B-159914, SEPTEMBER 30, 1966, 46 COMP. GEN. 261

B-159914, SEPTEMBER 30, 1966, 46 COMP. GEN. 261

LEAVES OF ABSENCE - MILITARY PERSONNEL - WITHOUT PAY STATUS - PENDING ACTION DETERMINATIONS. THE PLACING OF A MIDSHIPMAN IN A LEAVE OF ABSENCE STATUS WITHOUT ENTITLEMENT TO PAY AND ALLOWANCES PENDING APPROVAL OF RESIGNATION OR DISCHARGE, OR FOR THE PERIOD THAT BECAUSE OF ACADEMIC DIFFICULTIES HE IS "TURNED BACK" AND DOES NOT JOIN HIS NEW CLASS, MAY BE AUTHORIZED WITH THE CONSENT OF THE MIDSHIPMAN, AND REGULATIONS ISSUED ACCORDINGLY UNDER THE AUTHORITY OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 30, 1966:

REFERENCE IS MADE TO LETTER DATED AUGUST 16, 1966, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) TRANSMITTING DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 379 INVOLVING A REQUEST FOR DECISION ON THE FOLLOWING QUESTION:

UNDER CIRCUMSTANCES WHEN MIDSHIPMEN SUBMIT THEIR RESIGNATIONS OR ARE RECOMMENDED FOR DISCHARGE FROM THE U.S. NAVAL ACADEMY FOR ACADEMIC, DISCIPLINARY OR OTHER REASONS, THEY ARE IMMEDIATELY PLACED IN A LEAVE OF ABSENCE STATUS PENDING FINAL APPROVAL OF THEIR RESIGNATION OR DISCHARGE BY THE SECRETARY OF THE NAVY. UNDER OTHER CIRCUMSTANCES, MIDSHIPMEN ARE PLACED IN A LEAVE OF ABSENCE STATUS WHEN THEY ARE "TURNED BACK" INTO THE SUCCEEDING CLASS. "TURNING BACK" IS ACTION TAKEN BY THE ACADEMIC BOARD IN CASES WHERE MIDSHIPMEN HAVE EXPERIENCED ACADEMIC DIFFICULTY BUT ARE CONSIDERED TO HAVE SUFFICIENT POTENTIAL TO CONTINUE. MIDSHIPMEN "TURNED BACK" DO NOT IMMEDIATELY JOIN THEIR NEW CLASS BUT ARE PLACED IN A LEAVE STATUS WHICH MAY CONTINUE FROM THE END OF ONE ACADEMIC YEAR TO THE BEGINNING OF THE NEXT. UNDER ALL OF THE FOREGOING CIRCUMSTANCES THE LEAVE STATUS DOES NOT AFFECT THE PAY AND ALLOWANCES OF THE MIDSHIPMAN.

THE U.S. NAVAL ACADEMY CONSIDERS IT DESIRABLE TO PLACE IN A LEAVE WITHOUT PAY STATUS A MIDSHIPMAN OF ANY OF THE ABOVE CATEGORIES, SO THAT WHILE IN SUCH STATUS HE WOULD NOT BE ENTITLED TO ANY PAY OR ALLOWANCE. WOULD A MIDSHIPMAN PLACED IN SUCH STATUS, EITHER VOLUNTARILY OR INVOLUNTARILY, LOSE ENTITLEMENT TO PAY AND ALLOWANCES IF REGULATIONS TO THIS EFFECT WERE PRESCRIBED UNDER THE AUTHORITY OF 10 U.S.C. 702/B/?

THE LAW IN QUESTION, WHICH IS A RESTATEMENT WITHOUT SUBSTANTIVE CHANGE OF SECTION 10 OF THE ARMED FORCES LEAVE ACT OF 1946, APPROVED AUGUST 9, 1946, CH. 931, 60 STAT. 963, AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 4, 1947, CH. 475, 61 STAT. 749, 37 U.S.C. 38 (1958 ED.), PROVIDES:

(B) SECTIONS 701, 702/A), 703, AND 704 OF THIS CHAPTER DO NOT APPLY TO CADETS AT THE UNITED STATES MILITARY ACADEMY, THE UNITED STATES AIR FORCE ACADEMY, OR THE COAST GUARD ACADEMY, MIDSHIPMEN AT THE UNITED STATES NAVAL ACADEMY, OR CADETS OR MIDSHIPMEN SERVING ELSEWHERE IN THE ARMED FORCES. THE SECRETARY CONCERNED, OR HIS DESIGNATED REPRESENTATIVE, MAY PRESCRIBE REGULATIONS RELATING TO LEAVE FOR CADETS AND MIDSHIPMEN.

THE PROVISIONS OF LAW IN SECTION 3/A) OF THE 1946 ACT RELATING TO ABSENCE FROM DUTY WITHOUT LEAVE AND ABSENCE OVER LEAVE (10 U.S.C. 701) HAVE BEEN INTERPRETED AS PERMITTING THE GRANTING OF LEAVE WITHOUT PAY WITH THE CONSENT OF THE PERSON CONCERNED. B-136919, SEPTEMBER 17, 1958. WE VIEW THE BROAD POWERS GRANTED THE SECRETARIES CONCERNED UNDER SECTION 702/B) AS INCLUDING AUTHORITY TO PROMULGATE REGULATIONS RELATING TO THE GRANTING OF LEAVE WITHOUT PAY IN SIMILAR CIRCUMSTANCES.

WHILE THE GRANTING OF SUCH LEAVE WITH A MEMBER'S CONSENT HAS SOME SIMILARITY TO THE WAIVER, OR ATTEMPTED WAIVER OF A STATUTORY RIGHT TO PAY, IT IS BELIEVED THAT THE TWO SITUATIONS ARE NOT SUFFICIENTLY PARALLEL TO WARRANT APPLICATION OF THE RULE STATED IN 26 COMP. GEN. 956 AND DECISIONS CITED IN THE DISCUSSION IN COMMITTEE ACTION NO. 379 APPLICABLE TO AN OFFICER OR EMPLOYEE WHO HAS DISCHARGED, OR STANDS READY TO DISCHARGE, HIS DUTIES. IF A MIDSHIPMAN IS, IN EFFECT, EXCUSED FROM THE PERFORMANCE OF DUTY BY CONSENTING OR REQUESTING TO BE PLACED IN A LEAVE WITHOUT PAY STATUS, UNDER REGULATIONS SO PROVIDING, IT IS OUR VIEW THAT NO RIGHT TO PAY WOULD ACCRUE TO HIM WHILE THAT STATUS CONTINUES.

THE QUESTION IS ANSWERED BY STATING THAT A MIDSHIPMAN WOULD LOSE HIS RIGHT TO PAY AND ALLOWANCES IF HE IS VOLUNTARILY PLACED IN A LEAVE WITHOUT PAY STATUS UNDER APPLICABLE REGULATIONS.