B-131442, JAN 14, 1958

B-131442: Jan 14, 1958

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SECRETARY: WE HAVE RECEIVED THROUGH OUR CLAIMS DIVISION A REQUEST FROM THE FINANCE CENTER. HE WAS ATTACHED TO A STUDENT DETACHMENT AT FORT MCPHERSON. HE WAS PLACED IN AN AUTHORIZED LEAVE-WITHOUT-PAY STATUS FOR THE PERIOD FROM JUNE 16. HE WAS IN A FULL PAY STATUS FROM JUNE 16. HE WAS CREDITED WITH LEAVE FOR THE FULL PERIOD FROM JUNE 16. HE WAS PAID FOR 60 DAYS' ACCRUED LEAVE AT THE TIME OF HIS SEPARATION IN MAY 1954. IT WAS HELD THAT LEAVE CREDITS DID NOT ACCRUE TO AN OFFICER OF THE ARMY DURING THE PERIOD HE WAS IN AN EXCESS-LEAVE STATUS. IN THAT DECISION THERE WAS QUOTED A PART OF A DECISION OF THE COMPTROLLER OF THE TREASURY. AS FOLLOWS: "CUMULATIVE LEAVE OF ABSENCE IS EARNED BY SERVICE.

B-131442, JAN 14, 1958

PRECIS-UNAVAILABLE

MR. SECRETARY:

WE HAVE RECEIVED THROUGH OUR CLAIMS DIVISION A REQUEST FROM THE FINANCE CENTER, UNITED STATES ARMY, FOR INFORMATION AS TO THE BASIS UPON WHICH WE CANCELED A DEBT CHARGE OF $402.39 AGAINST MR. EUGENE L. EASTMOORE, REPRESENTING THE AMOUNT PAID TO HIM FOR 29 DAYS OF UNUSED ACCURRUED LEAVE AT THE TIME OF HIS SEPARATION FROM THE REGULAR ARMY AS SECOND LIEUTENANT (FIRST LIEUTENANT, AUS) 064 675. THIS CASE INVOLVES A SITUATION WHICH WE BELIEVE SUGGESTS NEED FOR CORRECTIVE ACTION.

THE RECORDS SHOW THAT ON JUNE 16, 1951, MR. EASTMOORE ACCEPTED AN APPOINTMENT AS SECOND LIEUTENANT, REGULAR ARMY. HE WAS ATTACHED TO A STUDENT DETACHMENT AT FORT MCPHERSON, GEORGIA, AND BY ORDERS OF JUNE 26, 1951, HE WAS PLACED IN AN AUTHORIZED LEAVE-WITHOUT-PAY STATUS FOR THE PERIOD FROM JUNE 16, 1951, TO JUNE 15, 1952, "FOR THE PURPOSE OBTAINING A LAW DEGREE." HE WAS IN A FULL PAY STATUS FROM JUNE 16, 1952, TO MAY 28, 1954, THE DATE OF HIS SEPARATION. HE WAS CREDITED WITH LEAVE FOR THE FULL PERIOD FROM JUNE 16, 1951, TO MAY 28, 1954, AND, IN ADDITION TO THE PAYMENT HE RECEIVED FOR 28 DAY'S LEAVE TAKEN IN 1952 AND 1953, HE WAS PAID FOR 60 DAYS' ACCRUED LEAVE AT THE TIME OF HIS SEPARATION IN MAY 1954.

IN DECISION OF MARCH 29, 1928, 7 COMP. GEN. 615, IT WAS HELD THAT LEAVE CREDITS DID NOT ACCRUE TO AN OFFICER OF THE ARMY DURING THE PERIOD HE WAS IN AN EXCESS-LEAVE STATUS. IN THAT DECISION THERE WAS QUOTED A PART OF A DECISION OF THE COMPTROLLER OF THE TREASURY, DATED APRIL 21, 1915, 21 COMP. DEC. 742, AS FOLLOWS:

"CUMULATIVE LEAVE OF ABSENCE IS EARNED BY SERVICE. SERVICE IS THE BASIS OF SUCH ALLOWANCE. THE THEORY IS THAT FOR SO SUCH SERVICE THERE SHALL BE SO MUCH LEAVE OR HOLIDAY; AND SO LEAVE LAWS ARE CONSTRUED GENERALLY, WHETHER IN THE CIVIL OR MILITARY DEPARTMENTS. AN OFFICER UPON FIRST ENTRY INTO THE SERVICE IS NOT ENTITLED TO LEAVE WITH PAY UNTIL IT HAS ACCRUED TO HIM BY SERVICE. (15 COMP. DEC., 766; 18 ID., 446.)

"TO HOLD THAT AN OFFICER WHO HAS BEEN ON LEAVE WITHOUT PAY, FOR HIS OWN CONVENIENCE, FOR NEARLY FOUR YEARS IS ENTITLED ON HIS RETURN TO AT ONCE RECEIVE THE LEAVE WITH FULL PAY TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE BEEN REGULARLY PERFORMING DUTY WOULD BE UTTERLY UNREASONABLE, UNFAIR TO THE GOVERNMENT, AND CONTRARY TO THE SPIRIT AND PURPOSE OF THE LEAVE LAWS."

WHILE THOSE DECISIONS CONCERNED THE ACCRUAL OF LEAVE WAIVER THE PROVISIONS OF SECTION 1265, REVISED STATUTES, WHICH WERE REPEALED AND SUPERSEEDED BY THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, AND MR. EASTMOORE'S LEAVE RIGHTS WERE GOVERNED BY THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, THERE IS NO PROVISION IN THE LATTER LAW WHICH MAY BE VIEWED AS CLEARLY AUTHORIZING THE ACCURAL OF LEAVE WITH PAY WHILE IN AN AUTHORIZED LEAVE-WITHOUT-PAY STATUS. WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE 1946 ACT EVIDENCING SUCH AN INTENT ON THE PART OF CONGRESS.

SECTION 3(A) OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED, 37 U.S.C. 31A, PROVIDES FOR THE ACCRUAL OF ANNUAL LEAVE AT THE RATE OF 2 1/2 DAYS FOR EACH MONTH OF "ACTIVE SERVICE," EXCLUDING PERIODS OF (1) ABSENCE FROM DUTY WITHOUT LEAVE, (2) ABSENCE OVER LEAVE AND (3) CONFINEMENT AS THE RESULT OF A SENTENCE OF COURT-MARTIAL. SECTION 4(B) OF THE STATUTE, AS AMENDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 6! STAT. 748, 37 U.S.C. 33(B, PROVIDES, HOWEVER, THAT MEMBERS ON AUTHORIZED LEAVE IN EXCESS OF THE NUMBER OF DAYS LEAVE AUTHORIZED BY SECTION 3(A) SHALL NOT BE ENTITLED TO ANY PAY AND ALLOWANCES DURING SUCH ABSENCE, EXCEPT WHEN THE ABSENCE IS ON ABSENCE OF SICKNESS OR WOUNDS, OR WHILE AWAITING ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS. AND, WHILE SECTION 3(A) PROVIDES THAT THE ACCRUED LEAVE TAKEN PRIOR TO DISCHARGE SHALL BE CONSIDERED AS ACTIVE MILITARY SERVICE, THE LAW CONTAINS NO SIMILAR PROVISION WITH REFERENCE TO LEAVE TAKEN IN EXCESS OF THE NUMBER OF DAYS AUTHORIZED BY THE ACT.

IN OUR VIEW, THE 1946 LEAVE ACT DOES NOT CONTEMPLATE THAT A MEMBER IN AN AUTHORIZED LEAVE-WITHOUT-PAY STATUS FOR ANY EXTENDED PERIOD OF TIME SHALL EARN LEAVE OF ABSENCE WITH PAY DURING SUCH ABSENCE ANY MORE THAN DID SECTION 1265, REVISED STATUTES. HENCE, QUESTION WAS RAISED RESPECTING 29 DAYS OF MR. EASTMOORE'S LEAVE AND HE WAS REQUESTED TO REFUND THE AMOUNT PAID TO HIM FOR THIS 29 DAYS. IT DEVELOPED, HOWEVER, THAT THE NUMBER OF DAYS OF LEAVE CREDITED TO MR. EASTMORE WAS DETERMINED IN ACCORDANCE WITH AN ADMINISTRATIVE INTERPRETATION OF THE LAW TO THE EFFECT THAT LEAVE ACCRUED DURING A PERIOD OF ABSENCE WITHOUT PAY (PARAGRAPH 37.5, VOLUME 1 OF THE DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMED SERVICES. PAGES 353, 354, UNDER THE HEADING MILITARY PERSONNEL) AND UNDER THE LITERAL LANGUAGE OF THE LAW THAT VIEW MAY NOT BE UNTENABLE. IN SUCH CIRCUMSTANCES, AND MIXED IN ANY SUIT AGAINST MR. EASTMOORE TO RECOVER THE AMOUNT PAID TO HIM THE BURDEN WOULD BE ON THE GOVERNMENT TO ESTABLISH THAT THE CREDITING OF LEAVE IN HIS CASE WAS IN ERROR. THE DEBT CHARGE AGAINST HIS PAY CANCELED.

NEXT PARAGRAPH OF LIBRARY TEXT IS UNREADABLE.

"WHENEVER A FULL-TIME EMPLOYEE'S ABSENCE IN A NONPAY STATUS WITHIN A LEAVE YEAR TOTALS THE EQUIVALENT OF THE BASE PAY HOURS IN ONE PAY PERIOD *** THE CREDITS FOR ANNUAL LEAVE SHALL BE REDUCED 1/2 DAY, 3/4 DAY, OR 1 DAY ACCORDING TO THE EMPLOYEE'S LEAVE-EARNING CATEGORY, PROVIDED, THAT NO LEAVE SHALL ACCRUE TO THE CREDIT OF AN EMPLOYEE WHO IS IN NONPAY STATUS FOR THE ENTIRE LEAVE YEAR."

IT WOULD APPEAR THAT REGULATORY PROVISIONS OF SOMEWHAT THE SAME NATURE FOR PERSONNEL OF THE ARMED FORCES WOULD BE CONSISTENT WITH THE PURPOSE AND INTENT OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED. AN EXPRESSION OF YOUR VIEWS ON THIS MATTER WOULD BE APPRECIATED.