A-21414, MARCH 29, 1928, 7 COMP. GEN. 615

A-21414: Mar 29, 1928

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AN OFFICER OF THE ARMY ABSENT ON EXCESS LEAVE FOR A PERIOD OF TWO YEARS IS NOT ENTITLED TO FULL PAY FOR 30 DAYS DURING EACH YEAR OF ABSENCE FROM DUTY. IS ONLY ENTITLED TO HALF PAY FOR THE PERIOD OF ABSENCE WITH LEAVE FROM THE DATE HE PASSED INTO AN EXCESS-LEAVE STATUS. 1928: THERE IS FOR CONSIDERATION A PAYMENT MADE BY MAJ. WHILE THE OFFICER WAS IN A STATUS OF EXCESS LEAVE. WHERE AN OFFICER IS ALREADY EXCUSED FROM DUTY AND ON LEAVE THERE IS NO AUTHORITY IN THE STATUTE TO PUT HIM IN A STATUS OF LEAVE WITH FULL PAY FOR 30 DAYS MERELY BECAUSE HE HAS BEEN ABSENT FROM DUTY FOR THE PRECEDING 11 MONTHS. THE QUESTION WHICH YOU HAVE PRESENTED WAS PASSED UPON BY COMPTROLLER DOWNEY. WHO WAS GRANTED FOUR MONTHS' LEAVE OF ABSENCE WITH PAY FROM JULY 5.

A-21414, MARCH 29, 1928, 7 COMP. GEN. 615

PAY - LEAVE OF ABSENCE - ARMY OFFICER IN AN EXCESS LEAVE STATUS UNDER SECTION 1265, REVISED STATUTES, AN OFFICER OF THE ARMY ABSENT ON EXCESS LEAVE FOR A PERIOD OF TWO YEARS IS NOT ENTITLED TO FULL PAY FOR 30 DAYS DURING EACH YEAR OF ABSENCE FROM DUTY, BUT IS ONLY ENTITLED TO HALF PAY FOR THE PERIOD OF ABSENCE WITH LEAVE FROM THE DATE HE PASSED INTO AN EXCESS-LEAVE STATUS.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 29, 1928:

THERE IS FOR CONSIDERATION A PAYMENT MADE BY MAJ. E. T. COMEGYS, FINANCE DEPARTMENT, ON VOUCHER 1978, AUGUST, 1927, ACCOUNTS, TO COL. WILLIAM KELLY, CORPS OF ENGINEERS, UNITED STATES ARMY, COVERING FULL PAY AND ALLOWANCES FOR THE MONTH OF JULY, 1927, WHILE THE OFFICER WAS IN A STATUS OF EXCESS LEAVE, WHICH RAISES THE QUESTION AS TO THE RIGHT OF AN OFFICER OF THE ARMY TO FULL PAY FOR 30 DAYS AND ONE-HALF PAY FOR THE BALANCE OF EACH YEAR DURING ABSENCE WITH LEAVE COVERING A PERIOD OF OVER TWO YEARS.

SECTION 1265, REVISED STATUTES, PROVIDES IN PART THAT:

OFFICERS * * * SHALL RECEIVE * * * WHEN ABSENT WITH LEAVE * * * FULL PAY DURING SUCH ABSENCE NOT EXCEEDING IN THE AGGREGATE THIRTY DAYS IN ONE YEAR, AND HALF PAY DURING SUCH ABSENCE EXCEEDING THIRTY DAYS IN ONE YEAR.

THE PROVISION FOR FULL PAY DURING AN ABSENCE NOT EXCEEDING AN AGGREGATE OF 30 DAYS IN ONE YEAR CONTEMPLATES AN ABSENCE WITH LEAVE FROM DUTY. WHERE AN OFFICER IS ALREADY EXCUSED FROM DUTY AND ON LEAVE THERE IS NO AUTHORITY IN THE STATUTE TO PUT HIM IN A STATUS OF LEAVE WITH FULL PAY FOR 30 DAYS MERELY BECAUSE HE HAS BEEN ABSENT FROM DUTY FOR THE PRECEDING 11 MONTHS. IN OTHER WORDS, WHERE AN OFFICER ON LEAVE PASSES INTO A HALF-PAY STATUS, THAT STATUS CONTINUES UNTIL HE RETURNS TO FULL-DUTY STATUS BY RETURN TO DUTY, LEAVE THEREAFTER WTH PAY BEING CONDITIONED ON THE RENDITION OF ACTUAL SERVICE.

THE QUESTION WHICH YOU HAVE PRESENTED WAS PASSED UPON BY COMPTROLLER DOWNEY, 21 COMP. DEC. 742, IN THE CASE OF GEORGE B. YOUNG, SURGEON, UNITED STATES PUBLIC HEALTH SERVICE, WHO WAS GRANTED FOUR MONTHS' LEAVE OF ABSENCE WITH PAY FROM JULY 5, 1911. THIS LEAVE HAD ACCUMULATED AND WAS STANDING TO HIS CREDIT, THE LAST MONTH BEING FOR THE ANNUAL LEAVE YEAR TERMINATING JUNE 19, 1912. THE SURGEON WAS GRANTED LEAVE WITHOUT PAY FROM NOVEMBER 5, 1911, TO JUNE 30, 1912, AND WAS GRANTED FURTHER AND CONTINUOUS LEAVE WITHOUT PAY FOR THREE YEARS FROM JULY 1, 1912, WHICH LEAVE WAS TERMINATED AT HIS REQUEST. IT WAS SAID IN THE SUBMISSION TO THE COMPTROLLER:

THE QUESTION ARISES AS TO WHETHER SURG. YOUNG IS ENTITLED TO A CREDIT OF LEAVE WHILE ABSENT FROM THE SERVICE WITHOUT PAY DURING THE PERIODS ABOVE MENTIONED.

IT WAS STATED IN THE DECISION:

* * * CUMULATIVE LEAVE OF ABSENCE IS EARNED BY SERVICE. SERVICE IS THE BASIS OF SUCH ALLOWANCE. THE THEORY IS THAT FOR SO MUCH SERVICE THERE SHALL BE SO MUCH LEAVE OR HOLIDAY; AND SO LEAVE LAWS ARE CONSTRUED GENERALLY, WHETHER IN THE CIVIL OR MILITARY DEPARTMENTS. AN OFFICER UPON FIRST ENTRY INTO THE SERVICE IS NOT ENTITLED TO LEAVE WITH PAY UNTIL IT HAS ACCRUED TO HIM BY SERVICE. (15 COMP. DEC. 766; 18 ID. 446.)

TO HOLD THAT AN OFFICER WHO HAS BEEN ON LEAVE WITHOUT PAY, FOR HIS OWN CONVENIENCE, FOR NEARLY FOUR YEARS IS ENTITLED ON HIS RETURN TO DUTY TO AT ONCE RECEIVE THE LEAVE WITH FULL PAY TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE BEEN REGULARLY PERFORMING DUTY WOULD BE UTTERLY UNREASONABLE, UNFAIR TO THE GOVERNMENT, AND CONTRARY TO THE SPIRIT AND PURPOSE OF THE LEAVE LAWS.

IN THE CASE OF FREDERICK E. TROTTER V. THE UNITED STATES, DECIDED NOVEMBER 8, 1926, 62 CT.CLS. 568, IT WAS HELD A SURGEON IN THE UNITED STATES PUBLIC HEALTH SERVICE WAS ENTITLED TO PAY AS FIXED BY SECTION 1265, REVISED STATUTES, FOR THE PERIOD HE WAS ABSENT ON LEAVE, NOTWITHSTANDING THE FACT THAT HE HAD REQUESTED AND HAD BEEN GRANTED SAID LEAVE AS WITHOUT PAY. THE UNITED STATES IN THIS CASE SUBMITTED TO THE COURT A REQUEST FOR FINDING OF FACT THAT IF THE PLAINTIFF (TROTTER) WAS ENTITLED TO PAY, SUCH PAY WOULD BE HALF PAY DURING THE PERIOD FROM JANUARY 28, 1920, TO AUGUST 7, 1923, IN THE AMOUNT OF $8,465.98. THE PLAINTIFF OBJECTED TO THIS FINDING AND URGED THAT FOR THE FIRST 30 DAYS OF EACH LEAVE YEAR WHILE SO ABSENT ON LEAVE HE WAS ENTITLED UNDER SECTION 1265, REVISED STATUTES, TO FULL PAY AND TO HALF PAY THEREAFTER. SEE PAGES 21, 45, AND 46 OF THE RECORD. THE COURT RENDERED JUDGMENT FOR THE PLAINTIFF,"THE AMOUNT TO BE ASCERTAINED BY THE GENERAL ACCOUNTING OFFICE, AND JUDGMENT TO BE ENTERED WHEN THE AMOUNT WAS SO ASCERTAINED.' THE DIFFERENT METHODS OF COMPUTATION WERE FULLY PRESENTED TO THE COURT, AND THEREAFTER THE COURT, ON FEBRUARY 25, 1927, ENTERED JUDGMENT IN THE AMOUNT OF $8,465.98, AS COMPUTED BY THIS OFFICE, ALLOWING ONLY HALF PAY FOR THE ENTIRE PERIOD.

THERE HAVE BEEN DECISIONS AND INSTANCES WHERE A FULL MONTH'S PAY HAS BEEN CREDITED DURING EACH YEAR OF ABSENCE FROM DUTY; HOWEVER, IN VIEW OF THE DECISION OF APRIL 21, 1915, 21 COMP. DEC. 742, AND THE ADOPTION OF THE COMPUTATION OF THIS OFFICE IN THE TROTTER CASE BY THE COURT OF CLAIMS, THE MATTER MUST BE TREATED AS NOW CLOSED SO FAR AS THE SETTLEMENT OF ACCOUNTS IS CONCERNED. THE CONCLUSION MUST BE THAT LEAVE CREDITS DO NOT ACCRUE TO AN OFFICER OF THE ARMY DURING A PERIOD OF TIME HE IS IN AN EXCESS-LEAVE STATUS.