B-106064, MAY 16, 1952, 31 COMP. GEN. 600

B-106064, MAY 16, 1952, 31 COMP. GEN. 600

MILITARY LEAVE PAYMENTS - ENLISTED MEN OF NAVAL RESERVE DISCHARGED TO ACCEPT COMMISSION IN MARINE CORPS RESERVE THE DISCHARGE OF AN ENLISTED MEMBER OF THE NAVAL RESERVE TO ACCEPT A COMMISSION IN THE MARINE CORPS RESERVE DOES NOT CONSTITUTE A DISCHARGE FOR THE PURPOSE OF ACCEPTING A COMMISSION IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES WITHIN THE MEANING OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, AND THEREFORE, AN AVIATION CADET OF THE NAVAL RESERVE WHO IS DISCHARGED TO ACCEPT A COMMISSION IN THE MARINE CORPS RESERVE IS ENTITLED, UNDER THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, TO A LUMP-SUM PAYMENT FOR UNUSED ACCRUED LEAVE TO HIS CREDIT AT THE DATE OF DISCHARGE.

DECISION RENDERED BY ASSISTANT COMPTROLLER GENERAL YATES, MAY 16, 1952:

THERE IS FOR CONSIDERATION THE CLAIM OF JAMES M. BANNAN, FOR A LUMP SUM PAYMENT UNDER THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED BY THE ACT OF AUGUST 4, 1947, 61 STAT. 748, 749, FOR UNUSED ACCRUED LEAVE STANDING TO HIS CREDIT AT DATE OF HIS DISCHARGE, JANUARY 31, 1951, AS AVIATION CADET, UNITED STATES NAVAL RESERVE.

THE RECORD SHOWS THAT JAMES M. BANNAN WAS DISCHARGED AS AVIATION CADET, UNITED STATES NAVAL RESERVE, ON JANUARY 31, 1951, TO ACCEPT A COMMISSION THE FOLLOWING DAY, AS SECOND LIEUTENANT, UNITED STATES MARINE CORPS RESERVE. IT HAS BEEN REPORTED THAT MR. BANNAN HAD A LEAVE CREDIT OF 14 DAYS' UNUSED ACCRUED LEAVE AS OF JANUARY 31, 1951, WHICH WAS NOT CARRIED FORWARD INTO HIS COMMISSIONED OFFICER STATUS IN THE UNITED STATES MARINE CORPS RESERVE. PRESUMABLY, MR. BANNAN WAS NOT COMPENSATED FOR THE UNUSED LEAVE TO HIS CREDIT ON THE DATE OF HIS DISCHARGE AS AN AVIATION CADET BECAUSE DOUBT EXISTED AS TO WHETHER HE WAS DISCHARGED FOR THE PURPOSE OF ACCEPTING A COMMISSION "* * * IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES," WITHIN CONTEMPLATION OF SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY THE ACT APPROVED AUGUST 4, 1949, 61 STAT. 748, 749, WHICH PROVIDES AS FOLLOWS:

"/C) 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 OVER SUCH UNUSED LEAVE TO A NEW ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES ON THE DAY FOLLOWING 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 SUBSECTION SHALL BE MADE ONLY TO A LIVING MEMBER OR LIVING FORMER MEMBER OF THE ARMED FORCES.'

SECTION 1 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, ESTABLISHES THE NAVAL RESERVE AS A COMPONENT PART OF THE UNITED STATES NAVY. SECTION 2 OF THE SAME ACT ESTABLISHES THE UNITED STATES MARINE CORPS RESERVE AS A COMPONENT PART OF THE UNITED STATES MARINE CORPS. SECTION 2, ACT OF AUGUST 4, 1942, 56 STAT. 737, ESTABLISHED "IN THE NAVAL RESERVE AND MARINE CORPS RESERVE" THE SPECIAL ENLISTED GRADE OF AVIATION CADET. SECTION 3 OF THE SAME ACT PROVIDES, INTER ALIA, THAT, UNDER SUCH REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE," ANY AVIATION CADET MAY BE DISCHARGED, RELEASED FROM ACTIVE DUTY, OR TRANSFERRED TO ANY OTHER ENLISTED RATING OR GRADE IN THE NAVAL RESERVE OR MARINE CORPS RESERVE.' SECTION 7 OF THE ACT, 56 STAT. 738, PROVIDES, IN PERTINENT PART, THAT " AVIATION CADETS * * * MAY BE COMMISSIONED ENSIGNS IN THE NAVAL RESERVE OR SECOND LIEUTENANTS IN THE MARINE CORPS RESERVE.' THE PAY AND ALLOWANCES OF AN OFFICER COMMISSIONED IN THE NAVAL RESERVE AND THE PAY AND ALLOWANCES OF AN OFFICER COMMISSIONED IN THE UNITED STATES MARINE CORPS RESERVE, WHILE SERVING ON CONTINUOUS ACTIVE DUTY NEXT FOLLOWING THE DATE OF BEING COMMISSIONED PURSUANT TO SECTION 7 OF THE ACT, SUPRA, ARE PAYABLE FROM DIFFERENT APPROPRIATIONS MADE FOR PAY OF THE NAVY AND PAY OF THE MARINE CORPS, RESPECTIVELY. SEE SECTION 13, ACT OF AUGUST 4, 1942, 56 STAT. 739. IT MAY NOT BE ASSUMED THAT THE CONGRESS INTENDED THAT LEAVE ACCUMULATED BY A MEMBER OF THE NAVAL RESERVE MIGHT LATER BECOME A CHARGE AGAINST THE SEPARATE APPROPRIATIONS MADE FOR THE MARINE CORPS, OR VICE VERSA.

A SIMILAR QUESTION WAS CONSIDERED IN DECISION OF SEPTEMBER 19, 1950, 30 COMP. GEN. 109, 111, INVOLVING THE RIGHT TO ENLISTMENT ALLOWANCE UPON AN ENLISTMENT IN THE REGULAR MARINE CORPS WITHIN THREE MONTHS FROM DATE OF DISCHARGE FROM THE REGULAR NAVY. IT WAS SAID IN THAT DECISION:

"IT WILL BE NOTED THAT SECTION 207 (B) OF THE 1949 ACT, SUPRA, PROVIDES THAT FOR THE PURPOSE OF PAYMENT OF THE REENLISTMENT BONUS, AN ENLISTMENT IN ONE OF THE REGULAR SERVICES FOLLOWING COMPULSORY OR VOLUNTARY ACTIVE DUTY IN "SUCH SERVICE," OR EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE IN A RESERVE COMPONENT OF "SUCH SERVICE," SHALL BE CONSIDERED A REENLISTMENT. IT IS NOT APPARENT HOW THE TERM "SUCH SERVICE" COULD BE CONSIDERED AS REFERRING TO ANYTHING BUT THE SERVICE FROM WHICH THE ENLISTED MAN HAD LAST BEEN DISCHARGED. AND WHILE BOTH THE NAVY AND MARINE CORPS ARE A PART OF THE NAVAL ESTABLISHMENT (SEE 5 U.S.C. 421G), THEY ARE SEPARATE AND DISTINCT SERVICES. CF. SECTION 102 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804. * * *"

WHILE THE LANGUAGE HERE INVOLVED,"HIS RESPECTIVE BRANCH OF THE ARMED FORCES," IS SOMEWHAT BROADER, I THINK THE SAME REASONING SHOULD APPLY, IN VIEW OF THE APPARENT DESIGN OF THE LEGISLATION TO REQUIRE THE ACCUMULATED LEAVE TO BE CARRIED OVER ONLY WHERE THE PERSON CONTINUES IN THE SAME SERVICE AND, MORE PARTICULARLY, SINCE THE ARMED FORCES LEAVE ACT ITSELF, FOLLOWING THE USUAL UNDERSTANDING OF THE MATTER, CLEARLY INDICATES THAT THE MARINE CORPS AND NAVY ARE REGARDED THEREIN AS SEPARATE SERVICES. SEE SECTION 2 (A) OF THE ACT, 60 STAT. 963, WHERE THE TERM "MEMBER OF THE ARMED FORCES" IS EXPRESSLY DEFINED FOR THE PURPOSE OF SUCH ACT AS MEANING ANY MEMBER "OF THE ARMY OF THE UNITED STATES, UNITED STATES NAVY, UNITED STATES MARINE CORPS, OR THE UNITED STATES COAST GUARD.' IT IS CONCLUDED, THEREFORE, THAT MR. BANNAN'S DISCHARGE ON JANUARY 31, 1951, AS AVIATION CADET, UNITED STATES NAVAL RESERVE, TO ACCEPT AN APPOINTMENT THE FOLLOWING DAY AS SECOND LIEUTENANT IN THE UNITED STATES MARINE CORPS RESERVE, DID NOT CONSTITUTE A DISCHARGE "FOR THE PURPOSE OF ACCEPTING A COMMISSION * * * IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES," WITHIN THE MEANING OF THAT LANGUAGE IN THE SAID ARMED FORCES LEAVE ACT.

ACCORDINGLY, AND IF OTHERWISE CORRECT, SETTLEMENT WILL ISSUE IN PAYMENT OF THE UNUSED ACCRUED LEAVE STANDING TO MR. BANNAN'S CREDIT AT THE DATE OF HIS DISCHARGE AS AVIATION CADET, UNITED STATES NAVAL RESERVE. TO THE EXTENT THAT DECISION OF SEPTEMBER 21, 1951, B-105333, MAY HAVE SUGGESTED A DIFFERENT VIEW (NOT NECESSARY TO THE CONCLUSION IN THAT CASE) IT WILL NO LONGER BE FOLLOWED.