B-148506, APRIL 26, 1962, 41 COMP. GEN. 706

B-148506, APRIL 26, 1962, 41 COMP. GEN. 706

LEAVES OF ABSENCE - MILITARY PERSONNEL - PAYMENTS FOR UNUSED LEAVE ON DISCHARGE, ETC. - RESERVISTS HOSPITALIZED, ETC. AN ARMY RESERVIST WHO WAS HOSPITALIZED WHEN THE PERIOD OF HIS ACTIVE DUTY FOR TRAINING TERMINATED, BUT WHO CONTINUED TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES PRESCRIBED IN 10 U.S.C. 3687 AND 3721 FOR THE PERIOD OF HOSPITALIZATION UNTIL COMPLETION OF DISABILITY PROCESSING AND RELEASE TO INACTIVE DUTY MAY NOT BE REGARDED AS IN THE ACTIVE MILITARY SERVICE FOR ACCRUAL OF LEAVE UNDER THE ARMED FORCES LEAVE ACT OF 1946 AFTER TERMINATION OF THE PERIOD OF ACTIVE DUTY FOR TRAINING AND WHILE HE WAS IN RECEIPT OF ACTIVE DUTY PAY AND ALLOWANCES; THEREFORE, PAYMENT FOR ACCRUED LEAVE AFTER THE MEMBER'S ACTIVE DUTY FOR TRAINING TERMINATED UNTIL RELEASE TO INACTIVE DUTY IS NOT AUTHORIZED.

TO LIEUTENANT COLONEL E. P. COLIO, DEPARTMENT OF THE ARMY, APRIL 26, 1962:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 26, 1962, AND ENCLOSURES, FORWARDED HERE UNDER D.O. NO. A-638 (ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE), REQUESTING DECISION CONCERNING THE PAYMENT PROPOSED ON A MILITARY PAY VOUCHER STATED IN FAVOR OF LIEUTENANT COLONEL ARTHUR L. KIVIETTE, 101 1046 524, UNITED STATES ARMY RESERVE, FOR ACCRUED LEAVE FOR THE PERIOD FROM APRIL 3, 1961, TO DECEMBER 22, 1961.

YOU STATE THAT COLONEL KIVIETTE WAS ORDERED TO ACTIVE DUTY FOR TRAINING FOR THE PERIOD FROM JANUARY 3, 1961, TO APRIL 2, 1961, UNDER LETTER ORDERS USAR T-01-103, HEADQUARTERS XI U.S. ARMY CORPS, DATED JANUARY 26, 1961, AS AMENDED BY LETTERS ORDERS USAR T-02-150, DATED FEBRUARY 6, 1961; THAT HE DID NOT REPORT FOR DUTY UNTIL JANUARY 26, 1961, AND WAS PAID ACCORDINGLY; AND THAT PAYMENT FOR ACCRUED LEAVE FOR THAT PERIOD HAS BEEN MADE. YOU STATE FURTHER THAT THE OFFICER WAS HOSPITALIZED FROM FEBRUARY 27, 1961, TO DECEMBER 22, 1961; THAT HIS ACTIVE DUTY TRAINING ORDERS WERE AMENDED BY LETTER ORDERS T-04-3, HEADQUARTERS FIRST UNITED STATES ARMY, DATED APRIL 18, 1961, TO CONTINUE HIM "ON DUTY FOR THE PURPOSE OF COMPLETING DISABILITY PROCESSING" TO TERMINATE UPON NOTIFICATION OF THE SECRETARY OF THE ARMY; THAT HE WAS RELEASED TO INACTIVE DUTY ON DECEMBER 22, 1961; AND THAT HE HAS BEEN PAID PAY AND ALLOWANCES FOR THE PERIOD FROM APRIL 3, 1961, TO DECEMBER 22, 1961. YOU SAY THAT YOU ARE IN DOUBT AS TO WHETHER THE PERIOD OF HOSPITALIZATION IS ACTIVE DUTY FOR TRAINING DURING WHICH PERIOD THE SERVICE MEMBER WOULD ACCRUE LEAVE AND BECOME ENTITLED TO PAYMENT FOR ANY LEAVE REMAINING UNUSED AT THE TIME OF HIS RELEASE FROM THE HOSPITAL.

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.

SECTIONS 3687 AND 3721, TITLE 10, U.S. CODE, PROVIDE THAT A MEMBER OF THE ARMY, OTHER THAN OF THE REGULAR ARMY, IS ENTITLED TO THE PAY AND ALLOWANCES, PENSIONS, AND OTHER COMPENSATION, AND TO THE HOSPITAL BENEFITS, PROVIDED BY LAW OR REGULATION FOR THE MEMBER OF THE REGULAR ARMY OF CORRESPONDING GRADE AND LENGTH OF SERVICE, WHENEVER---

(1) HE IS CALLED OR ORDERED TO ACTIVE DUTY (OTHER THAN FOR TRAINING UNDER SECTION 270 (B) OF THIS TITLE) FOR A PERIOD OF MORE THAN 30 DAYS, AND IS DISABLED IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

(2) HE IS CALLED OR ORDERED TO ACTIVE DUTY, OR TO PERFORM INACTIVE DUTY TRAINING, FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED.

THOSE STATUTORY PROVISIONS WERE DERIVED FROM THE ACT OF JUNE 20, 1949, 63 STAT. 201, 34 U.S.C. 855C-1 (1952 USED.), WHICH PROVIDED CERTAIN BENEFITS FOR MEMBERS OF THE VARIOUS RESERVE COMPONENTS OF THE ARMED FORCES "WHO SUFFER DISABILITY OR DEATH" IN LINE OF DUTY FROM DISEASE OR INJURY WHILE ENGAGED IN EXTENDED ACTIVE DUTY OR IN TRAINING DUTY.

THE ACT OF JUNE 20, 1949, SPECIFICALLY PROVIDED THAT MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES OR THEIR BENEFICIARIES, UNDER THE CONDITIONS THERE MENTIONED, SHOULD BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, DEATH GRATUITY, RETIREMENT PAY, HOSPITAL BENEFITS, AND PAY AND ALLOWANCES AS WERE THEN OR MIGHT THEREAFTER BE PROVIDED BY LAW OR REGULATION FOR MEMBERS OF THE REGULAR COMPONENTS OF THE RESPECTIVE SERVICES OF CORRESPONDING GRADES AND LENGTH OF SERVICE. IN OUR DECISION OF FEBRUARY 6, 1951, B-97226, 30 COMP. GEN. 338, WE POINTED OUT THAT THERE WAS NOTHING IN THE LANGUAGE OR IN THE LEGISLATIVE HISTORY OF THE ACT WHICH WOULD FORM A PROPER BASIS FOR CONCLUDING THAT THE CONGRESS INTENDED TO AUTHORIZE ANY BENEFIT OR PAYMENT OTHER THAN THOSE SPECIFICALLY NAMED IN THE ACT. WE THEN HELD ON SUCH BASIS THAT PAYMENT OF BURIAL EXPENSES, WHICH WAS NOT SPECIFICALLY AUTHORIZED IN THE ACT, MIGHT NOT BE MADE UNLESS PROVIDED FOR UNDER OTHER STATUTES.

IN OUR DECISION OF JUNE 19, 1950, B-94890, 29 COMP. GEN. 509, WE HELD THAT, UNDER THE PROVISIONS OF THE ACT OF JUNE 20, 1949, A MEMBER OF THE MARINE CORPS RESERVE WHO WAS INJURED WHILE ON AUTHORIZED TRAINING DUTY WAS ENTITLED TO CONTINUE IN RECEIPT OF ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD OF HOSPITALIZATION AND WHILE AWAITING ACTION ON HIS DISABILITY RETIREMENT PROCEEDINGS. AND IN SEVERAL DECISIONS WE EXPRESSED THE VIEW THAT A RESERVIST COMING WITHIN THE PURVIEW OF THE ACT AND HOSPITALIZED FOR DISABILITY SUFFERED IN LINE OF DUTY IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES NOT ONLY DURING HOSPITALIZATION BUT ALSO AFTER DISCHARGE FROM THE HOSPITAL TO THE DATE THE PROPER AUTHORITIES DETERMINE THAT HE CONTINUED TO BE DISABLED FOR HIS CIVILIAN PURSUITS. SEE 30 COMP. GEN. 185; ID. 476; AND B-109544, FEBRUARY 12, 1953.

WE RECOGNIZED IN OUR DECISION DATED FEBRUARY 8, 1954, B-116906, 33 COMP. GEN. 339, THAT SECTION 402 (A) OF THE CAREER COMPENSATION ACT OF 1949 (NOW CODIFIED AS 10 U.S.C. 1201) REQUIRES,"AS A CONDITION PRECEDENT TO RETIREMENT OR PAYMENT OF DISABILITY RETIREMENT PAY, THAT THE SECRETARY MAKE THE NECESSARY DISABILITY RETIREMENT DETERMINATIONS WHILE THE MEMBER CONCERNED IS ENTITLED TO RECEIVE BASIC PAY.' THE OFFICER IN THAT CASE WAS A MEMBER OF THE U.S. NAVAL RESERVE WHO, SHORTLY AFTER HIS RELEASE FROM A PERIOD OF EXTENDED ACTIVE DUTY, HAD BECOME PHYSICALLY INCAPACITATED BY REASON OF A POLIO VIRUS WHICH MIGHT HAVE ENTERED HIS SYSTEM DURING SUCH PERIOD OF EXTENDED ACTIVE DUTY. WE POINTED OUT THAT, NOTWITHSTANDING THE FACT THAT THE OFFICER'S ACTIVE DUTY STATUS UNDER HIS BASIC ACTIVE DUTY ORDERS HAD TERMINATED, IF IT SHOULD BE ADMINISTRATIVELY DETERMINED THAT THE DISEASE HAD ITS BEGINNING PRIOR TO THE TIME OF HIS RELEASE FROM ACTIVE DUTY, HE WOULD (BY VIRTUE OF THE PROVISIONS OF LAW NOW CODIFIED WITH RESPECT TO THE ARMY IN 10 U.S.C. 3687 AND 3721) THEN BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES DURING A PERIOD OF INCAPACITY OR HOSPITALIZATION RESULTING DIRECTLY FROM SUCH DISEASE. WE THEN CONCLUDED THAT IN SUCH CIRCUMSTANCES HIS STATUS WOULD BE SUFFICIENT, WHEN CONSIDERED IN CONJUNCTION WITH HIS EARLIER ACTIVE DUTY STATUS, TO JUSTIFY THE CONCLUSION THAT HE COULD BE CONSIDERED A MEMBER "ENTITLED TO RECEIVE BASIC PAY" WITHIN THE MEANING OF SECTION 402 (A) AND THEREFORE AS ELIGIBLE TO HAVE HIS CASE CONSIDERED UNDER SUCH SECTION.

IN ACCORDANCE WITH THE CITED DECISIONS, IT IS OUR VIEW THAT UNDER THE PROVISIONS OF 10 U.S.C. 3687, AN ARMY RESERVIST WHO IS INJURED WHILE EMPLOYED ON ACTIVE DUTY FOR ANY PERIOD OF TIME, OR WHO IS DISABLED FROM DISEASE WHILE SO EMPLOYED FOR THE REQUISITE PERIOD, IS ENTITLED TO CONTINUE IN RECEIPT OF ACTIVE DUTY PAY AND ALLOWANCES WHILE HOSPITALIZED AND WHILE AWAITING ACTION ON HIS RETIREMENT PROCEEDINGS IF SUCH PROCEEDINGS ARE INSTITUTED. SUCH SECTION, HOWEVER, DOES NOT PROVIDE THAT A RESERVIST SHALL BE CONSIDERED IN ACTIVE MILITARY SERVICE WHILE IN RECEIPT OF SUCH BENEFITS, AND IT CONTAINS NO SPECIFIC PROVISION FOR THE ACCRUAL OF LEAVE BY A RESERVIST IN SUCH CIRCUMSTANCES. IT IS OUR VIEW, THEREFORE, THAT COLONEL KIVIETTE'S ACTIVE DUTY TERMINATED ON APRIL 2, 1961, NO ORDERS HAVING BEEN ISSUED ON OR BEFORE THAT DATE TO EXTEND HIS PERIOD OF TRAINING. COMPARE 40 COMP. GEN. 664; 27 COMP. GEN. 490. COMMENCING APRIL 3, 1961, HE WAS NOT IN ACTIVE MILITARY SERVICE WITHIN THE MEANING OF THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946 AND HE DID NOT ACCRUE ANY LEAVE DURING THE PERIOD FROM APRIL 3, 1961, TO DECEMBER 22, 1961. SEE 30 COMP. GEN. 338. COMPARE 33 COMP. GEN. 339, 344, ANSWER TO QUESTION (C). IN THIS CONNECTION, IT IS CONSIDERED PROPER TO POINT OUT THAT WE HAVE HELD THAT LEAVE IS NOT A PART OF AN OFFICER'S PAY AND ALLOWANCES. SEE 26 COMP. GEN. 738, 742.

ACCORDINGLY, THE PROPOSED PAYMENT IS NOT AUTHORIZED AND THE MILITARY PAY VOUCHER, TOGETHER WITH THE ACCOMPANYING ENDORSEMENTS AND ENCLOSURES, WILL BE RETAINED HERE.