B-155308, NOV. 23, 1964

B-155308, NOV. 23, 1964

TO MR. ISMAEL RUBERO PEREZ, NO. 131-917:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27, 1964, REQUESTING REVIEW OF OUR SETTLEMENT DATED SEPTEMBER 18, 1964, WHICH DISALLOWED YOUR CLAIM FOR LONGEVITY PAY FOR OVER TWO YEARS' SERVICE AS A FORMER ENLISTED MAN IN THE ARMY OF THE UNITED STATES.

THE RECORDS SHOW THAT YOU WERE INDUCTED ON JANUARY 12, 1953, AND DISCHARGED FROM THE ARMY ON SEPTEMBER 8, 1955. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT IT WAS REPORTED BY THE DEPARTMENT OF THE ARMY THAT YOU LOST TIME WHILE SERVING AS AN ENLISTED MAN FROM JULY 4 TO 5, 1953; OCTOBER 11 TO DECEMBER 14, 1954; DECEMBER 31, 1954, TO FEBRUARY 9, 1955, AND MARCH 8, TO AUGUST 9, 1955, A TOTAL OF 260 DAYS, ON ACCOUNT OF ABSENCE WITHOUT LEAVE AND NONPERFORMANCE OF YOUR REGULARLY ASSIGNED DUTIES DUE TO CONFINEMENT FOR MISCONDUCT; THAT, THEREFORE, YOU DID NOT COMPLETE TWO YEARS' CREDITABLE SERVICE FOR LONGEVITY PAY PURPOSES.

SECTION 202/A) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 807, AS AMENDED, 37 U.S.C. 233/A) (1958 ED.), PROVIDED THAT IN COMPUTING CUMULATIVE YEARS OF SERVICE TO BE COUNTED BY MEMBERS OF THE UNIFORMED SERVICES FOR DETERMINING THE AMOUNT OF BASIC PAY THEY ARE ENTITLED TO RECEIVE UPON COMPLETION OF SUCH YEARS OF SERVICE, MEMBERS SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS OF ACTIVE SERVICE AS A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, AND ENLISTED PERSON IN ANY REGULAR OR RESERVE COMPONENT OF THE UNIFORMED SERVICES. SINCE YOUR PAY RECORD SHOWS THAT YOU WERE CREDITED WITH THE PAY OF YOUR GRADE AND LENGTH OF SERVICE FOR THE PERIOD JANUARY 12, 1953, TO JANUARY 11, 1955, AND THEREAFTER CONTINUED TO BE CREDITED WITH PAY THROUGH SEPTEMBER 8, 1955, AT THE RATE OF $83.20 PER MONTH, THE RATE PAYABLE TO AN ENLISTED MAN IN PAY GRADE E-1 WITH LESS THAN 2 YEARS OF SERVICE, THE QUESTION HERE INVOLVED IS WHETHER YOU SHOULD HAVE RECEIVED THE INCREASED PAY OF A MEMBER WITH OVER 2 YEARS' SERVICE COMMENCING JANUARY 12, 1955.

IN DECISION OF FEBRUARY 5, 1953, B-31606, 22 COMP. GEN. 759, IT WAS HELD IN CONSTRUING A SIMILAR STATUTORY PROVISION THAT TIME LOST ON ACCOUNT OF SICKNESS DUE TO A MEMBER'S OWN MISCONDUCT, ABSENCE WITHOUT LEAVE, ABSENCE OVER LEAVE, OR NONPERFORMANCE OF DUTY BECAUSE OF IMPRISONMENT, MAY NOT BE COUNTED FOR LONGEVITY PAY PURPOSES. IN THAT DECISION, IT WAS POINTED OUT THAT LONGEVITY PAY CONSISTENTLY HAS BEEN CONSIDERED AS AN INCREASE GRANTED FOR HONEST AND FAITHFUL SERVICE ON THE BASIS THAT THE ENLISTED MAN, BY THE PERFORMANCE OF HIS REGULAR DUTIES, HAS FITTED HIMSELF BETTER FOR THE PERFORMANCE THEREOF; THAT, HENCE, IT WOULD BE CONTRARY TO THE WHOLE SPIRIT AND PURPOSE OF SUCH PROVISIONS WERE HE TO RECEIVE THE BENEFITS THEREOF BY COUNTING PERIODS DURING WHICH HE ABSENTED HIMSELF FROM SUCH DUTY WITHOUT AUTHORITY OR BECAUSE HE WAS PHYSICALLY UNABLE TO PERFORM HIS REGULAR DUTIES BY REASON OF HIS OWN MISCONDUCT. AS THERE INDICATED, THAT DECISION WAS BASED ON THE LONG-STANDING RULE THAT ENLISTED MEN MAY NOT COUNT SUCH PERIODS OF ABSENCE FROM THEIR REGULARLY ASSIGNED DUTIES FOR LONGEVITY PAY PURPOSES. 38 COMP. GEN. 352; 39 COMP. GEN. 844.

WHILE YOU STATE THAT DURING MOST OF THE 260 DAYS REPORTED AS "TIME LOST" BY THE DEPARTMENT OF THE ARMY, YOU WERE "UNDER MILITARY CONTROL TAKING BASIC TRAINING, AND DOING "HARD LABOR," " THE FACT REMAINS THAT YOU DID NOT PERFORM YOUR REGULARLY ASSIGNED DUTIES DURING THIS TIME DUE TO YOUR BEING CONFINED BY REASON OF YOUR OWN MISCONDUCT. TIME SERVED UNDER SUCH CIRCUMSTANCES IS NOT CREDITABLE FOR LONGEVITY PAY PURPOSES.

ACCORDINGLY, THE SETTLEMENT DATED SEPTEMBER 19, 1964, IS SUSTAINED.