B-122878, JUNE 3, 1955, 34 COMP. GEN. 656

B-122878: Jun 3, 1955

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IS NOT A SEPARATION FROM SERVICE SO AS TO ENTITLE HIM TO A CASH PAYMENT FOR LEAVE ACCUMULATED WHILE SERVING WITH THE FOREIGN MISSION. YOU REQUEST A DECISION AS TO WHETHER PAYMENT IS AUTHORIZED. THE OFFICER WAS RELIEVED FROM HIS ASSIGNMENT IN WASHINGTON. HE WAS RELIEVED FROM SUCH ASSIGNMENT. UNDER AN AGREEMENT (COPY OF WHICH WAS NOT FURNISHED WITH YOUR REQUEST) BETWEEN THE UNITED STATES AND BOLIVIA. PART OF THE PAY AND ALLOWANCES OF MILITARY PERSONNEL ASSIGNED TO THE MISSION WAS TO BE PAID BY BOLIVIA AND AN ADDITIONAL AMOUNT WAS TO BE PAID BY THE UNITED STATES. IS INDICATED THAT UNDER THE AGREEMENT EACH MEMBER OF THE MISSION WOULD RECEIVE ONE MONTH'S "ANNUAL" LEAVE WITH PAY. APPARENTLY THE NUMBER OF DAYS TO HIS CREDIT WHEN HIS ASSIGNMENT TO THE MISSION WAS TERMINATED.

B-122878, JUNE 3, 1955, 34 COMP. GEN. 656

LEAVES OF ABSENCE - MILITARY PERSONNEL - PAYMENT FOR LEAVE ACCRUED WHILE DETAILED TO FOREIGN MISSION THE TERMINATION OF AN ARMY OFFICER'S ASSIGNMENT WITH A FOREIGN MISSION ESTABLISHED UNDER THE MUTUAL SECURITY ACT OF 1951, AND HIS IMMEDIATE REASSIGNMENT TO DUTY IN THE UNITED STATES, IS NOT A SEPARATION FROM SERVICE SO AS TO ENTITLE HIM TO A CASH PAYMENT FOR LEAVE ACCUMULATED WHILE SERVING WITH THE FOREIGN MISSION.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO MAJOR E. M. DUNCAN, DEPARTMENT OF THE ARMY, JUNE 3, 1955:

BY ENDORSEMENT DATED FEBRUARY 7, 1955, THE CHIEF OF FINANCE FORWARDED HERE YOUR LETTER OF AUGUST 19, 1954, ENCLOSING A VOUCHER IN FAVOR OF COLONEL MILTON P. BARSCHDORF IN THE SUM OF $565.70, REPRESENTING ADDITIONAL COMPENSATION FOR 75 DAYS' ACCRUED LEAVE WHILE SERVING AS AN ACCREDITED MEMBER OF THE UNITED STATES MISSION TO BOLIVIA. YOU REQUEST A DECISION AS TO WHETHER PAYMENT IS AUTHORIZED.

BY TRAVEL ORDERS DATED JULY 28, 1951, THE OFFICER WAS RELIEVED FROM HIS ASSIGNMENT IN WASHINGTON, D.C., AND ASSIGNED TO THE UNITED STATES MISSION TO BOLIVIA, LA PAZ, BOLIVIA, FOR DUTY AS CHIEF OF THE MISSION. BY LETTER ORDER NO. 1506, DATED APRIL 20, 1954, HE WAS RELIEVED FROM SUCH ASSIGNMENT, RETURNED TO THE UNITED STATES, AND ASSIGNED TO CARLISLE BARRACKS, PENNSYLVANIA.

IT APPEARS THAT, UNDER AN AGREEMENT (COPY OF WHICH WAS NOT FURNISHED WITH YOUR REQUEST) BETWEEN THE UNITED STATES AND BOLIVIA, PART OF THE PAY AND ALLOWANCES OF MILITARY PERSONNEL ASSIGNED TO THE MISSION WAS TO BE PAID BY BOLIVIA AND AN ADDITIONAL AMOUNT WAS TO BE PAID BY THE UNITED STATES. IS INDICATED THAT UNDER THE AGREEMENT EACH MEMBER OF THE MISSION WOULD RECEIVE ONE MONTH'S "ANNUAL" LEAVE WITH PAY, WITH UNUSED PORTIONS CUMULATIVE FROM YEAR TO YEAR DURING SERVICE AS A MEMBER OF THE MISSION. NOTATIONS ON THE VOUCHER SHOW THAT THE GOVERNMENT OF BOLIVIA HAS MADE PAYMENT TO COLONEL BARSCHDORF FOR 75 DAYS' ACCRUED LEAVE, APPARENTLY THE NUMBER OF DAYS TO HIS CREDIT WHEN HIS ASSIGNMENT TO THE MISSION WAS TERMINATED. YOUR QUESTION AS TO THE PROPRIETY OF PAYMENT OF ADDITIONAL COMPENSATION FOR 75 DAYS' ACCRUED LEAVE APPEARS TO ARISE FROM THE FACT THAT SECTION 3 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 37 U.S.C. 31A (B), LIMITS TO 60 DAYS THE LEAVE FOR WHICH CASH SETTLEMENT MAY BE MADE.

IT LONG HAS BEEN HELD THAT THE MILITARY STATUS OF AN OFFICER IS NOT CHANGED BY HIS BEING DETAILED OR ASSIGNED TO DUTY IN A CIVIL DEPARTMENT OR AGENCY OF THE GOVERNMENT AND, IN THE ABSENCE OF A STATUTE PROVIDING OTHERWISE, HE IS ENTITLED ONLY TO THE PAY AND ALLOWANCES OF HIS MILITARY STATUS. 2 COMP. GEN. 373, 374; 15 ID. 98; ID. 377; 18 ID. 923. THE MISSION TO BOLIVIA WAS ESTABLISHED PURSUANT TO TITLE IV OF THE MUTUAL SECURITY ACT OF 1951, 65 STAT. 377, 22 U.S.C. 1711, WHICH PROVIDES FOR THE FURNISHING OF MILITARY ASSISTANCE TO OTHER AMERICAN REPUBLICS, SUCH ASSISTANCE TO BE SUBJECT TO AGREEMENTS AS PROVIDED IN THAT STATUTE AND AS REQUIRED BY THE MUTUAL DEFENSE ASSISTANCE ACT OF 1949, 22 U.S.C. 1573. THERE IS NOTHING IN THOSE ACTS WHICH WOULD WARRANT A CONCLUSION THAT THE LEAVE RIGHTS OF OFFICERS ASSIGNED TO MISSIONS ARE NOT GOVERNED BY THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED. SECTION 3 (B) OF THE LEAVE ACT, 60 STAT. 964, PROVIDES THAT, NOTWITHSTANDING ANY OTHER PROVISION OF LAW OR REGULATION, NO MEMBER OF THE ARMED FORCES SHALL BE PERMITTED TO ACCUMULATE OR HAVE TO HIS CREDIT, AT ANY TIME AFTER AUGUST 31, 1946, ACCUMULATED OR ACCRUED LEAVE IN EXCESS OF 60 DAYS, EXCEPT THAT LEAVE ACTUALLY TAKEN DURING ANY FISCAL YEAR MAY BE CHARGED TO LEAVE ACCRUING DURING SUCH FISCAL YEAR WITHOUT REGARD TO SUCH 60-DAY LIMITATION, PROVIDED THAT NO CASH SETTLEMENT SHALL BE MADE FOR UNUSED OR ACCUMULATED LEAVE IN EXCESS OF 60 DAYS UPON DISCHARGE OR RETIREMENT SUBSEQUENT TO AUGUST 31, 1946. THUS, THERE IS NO AUTHORITY FOR A CASH SETTLEMENT FOR ACCRUED LEAVE IN EXCESS OF 60 DAYS. 29 COMP. GEN. 83; 30 ID. 481. FURTHER, SUCH PAYMENT IS AUTHORIZED ONLY UPON SEPARATION FROM THE SERVICE. THERE APPEARS TO BE NO AUTHORITY FOR A CASH PAYMENT FOR LEAVE ACCRUED WHILE SERVING WITH A MISSION WHERE THE MEMBER IS RETURNED TO OTHER DUTY AND NOT SEPARATED FROM THE SERVICE. ACCORDINGLY, ON THE PRESENT RECORD, COLONEL BARSCHDORF IS NOT ENTITLED TO ANY PAYMENT FOR ACCRUED LEAVE AT THIS TIME.

SINCE PAYMENT IS NOT AUTHORIZED, THE VOUCHER AND SUPPORTING PAPERS WILL BE RETAINED IN THIS OFFICE.