B-122411, JUN. 15, 1955

B-122411, JUN. 15, 1955

TO COLONEL HUGH D. PIKE, AUS, RESERVE, RETIRED:

YOUR LETTER OF MAY 25, 1954, ADDRESSED TO THE CHIEF, SETTLEMENTS DIVISION, FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, 49, INDIANA, HAS BEEN FORWARDED HERE AS A REQUEST FOR REVIEW OF OUR CLAIMS DIVISION SETTLEMENT OF APRIL 28, 1954, IN WHICH THE AMOUNT OTHERWISE DUE YOU AS TRAVEL ALLOWANCES FOR YOURSELF AND WIFE, INCLUDING AN ADJUSTMENT OF SUBSISTENCE ALLOWANCE, WAS APPLIED IN PARTIAL LIQUIDATION OF AN ERRONEOUS CREDIT OF $697.94 AS A LUMP-SUM LEAVE PAYMENT FOR 60 DAYS OF LEAVE ON YOUR RELEASE FROM ACTIVE DUTY, AUGUST 31, 1952.

YOU SEEM TO CONTEND THAT SINCE OUR DECISION OF FEBRUARY 4, 1953, B 111899, 32 COMP. GEN. 348, UPON THE AUTHORITY OF WHICH THE PARTIAL OFFSET WAS MADE, WAS LATER IN POINT OF TIME THAN WHEN THE LEAVE CREDIT WAS ACCOMPLISHED, THE DECISION IS NOT PROPERLY FOR APPLICATION.

IN THE DECISION OF FEBRUARY 4, 1953, COPY HEREWITH, IT WAS HELD THAT A MEMBER OF THE UNIFORMED SERVICES WHO HAS BEEN FOUND UNFIT TO PERFORM THE DUTIES OF HIS RANK OR GRADE AND WHO IS DETACHED FROM HIS DUTY STATION AND ORDERED TO HIS HOME ON PERMANENT CHANGE OF STATION, OR PLACED ON DETACHED SERVICE AT SUCH PLACE AS HE MAY SELECT, OTHER THAN A MILITARY OR NAVAL ORGANIZATION, IS ON AUTHORIZED ABSENCE FROM DUTY AWAITING FURTHER ORDERS IN CONNECTION WITH THE DISABILITY RETIREMENT PROCEEDINGS IN HIS CASE. THAT CONCLUSION RESTS ON THE SPECIFIC PROVISIONS OF SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT APPROVED AUGUST 4, 1947, 61 STAT. 748, 37 U.S.C. 1952 ED. 33 (B), QUOTED IN PERTINENT PART IN THE DECISION. SEE QUESTION (1) AND THE ANSWER THERETO.

THE RECORD SHOWS THAT WHILE SERVING AS MASTER SERGEANT, U.S. ARMY, YOU WERE DETACHED FROM YOUR STATION, CAMP CHAFFEE, ARKANSAS, BY PERMANENT CHANGE OF STATION ORDERS AND ORDERED TO DETACHED SERVICE, EFFECTIVE ON OR ABOUT MAY 7, 1952, AT SAN ANTONIO, TEXAS, PENDING YOUR SEPARATION OR RETIREMENT FROM THE MILITARY SERVICE BY REASON OF PHYSICAL DISABILITY. APPEARS THAT YOUR TRAVEL BY PRIVATELY OWNED AUTOMOBILE BETWEEN FORT SMITH, ARKANSAS (CAMP CHAFFEE, ARKANSAS), AND SAN ANTONIO, TEXAS WAS PERFORMED BETWEEN MAY 7 TO 9, 1952. YOU WERE HONORABLY DISCHARGED AS MASTER SERGEANT, REGULAR ARMY, EFFECTIVE AUGUST 31, 1952, AND EFFECTIVE THAT SAME DATE, YOU WERE RETIRED IN THE GRADE OF LIEUTENANT COLONEL BY REASON OF PHYSICAL DISABILITY. DURING THE PERIOD YOU WERE AT HOME (SAN ANTONIO, TEXAS) PENDING YOUR RETIREMENT YOU WERE ON AUTHORIZED ABSENCE FROM DUTY AWAITING FURTHER ORDERS IN THE DISABILITY RETIREMENT PROCEEDINGS IN YOUR CASE. HENCE, YOUR STATUS FALLS SQUARELY WITHIN THE RULE STATED IN THE ANSWER TO QUESTION (1), DECISION OF FEBRUARY 4, 1953.

THEREFORE, ASSUMING THAT YOU CARRIED INTO THE FISCAL YEAR 1952 (WHICH BEGAN JULY 1, 1951) THE MAXIMUM NUMBER OF CALENDAR DAYS' LEAVE AS AUTHORIZED BY THE ARMED FORCES LEAVE ACT OF 1946 (37 U.S.C. 1952 ED. 31A (B) (, IT WOULD APPEAR THAT THE MAXIMUM NUMBER OF DAYS' LEAVE THAT COULD BE CREDITED AND CHARGED TO YOUR LEAVE ACCOUNT DURING THE PERIOD JULY 1, 1951, TO AUGUST 31, 1952, WOULD BE 95 DAYS. SINCE THE NUMBER OF DAYS YOU WERE AT HOME ON DETACHED SERVICE IN A STATUS OF AUTHORIZED ABSENCE FROM DUTY (115 DAYS, MAY 9, 1952 TO AUGUST 31, 1952, INCLUSIVE) EXCEEDS THE MAXIMUM NUMBER OF DAYS' LEAVE THAT MAY BE CREDITED TO YOU DURING THE PERIOD INDICATED ABOVE, IT FOLLOWS THAT YOU WERE ERRONEOUSLY CREDITED WITH A LUMP-SUM LEAVE PAYMENT FOR 60 DAYS' LEAVE ON YOUR FINAL MILITARY PAY ACCOUNT. AS TO YOUR CONTENTION THAT THE DECISION OF FEBRUARY 4, 1953, SHOULD NOT APPLY, IT IS PROPER TO STATE THAT THE DECISION DOES NOT CHANGE OR MODIFY ANY PREVIOUS RULING BY THIS OFFICE BUT CONSTITUTES AN ORIGINAL CONSTRUCTION OF THOSE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, THEREIN CONSIDERED, AND, ACCORDINGLY, IS TO BE REGARDED AS EFFECTIVE ON AND AFTER THE EFFECTIVE DATE OF THE STATUTE. 4 COMP. GEN. 1002; 24 COMP. GEN. 39.

IT IS NOTED, HOWEVER, THAT THE TOTAL AMOUNT FOUND TO BE DUE YOU IN THE SETTLEMENT OF APRIL 28, 1954, INCLUDES AN ITEM OF $34.14 REPRESENTING A TRAVEL ALLOWANCE FOR YOUR OWN TRAVEL AS MASTER SERGEANT FROM FORT SMITH, ARKANSAS (CAMP CHAFFEE, ARKANSAS), TO YOUR HOME IN SAN ANTONIO, TEXAS. THIS ACCRUED TO YOU INCIDENT TO YOUR RELEASE FROM ACTIVE SERVICE BY HONORABLE DISCHARGE. HENCE, THE AMOUNT THEREOF MAY NOT PROPERLY BE APPLIED AS A SETOFF AGAINST YOUR DEBT TO THE GOVERNMENT. 34 COMP. GEN. 164, 167.

ACCORDINGLY, THE SETTLEMENT OF APRIL 28, 1954, EXCEPT AS ABOVE MODIFIED, IS CORRECT AND IS SUSTAINED. A SUPPLEMENTAL SETTLEMENT IN YOUR FAVOR WILL ISSUE IN DUE COURSE ALLOWING YOU THE AMOUNT OF $34.14.