B-139113, JAN 5, 1972, 51 COMP GEN 391

B-139113: Jan 5, 1972

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ENTITLEMENT TO LEAVE AND TO PAYMENT FOR UNUSED ACCRUED LEAVE ARE GOVERNED BY THE ARMED FORCES LEAVE ACT OF 1946 (10 U.S.C. 701-707 AND 37 U.S.C. 501-504) AND. A PERSON IN A MISSING STATUS CONTINUES TO ACCRUE LEAVE AT THE RATE OF 2 1/2 CALENDAR DAYS FOR EACH MONTH HE IS IN A MISSING STATUS UNTIL THE DATE OF DEATH. SHOULD BE COMPUTED ON THE BASIC PAY AND ALLOWANCES TO WHICH A MEMBER WAS ENTITLED ON THE DATE OF DEATH. 1972: FURTHER REFERENCE IS MADE TO LETTER DATED NOVEMBER 1. REQUESTING A DECISION AS TO WHETHER A MEMBER OF THE ARMED FORCES IN A MISSING STATUS CONTINUES TO ACCRUE LEAVE THROUGH THE DATE THE SECRETARY CONCERNED RECEIVES EVIDENCE THAT THE MEMBER IS DEAD OR WHETHER THE RIGHT TO ACCUMULATE LEAVE TERMINATES ON AN EARLIER DATE DETERMINED BY THE SECRETARY CONCERNED AS THE ACTUAL DATE OF DEATH.

B-139113, JAN 5, 1972, 51 COMP GEN 391

LEAVES OF ABSENCE - MILITARY PERSONNEL - MISSING, INTERNED, ETC. - ACCRUAL AND PAYMENT OF LEAVE SINCE THE MISSING PERSONS ACT, 37 U.S.C. 551-558, NEITHER ENLARGES NOR DECREASES THE ENTITLEMENT OF A MEMBER OF THE ARMED SERVICES TO LEAVE BENEFITS, ENTITLEMENT TO LEAVE AND TO PAYMENT FOR UNUSED ACCRUED LEAVE ARE GOVERNED BY THE ARMED FORCES LEAVE ACT OF 1946 (10 U.S.C. 701-707 AND 37 U.S.C. 501-504) AND, THEREFORE, A PERSON IN A MISSING STATUS CONTINUES TO ACCRUE LEAVE AT THE RATE OF 2 1/2 CALENDAR DAYS FOR EACH MONTH HE IS IN A MISSING STATUS UNTIL THE DATE OF DEATH, AND PAYMENT FOR ANY LEAVE TO THE CREDIT OF A MISSING PERSON ON THE DATE DETERMINED BY COMPETENT EVIDENCE TO BE THE DATE OF DEATH, SUBJECT TO THE 60-DAY MAXIMUM PRESCRIBED IN 37 U.S.C. 501(D), SHOULD BE COMPUTED ON THE BASIC PAY AND ALLOWANCES TO WHICH A MEMBER WAS ENTITLED ON THE DATE OF DEATH.

TO THE SECRETARY OF DEFENSE, JANUARY 5, 1972:

FURTHER REFERENCE IS MADE TO LETTER DATED NOVEMBER 1, 1971, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION AS TO WHETHER A MEMBER OF THE ARMED FORCES IN A MISSING STATUS CONTINUES TO ACCRUE LEAVE THROUGH THE DATE THE SECRETARY CONCERNED RECEIVES EVIDENCE THAT THE MEMBER IS DEAD OR WHETHER THE RIGHT TO ACCUMULATE LEAVE TERMINATES ON AN EARLIER DATE DETERMINED BY THE SECRETARY CONCERNED AS THE ACTUAL DATE OF DEATH. ALSO, DECISION WAS REQUESTED AS TO THE PROPER RATE OF PAY UPON WHICH THE LUMP-SUM LEAVE PAYMENT IS TO BE COMPUTED.

THERE WAS ENCLOSED A COPY OF COMMITTEE ACTION NO. 458 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SETTING FORTH AND DISCUSSING THE FOLLOWING QUESTIONS:

1. DOES A MEMBER OF A UNIFORMED SERVICE IN A MISSING STATUS CONTINUE TO ACCUMULATE LEAVE THROUGH THE DATE THE SECRETARY CONCERNED RECEIVES EVIDENCE THAT THE MEMBER IS DEAD, OR DOES HIS RIGHT TO ACCUMULATE LEAVE TERMINATE ON AN EARLIER DATE DETERMINED BY COMPETENT EVIDENCE AS THE ACTUAL DATE OF DEATH?

2. SHOULD UNUSED LEAVE SETTLEMENT ON BEHALF OF A MEMBER IN A MISSING STATUS BE COMPUTED ON THE MEMBER'S RATE OF PAY ON THE DATE THE SECRETARY CONCERNED RECEIVES EVIDENCE THAT THE MEMBER IS DEAD, OR SHOULD IT BE COMPUTED ON THE MEMBER'S RATE OF PAY ON AN EARLIER DATE DETERMINED BY COMPETENT EVIDENCE AS THE ACTUAL DATE OF DEATH?

SECTION 552, TITLE 37, U.S. CODE, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(A) A MEMBER OF A UNIFORMED SERVICE WHO IS ON ACTIVE DUTY OR PERFORMING INACTIVE-DUTY TRAINING, AND WHO IS IN A MISSING STATUS, IS, FOR THE PERIOD HE IS IN THAT STATUS, ENTITLED TO RECEIVE OR HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES, AS DEFINED IN THIS CHAPTER, TO WHICH HE WAS ENTITLED AT THE BEGINNING OF THAT PERIOD OR MAY THEREAFTER BECOME ENTITLED. ***

(B) *** NOTWITHSTANDING THE DEATH OF A MEMBER WHILE IN A MISSING STATUS, ENTITLEMENT TO PAY AND ALLOWANCES UNDER SUBSECTION (A) OF THIS SECTION ENDS ON THE DATE -

(1) THE SECRETARY CONCERNED RECEIVES EVIDENCE THAT THE MEMBER IS DEAD; OR

(2) THAT HIS DEATH IS PRESCRIBED OR DETERMINED UNDER SECTION 555 OF THIS TITLE.

AS DEFINED IN 37 U.S.C. 551(3), "PAY AND ALLOWANCES" MEANS:

(A) BASIC PAY;

(B) SPECIAL PAY;

(C) INCENTIVE PAY;

(D) BASIC ALLOWANCE FOR QUARTERS;

(E) BASIC ALLOWANCE FOR SUBSISTENCE; AND

(F) STATION PER DIEM ALLOWANCES FOR NOT MORE THAN 90 DAYS.

LEAVE, AS SUCH, IS NOT "PAY AND ALLOWANCES" BUT IS MERELY THE RIGHT TO BE ABSENT FROM DUTY WITHOUT LOSS OF SUCH PAY AND ALLOWANCES. THE ENTITLEMENT TO LEAVE AND TO PAYMENT FOR UNUSED ACCRUED LEAVE ARE PROVIDED BY THE ARMED FORCES LEAVE ACT OF 1946, CH. 931, 60 STAT. 963, NOW CODIFIED IN 10 U.S.C. 701-707 AND 37 U.S.C. 501-504. UNDER SUCH PROVISIONS OF LAW A MEMBER OF THE ARMED SERVICES WHO IS IN THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES IS ENTITLED TO THE LEAVE BENEFITS THERE PROVIDED. LEAVE DOES NOT ACCRUE DURING CERTAIN SPECIFIED PERIODS OF ABSENCE FROM DUTY; HOWEVER, THESE PERIODS DO NOT INCLUDE ABSENCE FROM DUTY IN A MISSING STATUS. AND WE FIND NOTHING IN THE MISSING PERSONS ACT, 37 U.S.C. 551- 558, THAT ENLARGES OR DECREASES THE ENTITLEMENT OF A MEMBER OF THE ARMED SERVICES TO SUCH LEAVE BENEFITS. IT IS OUR OPINION, THEREFORE, THAT THE MISSING PERSONS ACT DOES NOT GOVERN THE ACCRUAL OF LEAVE OR PAYMENT FOR UNUSED ACCRUED LEAVE.

PURSUANT TO 37 U.S.C. 501(B) A MEMBER WHO HAD ACCRUED LEAVE TO HIS CREDIT AT THE TIME OF HIS DISCHARGE IS ENTITLED TO BE PAID FOR THAT LEAVE (NOT IN EXCESS OF 60 DAYS) ON THE BASIS OF THE BASIC PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED ON THE DATE OF DISCHARGE. SUBSECTION 501(A)(1)(C) PROVIDES THAT "DISCHARGE" MEANS, IN THE CASE OF EITHER AN OFFICER OR AN ENLISTED MEMBER, DEATH WHILE ON ACTIVE DUTY UNLESS THE DECEDENT WAS PUT TO DEATH AS LAWFUL PUNISHMENT FOR A CRIME OR A MILITARY OFFENSE. THUS, PURSUANT TO 10 U.S.C. 701(A), A MEMBER IN A MISSING STATUS IS ENTITLED TO BE CREDITED WITH LEAVE AT THE RATE OF 2 1/2 CALENDAR DAYS FOR EACH MONTH HE IS IN THAT STATUS UNTIL THE DATE OF DEATH.

IT FOLLOWS THAT IN THE CASE OF A MISSING PERSON WHO DIES WHILE IN THAT STATUS, THE RIGHT TO CREDIT OF LEAVE CEASES ON THE DATE OF HIS DEATH. PAYMENT FOR ANY LEAVE THAT THE MISSING PERSON HAS TO HIS CREDIT ON THE DATE ACTUALLY DETERMINED BY COMPETENT EVIDENCE TO BE THE DATE OF DEATH (SUBJECT TO THE 60-DAY MAXIMUM PRESCRIBED IN 37 U.S.C. 501(D)) SHOULD BE COMPUTED ON THE BASIS OF THE BASIC PAY AND ALLOWANCES (BASIC PAY, BASIC ALLOWANCE FOR QUARTERS AND BASIC ALLOWANCE FOR SUBSISTENCE) TO WHICH HE WAS ENTITLED ON THE DATE OF DEATH. THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.