B-146287, JULY 14, 1961, 41 COMP. GEN. 30

B-146287, JULY 14, 1961, 41 COMP. GEN. 30

MILITARY PERSONNEL - LEAVE PAYMENTS - DETAIL TO CIVILIAN POSITION - ADDITIONAL COMPENSATION THE RIGHT TO PAYMENT FOR UNUSED LEAVE DUE A MEMBER OF THE UNIFORMED SERVICES WHO, AT THE TIME OF RETIREMENT, IS ON A DETAIL TO A CIVILIAN POSITION WITH THE MARITIME ADMINISTRATION UNDER THE AUTHORITY IN SECTION 201 (F) OF THE MERCHANT MARINE ACT, 1936, 46 U.S.C. 1111 (F), AND IN RECEIPT OF ADDITIONAL CIVILIAN COMPENSATION IS DEPENDENT UPON HIS RETIREMENT AS A MILITARY MEMBER AND NOT UPON THE TERMINATION OF HIS DETAIL AND, THEREFORE, THE LEAVE SETTLEMENT UNDER THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C. 31A-38, MAY NOT INCLUDE THE ADDITIONAL COMPENSATION EARNED WHILE ON DETAIL BUT MUST BE COMPUTED ON THE MILITARY RATE OF PAY. THE LEGISLATIVE HISTORY OF SECTION 201 (F) OF THE MERCHANT MARINE ACT, 1936, 46 U.S.C. 1111 (F), WHICH AUTHORIZES ADDITIONAL COMPENSATION TO MILITARY PERSONNEL ON DETAIL TO CIVILIAN POSITIONS WITH THE MARITIME ADMINISTRATION DOES NOT INDICATE ANY CONGRESSIONAL INTENT THAT MILITARY OFFICERS ON SUCH DETAILS WOULD BE GRANTED THE LEAVE PRIVILEGES OF CIVILIAN EMPLOYEES IN ADDITION TO THE EXTRA COMPENSATION; THEREFORE, COMPENSATION DIFFERENTIAL MAY NOT BE REFLECTED IN THE LEAVE ACCUMULATED BUT NOT USED DURING THE DETAIL.

TO THE ADMINISTRATOR, MARITIME ADMINISTRATION, JULY 14, 1961:

ON JUNE 28, 1961, YOU REQUESTED OUR DECISION CONCERNING THE ENTITLEMENT OF A NAVY OFFICER ON DETAIL TO THE MARITIME ADMINISTRATION UNDER THE AUTHORITY OF SECTION 201 (F) OF THE MERCHANT MARINE ACT, 1936, 49 STAT. 1985, AS AMENDED BY SECTION 4 OF THE ACT OF AUGUST 4, 1939, 53 STAT. 1182, 46 U.S.C. 1111, TO ADDITIONAL COMPENSATION AS AUTHORIZED BY THAT SECTION BECAUSE OF ACCUMULATED LEAVE TO HIS CREDIT AT THE TERMINATION OF HIS DETAIL.

SECTION 201 (F) OF THE MERCHANT MARINE ACT, 1936, 46 U.S.C. 1111 (F) PROVIDES IN PART:

* * * WHENEVER ANY OFFICER (NOT EXCEEDING FIVE IN NUMBER AT ANY TIME) OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD IS DETAILED TO THE BOARD OR SECRETARY, HE SHALL RECEIVE FROM THE BOARD OR SECRETARY, FOR THE PERIOD DURING WHICH HE IS SO DETAILED, SUCH COMPENSATION AS ADDED TO HIS PAY AND ALLOWANCES AS AN OFFICER IN SUCH SERVICE WILL MAKE HIS AGGREGATE COMPENSATION EQUAL TO THE PAY AND ALLOWANCES HE WOULD RECEIVE IF HE WERE THE INCUMBENT OF AN OFFICE OR POSITION IN SUCH SERVICE (OR IN THE CORRESPONDING EXECUTIVE DEPARTMENT), WHICH, IN THE OPINION OF THE BOARD OR SECRETARY, INVOLVES THE PERFORMANCE OF WORK SIMILAR IN IMPORTANCE, DIFFICULTY, AND RESPONSIBILITY TO THAT PERFORMED BY HIM WHILE DETAILED TO THE BOARD OR SECRETARY * * *

THE OFFICER IN QUESTION WAS TO RESIGN FROM THE DETAIL ON JUNE 30, 1961, AND RETIRE FROM THE NAVY ON JULY 1. AT THE TIME THE OFFICER WAS DETAILED TO THE ADMINISTRATION HE HAD 45 DAYS OF ACCUMULATED LEAVE AND UPON RESIGNATION HE HAD 60 DAYS' LEAVE.

YOU ASK THE FOLLOWING QUESTIONS REGARDING THE ADDITIONAL PAYMENTS.

1. ON SEPARATION FROM THE SERVICE, IS THE OFFICER ENTITLED TO PAYMENT FOR THE DIFFERENTIAL BETWEEN HIS NAVY PAY AND ALLOWANCES AND THE CLASSIFICATION ACT POSITION TO WHICH HE IS DETAILED COVERING THE PERIOD OF HIS ACCUMULATED LEAVE?

2. IF HE IS NOT ENTITLED TO THE DIFFERENTIAL FOR THE TOTAL AMOUNT OF ACCUMULATED LEAVE, IS HE ENTITLED TO THE DIFFERENTIAL FOR THE APPROXIMATELY 15 DAYS OF ADDITIONAL LEAVE THAT HAS ACCUMULATED DURING HIS DETAIL TO THE MARITIME ADMINISTRATION?

3. IF YOUR ANSWER TO EITHER OF THE ABOVE QUESTIONS IS IN THE AFFIRMATIVE AS THE MILITARY LEAVE IS ON A CALENDAR DAY BASIS, WHILE LEAVE FOR OUR EMPLOYEES OCCUPYING CLASSIFICATION ACT POSITIONS IS PAID FOR A 5-DAY, 40- HOUR WORK WEEK, IT IS ASSUMED PAYMENT FOR THE DIFFERENTIAL WOULD BE FOR FIVE-SEVENTHS OF THE ACCUMULATED MILITARY LEAVE OR FOR THE WORK DAYS OCCURRING DURING THE PERIOD COVERED BY HIS MILITARY LEAVE.

THE MILITARY STATUS OF AN OFFICER IS NOT CHANGED BY THE FACT THAT HE IS DETAILED OR ASSIGNED TO A CIVIL DEPARTMENT OR AGENCY OF THE GOVERNMENT AND IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY SUCH OFFICER IS ENTITLED ONLY TO THE PAY AND ALLOWANCES WHICH ACCRUE TO HIM AS A RESULT OF SUCH STATUS. 34 COMP. GEN. 656 AND CASES CITED THEREIN.

THE RIGHT OF THE OFFICER IN QUESTION TO PAYMENT FOR ACCUMULATED LEAVE IS DEPENDENT UPON HIS RETIREMENT FROM THE NAVY AND NOT UPON THE TERMINATION OF HIS DETAIL. THEREFORE, HE MAY BE ENTITLED TO A CASH SETTLEMENT UNDER THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, 37 U.S.C. 31A-33 AND 34- 38, BUT SUCH SETTLEMENT WOULD NOT INCLUDE THE ADDITIONAL COMPENSATION WHICH HE WAS EARNING WHILE ON DETAIL PRIOR TO RETIREMENT. RATHER, IT WOULD BE COMPUTED ON HIS MILITARY RATE OF PAY. YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

WE FIND NOTHING IN SECTION 201 (F) OR IN ITS LEGISLATIVE HISTORY INDICATING THAT CONGRESS INTENDED THAT MILITARY OFFICERS ON DETAILS AUTHORIZED THEREBY WOULD BE GRANTED THE LEAVE PRIVILEGES OF CIVILIAN EMPLOYEES IN ADDITION TO THE EXTRA COMPENSATION. THEREFORE, WE MUST HOLD THAT SECTION 201 (F) DOES NOT AUTHORIZE OR REQUIRE THE PAYMENT OF ADDITIONAL COMPENSATION FOR LEAVE EARNED BUT NOT USED WHILE SERVING ON SUCH A DETAIL. YOUR SECOND QUESTION ALSO IS ANSWERED IN THE NEGATIVE.

IN VIEW OF THE ANSWERS TO QUESTIONS 1 AND 2 NO ANSWER TO QUESTION 3 IS REQUIRED.