B-116595, DECEMBER 10, 1953, 33 COMP. GEN. 259

B-116595: Dec 10, 1953

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ATTENDS A SERVICE SCHOOL OR A SCHOOL OF ORGANIZATION IN A PAY STATUS IS ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES. THEREFORE UNDER THE PROVISIONS OF SECTION 3 (A) OF THE ARMED FORCES LEAVE ACT OF 1946 SUCH OFFICER IS ENTITLED. 1953: THERE IS FOR CONSIDERATION THE CLAIM OF MAJOR WALTER LEO ROUGHSEDGE. FOR UNUSED LEAVE TO HIS CREDIT STATED TO HAVE ACCRUED DURING THE PERIOD OCTOBER 1. WHILE HE WAS IN ATTENDANCE. THE RECORD INDICATES THAT MAJOR ROUGHSEDGE WAS IN ATTENDANCE AT THE SAID SCHOOL. HE WAS NOT COMPENSATED BY THE DEPARTMENT OF THE ARMY FOR THE UNUSED PORTION OF THE LEAVE THAT ACCRUED TO HIM DURING SUCH PERIOD FOR THE REASON THAT MEMBERS OF THE NATIONAL GUARD ATTENDING SERVICE SCHOOLS OR SCHOOLS OF ORGANIZATION HAVE BEEN CONSIDERED BY THE DEPARTMENT OF THE ARMY AS NOT BEING ON ACTIVE FEDERAL DUTY AND HENCE AS NOT ENTITLED TO THE LEAVE BENEFITS PRESCRIBED IN THE ARMED FORCES LEAVE ACT OF 1946.

B-116595, DECEMBER 10, 1953, 33 COMP. GEN. 259

LEAVES OF ABSENCE - MILITARY, NAVAL, ETC., PERSONNEL - NATIONAL GUARD MEMBERS - ACCRUAL WHILE ATTENDING SERVICE SCHOOLS UNDER SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949, AND SECTION 99 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, AN OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES WHO, IN HIS STATUS AS A MEMBER OF THE NATIONAL GUARD OF A STATE, TERRITORY OR THE DISTRICT OF COLUMBIA, ATTENDS A SERVICE SCHOOL OR A SCHOOL OF ORGANIZATION IN A PAY STATUS IS ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES, AND THEREFORE UNDER THE PROVISIONS OF SECTION 3 (A) OF THE ARMED FORCES LEAVE ACT OF 1946 SUCH OFFICER IS ENTITLED, AS A MEMBER OF THE ARMED FORCES, TO LEAVE AT THE RATE OF TWO AND ONE-HALF CALENDAR DAYS FOR EACH MONTH OF SUCH ACTIVE SERVICE.

DECISION TO ASSISTANT COMPTROLLER GENERAL WEITZEL, DECEMBER 10, 1953:

THERE IS FOR CONSIDERATION THE CLAIM OF MAJOR WALTER LEO ROUGHSEDGE, NATIONAL GUARD OF THE UNITED STATES, FOR A LUMP-SUM PAYMENT UNDER THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 61 STAT. 748, 37 U.S.C. 31A-39, FOR UNUSED LEAVE TO HIS CREDIT STATED TO HAVE ACCRUED DURING THE PERIOD OCTOBER 1, 1949, TO APRIL 30, 1950, WHILE HE WAS IN ATTENDANCE, IN HIS STATUS AS A MEMBER OF THE MASSACHUSETTS NATIONAL GUARD, AT THE SCHOOL OF ORGANIZATION, NATIONAL GUARD BUREAU, WASHINGTON, D.C.

THE RECORD INDICATES THAT MAJOR ROUGHSEDGE WAS IN ATTENDANCE AT THE SAID SCHOOL, PURSUANT TO COMPETENT NATIONAL GUARD DUTY ORDERS, DURING THE PERIOD OCTOBER 1, 1949, TO APRIL 30, 1950, INCLUSIVE. HOWEVER, HE WAS NOT COMPENSATED BY THE DEPARTMENT OF THE ARMY FOR THE UNUSED PORTION OF THE LEAVE THAT ACCRUED TO HIM DURING SUCH PERIOD FOR THE REASON THAT MEMBERS OF THE NATIONAL GUARD ATTENDING SERVICE SCHOOLS OR SCHOOLS OF ORGANIZATION HAVE BEEN CONSIDERED BY THE DEPARTMENT OF THE ARMY AS NOT BEING ON ACTIVE FEDERAL DUTY AND HENCE AS NOT ENTITLED TO THE LEAVE BENEFITS PRESCRIBED IN THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED. ALSO, SOME FURTHER DOUBT APPEARS TO HAVE ARISEN AS TO WHETHER MAJOR ROUGHSEDGE IS ENTITLED TO THE LEAVE BENEFITS PRESCRIBED IN THE SAID ACT FOR THE STATED PERIOD OF HIS ATTENDANCE AT THE SCHOOL OF ORGANIZATION, NATIONAL GUARD BUREAU BY REASON OF SECTION 714 (B) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 504.

SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, 37 U.S.C. 232 (E), PROVIDES, IN PERTINENT PART, THAT ALL MEMBERS OF THE UNIFORMED SERVICES WHEN PARTICIPATING IN FULL-TIME TRAINING, TRAINING DUTY WITH PAY OR OTHER FULL-TIME DUTY PROVIDED FOR OR AUTHORIZED IN THE NATIONAL DEFENSE ACT, AS AMENDED, INCLUDING PARTICIPATION IN EXERCISES OR PERFORMANCE OF THE DUTIES PROVIDED FOR BY SECTIONS 5, 81, 94, 97, AND 99 OF THE LATTER ACT, SHALL BE ENTITLED TO RECEIVE THE BASIC PAY OF THE PAY GRADE TO WHICH ASSIGNED OR IN WHICH DISTRIBUTED IN ACCORDANCE WITH CUMULATIVE YEARS OF SERVICE. THE SECOND PROVISO IN SAID SECTION 201 (E) IS AS FOLLOWS:

* * * THAT ANY FULL-TIME TRAINING, TRAINING DUTY WITH PAY, OR OTHER FULL- TIME DUTY PERFORMED BY MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES OR THE AIR NATIONAL GUARD OF THE UNITED STATES, PURSUANT TO THIS SECTION, WHILE IN THEIR STATUS AS MEMBERS OF THE NATIONAL GUARD OR THE AIR NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA AND WHICH ENTITLED THEM TO RECEIVE BASIC PAY, SHALL BE DEEMED TO BE ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES. ( ITALICS SUPPLIED.)

SECTION 99 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 207, AS AMENDED, 32 U.S.C. 65, PROVIDES, AMONG OTHER THINGS, THAT UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, THE SECRETARY OF THE ARMY MAY, UPON THE RECOMMENDATION OF THE GOVERNOR OF ANY STATE, OR TERRITORY, AUTHORIZE A LIMITED NUMBER OF SELECTED OFFICERS OF THE NATIONAL GUARD TO PURSUE A REGULAR COURSE OF STUDY AT ANY MILITARY SERVICE SCHOOL OF THE UNITED STATES EXCEPT THE UNITED STATES MILITARY ACADEMY. SEE PARAGRAPH 39B (1), NATIONAL GUARD REGULATIONS NO. 45, DATED NOVEMBER 30, 1946, IN EFFECT DURING THE PERIOD HERE UNDER CONSIDERATION.

UNDER THE FOREGOING STATUTORY PROVISIONS AN OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES WHO, IN HIS STATUS AS A MEMBER OF THE NATIONAL GUARD OF A STATE, TERRITORY OR THE DISTRICT OF COLUMBIA, PERFORMS DUTY PRESCRIBED IN SECTION 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, WHICH ENTITLES HIM TO RECEIVE BASIC PAY IS REQUIRED TO BE DEEMED AS ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES. THEREFORE, MAJOR ROUGHSEDGE IS TO BE DEEMED AS HAVING BEEN ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES DURING THE PERIOD OCTOBER 1, 1949, TO APRIL 30, 1950, INCLUSIVE, AND UNDER THE PROVISIONS OF SECTION 3 (A) OF THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C. 31A (A), HE IS ENTITLED, AS A MEMBER OF THE ARMED FORCES (SEE 37 U.S.C. 32, 10 U.S.C. B AND PARAGRAPHS 1 AND 12, NATIONAL GUARD REGULATIONS NO. 1, DATED MAY 16, 1941), TO LEAVE AT THE RATE OF TWO AND ONE-HALF CALENDAR DAYS FOR EACH MONTH OF SUCH ACTIVE SERVICE.

THE PROVISIONS CONTAINED IN SECTION 714 (B) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 504, WOULD SEEM TO INDICATE THAT THE BENEFITS OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, WERE NOT VIEWED AS HAVING ACCRUED TO PERSONNEL OF THE CATEGORIES DESCRIBED IN SUCH SECTION PRIOR TO JULY 9, 1952, THE DATE OF ENACTMENT OF THE SAID 1952 ACT. HOWEVER THAT MAY BE, THE 1952 ACT MAY NOT BE GIVEN THE EFFECT OF DISTURBING VESTED RIGHTS AND IN THAT CONNECTION IT IS CLEAR THAT UNDER THE EXPRESS PROVISIONS OF LAW, DISCUSSED ABOVE, THE BENEFITS OF THE ARMED FORCES LEAVE ACT OF 1946 CURRENTLY ACCRUED TO MAJOR ROUGHSEDGE--- AND TO OTHER NATIONAL GUARDSMEN PERFORMING LIKE DUTIES--- DURING THE PERIOD BEGINNING OCTOBER 1, 1949 (THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949).

ACCORDINGLY, SETTLEMENT WILL ISSUE, IF OTHERWISE CORRECT, IN PAYMENT OF THE UNUSED ACCRUED LEAVE STANDING TO THE CREDIT OF MAJOR ROUGHSEDGE AS OF APRIL 30, 1950.