B-145174, MARCH 24, 1961, 40 COMP. GEN. 545

B-145174: Mar 24, 1961

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MEMBERS OF THE ARMED FORCES WHO ARE ABOUT TO BE RETIRED ARE NOT ENTITLED TO TAKE THEIR ACCRUED ANNUAL LEAVE IN LIEU OF A LUMP-SUM PAYMENT. AN ADMINISTRATIVE ACTION WHICH DENIED THE REQUEST OF A NAVY OFFICER TO USE 45 DAYS' ACCRUED LEAVE AT THE TIME HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST FOLLOWING RELEASE TO INACTIVE DUTY. WAS A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION UNDER SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946. THE OFFICER'S CLAIM FOR INCREASED RETIRED PAY ON THE BASIS THAT HE WOULD HAVE COMPLETED EIGHT YEARS OF SERVICE DURING THE 45 DAYS COVERED BY HIS REQUEST FOR LEAVE MAY NOT BE PAID. 1961: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2. WHO ARE ABOUT TO BE RETIRED.

B-145174, MARCH 24, 1961, 40 COMP. GEN. 545

MILITARY PERSONNEL - UNUSED ACCRUED LEAVE AT TIME OF DISCHARGE OR RELEASE - USE V. LUMP-SUM PAYMENT UNDER SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C. 33 (C), WHICH PROVIDES THAT ANY MEMBER OF THE ARMED FORCES DISCHARGED AFTER AUGUST 31, 1946, HAVING UNUSED ANNUAL LEAVE TO HIS CREDIT AT TIME OF DISCHARGE, SHALL BE COMPENSATED FOR SUCH LEAVE IN CASH ON THE BASIS OF THE PAY AND ALLOWANCES APPLICABLE ON THE DATE OF DISCHARGE, AND THAT SUCH LEAVE SHALL NOT BE CONSIDERED AS SERVICE FOR ANY PURPOSE, MEMBERS OF THE ARMED FORCES WHO ARE ABOUT TO BE RETIRED ARE NOT ENTITLED TO TAKE THEIR ACCRUED ANNUAL LEAVE IN LIEU OF A LUMP-SUM PAYMENT, THERE BEING NO INDICATION IN THE ACT OR ITS LEGISLATIVE HISTORY OF AN INTENT TO CONFER ON THE MEMBER THE RIGHT TO ELECT TO CONTINUE IN AN ACTIVE DUTY STATUS FOR THE PERIOD OF HIS ACCRUED LEAVE AFTER AN ADMINISTRATIVE DECISION HAS BEEN MADE TO EFFECT HIS DISCHARGE OR RELEASE FROM ACTIVE DUTY. AN ADMINISTRATIVE ACTION WHICH DENIED THE REQUEST OF A NAVY OFFICER TO USE 45 DAYS' ACCRUED LEAVE AT THE TIME HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST FOLLOWING RELEASE TO INACTIVE DUTY, WITH COMPENSATION IN CASH FOR 60 DAYS' ACCRUED LEAVE, WAS A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION UNDER SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED BY THE ACT OF AUGUST 4, 1947, 37 U.S.C. 33 (C), WHICH PROVIDES THAT ANY MEMBER OF THE ARMED FORCES DISCHARGED AFTER AUGUST 31, 1946, HAVING UNUSED ANNUAL LEAVE TO HIS CREDIT AT TIME OF DISCHARGE, SHALL BE COMPENSATED FOR SUCH UNUSED LEAVE IN CASH ON THE BASIS OF THE BASE AND LONGEVITY PAY AND ALLOWANCES APPLICABLE TO SUCH MEMBER ON THE DATE OF DISCHARGE, AND THAT SUCH LEAVE SHALL NOT BE CONSIDERED AS SERVICE FOR ANY PURPOSE; AND, THEREFORE, THE OFFICER'S CLAIM FOR INCREASED RETIRED PAY ON THE BASIS THAT HE WOULD HAVE COMPLETED EIGHT YEARS OF SERVICE DURING THE 45 DAYS COVERED BY HIS REQUEST FOR LEAVE MAY NOT BE PAID.

TO E. C. DODD, DEPARTMENT OF THE NAVY, MARCH 24, 1961:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2, 1961, WITH ENCLOSURES, FORWARDED UNDER SUBMISSION NO. BO-N-563 (ASSIGNED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE) REQUESTING A DECISION AS TO WHETHER OFFICERS AND ENLISTED PERSONNEL OF THE ARMED FORCES, WHO ARE ABOUT TO BE RETIRED, ARE ENTITLED TO TAKE THEIR ACCRUED ANNUAL LEAVE BEFORE RETIREMENT AS A MATTER OF RIGHT IF THEY DO NOT DESIRE TO BE COMPENSATED IN CASH THEREFOR, UNDER THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 37 U.S.C. 31A.

IT APPEARS THAT THE OFFICER INVOLVED, LIEUTENANT CLAYTON B. REITMEYER, USN, RETIRED, WAS RELEASED TO INACTIVE DUTY ON APRIL 30, 1959, AND WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON MAY 1, 1959, IN THE RANK OF LIEUTENANT (O-3) WITH A DISABILITY RATING OF 40 PERCENT. ON APRIL 30, 1959, HE HAD COMPLETED 7 YEARS 10 MONTHS AND 18 DAYS' ACTIVE SERVICE. HE ELECTED TO RECEIVE RETIRED PAY AT THE GROSS MONTHLY RATE OF $220 PER MONTH BASED ON HIS DISABILITY (50 PERCENT MINIMUM) AND HIS BASIC PAY FOR PAY GRADE 10-3 WITH OVER 6 YEARS' ACTIVE SERVICE.

AT THE TIME HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, LIEUTENANT REITMEYER HAD 60 DAYS' ACCRUED ANNUAL LEAVE TO HIS CREDIT. APRIL 27, 1959, HE REQUESTED THAT HE BE GRANTED 45 DAYS' LEAVE FROM THE UNITED STATES NAVAL HOSPITAL, BREMERTON, WASHINGTON. SUCH REQUEST WAS NOT GRANTED. HE WAS COMPENSATED IN CASH FOR HIS 60 DAYS' ACCRUED ANNUAL LEAVE WHEN HE WAS RELEASED TO INACTIVE DUTY ON APRIL 30, 1959. IF HE HAD BEEN GRANTED THE LEAVE REQUESTED AND SUBSEQUENTLY RETIRED, HE WOULD HAVE COMPLETED OVER 8 YEARS' ACTIVE SERVICE FOR BASIC PAY PURPOSES AT THE EXPIRATION OF SUCH LEAVE AND WOULD HAVE BEEN ENTITLED TO RETIRED PAY AT THE GROSS MONTHLY RATE OF $230 BASED ON THE BASIC PAY OF PAY GRADES 10-3 WITH OVER 8 YEARS' SERVICE.

SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED BY THE ACT OF AUGUST 4, 1947, 37 U.S.C. 33 (C), PROVIDES THAT ANY MEMBER OF THE ARMED FORCES DISCHARGED AFTER AUGUST 31, 1946, HAVING UNUSED ANNUAL LEAVE STANDING TO HIS CREDIT AT THE TIME OF DISCHARGE, SHALL BE COMPENSATED FOR SUCH UNUSED LEAVE IN CASH ON THE BASIS OF THE BASE AND LONGEVITY PAY AND ALLOWANCES APPLICABLE TO SUCH MEMBER ON THE DATE OF DISCHARGE, AND THAT SUCH LEAVE SO COMPENSATED FOR "SHALL NOT BE CONSIDERED AS SERVICE FOR ANY PURPOSE.' SECTION 2 (B) OF THAT ACT, 56 STAT. 360, DEFINES THE TERM ,DISCHARGE" AS INCLUDING "SEPARATION OR RELEASE FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS.'

IN YOUR LETTER YOU REFER TO THE CASES OF POLLARD V. UNITED STATES, 140 CT.1CL. 237, AND EICKS V. UNITED STATES, CT.1CL. NO. 475-55, DECIDED APRIL 8, 1959. IN THE EICKS CASE, THE COURT FOUND THAT THE PLAINTIFF, WHO WAS RETIRED FOR DISABILITY EFFECTIVE MAY 1, 1944, WAS ENTITLED TO BE GRANTED TERMINAL LEAVE AND HENCE WAS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FROM MAY 1 TO AUGUST 31, 1944 (LESS RETIRED PAY RECEIVED BY HIM), AND THE DIFFERENCE BETWEEN THE RETIRED PAY PAID TO HIM AND THE RETIRED PAY COMPUTED ON THE BASIS OF SUCH ADDITIONAL CREDITABLE SERVICE, FOR THE PERIOD SEPTEMBER 1, 1944, TO SEPTEMBER 30, 1949. THE COURT BASED ITS CONCLUSION ON THE FACT THAT, SINCE THE OFFICER'S ORDERS OF JANUARY 27, 1944, DISCHARGING THE PLAINTIFF FROM TREATMENT AT THE HOSPITAL AND ORDERING HIM TO PROCEED HOME TO AWAIT ACTION OF THE RETIRING BOARD WERE NOT DELIVERED TO HIM UNTIL MAY 1, 1944 (THE DATE HIS RETIREMENT WAS EFFECTIVE), IT WAS TOO LATE FOR HIM TO USE HIS ACCUMULATED LEAVE. THE COURT SAID THAT THE ACTION OF THE SECRETARY OF THE NAVY IN REFUSING THE CORRECTION OF THE PLAINTIFF'S RECORDS TO SHOW THAT HE WAS NOT RETIRED UNTIL SEPTEMBER 1, 1944, WAS UNJUSTIFIED. IN SUPPORT OF ITS CONCLUSION THAT THE PLAINTIFF WAS ENTITLED TO UNUSED ACCRUED LEAVE STANDING TO HIS CREDIT AT THE TIME OF HIS RETIREMENT ON MAY 1, 1944, THE COURT CITED THE POLLARD CASE, HOLDING THAT, PRIOR TO THE ARMED FORCES LEAVE ACT OF 1946, OFFICERS HAD A RIGHT TO ACCUMULATED LEAVE.

THE DISSENTING OPINION IN THE EICKS CASE TAKES THE VIEW THAT, PRIOR TO THE ENACTMENT OF THE ARMED FORCES LEAVE ACT OF 1946, THE GRANTING OF LEAVE WAS A DISCRETIONARY ACT OF THE SECRETARY CONCERNED AND THAT IT WAS NOT UNTIL THE AMENDATORY ACT OF AUGUST 4, 1947, 61 STAT. 748, THAT OFFICERS WERE ENTITLED TO BE COMPENSATED FOR LEAVE ACCRUED BUT NOT TAKEN PRIOR TO SEPARATION. THAT DISSENTING OPINION POINTS OUT THAT THE POLLARD CASE IS IN CONFLICT WITH THE DECISIONS OF THE COURT IN SCOTT V. UNITED STATES, 123 CT.1CL. 547, AND FERRER V. UNITED STATES, 132 CT.1CL. 422,"AND SHOULD BE OVERRULED.' IN DENYING THE PLAINTIFF'S CLAIM FOR UNUSED ACCRUED LEAVE IN THE FERRER CASE, THE COURT SAID PRIOR TO ENACTMENT OF THE ARMED FORCES LEAVE ACT OF 1946, LEAVE OF ABSENCE MIGHT BE GRANTED OR WITHHELD IN THE DISCRETION OF THE APPROPRIATE MILITARY SECRETARY, POINTING OUT THAT LEAVE WAS UNIFORMLY HELD BY THE MILITARY SERVICE TO BE A PRIVILEGE RATHER THAN A RIGHT. THE COURT CITED THE SCOTT CASE AND THE CASE OF TERRY V. UNITED STATES, 120 CT.1CL. 315, 323, AS AUTHORITY FOR ITS CONCLUSION IN THE FERRER CASE. THE DISSENTING OPINION IN THE EICKS CASE CALLS ATTENTION TO THE INCONSISTENT ACTION TAKEN BY THE COURT OF CLAIMS IN THE CASES CITED.

IT IS BELIEVED THAT THE COURT IN THE POLLARD AND EICKS CASES WAS STRONGLY INFLUENCED BY THE FACT THAT PRIOR TO THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, AN OFFICER HAD NO RIGHT TO PAYMENT FOR UNUSED LEAVE. WITH THE ENACTMENT OF SUCH LEGISLATION, THE REASON FOR THE CONCLUSION IN THOSE CASES LARGELY DISAPPEARED. CONCERNING THE COUNTING OF ACCRUED LEAVE AT THE TIME OF RELEASE FROM ACTIVE DUTY OR DISCHARGE FOR LONGEVITY PURPOSES TO INCREASE RETIRED PAY, THE INTENT OF THE CONGRESS IS PLAIN THAT SUCH LEAVE SHALL NOT BE COUNTED FOR ANY PURPOSE. THE STATUTE REQUIRES THAT ACCRUED LEAVE STANDING TO A MEMBER'S CREDIT AT THE TIME OF DISCHARGE "SHALL" BE COMPENSATED FOR IN CASH. NOTHING HAS BEEN FOUND IN SUCH LEGISLATION OR IN ITS LEGISLATIVE HISTORY WHICH INDICATES AN INTENT TO CONFER ON THE MEMBER CONCERNED THE RIGHT TO ELECT TO CONTINUE IN AN ACTIVE DUTY STATUS FOR THE PERIOD OF HIS ACCRUED LEAVE, AFTER AN ADMINISTRATION DECISION HAS BEEN MADE TO EFFECT HIS DISCHARGE OR RELEASE FROM ACTIVE DUTY FORTHWITH. TO THE CONTRARY, IT IS STATED ON PAGE 1 OF HOUSE COMMITTEE ON ARMED SERVICES REPORT NO. 702 ON H.R. 3501, 80TH CONGRESS, THAT THE PURPOSE OF THE THEN PROPOSED LEGISLATION WAS TO "ELIMINATE THE GRANTING OF TERMINAL LEAVE" AND TO PROVIDE IN LIEU THEREOF FOR A LUMP-SUM PAYMENT. FIND NO LEGAL BASIS TO QUESTION THE DISCRETIONARY ACTION OF THE ADMINISTRATIVE OFFICIAL CONCERNED IN REFUSING TO GRANT LIEUTENANT REITMEYER 45 DAYS' LEAVE FROM THE UNITED STATES NAVAL HOSPITAL AT BREMERTON.