B-146022, JUL. 24, 1961

B-146022: Jul 24, 1961

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USAF: REFERENCE IS MADE TO YOUR LETTER OF MAY 15. YOU HAVE AVERRED IN YOUR CLAIM THAT ALL LEAVE TAKEN DURING THIS PERIOD WAS IN CONNECTION WITH THE PREPARATION OF YOUR DEFENSE AND ATTENDING A TRIAL AT THE FEDERAL COURT IN LEWISBURG. WE HAVE BEEN INFORMALLY ADVISED THAT THE CASE TO WHICH YOU APPARENTLY REFER IS UNITED STATES V. THAT YOU WERE ACQUITTED ON NOVEMBER 6. YOU WERE NOT IN CONFINEMENT. YOU HAVE STATED THAT OF THE 75 DAYS' LEAVE GRANTED AND USED BY YOU FOR WHICH YOU CLAIM REIMBURSEMENT. 51 DAYS WERE USED TO APPEAR IN COURT AND 24 DAYS WERE USED BY YOU IN PREPARING YOUR DEFENSE. THE RECORD ALSO SHOWS THAT YOUR REQUEST TO BE ASSIGNED TO TEMPORARY DUTY TO ATTEND TRIAL WAS ADMINISTRATIVELY CONSIDERED AND DENIED BY HEADQUARTERS.

B-146022, JUL. 24, 1961

TO COLONEL CHARLES F. BURLEY, 5047A, USAF:

REFERENCE IS MADE TO YOUR LETTER OF MAY 15, 1961, IN EFFECT REQUESTING RECONSIDERATION OF THAT PART OF THE SETTLEMENT DATED FEBRUARY 27, 1961, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT FOR 75 DAYS' LEAVE TAKEN BY YOU DURING THE PERIOD AUGUST 31, 1957, TO NOVEMBER 7, 1958.

THE RECORD ON FILE IN THIS OFFICE IN CONNECTION WITH YOUR CLAIM SHOWS THAT YOU USED 75 DAYS OF LEAVE DURING THE PERIOD AUGUST 31, 1957, TO NOVEMBER 7, 1958. YOU HAVE AVERRED IN YOUR CLAIM THAT ALL LEAVE TAKEN DURING THIS PERIOD WAS IN CONNECTION WITH THE PREPARATION OF YOUR DEFENSE AND ATTENDING A TRIAL AT THE FEDERAL COURT IN LEWISBURG, PENNSYLVANIA, IN WHICH YOU APPEARED AS A DEFENDANT. WE HAVE BEEN INFORMALLY ADVISED THAT THE CASE TO WHICH YOU APPARENTLY REFER IS UNITED STATES V. ROBERT V. MCNETT, RALPH O. BROWNFIELD, AND CHARLES F. BURLEY, UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, CRIMINAL NO. 12906, AND THAT YOU WERE ACQUITTED ON NOVEMBER 6, 1958.

THE RECORD SHOWS THAT PRIOR TO YOUR TRIAL YOU REQUESTED THAT YOU BE PLACED ON TEMPORARY DUTY ORDERS TO STAND TRIAL BEFORE A FEDERAL COURT, WITHOUT USING YOUR ANNUAL LEAVE. YOU WERE NOT IN CONFINEMENT, AND YOU HAVE STATED THAT OF THE 75 DAYS' LEAVE GRANTED AND USED BY YOU FOR WHICH YOU CLAIM REIMBURSEMENT, 51 DAYS WERE USED TO APPEAR IN COURT AND 24 DAYS WERE USED BY YOU IN PREPARING YOUR DEFENSE. THE RECORD ALSO SHOWS THAT YOUR REQUEST TO BE ASSIGNED TO TEMPORARY DUTY TO ATTEND TRIAL WAS ADMINISTRATIVELY CONSIDERED AND DENIED BY HEADQUARTERS, AIR MATERIEL COMMAND, UNITED STATES AIR FORCE, WRIGHT PATTERSON AIR FORCE BASE, OHIO. WE HAVE ALSO BEEN ADVISED THAT YOUR APPLICATION TO HAVE YOUR RECORDS CORRECTED TO RESTORE AND RECREDIT YOUR LEAVE WAS DENIED BY THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS ON MARCH 29, 1961, AND YOU WERE SO NOTIFIED BY THEIR LETTER OF APRIL 6, 1961.

SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 37 U.S.C. 33 (B), PROVIDES THAT WHEN ABSENT WITH LEAVE FOR CAUSES OTHER THAN SICKNESS OR WOUNDS OR WHEN DIRECTED TO BE ABSENT FROM DUTY TO AWAIT DISABILITY RETIREMENT PROCEEDINGS, MEMBERS SHALL BE ENTITLED DURING SUCH ABSENCE NOT EXCEEDING THE NUMBER OF DAYS AUTHORIZED BY THAT ACT TO THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT ON LEAVE, PLUS ANY ADDITIONAL ALLOWANCES AUTHORIZED FOR MEMBERS WHILE ON LEAVE. IT IS FURTHER PROVIDED THAT WHEN ABSENT WITHOUT LEAVE OR WHEN ABSENT OVER LEAVE, MEMBERS SHALL FORFEIT ALL PAY AND ALLOWANCES DURING SUCH ABSENCE UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE.

SECTION 4 (E), OF THE 1946 ACT, AS AMENDED, 37 U.S.C. 33 (E), PROVIDES THAT DETERMINATION OF THE NUMBER OF CALENDAR DAYS OF LEAVE TO WHICH A MEMBER OR FORMER MEMBER IS ENTITLED, INCLUDING THE NUMBER OF CALENDAR DAYS OF ABSENCE FROM DUTY OR VACATION TO BE COUNTED OR CHARGED AGAINST LEAVE, SHALL BE MADE IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE RESPECTIVE SECRETARIES AND THAT ALL DECISIONS BY THE SECRETARIES UNDER THIS SECTION "SHALL BE FINAL AND CONCLUSIVE AND SHALL NOT BE SUBJECT TO REVIEW BY ANY COURT OR BY ANY OFFICER OF THE UNITED STATES.'

APPARENTLY THERE IS NO QUESTION THAT YOU WERE, IN FACT, ABSENT FROM DUTY ON THE DAYS THAT YOU WERE PLACED IN A LEAVE STATUS AND IT WOULD APPEAR THAT YOUR REQUEST TO BE ASSIGNED TO TEMPORARY DUTY DURING THE PERIOD OF YOUR TRIAL PROPERLY WAS DENIED. IN OUR DECISION OF AUGUST 28, 1956, 36 COMP. GEN. 173, IT WAS POINTED OUT THAT UNDER SECTION 4 (B) OF THE 1946 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 AS UNAVOIDABLE. IT WAS INDICATED THAT DISMISSAL OF THE CHARGES OR ACQUITTAL MIGHT CONSTITUTE A SUFFICIENT BASIS FOR EXCUSING THE UNAUTHORIZED ABSENCE AS UNAVOIDABLE, BUT UNTIL SO EXCUSED, THE PAYMENT OF PAY IS NOT AUTHORIZED FOR SUCH PERIOD OF ABSENCE.

PARAGRAPH 10351, AIR FORCE MANUAL 173-20, IN EFFECT DURING THE PERIOD INVOLVED, IS IN ACCORD WITH THE FOREGOING. IT PROVIDES THAT A MEMBER WHO IS CHARGED WITH A CIVIL OFFENSE AND HELD IN CONFINEMENT IS ABSENT OR CONSTRUCTIVELY ABSENT FROM DUTY, EXCEPT FOR SUCH PART OF THE PERIOD OF CONFINEMENT AS IS COVERED BY AUTHORIZED LEAVE, AND THAT PAYMENT OF PAY IS NOT AUTHORIZED UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE. TRIAL AND ACQUITTAL IS STATED TO BE A SUFFICIENT BASIS FOR EXCUSING THE ABSENCE AS UNAVOIDABLE. THAT REGULATION IS NOT FOR APPLICATION IN YOUR CASE SINCE YOU WERE NOT HELD IN CONFINEMENT NOR HAS THERE BEEN AN ADMINISTRATIVE ATTEMPT TO EXCUSE YOUR ABSENCE ON THE DAYS INVOLVED AS UNAVOIDABLE. THE CONTRARY, IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT YOUR ABSENCE ON THOSE DAYS SHOULD BE CHARGED AS LEAVE. SUCH DETERMINATION IS FINAL AND CONCLUSIVE UNDER THE TERMS OF THE LEAVE LAW. AND, SINCE YOU HAVE RECEIVED THE PAY AND ALLOWANCES TO WHICH YOU ARE ENTITLED FOR SUCH DAYS OF LEAVE, THERE IS NO AUTHORITY OF LAW TO ALLOW YOU AN ADDITIONAL AMOUNT FOR THAT LEAVE.