A-19190, AUGUST 6, 1927, 7 COMP. GEN. 94

A-19190: Aug 6, 1927

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IS GRANTED OCCASIONAL DISCONNECTED LEAVES OF ABSENCE OF SHORT DURATION IS ENTITLED TO FULL PAY AND ALLOWANCES WHILE SO ABSENT. 6 COMP. RELIEVES HIM FROM THE PERFORMANCE OF ACTIVE DUTY IS NOT ENTITLED TO FULL PAY AND ALLOWANCES DURING SUCH ABSENCE. THE CLAIM IS CERTIFIED BY CAPT. THAT HE HAS NOT AND WILL NOT PAY ANY PORTION OF THE CLAIM. THE "CLAIM" IS THUS FILED WITHIN TWO DAYS AFTER IT IS CLAIMED TO HAVE ACCRUED AND BEFORE THE EXPIRATION OF THE MONTH IN WHICH IT ACCRUED. " THE "CLAIM" SEEMS TO HAVE BEEN PREMATURELY PRESENTED. IT APPEARS FROM THE VOLUMINOUS CORRESPONDENCE TRANSMITTED WITH THE APPLICATION THAT THE PURPOSE OF THE FILING IS TO TEST THE APPLICATION OF DECISION OF JUNE 1. HOLDING THAT RETIRED OFFICERS ASSIGNED TO ACTIVE DUTY ARE NOT ENTITLED TO FULL PAY AND ALLOWANCES WHILE ON LEAVE OF ABSENCE).

A-19190, AUGUST 6, 1927, 7 COMP. GEN. 94

PAY - RETIRED OFFICERS ON LEAVE OF ABSENCE A RETIRED OFFICER WHO, WHILE ON ACTIVE DUTY, IS GRANTED OCCASIONAL DISCONNECTED LEAVES OF ABSENCE OF SHORT DURATION IS ENTITLED TO FULL PAY AND ALLOWANCES WHILE SO ABSENT. 6 COMP. GEN. 777, DISTINGUISHED. A RETIRED OFFICER FORMALLY GRANTED LEAVE OF ABSENCE WHICH, BY REASON OF ITS DURATION IN FACT AND IN SUBSTANCE, RELIEVES HIM FROM THE PERFORMANCE OF ACTIVE DUTY IS NOT ENTITLED TO FULL PAY AND ALLOWANCES DURING SUCH ABSENCE, NOTWITHSTANDING THE INCIDENTAL CONTINUANCE OF HIS FINANCIAL OR PROPERTY RESPONSIBILITY DURING THE PERIOD OF LEAVE BECAUSE OF HIS ASSIGNMENT TO ACTIVE DUTY.

COMPTROLLER GENERAL MCCARL TO MAJ. RENATO TITTONI, RETIRED, UNITED STATES MARINE CORPS, AUGUST 6, 1927:

THERE HAS BEEN RECEIVED FROM YOU AN APPLICATION WITHOUT DATE FOR ARREARS OF PAY FOR SERVICES IN THE MARINE CORPS "FOR AMOUNT CHECKED--- $10.80 AS DIFFERENCE BETWEEN ACTIVE-DUTY PAY AND RETIRED PAY FOR ONE DAY, JUNE 20, 1927.' THE CLAIM IS CERTIFIED BY CAPT. M. B. CURTIS, ASSISTANT PAYMASTER, JUNE 22, 1927, THAT HE HAS NOT AND WILL NOT PAY ANY PORTION OF THE CLAIM. THE "CLAIM" IS THUS FILED WITHIN TWO DAYS AFTER IT IS CLAIMED TO HAVE ACCRUED AND BEFORE THE EXPIRATION OF THE MONTH IN WHICH IT ACCRUED. VIEW OF THE PROVISIONS OF SECTIONS 1612 AND 1268, REVISED STATUTES, THAT THE PAY OF OFFICERS "SHALL BE PAID MONTHLY BY THE PAYMASTER," THE "CLAIM" SEEMS TO HAVE BEEN PREMATURELY PRESENTED. BUT IT APPEARS FROM THE VOLUMINOUS CORRESPONDENCE TRANSMITTED WITH THE APPLICATION THAT THE PURPOSE OF THE FILING IS TO TEST THE APPLICATION OF DECISION OF JUNE 1, 1927, A-17898 (IN THE CASE OF COMMANDER BYRD, AND HOLDING THAT RETIRED OFFICERS ASSIGNED TO ACTIVE DUTY ARE NOT ENTITLED TO FULL PAY AND ALLOWANCES WHILE ON LEAVE OF ABSENCE), TO THE FACTS WHICH SHOULD HAVE BEEN MORE COMPLETELY PRESENTED--- THERE BEING NO COPY OF THE ORDER GRANTING THE CLAIMED LEAVE, IF ONE WAS ACTUALLY ISSUED, AND NO TRANSCRIPT OF THE PAY PAID YOU FOR THE MONTH OF JUNE, 1927.

THE CORRESPONDENCE ACCOMPANYING THE "CLAIM" INDICATES A MISCONCEPTION OF THE LAWS RESPECTING LEAVES OF ABSENCE OF OFFICERS. EXTENDED ARGUMENTS ARE ADVANCED THAT LEAVE OF ABSENCE IS AN ALLOWANCE AND ON THAT FALSE PREMISE FURTHER ARGUMENTS ARE MADE THAT IF A RETIRED OFFICER IS ENTITLED TO FULL PAY AND ALLOWANCES ONLY WHEN ACTUALLY IN THE PERFORMANCE OF ACTIVE DUTY, FULL PAY AND ALLOWANCES MUST BE EXCLUDED FOR SUNDAYS AND HOLIDAYS; WHILE TEMPORARILY ABSENT SICK IN HOSPITAL, ETC.

THE SUGGESTION THAT LEAVE OF ABSENCE FOR OFFICERS IS AN ALLOWANCE IS WITHOUT BASIS. THERE IS NO RIGHT TO LEAVE OF ABSENCE. IT IS COMPETENT FOR THE SECRETARY OF THE NAVY OR THE PRESIDENT TO PRESCRIBE THAT NONE SHALL BE GRANTED. IT IS NOT UNUSUAL ON OCCASIONS OF EMERGENCY TO PROHIBIT OR RESTRICT THE GRANTING OF LEAVES OF ABSENCE; FOR EXAMPLE, LETTER OF SEPTEMBER 8, 1917, FROM THE ADJUTANT GENERAL TO CHIEFS OF BRANCHES OF THE WAR DEPARTMENT SUSPENDING CERTAIN PORTIONS OF THE ARMY REGULATIONS REGULATING THE GRANTING OF LEAVES OF ABSENCE DURING THE CONTINUANCE OF THE THEN EXISTING EMERGENCY. AND IT IS COMPETENT FOR THE SECRETARY OF THE NAVY TO DENY ANY OR ALL LEAVES OF ABSENCE IN PARTICULAR CASES. THE LAWS UNDER WHICH LEAVES OF ABSENCE OF OFFICERS ARE REGULATED ARE CONSIDERED IN 1 COMP. GEN. 454, AND IT IS THERE STATED THOSE LAWS ARE NOT AUTHORITY TO GRANT LEAVES OF ABSENCE BUT ARE RESTRICTIONS ON PAY WHEN THE LEAVES OF ABSENCE; THEY WERE APPARENTLY ENACTED TO CONTROL AN ABUSE IN THE ARMY. THOSE LAWS DO NOT RESTRICT THE PRESIDENT OR THE SECRETARY OF THE NAVY FROM GRANTING LEAVES OF ABSENCES OF ANY DURATION. THEY DO FIX THE RATE OF PAY, AND THOSE LAWS HAVE BEEN AMPLIFIED SO FAR AS OFFICERS OF THE NAVY AND MARINE CORPS ARE CONCERNED BY THE ACT OF FEBRUARY 14, 1925, 43 STAT. 879, BY THE PROVISION THAT---

NO OFFICER OF THE NAVY OR MARINE CORPS, WHILE ON LEAVE OF ABSENCE ENGAGED IN A SERVICE OTHER THAN THAT OF THE GOVERNMENT OF THE UNITED STATES, SHALL BE ENTITLED TO ANY PAY OR ALLOWANCES FOR A PERIOD IN EXCESS OF THAT FOR WHICH HE IS ENTITLED TO FULL PAY, UNLESS THE PRESIDENT OTHERWISE DIRECTS.

THIS PROVISION, IN CASES COMING WITHIN ITS TERMS, DEPRIVES AN OFFICER OF HALF PAY GIVEN BY SECTION 1265, REVISED STATUTES, DURING EXCESS LEAVE UNLESS THE PRESIDENT SHALL DIRECT OTHERWISE. IT IS ANOTHER RESTRICTION NOT ON THE GRANTING OF LEAVE OF ABSENCE BUT ON THE PAY ACCRUING DURING SUCH LEAVE OF ABSENCE.

THESE LAWS OBVIOUSLY ARE INAPPLICABLE TO RETIRED OFFICERS. BY THEIR RETIREMENT THEY ARE IN EFFECT GRANTED INDEFINITE LEAVE OF ABSENCE FROM THE PERFORMANCE OF DUTY AND A RATE OF PAY IS FIXED THEREFOR; THAT IS, THREE- FOURTHS. RETIRED PAY, IT WOULD HARDLY BE CONTENDED, COULD BE REDUCED TO ONE-HALF PAY OR TAKEN AWAY ENTIRELY SHOULD A RETIRED OFFICER BE ON EXCESS LEAVE. AS JUST STATED, THE PERMANENT STATUS OF SUCH OFFICERS IS IN THE NATURE OF LEAVE OF ABSENCE AND RELIEF FROM THE PERFORMANCE OF ANY DUTY WITH A DEFINITE PAY FIXED BY STATUTE, AND NO OTHER OR GREATER PAY IS AUTHORIZED EXCEPT WHEN ON ACTIVE DUTY.

WHAT WAS SAID IN THE BYRD DECISION IS NOT AND WAS NOT INTENDED TO BE APPLICABLE TO THE OCCASIONAL DISCONNECTED ABSENCES OF SHORT DURATION BY A RETIRED OFFICER ON ACTIVE DUTY, WITH THE PERMISSION OR ACQUIESCENCE OF HIS IMMEDIATE SUPERIOR. WHAT WAS THERE SAID DOES HAVE APPLICATION IN EVERY CASE TO A FORMAL GRANTING OF LEAVE OF ABSENCE WHICH, BECAUSE OF THE DURATION IN FACT AND IN SUBSTANCE, RELIEVES THE RETIRED OFFICER FROM THE PERFORMANCE OF ACTIVE DUTY TO WHICH HE IS ASSIGNED. THE INCIDENTAL CONTINUANCE OF FINANCIAL OR PROPERTY RESPONSIBILITY DURING SUCH LEAVE OF ABSENCE BECAUSE OF THE ASSIGNMENT TO ACTIVE DUTY WILL NOT AUTHORIZE THE PAYMENT OF FULL PAY AND ALLOWANCES DURING SUCH LEAVE OF ABSENCE. IN THE PRESENT CASE APPARENTLY SIMULATED OF ONE DAY'S LEAVE OF ABSENCE ON JUNE 20, 1927, IF THERE HAS BEEN A SHORT PAYMENT ON THAT ACCOUNT TO YOU FOR THAT DAY, THE PAYMASTER CARRYING YOUR ACCOUNT IS AUTHORIZED TO CREDIT IT, CITING THIS LETTER AS AUTHORITY.