B-105042, JUNE 19, 1952, 31 COMP. GEN. 668

B-105042: Jun 19, 1952

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LEAVE OF ABSENCE - MILITARY - COMMISSIONED OFFICER REVERTING TO PERMANENT ENLISTED STATUS A MEMBER OF THE ARMED FORCES WHO WAS DISCHARGED FROM HIS PERMANENT ENLISTED STATUS TO ACCEPT A COMMISSION IN THE ARMY OF THE UNITED STATES. REENLISTED IN THE GRADE HELD PRIOR TO SUCH COMMISSIONED SERVICE IS ENTITLED. 1952: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 6. (2) IF THE ANSWER IS IN THE AFFIRMATIVE. COVINGTON WAS DISCHARGED OCTOBER 14. HE WAS SEPARATED FROM THE SERVICE AS A MAJOR. AS FOLLOWS: * * * THE PRESIDENT MAY AT ANY TIME RELIEVE FROM ACTIVE DUTY ANY RESERVE OFFICER WHO IS SERVING ON ACTIVE DUTY. * * * IT FURTHER APPEARS THAT MAJOR COVINGTON REENLISTED IN THE ARMY IN THE GRADE OF MASTER SERGEANT ON DECEMBER 28.

B-105042, JUNE 19, 1952, 31 COMP. GEN. 668

LEAVE OF ABSENCE - MILITARY - COMMISSIONED OFFICER REVERTING TO PERMANENT ENLISTED STATUS A MEMBER OF THE ARMED FORCES WHO WAS DISCHARGED FROM HIS PERMANENT ENLISTED STATUS TO ACCEPT A COMMISSION IN THE ARMY OF THE UNITED STATES, AND WHO, UPON TERMINATION OF ACTIVE SERVICE AS A COMMISSIONED OFFICER, REENLISTED IN THE GRADE HELD PRIOR TO SUCH COMMISSIONED SERVICE IS ENTITLED, UNDER THE ARMED FORCES LEAVE ACT OF 1946, TO A LUMP-SUM PAYMENT FOR ACCRUED LEAVE UPON RELIEF FROM ACTIVE DUTY AS A COMMISSIONED OFFICER, AS SUCH RELIEF UNDER SECTION 515 (D) OF THE OFFICER PERSONNEL ACT OF 1947 DOES NOT CONSTITUTE A DISCHARGE FOR THE PURPOSE OF ENTERING INTO AN ENLISTMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, JUNE 19, 1952:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 6, 1951, WITH ENCLOSURES, REQUESTING DECISION (1) AS TO WHETHER, UNDER THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, PAYMENT FOR ACCRUED LEAVE MAY BE MADE TO A WARRANT OR COMMISSIONED OFFICER OF THE ARMY, UPON RELIEF FROM ACTIVE DUTY FOR ANY REASON OTHER THAN FOR THE EXPRESS PURPOSE OF ENLISTING OR REENLISTING, WHO ENLISTS OR REENLISTS IN THE ARMY ON THE DAY FOLLOWING THE DAY OF RELIEF FROM ACTIVE DUTY, AND (2) IF THE ANSWER IS IN THE AFFIRMATIVE, MAY APPLICABLE ARMY REGULATIONS BE CHANGED SO AS TO AUTHORIZE LUMP SUM PAYMENT FOR ACCRUED LEAVE TO MEMBERS HERETOFORE SEPARATED, UNDER THE CIRCUMSTANCES IN QUESTION, IF THE MEMBER NOW HAS SUFFICIENT LEAVE TO HIS CREDIT.

SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 964, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, PROVIDES THAT:

ANY MEMBER OF THE ARMED FORCES DISCHARGED AFTER AUGUST 31, 1946, HAVING UNUSED ACCRUED LEAVE STANDING TO HIS CREDIT AT TIME OF DISCHARGE SHALL BE COMPENSATED FOR SUCH UNUSED LEAVE IN CASH ON THE BASIS OF THE BASE AND LONGEVITY PAY, AND ALLOWANCES, APPLICABLE TO SUCH MEMBER ON THE DATE OF DISCHARGE INCLUDING FOR ENLISTED PERSONS THE ALLOWANCES AS PROVIDED FOR SUCH ENLISTED PERSONS IN SUBSECTION (A) OF THIS SECTION: PROVIDED, THAT NO CASH SETTLEMENT SHALL BE MADE TO ANY MEMBER (1) DISCHARGED FOR THE PURPOSE OF ACCEPTING A COMMISSION OR WARRANT OR ENTERING INTO AN ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES, OR (2) ELECTING TO CARRY SUCH UNUSED LEAVE TO THE NEW ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES ON THE DAY FOLLOWING THE DATE OF DISCHARGE. A MEMBER EXCLUDED FROM CASH SETTLEMENT BY THE FOREGOING PROVISION AND A MEMBER REVERTING FROM WARRANT OR COMMISSIONED OFFICER TO ENLISTED STATUS SHALL CARRY ANY UNUSED ACCRUED LEAVE STANDING TO HIS CREDIT FROM ONE STATUS TO ANOTHER WITHIN HIS RESPECTIVE BRANCH OF THE ARMED FORCES. UNUSED LEAVE SETTLED AND COMPENSATED FOR IN CASH IN ACCORDANCE WITH THIS SUBSECTION SHALL NOT BE CONSIDERED AS SERVICE FOR ANY PURPOSE. SETTLEMENT AND COMPENSATION IN ACCORDANCE WITH THIS SUBSECTION SHALL BE MADE ONLY TO ALIVING MEMBER OR LIVING FORMER MEMBER OF THE ARMED FORCES. ( ITALICS SUPPLIED.)

THE DOUBT AS TO THE CORRECT INTERPRETATION OF SECTION 4 (C) APPARENTLY HAS ARISEN BY REASON OF THE ACTION TAKEN BY THE CLAIMS DIVISION OF THIS OFFICE IN DISALLOWING THE CLAIM OF MAJOR JAMES M. COVINGTON, UNITED STATES ARMY, RETIRED, FOR THE DIFFERENCE IN A LUMP SUM LEAVE PAYMENT BASED ON THE PAY AND ALLOWANCES OF A MAJOR AND SUCH PAYMENT BASED ON THE PAY AND ALLOWANCES OF A MASTER SERGEANT.

IT APPEARS THAT JAMES M. COVINGTON WAS DISCHARGED OCTOBER 14, 1941, AS A MASTER SERGEANT, UNITED STATES ARMY, TO ACCEPT AN APPOINTMENT AS FIRST LIEUTENANT, ARMY OF THE UNITED STATES; THAT ON DECEMBER 27, 1949, HE WAS SEPARATED FROM THE SERVICE AS A MAJOR, ARMY OF THE UNITED STATES, PURSUANT TO PARAGRAPH 1, SPECIAL ORDERS NO. 209, HEADQUARTERS GIESSEN QUARTERMASTER DEPOT, DATED NOVEMBER 2, 1949, CITING AS AUTHORITY THEREFOR SECTION 515 (D) OF THE OFFICE PERSONNEL ACT OF 1947, 61 STAT. 907, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * THE PRESIDENT MAY AT ANY TIME RELIEVE FROM ACTIVE DUTY ANY RESERVE OFFICER WHO IS SERVING ON ACTIVE DUTY. * * *

IT FURTHER APPEARS THAT MAJOR COVINGTON REENLISTED IN THE ARMY IN THE GRADE OF MASTER SERGEANT ON DECEMBER 28, 1949, THE DATE FOLLOWING HIS SEPARATION FROM THE SERVICE AS A MAJOR, ARMY OF THE UNITED STATES, PRESUMABLY UNDER THE AUTHORITY OF SECTION 1 OF THE ACT OF JULY 14, 1939, 53 STAT. 1001, WHICH, INSOFAR AS HERE MATERIAL, PROVIDES THAT ANY ENLISTED MAN OF THE REGULAR ARMY WHO SHALL BE DISCHARGED TO ACCEPT A COMMISSION IN THE ARMY OF THE UNITED STATES AND WHOSE ACTIVE SERVICE AS A COMMISSIONED OFFICER SHALL TERMINATE HONORABLY, SHALL BE ENTITLED TO REENLISTMENT IN THE GRADE HELD BY HIM PRIOR TO SUCH COMMISSIONED SERVICE, PROVIDED THAT APPLICATION FOR SUCH REENLISTMENT IS MADE WITHIN SIX MONTHS. THE 55 DAYS' LEAVE WHICH HE HAD ACCRUED AS A MAJOR WERE CARRIED OVER TO HIS ENLISTED STATUS AND ON DECEMBER 31, 1949, HE WAS RETIRED AS A MASTER SERGEANT WITH OVER 31 YEARS' SERVICE, AT WHICH TIME HE RECEIVED A LUMP-SUM PAYMENT FOR SUCH LEAVE COMPUTED ON THE PAY AND ALLOWANCES OF A MASTER SERGEANT.

HAVING BEEN DISCHARGED ON OCTOBER 14, 1941, FROM HIS PERMANENT ENLISTED STATUS INCIDENT TO THE ACCEPTANCE OF A COMMISSION IN THE ARMY OF THE UNITED STATES, MAJOR COVINGTON HAD NO ENLISTED STATUS PRIOR TO DECEMBER 28, 1949, TO WHICH HE COULD "REVERT" UPON THE TERMINATION OF HIS COMMISSIONED SERVICE AND, HENCE, THE ITALICIZED PORTION OF THE PROVISO TO THE SAID SECTION 4 (C), SUPRA, WOULD HAVE NO APPLICATION WITH RESPECT TO HIS CARRYING FORWARD HIS UNUSED LEAVE. AND, WHILE A FORMAL REENLISTMENT WAS ESSENTIAL TO HIS RETIREMENT AS A MASTER SERGEANT, SUCH FACT, IN ITSELF, DOES NOT REQUIRE THE CONCLUSION THAT HIS COMMISSIONED STATUS WAS TERMINATED FOR THE PURPOSE OF ENTERING INTO AN ENLISTMENT AND THUS BRING HIS CASE WITHIN THE CONTEMPLATION OF THE PROHIBITION CONTAINED IN CLAUSE (1) OF THE SAME PROVISO. THE PHRASE "DISCHARGED FOR THE PURPOSE OF ENTERING INTO AN ENLISTMENT," OR WORDS OF SIMILAR IMPORT, IS A FAMILIAR ONE IN STATUTES INVOLVING THE UNIFORMED SERVICES AND IT GENERALLY HAS BEEN CONSIDERED AS HAVING REFERENCE TO A DISCHARGE PRIOR TO THE EXPIRATION OF SOME SPECIFIC PERIOD OF TIME DURING WHICH THE MEMBER HAD EXPRESSLY AGREED TO SERVE. CF. DECISIONS OF SEPTEMBER 14, 1950, 30 COMP. GEN. 103, AND JUNE 29, 1951, ID. 531. UNDER THE TERMS OF SECTION 515 (D) OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA, MAJOR COVINGTON WAS TO SERVE AS COMMISSIONED OFFICER AT THE PLEASURE OF THE PRESIDENT AND I AM OF THE VIEW THAT HIS SEPARATION FROM THE SERVICE UNDER SUCH STATUTORY PROVISIONS WOULD NOT CONSTITUTE A DISCHARGE FOR THE PURPOSE OF ENTERING INTO AN ENLISTMENT. THE SAME WOULD BE TRUE, OF COURSE, WITH RESPECT TO OTHER MEMBERS OF THE ARMY IN THE SAME SITUATION AND, ACCORDINGLY, THE QUESTIONS PRESENTED ARE ANSWERED IN THE AFFIRMATIVE.

INSOFAR AS MAJOR COVINGTON'S CASE IS CONCERNED, APPROPRIATE FURTHER ACTION WILL BE TAKEN ON HIS CLAIM BY THIS OFFICE IN CONSONANCE WITH THE VIEWS STATED HEREIN.