STILL REQUIRES THAT LEAVE BE CHARGED TO THE EXTENT OF THE NUMBER OF DAYS' LEAVE TO THE MEMBER'S CREDIT WHILE IN AN AWAITING ORDERS STATUS.

THIS VIEW IS IN ACCORD WITH PARAGRAPH 37 OF ARMY REGULATION 630-5 WHICH CURRENTLY PROVIDES THAT AN INDIVIDUAL WHO, UPON HIS REQUEST, IS ORDERED HOME ON PERMANENT CHANGE OF STATION TO AWAIT FURTHER ORDERS AND DISPOSITION AS A RESULT OF DISABILITY SEPARATION PROCEEDINGS IN ACCORDANCE WITH AR 635-40A AND AR 635-40B (SEPARATION OR RETIREMENT FOR DISABILITY) WILL BE CHARGED LEAVE FOR THE DAYS IN AN AWAITING ORDERS STATUS WHILE AT HOME OR THE PLACE SELECTED, TO THE MAXIMUM EXTENT THAT LEAVE HAS ACCRUED.

ACCORDINGLY, THE LEAVE CHARGED TO YOU DURING THE PERIOD YOU WERE AT HOME AWAITING ORDERS PENDING ACTION ON YOUR RELEASE FROM ACTIVE DUTY WAS PROPER AND YOUR CLAIM FOR PAYMENT THEREOF MAY NOT BE ALLOWED.

CONCERNING YOUR STATEMENT THAT YOU WERE ALREADY AT HOME UNDER YOUR ORDERS OF FEBRUARY 13, 1953, WHEN YOU RECEIVED THE ORDERS OF MARCH 20, 1953, TO PROCEED TO YOUR HOME, THE ARMY HAS NOT FURNISHED OUR OFFICE A REPORT AS TO SUCH APPARENT DISCREPANCY. HOWEVER, THE FACT THAT YOU RECEIVED ORDERS TO PROCEED TO YOUR HOME WHEN YOU WERE ALREADY AT HOME UNDER EARLIER ORDERS HAS NO BEARING ON YOUR ENTITLEMENT TO PAYMENT FOR THE LEAVE INVOLVED AND DOES NOT PROVIDE A BASIS FOR THE ALLOWANCE OF YOUR CLAIM.