B-158619, MAR. 17, 1966, 45 COMP. GEN. 580

B-158619: Mar 17, 1966

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

NOR ITS RESTATEMENT IN SECTION 501 (B) SUGGESTING ANY COMBINATION OF CASH PAYMENT AND CARRY OVER OF LEAVE WAS ONTEMPLATED. 1966: REFERENCE IS MADE TO LETTER DATED FEBRUARY 26. INVOLVING A REQUEST FOR DECISION ON THE FOLLOWING QUESTION: THE REGULATIONS OF THE SERVICES DO NOT PERMIT ENLISTED MEMBERS WHO ARE ENTITLED TO A CASH SETTLEMENT FOR UNUSED LEAVE TO ELECT A COMBINATION OF CASH SETTLEMENT AND CARRY OVER OF UNUSED LEAVE INTO A NEW ENLISTMENT. ARE SUCH REGULATIONS MORE RESTRICTIVE THAN THE LAW REQUIRES? THE LAW IN QUESTION IS 37 U.S.C. 501 (B) WHICH PROVIDES IN PERTINENT PART AS FOLLOWS: * * * AN ENLISTED MEMBER OF SUCH A UNIFORMED SERVICE WHO HAD ACCRUED LEAVE TO HIS CREDIT AT THE TIME OF HIS DISCHARGE IS ENTITLED TO BE PAID IN CASH OR BY A CHECK ON THE TREASURER OF THE UNITED STATES FOR THAT LEAVE ON THE BASIS OF THE BASIC PAY TO WHICH HE WAS ENTITLED ON THE DATE OF DISCHARGE.

B-158619, MAR. 17, 1966, 45 COMP. GEN. 580

LEAVES OF ABSENCE - MILITARY PERSONNEL - PAYMENTS FOR UNUSED LEAVE ON DISCHARGE, ETC. - ENLISTMENT EXTENSION, DISCHARGE, REENLISTMENT, ETC. - COMBINATION OF CASH SETTLEMENT AND CARRY OVER OF LEAVE THE AUTHORITY IN 37 U.S.C. 501 (B) PROVIDING AN OPTION TO AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO REENLISTS IN HIS ARMED FORCE ON THE DAY AFTER THE DATE OF DISCHARGE TO RECEIVE EITHER A LUMP SUM SETTLEMENT, BY CASH OR BY CHECK, FOR UNUSED ACCRUED LEAVE TO HIS CREDIT AT TIME OF DISCHARGE, OR TO CARRY THE LEAVE FORWARD INTO THE NEW ENLISTMENT DOES NOT PERMIT A MEMBER TO ELECT A COMBINATION OF CASH SETTLEMENT AND CARRY OVER OF UNUSED LEAVE, NEITHER THE ACT OF AUGUST 4, 1947, PRESCRIBING TWO CHOICES TO AN ENLISTED PERSON TO RECEIVE A FULL CASH SETTLEMENT OF ACCRUED LEAVE AT DATE OF DISCHARGE, OR TO CARRY OVER UNUSED LEAVE TO A NEW ENLISTMENT, NOR ITS RESTATEMENT IN SECTION 501 (B) SUGGESTING ANY COMBINATION OF CASH PAYMENT AND CARRY OVER OF LEAVE WAS ONTEMPLATED; THEREFORE, THE ADMINISTRATIVE INTERPRETATION AND APPLICATION ADOPTED CONTEMPORANEOUSLY WITH THE 1947 ACT AND CONSISTENTLY FOLLOWED THEREAFTER MAY NOT BE CHANGED TO PERMIT THE COMBINATION OF A CASH SETTLEMENT AND CARRY OVER OF LEAVE.

TO THE SECRETARY OF DEFENSE, MARCH 17, 1966:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 26, 1966, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) TRANSMITTING DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 371, INVOLVING A REQUEST FOR DECISION ON THE FOLLOWING QUESTION:

THE REGULATIONS OF THE SERVICES DO NOT PERMIT ENLISTED MEMBERS WHO ARE ENTITLED TO A CASH SETTLEMENT FOR UNUSED LEAVE TO ELECT A COMBINATION OF CASH SETTLEMENT AND CARRY OVER OF UNUSED LEAVE INTO A NEW ENLISTMENT. ARE SUCH REGULATIONS MORE RESTRICTIVE THAN THE LAW REQUIRES?

THE LAW IN QUESTION IS 37 U.S.C. 501 (B) WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

* * * AN ENLISTED MEMBER OF SUCH A UNIFORMED SERVICE WHO HAD ACCRUED LEAVE TO HIS CREDIT AT THE TIME OF HIS DISCHARGE IS ENTITLED TO BE PAID IN CASH OR BY A CHECK ON THE TREASURER OF THE UNITED STATES FOR THAT LEAVE ON THE BASIS OF THE BASIC PAY TO WHICH HE WAS ENTITLED ON THE DATE OF DISCHARGE, PLUS AN ALLOWANCE COMPUTED AT THE RATE OF 70 CENTS A DAY FOR SUBSISTENCE, AND FOR AN ENLISTED MEMBER IN PAY GRADE E 9, E-8, E-7, E-6, OR E-5, WITH DEPENDENTS, AN ALLOWANCE COMPUTED AT THE RATE OF $1.25 A DAY FOR QUARTERS. HOWEVER, A PAYMENT MAY NOT BE MADE UNDER THIS SUBSECTION TO A MEMBER WHO---

(1) IS DISCHARGED FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT OR A WARRANT, OR ENTERING INTO AN ENLISTMENT, IN HIS ARMED FORCE; OR

(2) ELECTS TO CARRY OVER HIS UNUSED LEAVE TO A NEW ENLISTMENT IN HIS ARMED FORCE ON THE DAY AFTER THE DATE OF HIS DISCHARGE. * * *

THIS LAW, CONTAINED IN THE ACT OF SEPTEMBER 7, 1962, PUBLIC LAW 87 649, 76 STAT. 451, 481, 37 U.S.C. PREC. 101 NOTE, WHICH REVISED, CODIFIED AND ENACTED AS TITLE 37, U.S. CODE, THE LAWS RELATING TO PAY AND ALLOWANCES OF THE UNIFORMED SERVICES OF THE UNITED STATES, IS A RESTATEMENT WITHOUT SUBSTANTIVE CHANGE OF SUBSECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY THE ACT OF AUGUST 4, 1947, CH. 475, 61 STAT. 748, 749, 37 U.S.C. 33 (C) (1958 ED.). SUBSECTION 4 (C) (2), AS ADDED BY THE 1947 ACT BARRED CASH SETTLEMENT FOR ACCRUED LEAVE TO ANY MEMBER "ELECTING TO CARRY OVER SUCH UNUSED LEAVE TO A NEW ENLISTMENT.'

THE COMMITTEE ACTION DISCUSSION INVITES ATTENTION TO ARTICLE C-6105 (5) OF THE BUREAU OF NAVAL PERSONNEL MANUAL WHICH PROVIDES IN PERTINENT PART THAT,"A COMBINATION OF CASH SETTLEMENT AND CARRY OVER OF UNUSED LEAVE IS NOT PERMISSIBLE.' IT IS STATED THAT THIS RESTRICTION IS BASED UPON AN INTERPRETATION OF 37 U.S.C. 501 (B) (2) TO THE EFFECT THAT THE CARRYOVER OF ANY PORTION OF A MEMBER'S UNUSED LEAVE TO A NEW ENLISTMENT WOULD FORBID ANY PAYMENT TO BE MADE UNDER SECTION 501 (B). SEE ARTICLE C-6501 (2) (B), BUREAU OF PERSONNEL MANUAL. IT IS STATED THAT THE REGULATIONS OF ALL THE OTHER SERVICES CONTAIN SIMILAR RESTRICTIONS.

ABSENCE OF ANY DECISION OF THIS OFFICE ON THE POINT HERE INVOLVED AND A PRESUMED POTENTIAL ADVANTAGE TO BOTH THE GOVERNMENT AND A SERVICE MEMBER IF HE IS PERMITTED AN ELECTION OF A COMBINATION OF CASH SETTLEMENT AND CARRYOVER OF UNUSED LEAVE HAS THUS RAISED THE POSSIBILITY THAT THE REGULATIONS IMPOSE RESTRICTIONS WHICH THE LAW DOES NOT ACTUALLY REQUIRE.

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF H.R. 3501, WHICH BECAME PUBLIC LAW 350, 80TH ONG., APPROVED AUGUST 4, 1947, DISCLOSES LITTLE IN THE WAY OF EXPLANATION OF SUBSECTION 4 (C) (2). THE GENERAL PURPOSE OF THE BILL WAS TO GRANT EQUAL TREATMENT IN THE MATTER OF LEAVE AND TO CORRECT CERTAIN INEQUITIES AND DEFECTS WHICH HAD ARISEN IN THE ADMINISTRATION OF THE 1946 LEAVE ACT. IT ALSO APPEARS THAT THE CONGRESS FAVORED THE LEGISLATION BECAUSE IT WAS EXPECTED TO EFFECT A SAVING TO THE GOVERNMENT BY SIMPLIFYING THE SEPARATION PROCESS THROUGH THE ABOLISHMENT OF TERMINAL LEAVE.

IN A LETTER DATED MAY 13, 1947, FROM ROBERT P. PATTERSON, SECRETARY OF WAR, TO THE SPEAKER, HOUSE OF REPRESENTATIVES, THE FOLLOWING STATEMENT APPEARS:

SUBSECTION (C) PROVIDES FOR A LUMP-SUM PAYMENT IN CASH TO LIVING MEMBERS OF THE ARMED FORCES DISCHARGED AFTER AUGUST 31, 1946, WITH UNUSED ACCRUED LEAVE STANDING TO THEIR CREDIT AT THE RATE OF THE BASE AND LONGEVITY PAY (EXCLUDING ALLOWANCES) APPLICABLE TO SUCH MEMBERS AT THE TIME OF DISCHARGE EXCEPT FOR PERSONNEL WHO REENLIST ON THE DAY FOLLOWING THE DATE OF DISCHARGE AND ELECT TO CARRY OVER LEAVE OR FOR PERSONNEL WHO ARE DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT TO REENLIST OR TO ACCEPT A WARRANT OR A COMMISSION. THE WAR AND NAVY DEPARTMENTS HAVE FOUND THAT THERE ARE MANY INSTANCES WHERE IT IS IMPOSSIBLE OR IMPRACTICABLE TO GRANT ACCRUED LEAVE TO SOME PERSONNEL BEFORE THE EXPIRATION OF THEIR TERMS OF SERVICE. THE LUMP-SUM PAYMENT IS PROPOSED FOR THOSE WHO WOULD NOT OTHERWISE BE REMUNERATED BY THE GOVERNMENT FOR SUCH UNUSED ACCRUED LEAVE. IT IS FURTHER PROPOSED TO PERMIT THOSE MEMBERS EXCLUDED FROM CASH SETTLEMENT TO CARRY OVER UNUSED ACCRUED LEAVE FROM ONE STATUS TO ANOTHER WITHIN THEIR RESPECTIVE BRANCHES OF THE ARMED FORCES, IF SUCH SERVICE IS CONTINUOUS. THERE HAVE BEEN SOME INSTANCES OF MEN LOSING LEAVE CREDITS WHEN CHANGING FROM AN ENLISTED TO AN OFFICER STATUS.

IN A STATEMENT FILED WITH SUBCOMMITTEE NO. 10, IN CONNECTION WITH ITS HEARING NO. 155 ON H.R. 3501, CAPTAIN F. R. STICKNEY, UNITED STATES NAVY, GAVE THE FOLLOWING EXPLANATION OF SUBSECTION 4 (C) ON PAGE 3150:

SUBSECTION (C) PROVIDES THAT UNUSED LEAVE STANDING TO THE CREDIT AT TIME OF DISCHARGE SHALL BE COMPENSATED FOR IN CASH. THIS IS THE SECTION WHICH ABOLISHES TERMINAL LEAVE IN MOST INSTANCES. THIS SUBSECTION FURTHER PROVIDES THAT PERSONNEL SHALL CARRY LEAVE FORWARD FROM ENLISTED TO OFFICER STATUS AND WHEN REVERTING FROM OFFICER TO ENLISTED STATUS. PERSONNEL WHO REENLIST WILL HAVE THE OPTION OF RECEIVING A LUMP-SUM SETTLEMENT OR CARRYING LEAVE FORWARD INTO THE NEW ENLISTMENT.

FROM THE ABOVE AS WELL AS THE TENOR OF THE COMMITTEE REPORTS ON THE BILL, IT SEEMS REASONABLY CLEAR THAT AN ENLISTED PERSON FALLING WITHIN THE CATEGORY OF SUBSECTION 4 (C) (2) WAS GIVEN ONLY TWO CHOICES, NAMELY, A FULL CASH SETTLEMENT FOR HIS ACCRUED LEAVE AT DATE OF DISCHARGE OR THE CARRYING OVER OF "SUCH UNUSED LEAVE" TO HIS NEW ENLISTMENT. WE HAVE FOUND NO EVIDENCE WHICH SUGGESTS IN ANY WAY THAT ANY COMBINATION OF CASH PAYMENT AND CARRYOVER OF LEAVE WAS CONTEMPLATED AT THAT TIME AND THERE IS NOTHING IN THE ACT OF SEPTEMBER 7, 1962, WHICH INDICATES AN INTENT TO MAKE ANY CHANGE IN THE 1947 LAW THEREBY SUPERSEDED.

HENCE, IN OUR VIEW THERE WOULD BE NO AUTHORITY TO CHANGE THE ADMINISTRATIVE INTERPRETATION AND APPLICATION ADOPTED CONTEMPORANEOUSLY WITH THE ENACTMENT OF THE ACT OF AUGUST 4, 1947, AND CONSISTENTLY FOLLOWED SINCE THAT TIME. YOUR QUESTION IS ANSWERED IN THE NEGATIVE.