B-136912, OCTOBER 20, 1958, 38 COMP. GEN. 320

B-136912: Oct 20, 1958

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SERVICE" WHICH IS USED TO INCLUDE OTHER THAN ACTIVE SERVICE. A MEMBER OF THE UNIFORMED SERVICES WHO HAS BEEN PLACED IN A POSITION OF BEING UNABLE TO PERFORM HIS DUTIES AND TO RECEIVE THE EMOLUMENTS OF HIS RANK OR GRADE IS NOT CONSIDERED IN THE ACTIVE SERVICE FOR LEAVE ACCRUAL. ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHOSE AUTHORIZED LEAVE EXPIRES DURING PERIOD OF DETENTION BY CIVIL AUTHORITIES MAY NOT BE REGARDED AS IN AN ACTIVE DUTY STATUS FOR LEAVE ACCRUAL PURPOSES FOLLOWING SUCH EXPIRATION UNTIL RETURN TO FULL DUTY UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE AS PROVIDED BY SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946. AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO IS TURNED OVER TO THE CIVIL AUTHORITIES UNDER ARTICLE 14 OF THE UNIFORM CODE OF MILITARY JUSTICE AND WHO DURING SUCH PERIOD IS NOT IN RECEIPT OF THE EMOLUMENTS OF HIS RANK OR GRADE IS NOT CONSIDERED TO BE IN THE ACTIVE SERVICE WITHIN THE MEANING OF SECTION 3 (A) OF THE ARMED FORCES LEAVE ACT OF 1946.

B-136912, OCTOBER 20, 1958, 38 COMP. GEN. 320

MILITARY PERSONNEL - EXPIRATION OF AUTHORIZED ABSENCES - ARREST BY CIVIL AUTHORITIES - LEAVE ACCRUAL IN THE ABSENCE OF A DEFINITION OF "ACTIVE SERVICE" FOR PURPOSES OF THE ARMED FORCES LEAVE ACT OF 1946, THE CUSTOMARY DEFINITION OF THE TERM SHOULD BE USED RATHER THAN THE BROADER GENERIC TERM ,SERVICE" WHICH IS USED TO INCLUDE OTHER THAN ACTIVE SERVICE; HENCE, A MEMBER OF THE UNIFORMED SERVICES WHO HAS BEEN PLACED IN A POSITION OF BEING UNABLE TO PERFORM HIS DUTIES AND TO RECEIVE THE EMOLUMENTS OF HIS RANK OR GRADE IS NOT CONSIDERED IN THE ACTIVE SERVICE FOR LEAVE ACCRUAL. ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHOSE AUTHORIZED LEAVE EXPIRES DURING PERIOD OF DETENTION BY CIVIL AUTHORITIES MAY NOT BE REGARDED AS IN AN ACTIVE DUTY STATUS FOR LEAVE ACCRUAL PURPOSES FOLLOWING SUCH EXPIRATION UNTIL RETURN TO FULL DUTY UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE AS PROVIDED BY SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C. 33 (B). AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO IS TURNED OVER TO THE CIVIL AUTHORITIES UNDER ARTICLE 14 OF THE UNIFORM CODE OF MILITARY JUSTICE AND WHO DURING SUCH PERIOD IS NOT IN RECEIPT OF THE EMOLUMENTS OF HIS RANK OR GRADE IS NOT CONSIDERED TO BE IN THE ACTIVE SERVICE WITHIN THE MEANING OF SECTION 3 (A) OF THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C. 31A (A), FOR PURPOSES OF LEAVE ACCRUAL FOR ANY PERIOD (IN EXCESS OF 24 CONSECUTIVE HOURS) OF RETENTION BY THE CIVIL AUTHORITIES. AN ENLISTED MEMBER WHO HAS LOST TIME IN THE SITUATIONS MENTIONED IN THE ACT OF JULY 24, 1956, HAS RENDERED HIMSELF UNABLE TO PERFORM "ACTIVE SERVICE" AND ACCORDINGLY IS NOT ENTITLED TO THE CREDIT FOR LEAVE FOR SUCH LOST TIME PERIODS. IN VIEW OF THE INTENTION OF THE CONGRESS EXPRESSED IN SECTION 4 (E) OF THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C. 33 (E), THAT LEAVE BE CREDITED TO OFFICERS AND ENLISTED MEMBERS IN THE SAME MANNER AND UPON THE SAME CONDITIONS, ENTITLEMENT TO LEAVE CREDIT IN THE CASE OF UNAUTHORIZED ABSENCES OF COMMISSIONED OFFICERS SHOULD BE GRANTED ON THE SAME BASIS AS UNAUTHORIZED ABSENCES OF ENLISTED MEMBERS.

TO THE SECRETARY OF DEFENSE, OCTOBER 20, 1958:

FURTHER REFERENCE IS MADE TO LETTER OF JULY 23, 1958, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON QUESTIONS DISCUSSED IN COMMITTEE ACTION NO. 210 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTIONS ARE AS FOLLOWS:

1. MAY AN ENLISTED MEMBER DETAINED BY CIVIL AUTHORITIES, HIS AUTHORIZED LEAVE HAVING EXPIRED SUBSEQUENT TO ARREST, BE PROPERLY DENIED LEAVE CREDIT FOR THE PERIOD (IN EXCESS OF 24 CONSECUTIVE HOURS) FOLLOWING SUCH EXPIRATION UNTIL HIS RETURN TO FULL DUTY:

A. IF RELEASED WITHOUT TRIAL BY CIVIL AUTHORITIES;

B. IF TRIED AND CONVICTED BY CIVIL AUTHORITIES; OR

C. IF RELEASED WITHOUT TRIAL UPON HIS AGREEMENT TO MAKE REPARATION FOR THE CIVIL OFFENSE?

2. MAY AN ENLISTED MEMBER TURNED OVER TO THE CIVIL AUTHORITIES UPON REQUEST UNDER ARTICLE 14 UNIFORM CODE OF MILITARY JUSTICE PROPERLY BE ENTITLED TO LEAVE CREDIT FOR ANY PERIOD (IN EXCESS OF 24 CONSECUTIVE HOURS) OF RETENTION BY CIVIL AUTHORITIES DURING WHICH HE IS NOT ENTITLED TO RECEIVE PAY AND ALLOWANCES?

3. MAY AN ENLISTED MEMBER BE PROPERLY DENIED LEAVE CREDIT FOR ANY PERIOD OF TIME LOST UNDER THE ACT OF JULY 24, 1956, 70 STAT. 631?

4. IS THE ENTITLEMENT TO LEAVE CREDIT IN THE CASE OF A COMMISSIONED OFFICER MEMBER THE SAME AS THAT OF AN ENLISTED MEMBER FOR EQUIVALENT PERIODS OF ABSENCE UNDER CIRCUMSTANCES INDICATED IN THE FOREGOING QUESTIONS?

SECTION 3 (A) OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, 37 U.S.C. 31A (A), PROVIDES, IN PART, AS FOLLOWS:

EACH MEMBER OF THE ARMED FORCES SHALL BE ENTITLED TO LEAVE AT THE RATE OF TWO AND ONE-HALF CALENDAR 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. * * *

AS STATED IN OUR LETTER OF JANUARY 14, 1958, B-131442, CITED IN THE COMMITTEE ACTION,"THE HISTORIC CONCEPT HAS BEEN THAT LEAVE IS A RIGHT TO BE ABSENT FROM DUTY WHICH IS EARNED WHILE PRESENT FOR DUTY, AND IT SEEMS MOST DOUBTFUL THAT A MEMBER OF THE ARMED FORCES WHO IS ABSENT IN A NONPAY STATUS FOR A PERIOD OF WEEKS OR MONTHS PROPERLY MAY BE REGARDED AS PRESENT FOR DUTY SO AS TO EARN A RIGHT TO BE ABSENT FROM DUTY WITH PAY. WE DO NOT BELIEVE THAT CONGRESS INTENDED ANY SUCH RESULT WHEN IT ENACTED THE ARMED FORCES LEAVE ACT.'

WITH THE ABOVE IN MIND, THE APPROACH SUGGESTED IN THE COMMITTEE ACTION, THAT THE WORDS "ACTIVE SERVICE" IN THE PERTINENT PART OF SECTION 3 (A) OF THE ARMED FORCES LEAVE ACT CONTAIN IMPLIED EXCLUSIONS IN ADDITION TO THE THREE PERIODS SPECIFICALLY MENTIONED, APPEARS TO US TO BE PROPER. ,ACTIVE SERVICE" IS NOT DEFINED IN THE ARMED FORCES LEAVE ACT, HENCE THE NORMAL USAGE OF THE TERM MUST BE UNDERSTOOD AS APPLICABLE TO MATTERS HERE CONSIDERED, THAT IS, THE TERM "ACTIVE SERVICE" IS TO BE DISTINGUISHED FROM THE BROADER, GENERIC TERM "SERVICE" IN THAT THE LATTER TERM OFTEN MAY INCLUDE SERVICE WHICH IS NOT ACTIVE SERVICE. "ACTIVE SERVICE" HAS BEEN DEFINED AS NOT NECESSARILY ACTUAL SERVICE, BUT SERVICE PERFORMED AT THE DIRECTION OF A SUPERIOR OFFICER OR OFFICERS WHILE RECEIVING THE EMOLUMENTS TO WHICH A SOLDIER IS ENTITLED. SEE UNITED STATES V. WOODWORTH, 36 F.1SUPP. 645, 646. HENCE, WHERE A MEMBER HAS BEEN PLACED IN A POSITION OF BEING UNABLE TO PERFORM HIS DUTIES AND RECEIVE THE EMOLUMENTS OF HIS RANK OR GRADE, HE IS NOT TO BE CONSIDERED AS IN ACTIVE SERVICE, FOR THE PURPOSES UNDER CONSIDERATION HERE.

IN DECISION DATED AUGUST 28, 1956, 36 COMP. GEN. 173, AT PAGE 175, IT IS STATED THAT---

THUS, THE FACT A MEMBER OF THE ARMED FORCES IS UNDER CHARGES BY THE CIVILIAN OR MILITARY AUTHORITIES GENERALLY DOES NOT DEPRIVE HIM OF HIS PAY. EVEN DURING PERIODS OF ACTUAL DETENTION BY THE CIVIL AUTHORITIES THE MEMBER IS AUTHORIZED GRANT OF LEAVE; BUT A MEMBER NOT ON AUTHORIZED LEAVE WHOSE MISCONDUCT HAS CAUSED HIM TO BE IN THE HANDS OF THE CIVIL AUTHORITIES AND THUS UNABLE TO FULFILL HIS OBLIGATION TO BE AT HIS POST OF DUTY MUST BE REGARDED AS ABSENT WITHOUT LEAVE AND HIS PAY FOR SUCH PERIOD OF UNAUTHORIZED ABSENCE IS FORFEITED. COMPARE DODGE V. UNITED STATES, 33 C.1CLS. 28, AND CARRINGTON V. UNITED STATES, 46 C.1CLS. 279, APPLYING A STATUTORY PROVISION SIMILAR TO THAT MADE BY THE LAST SENTENCE OF THE QUOTED SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT. IN CONSONANCE WITH SUCH RULE WE HELD IN DECISION OF DECEMBER 22, 1955, B 125398, THAT UNDER SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT THE PAY OTHERWISE ACCRUING TO AN ENLISTED MAN WHILE HE WAS CONFINED BY THE CIVIL AUTHORITIES AND NOT IN AN AUTHORIZED LEAVE STATUS WAS FORFEITED UNLESS HIS ABSENCE FROM DUTY WAS EXCUSED AN UNAVOIDABLE. PRESUMABLY DISMISSAL OF THE CHARGES OR ACQUITTAL WOULD CONSTITUTE A SUFFICIENT BASIS FOR EXCUSING SUCH AN UNAUTHORIZED ABSENCE AS UNAVOIDABLE. UNTIL SO EXCUSED, HOWEVER, THE STATUTE PRECLUDES ANY PAYMENT OF PAY FOR THE PERIOD OF ABSENCE, REGARDLESS OF THE OUTCOME OF THE CIVILIAN PROCEEDINGS. * * *

WHILE THE ABOVE IS CONCERNED WITH ENTITLEMENT TO PAY, IT IS EQUALLY APPLICABLE TO ENTITLEMENT TO THE CREDIT OF LEAVE.

ACCORDINGLY, THE QUESTIONS PROPOSED IN THE COMMITTEE ACTION MAY BE ANSWERED, AS FOLLOWS:

QUESTION 1. ALL PARTS TO THIS QUESTION ARE ANSWERED IN THE AFFIRMATIVE UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE AS PROVIDED IN SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT, AS AMENDED, 37 U.S.C. 33 (B). THERE WOULD APPEAR TO BE LITTLE REASON FOR EXCUSING THE ABSENCE IN THE SITUATIONS PRESENTED UNDER QUESTIONS 1 (B) AND 1 (C), SINCE THE ABSENCE PRESUMABLY WAS INDUCED BY THE MEMBER AND IS DISTINGUISHABLE FROM THE SITUATION IN 1 (A), WHERE THE ABSENCE MIGHT BE CAUSE BY EVENTS BEYOND THE MEMBERS CONTROL.

QUESTION 2 IS ANSWERED IN THE NEGATIVE. FOR THE PURPOSES OF ACCRUING LEAVE, THE MEMBER IS NOT RECEIVING THE EMOLUMENTS OF HIS RANK OR GRADE, AND, HENCE, IS NOT, WHILE IN THE HANDS OF CIVIL AUTHORITIES UNDER THESE CONDITIONS, IN ACTIVE MILITARY SERVICE.

QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE. IN EACH OF THE SITUATIONS MENTIONED IN THE ACT OF JULY 24, 1956, THE MEMBER HAS RENDERED HIMSELF UNABLE TO PERFORM "ACTIVE SERVICE," AND ACCORDINGLY, IS NOT ENTITLED TO THE CREDIT FOR LEAVE FOR THE PERIODS CONCERNED.

AND FINALLY, THE ANSWER TO QUESTION 4 IS IN THE AFFIRMATIVE IN VIEW OF THE INTENTION OF THE CONGRESS EXPRESSED IN SECTION 4 (E) OF THE ARMED FORCES LEAVE ACT, 37 U.S.C. 33 (E), THAT LEAVE BE CREDITED TO OFFICERS AND ENLISTED MEMBERS IN THE SAME MANNER AND UPON THE SAME CONDITIONS.