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B-98372, DEC. 14, 1960

B-98372 Dec 14, 1960
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ALLAN RALPH ZENOWITZ: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20. SINCE WE SAID IN THAT DECISION THAT YOU WERE GRANTED A LEAVE OF ABSENCE FROM TRAINING DUTY FOR THE PERIOD JULY 14 TO 25. YOU INQUIRE WHETHER YOU WERE CONSIDERED TO BE ON ACTIVE DUTY FOR TRAINING AND ENTITLED TO PAY AND ALLOWANCES FOR SUCH PERIOD. EXCEPT WHEN THE ABSENCE IS ON ACCOUNT OF SICKNESS OR WOUNDS. PARAGRAPH 19A (3) OF ARMY REGULATIONS 630-5 PROVIDES THAT A MEMBER OF A RESERVE COMPONENT OF THE ARMY IS ENTITLED TO LEAVE ONLY WHEN ORDERED TO ACTIVE DUTY. WHILE YOU WERE GRANTED A LEAVE OF ABSENCE YOU WERE ORDERED TO DUTY FOR ONLY 15 DAYS AND SO UNDER THE PROVISIONS OF THE ABOVE LAW AND THE TERMS OF YOUR ORDERS YOU HAD NOT ACCUMULATED ANY LEAVE.

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B-98372, DEC. 14, 1960

TO MR. ALLAN RALPH ZENOWITZ:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20, 1960, REFERRING TO OUR DECISION TO YOU DATED NOVEMBER 17, 1960, B-98372, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR REIMBURSEMENT OF TRAVEL EXPENSES FOR TRAVEL PERFORMED ON JULY 14 AND 15, 1959, FROM CAMP DRUM, NEW YORK, TO NEW YORK, NEW YORK, WHILE ON LEAVE OF ABSENCE. SINCE WE SAID IN THAT DECISION THAT YOU WERE GRANTED A LEAVE OF ABSENCE FROM TRAINING DUTY FOR THE PERIOD JULY 14 TO 25, 1959, YOU INQUIRE WHETHER YOU WERE CONSIDERED TO BE ON ACTIVE DUTY FOR TRAINING AND ENTITLED TO PAY AND ALLOWANCES FOR SUCH PERIOD.

SECTION 3 (A) OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED, 37 U.S.C. 31A, PROVIDES FOR THE ACCRUAL OF ANNUAL LEAVE AT THE RATE OF 2 1/2 DAYS FOR EACH MONTH OF "ACTIVE SERVICE," EXCLUDING PERIODS OF (1) ABSENCE FROM DUTY WITHOUT LEAVE, (2) ABSENCE OVER LEAVE, AND (3) CONFINEMENT AS THE RESULT OF A SENTENCE OF COURT-MARTIAL. SECTION 4 (B) OF THE STATUTE, AS AMENDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, 37 U.S.C. 33 (B), PROVIDES, HOWEVER, THAT MEMBERS ON AUTHORIZED LEAVE IN EXCESS OF THE NUMBER OF DAYS' LEAVE AUTHORIZED BY SECTION 3 (A) SHALL NOT BE ENTITLED TO ANY PAY AND ALLOWANCES DURING SUCH ABSENCE, EXCEPT WHEN THE ABSENCE IS ON ACCOUNT OF SICKNESS OR WOUNDS, OR WHILE AWAITING ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS. U.S.C. 31A PROVIDES THAT FULL TIME TRAINING, OR OTHER FULL-TIME DUTY FOR A PERIOD OF MORE THAN 29 DAYS, PERFORMED BY A MEMBER OF THE ARMY NATIONAL GUARD, SHALL BE CONSIDERED ACTIVE SERVICE FOR THE PURPOSE OF ACCUMULATING LEAVE. PARAGRAPH 19A (3) OF ARMY REGULATIONS 630-5 PROVIDES THAT A MEMBER OF A RESERVE COMPONENT OF THE ARMY IS ENTITLED TO LEAVE ONLY WHEN ORDERED TO ACTIVE DUTY, INCLUDING ACTIVE DUTY FOR TRAINING, FOR 30 DAYS OR MORE. WHILE YOU WERE GRANTED A LEAVE OF ABSENCE YOU WERE ORDERED TO DUTY FOR ONLY 15 DAYS AND SO UNDER THE PROVISIONS OF THE ABOVE LAW AND THE TERMS OF YOUR ORDERS YOU HAD NOT ACCUMULATED ANY LEAVE. THUS, YOU ARE NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD CLAIMED.

RELATIVE TO YOUR INQUIRY WHETHER YOU MAY ASSUME THAT ACTIVE DUTY IS THE SAME AS ACTIVE DUTY FOR TRAINING, 10 U.S.C. 101 (22) SPECIFIES THAT "ACTIVE DUTY" MEANS FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES. IT INCLUDES DUTY ON THE ACTIVE LIST, FULL-TIME TRAINING DUTY, ANNUAL TRAINING DUTY, AND ATTENDANCE, WHILE IN THE ACTIVE MILITARY SERVICE, AT A SCHOOL DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED. WE HAVE HELD THAT THERE APPEARS NO SUFFICIENT LEGAL BASIS FOR EXCLUDING ACTIVE DUTY FOR TRAINING FROM THE CATEGORY OF "ACTIVE SERVICE" AS THAT TERM IS USED IN THE ARMED FORCES LEAVE ACT OF 1946. HOWEVER, WHETHER THE PERIOD WHILE YOU WERE ON LEAVE WITHOUT PAY MAY BE COUNTED AS A PERIOD OF ,ACTIVE SERVICE" FOR OTHER PURPOSES IS A QUESTION ON WHICH A DECISION IS NOT AUTHORIZED SINCE IT IS NOT INVOLVED IN THE SETTLEMENT OF YOUR CLAIM.

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