B-124652, MAR. 18, 1958

B-124652, MAR. 18, 1958

TO SECOND LIEUTENANT GEORGE FRITZ, MAC, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 20, 1958, AND TO YOUR LETTERS OF DECEMBER 1 AND DECEMBER 2, 1957, RELATIVE TO YOUR CLAIM FOR TERMINAL LEAVE PAY UPON RELEASE FROM ACTIVE DUTY JULY 8, 1944, AS SECOND LIEUTENANT, ARMY OF THE UNITED STATES. SINCE A SIMILAR CLAIM WAS DENIED BY OUR CLAIMS DIVISION BY LETTER DATED OCTOBER 23, 1946, YOUR PRESENT LETTERS ADDRESSED TO THE FINANCE OFFICE, UNITED STATES ARMY, AND FORWARDED HERE TO APPROPRIATE ACTION, WILL BE CONSIDERED AS A REQUEST FOR RECONSIDERATION OF THE DENIAL OF YOUR CLAIM.

IT APPEARS THAT YOU WERE RELEASED FROM ACTIVE DUTY PURSUANT TO PARAGRAPH 13 OF SPECIAL ORDERS NO. 169, DATED JULY 3, 1944, ARMY SERVICE FORCES, EIGHTH SERVICE COMMAND, BROOKE GENERAL HOSPITAL, FORT SAM HOUSTON, TEXAS, WHICH PROVIDED, INSOFAR AS MATERIAL HERE, AS FOLLOWS:

"13. LT COL HARVEY C. MAXWELL, 0224771, MC. BGH, AS OFFICER IN CHARGE, AND T/5TH JOHN J. PEREIRA, 39684093, PFC KENNETH NICHOLSON, 39552805, AND PVT MARTIN LIEBERMAN, 39559461, DMD THIS STA, AS ATTENDANTS, WILL TAKE CHARGE OF AND CONDUCT EACH OF THE FOLLOWING NAMED PATIENTS FROM THIS HOSP TO THE PLACE INDICATED:

2ND LT GEORGE FRITZ, 0451622, MAC, MDRP, BGH, FSHT

TO: VETERANS ADMINISTRATION FACILITY, PALO ALTO, CALIF.

"UPON ARRIVAL IN PALO ALTO, CALIF., LT COL MAXWELL AND PVT LIEBERMAN WILL DELIVER 2ND LT FRITZ TO THE CUSTODY OF THE MANAGER, VETERANS ADMINISTRATION FACILITY, THEREAT, OBTAINING A RECEIPT FOR THE PATIENT WHICH WILL BE MAILED WITHOUT DELAY TO THE CC THIS HOSP.

"EFFECTIVE ON DATE OF ARRIVAL IN PALO ALTO, CALIF., 8 JULY 1944, 2ND LT FRITZ WILL BE RELIEVED FROM ACTIVE DUTY (RAD HQ 8SC, 27 JUN 44).'

YOU WERE RELEASED FROM ACTIVE DUTY ON JULY 8, 1944, AND YOU WERE PAID PAY AND ALLOWANCES THROUGH THAT DATE. YOU STATE THAT YOU WERE GRANTED NO TERMINAL LEAVE AT THAT TIME AND THAT YOU HAVE BEEN DEPRIVED OF 90 DAYS TERMINAL LEAVE PAY. YOU ALSO INQUIRE WHETHER RETROACTIVE ORDERS MAY NOW BE ISSUED AUTHORIZING SUCH LEAVE AND CASH BE PAID TO YOU FOR SUCH LEAVE.

DURING THE PERIOD HERE CONCERNED (JULY 1944), THE LAWS PERTAINING TO LEAVE OF ABSENCE OF OFFICERS OF THE ARMY PROVIDED AS FOLLOWS:

"SECTION 1265, REVISED STATUTES:

"OFFICERS WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR LAWFULLY ABSENT FROM DUTY AND AWAITING ORDERS, SHALL RECEIVE FULL PAY; WHEN ABSENT WITH LEAVE, FOR OTHER CAUSES, FULL PAY DURING SUCH ABSENCE NOT EXCEEDING IN THE AGGREGATE THIRTY DAYS IN ONE YEAR, AND HALF-PAY DURING SUCH ABSENCE EXCEEDING THIRTY DAYS IN ONE YEAR. WHEN ABSENT WITHOUT LEAVE, THEY SHALL FORFEIT ALL PAY DURING SUCH ABSENCE, UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE.'

ACT OF JULY 29, 1876, 19 STAT. 102:

"THAT AN ACT APPROVED MAY EIGHT, EIGHTEEN HUNDRED AND SEVENTY-FOUR, IN REGARD TO LEAVE OF ABSENCE OF ARMY OFFICERS, BE, AND THE SAME IS HEREBY, SO AMENDED THAT ALL OFFICERS ON DUTY SHALL BE ALLOWED, IN THE DISCRETION OF THE SECRETARY OF WAR, SIXTY DAYS' LEAVE OF ABSENCE WITHOUT DEDUCTION OF PAY OR ALLOWANCES: PROVIDED, THAT THE SAME BE TAKEN ONCE IN TWO YEARS: AND PROVIDED FURTHER, THAT THE LEAVE OF ABSENCE MAY BE EXTENDED TO THREE MONTHS, IF TAKEN ONCE ONLY IN THREE YEARS, OR FOUR MONTHS IF TAKEN ONLY ONCE IN FOUR YEARS.'

THE LEAVE OF ABSENCE WHICH COULD HAVE BEEN GRANTED IN THE DISCRETION OF THE SECRETARY OF WAR WAS PERMISSION TO BE ABSENT FROM DUTY AND NECESSARILY APPLIED ONLY TO OFFICERS ON ACTIVE DUTY. IT NECESSARILY FOLLOWS THAT AN OFFICER IS ENTITLED TO PAY AND ALLOWANCES ONLY WHEN ON ACTIVE DUTY. YOU WERE RELEASED FROM ACTIVE DUTY ON JULY 8, 1944, AND YOUR RIGHT TO PAY AND ALLOWANCES UNDER THE LAW CEASED ON THAT DATE. THE FACT THAT IT MAY THEN HAVE BEEN POSSIBLE FOR THE SECRETARY OF WAR IN HIS DISCRETION TO HAVE GRANTED YOU "TERMINAL LEAVE" GIVES YOU NO RIGHT TO PAY AFTER RELEASE FROM ACTIVE DUTY ON JULY 8, 1944, IN LIEU OF LEAVE NOT TAKEN OR GRANTED PRIOR THERETO WHILE ON ACTIVE DUTY. WE MAY NOT UNDERTAKE TO REVIEW THE DISCRETIONARY ACTION OF THE SECRETARY OF WAR IN NOT GRANTING "TERMINAL LEAVE.' IT SEEMS APPROPRIATE TO INFORM YOU THAT WHILE THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AUTHORIZED PAYMENT FOR ACCUMULATED LEAVE TO BE MADE TO ENLISTED MEMBERS OF THE ARMED FORCES DISCHARGED PRIOR TO AUGUST 31, 1946, THE SAID ACT CONTAINS NO SIMILAR PROVISION AUTHORIZING COMMISSIONED OFFICERS DISCHARGED OR RELEASED TO INACTIVE DUTY PRIOR TO THAT DATE TO BE PAID FOR LEAVE EARNED BUT NOT TAKEN PRIOR TO DISCHARGE OR RELEASE TO INACTIVE DUTY. ALSO, WE KNOW OF NO AUTHORITY OF LAW UNDER WHICH ORDERS COULD NOW BE ISSUED SO AS TO PROVIDE A BASIS FOR PAYMENT TO YOU FOR YOUR UNUSED ACCRUED LEAVE.