B-154011, JUNE 15, 1964, 43 COMP. GEN. 802

B-154011, JUNE 15, 1964, 43 COMP. GEN. 802

LEAVES OF ABSENCE - MILITARY PERSONNEL - PAYMENTS OF UNUSED LEAVE ON DISCHARGE, ETC. - LEAVE ACCRUAL UNDER SEPARATE TRAINING ORDERS THE FACT THAT THE MORE THAN 30 DAYS OF CONTINUOUS ACTIVE DUTY FOR TRAINING AND TRAVEL TIME SERVED BY A RESERVE OFFICER WAS PERFORMED UNDER TWO SETS OF ORDERS ISSUED ON DIFFERENT DATES DOES NOT DEFEAT HIS ENTITLEMENT TO A LUMP-SUM PAYMENT FOR THE ACCRUED LEAVE EARNED PURSUANT TO 10 U.S.C. 701, THERE BEING NO REQUIREMENT THAT THE ACTIVE DUTY BE DIRECTED BY BUT ONE ORDER OR EVEN THAT ALL THE DUTY BE RELATED SO LONG AS IT QUALIFIED FOR THE ACCRUAL OF LEAVE AND THAT IT IS CONTINUOUS FOR AT LEAST 30 DAYS; THEREFORE, THE STATUTORY RIGHT TO ACCRUE LEAVE EXISTING INDEPENDENTLY OF ADMINISTRATIVE AUTHORIZATION MAY NOT BE DEFEATED BECAUSE OF THE ISSUANCE OF TWO SEPARATE SETS OF ORDERS ON DIFFERENT DATES, AND THE OFFICER HAVING ACCRUED LEAVE INCIDENT TO THE PERFORMANCE OF HIS TRAINING DUTY IS ENTITLED TO A LUMP-SUM PAYMENT FOR THE UNUSED LEAVE TO HIS CREDIT.

TO MAJOR E. P. SILVA, DEPARTMENT OF THE ARMY, JUNE 15, 1964:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 4, 1964, WITH ENCLOSURES, FORWARDED HERE BY HEADQUARTERS, DEPARTMENT OF THE ARMY, OFFICE, CHIEF OF FINANCE, WASHINGTON, D.C., IN WHICH YOU REQUEST AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF ACCRUED LEAVE PAY TO BRIGADIER GENERAL LUTHER E. ORRICK UNDER THE CIRCUMSTANCES STATED BELOW. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. DO-A-765, BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

BY ORDERS DATED JULY 5, 1963, STATE OF TEXAS, ADJUTANT GENERAL'S DEPARTMENT, AUSTIN, TEXAS, GENERAL ORRICK WAS ORDERED TO REPORT TO FORT KNOX, KENTUCKY, NOT LATER THAN JULY 14, 1963, FOR ACTIVE DUTY FOR TRAINING FOR A PERIOD OF 14 DAYS. BY ORDERS DATED JULY 10, 1963, HEADQUARTERS 49TH ARMORED DIVISION, TEXAS ARMY NATIONAL GUARD, DALLAS, TEXAS, HE WAS ORDERED TO AN ADDITIONAL 15-DAY PERIOD OF ACTIVE DUTY FOR TRAINING. IN ADDITION TO THE PAY AND ALLOWANCES FOR HIS ACTIVE DUTY FOR TRAINING GENERAL ORRICK WAS PAID FOR 3 DAYS' LEAVE ACCRUED ON THE BASIS THAT HE WAS ORDERED TO ACTIVE DUTY FOR TRAINING FOR 30 DAYS OR MORE, INCLUDING TRAVEL TIME. UPON AUDIT OF THE ANNUAL ACTIVE DUTY FOR TRAINING PAYROLL FOR THE PERIOD JULY 29 TO AUGUST 11, 1963, IN YOUR SEPTEMBER 1963 ACCOUNTS, YOU DETERMINED THAT HIS ENTITLEMENT TO ACCRUED LEAVE WAS DOUBTFUL FOR THE REASON THAT PREVIOUSLY, IN SIMILAR SITUATIONS, HEADQUARTERS, FOURTH U.S. ARMY, ADVISED YOUR OFFICE THAT WHERE RESERVISTS ARE ORDERED TO ACTIVE DUTY FOR TRAINING PURSUANT TO TWO ORDERS AND THE DUTY INVOLVED IN EACH PERIOD IS SEPARATE AND DISTINCT, IT IS THEIR OPINION THAT THE TWO PERIODS OF TRAINING MAY NOT BE COMBINED FOR THE PURPOSE OF LEAVE ACCRUAL AND LUMP-SUM PAYMENT THEREOF. CONSEQUENTLY, THE ALLEGED OVERPAYMENT OF $142.39 WAS COLLECTED FROM GENERAL ORRICK. HIS RECLAIM VOUCHER IN THAT AMOUNT HAS BEEN PRESENTED TO YOUR OFFICE FOR PAYMENT.

IN YOUR LETTER OF MARCH 4, 1964, YOU SAY THAT DOUBT EXISTS AS TO THE PROPRIETY OF PAYMENT OF THE ENCLOSED CLAIM IN VIEW OF OUR DECISIONS IN 5 COMP. GEN. 309 AND 5 COMP. GEN. 581, RELATIVE TO THE RIGHT OF MEMBERS OF THE OFFICERS' RESERVE CORPS TO PAY AND ALLOWANCES ON THE 31ST DAY OF THE MONTH. YOU BELIEVE THESE DECISIONS INDICATE THAT PAYMENT FOR ACCRUED LEAVE IS AUTHORIZED ONLY IN CASES OF ACTIVE DUTY FOR TRAINING FOR 30 DAYS OR MORE IN ONE CONTINUOUS TOUR WHERE ONLY ONE ORDER IS ISSUED FOR THE ENTIRE TOUR OF DUTY.

IN DECISION OF OCTOBER 31, 1925, 5 COMP. GEN. 309, THE OFFICER INVOLVED WAS ORDERED TO TRAINING DUTY FOR 15 DAYS AND BEFORE EXPIRATION OF THAT DUTY, BY NEW ORDER, TO INSTRUCTION DUTY FOR 30 DAYS IMMEDIATELY FOLLOWING THE 15 DAYS' TRAINING DUTY. THE 15 DAYS' TRAINING DUTY INCLUDED THE 31ST DAY OF JULY FOR WHICH PAY WAS ALLOWED. IN DECISION OF FEBRUARY 3, 1926, 5 COMP. GEN. 581, THE OFFICER WAS ORDERED TO DUTY FOR 15 DAYS' TRAINING AND BY THE SAME ORDER TO 30 DAYS' DUTY AS AN INSTRUCTOR AT THE TRAINING CAMP IMMEDIATELY FOLLOWING THE TRAINING DUTY. THE TRAINING DUTY INCLUDED JULY 31 FOR WHICH PAY WAS DISALLOWED BECAUSE THE OFFICER WAS CONSIDERED IN SUCH CIRCUMSTANCES AS HAVING BEEN ORDERED TO DUTY FOR A CONTINUOUS PERIOD IN EXCESS OF 1 MONTH.

THE APPLICATION OF THOSE DECISIONS WAS CONSIDERED IN DECISION OF OCTOBER 9, 1928, A-17624, COPY HEREWITH. IT WILL BE NOTED THAT THE DECISIONS WERE CONCERNED WITH THE PROBLEM OF ENTITLEMENT TO PAY AND ALLOWANCES UNDER THE ACT OF JUNE 30, 1906, 34 STAT. 763, 5 U.S.C. 84, ESTABLISHING A 30-DAY MONTH FOR PAY COMPUTATION PURPOSES, THUS EXCLUDING THE 31ST DAY OF THE MONTH FROM CONSIDERATION, AND THE EXCEPTIONS TO THAT STATUTE IN THE CASE OF THE 31ST DAY OF A MONTH PROVIDED BY THE ACT OF SEPTEMBER 14, 1922, 42 STAT. 841, AS AMENDED, AND BY SECTION 11 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1083. SUCH DECISIONS INVOLVED ONLY THE QUESTION OF ENTITLEMENT TO PAY FOR THE 31ST DAY OF THE MONTH BECAUSE OF THE INDICATED STATUTORY PROVISIONS.

A MEMBER OF THE ARMED FORCES IS ENTITLED UNDER THE PROVISIONS OF 10 U.S.C. 701 TO LEAVE AT THE RATE OF 2 1/2 CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE, WITH CERTAIN EXCEPTIONS, NOT MATERIAL HERE, ACTIVE SERVICE FOR PURPOSES OF THAT SECTION INCLUDING FULL-TIME TRAINING OR OTHER FULL- TIME DUTY "FOR A PERIOD OF MORE THAN 29 DAYS" PERFORMED BY NATIONAL GUARD MEMBERS UNDER CIRCUMSTANCES ENTITLING THEM TO PAY. PARAGRAPH 22A (3), ARMY REGULATIONS 630-5, DATED DECEMBER 22, 1960, PROVIDES THAT A MEMBER OF A RESERVE COMPONENT OF THE ARMY IS ENTITLED TO LEAVE ONLY WHEN ORDERED TO ACTIVE DUTY, INCLUDING ACTIVE DUTY FOR TRAINING, FOR 30 DAYS OR MORE. PARAGRAPH 23 (D) OF THE SAME REGULATION PROVIDES THAT ANY FRACTIONAL DAY REMAINING AT THE TIME OF SEPARATION, WHEN LEAVE IS NOT TO BE CARRIED TO ANOTHER PERIOD OF SERVICE, WILL BE CONVERTED TO A WHOLE DAY. SEE 33 COMP. GEN. 337.

UNDER THE FOREGOING STATUTORY AUTHORITY AND REGULATIONS, A MEMBER WHO PERFORMS ACTIVE DUTY FOR TRAINING FOR A CONTINUOUS PERIOD OF 30 DAYS IS ENTITLED TO BE CREDITED WITH LEAVE OR COMPENSATION FOR LEAVE NOT TAKEN. THERE IS NO REQUIREMENT THAT THE DUTY BE DIRECTED BY BUT ONE ORDER OR EVEN THAT ALL OF THE DUTY BE RELATED SO LONG AS IT QUALIFIES OTHERWISE AND IS CONTINUOUS FOR AT LEAST 30 DAYS. SINCE THIS IS A STATUTORY RIGHT IT EXISTS INDEPENDENTLY OF ADMINISTRATIVE AUTHORIZATION AND, THEREFORE, IT MAY NOT BE DEFEATED BY THE ISSUANCE OF TWO SEPARATE SETS OF ORDERS ISSUED ON DIFFERENT DATES.

IN THESE CIRCUMSTANCES IT APPEARS THAT GENERAL ORRICK IS ENTITLED TO PAYMENT FOR 3 DAYS UNUSED LEAVE WHICH ACCRUED INCIDENT TO THE PERFORMANCE OF HIS TRAINING DUTY. ACCORDINGLY PAYMENT OF THE CLAIM IS AUTHORIZED.