B-161880, OCT. 3, 1967

B-161880: Oct 3, 1967

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OF THE ARMY AS TO WHETHER MILITARY DEPARTMENTS ARE REQUIRED TO PAY SCHOOLS IN JR. ROTC PROGRAM MAY HAVE LEAVE POLICY PERMITTING MILITARY RETIREE INSTRUCTORS TO ACCUMULATE 90 DAYS LEAVE. ONCE RETIREE'S EMPLOYMENT IS TERMINATED AND HE IS NO LONGER TEACHING HE MAY NOT BE CONSIDERED AS EMPLOYED UNDER 10 U.S.C. 203 (D) (I) FOR PURPOSES OF OBLIGATING MILITARY SERVICE FOR ANY PART OF ACCRUED LEAVE PAYMENT AND THEREFORE NO PART OF LEAVE PAYMENT IS OBLIGATION OF GOVT. MILITARY DEPARTMENTS MAY AUTHORIZE LEAVES OF ABSENCE ON CURRENT BASIS NOT TO EXCEED 30 DAYS FOR ANY ONE CALENDAR YEAR SINCE LEAVE IS A FRINGE BENEFIT GENERALLY RECOGNIZED AS PART OF EMPLOYMENT CONTRACT AND ACTIVE DUTY PERSONNEL DETAILED UNDER JR.

B-161880, OCT. 3, 1967

ARMED SERVICES - LEAVE - LUMP SUM PAYMENT LIABILITY - ROTC PROGRAM DECISION TO SECY. OF THE ARMY AS TO WHETHER MILITARY DEPARTMENTS ARE REQUIRED TO PAY SCHOOLS IN JR. ROTC PROGRAM A PORTION OF ACCRUED LEAVE DUE RETIRED MILITARY INSTRUCTORS HIRED BY SCHOOLS. ALTHOUGH SCHOOLS PARTICIPATING IN JR. ROTC PROGRAM MAY HAVE LEAVE POLICY PERMITTING MILITARY RETIREE INSTRUCTORS TO ACCUMULATE 90 DAYS LEAVE, ONCE RETIREE'S EMPLOYMENT IS TERMINATED AND HE IS NO LONGER TEACHING HE MAY NOT BE CONSIDERED AS EMPLOYED UNDER 10 U.S.C. 203 (D) (I) FOR PURPOSES OF OBLIGATING MILITARY SERVICE FOR ANY PART OF ACCRUED LEAVE PAYMENT AND THEREFORE NO PART OF LEAVE PAYMENT IS OBLIGATION OF GOVT. WITH RESPECT TO PAY AND ALLOWANCES FOR LEAVE TAKEN BY RETIRED MILITARY PERSONNEL ON CURRENT BASIS, MILITARY DEPARTMENTS MAY AUTHORIZE LEAVES OF ABSENCE ON CURRENT BASIS NOT TO EXCEED 30 DAYS FOR ANY ONE CALENDAR YEAR SINCE LEAVE IS A FRINGE BENEFIT GENERALLY RECOGNIZED AS PART OF EMPLOYMENT CONTRACT AND ACTIVE DUTY PERSONNEL DETAILED UNDER JR. ROTC PROGRAM UNDER 10 U.S.C. 701 (A). HOWEVER, LEAVE MAY NOT BE ACCUMULATED FOR PAYMENT ON A LUMP SUM BASIS.

TO MR. SECRETARY:

FURTHER REFERENCE IS MADE TO LETTER DATED JUNE 20, 1967, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (FINANCIAL MANAGEMENT), REQUESTING A DECISION WHETHER, UNDER THE JUNIOR RESERVE OFFICERS' TRAINING CORPS PROGRAM (SECTION 2031, TITLE 10, UNITED STATES CODE), THE MILITARY DEPARTMENTS ARE REQUIRED TO PAY TO SCHOOLS PARTICIPATING IN THE PROGRAM A PORTION OF ACCRUED LEAVE PAYMENTS DUE INSTRUCTORS (RETIRED MILITARY PERSONNEL) HIRED BY THE SCHOOLS. IF THE ANSWER IS IN THE AFFIRMATIVE, A FURTHER QUESTION IS ASKED AS TO THE MAXIMUM NUMBER OF DAYS FOR WHICH ACCRUED LEAVE PAYMENTS MAY BE MADE. THE ASSISTANT SECRETARY STATES THAT SOME PARTICIPATING SCHOOLS PERMIT EMPLOYEES TO ACCUMULATE AND CARRY FORWARD ON A YEARLY BASIS UP TO 90 DAYS' LEAVE.

AUTHORITY FOR PAYING RETIRED MEMBERS OF THE UNIFORMED SERVICES EMPLOYED BY SCHOOLS PARTICIPATING IN THE JUNIOR RESERVE OFFICERS' TRAINING CORPS PROGRAM IS CONTAINED IN SECTION 2031 (D) OF TITLE 10, U.S. CODE, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"/1) RETIRED MEMBERS SO EMPLOYED ARE ENTITLED TO RECEIVE THEIR RETIRED OR RETAINER PAY AND AN ADDITIONAL AMOUNT OF NOT MORE THAN THE DIFFERENCE BETWEEN THEIR RETIRED PAY AND THE ACTIVE DUTY PAY AND ALLOWANCES WHICH THEY WOULD RECEIVE IF ORDERED TO ACTIVE DUTY, AND ONE HALF OF THAT ADDITIONAL AMOUNT SHALL BE PAID TO THE INSTITUTION CONCERNED BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED FROM FUNDS APPROPRIATED FOR THAT PURPOSE.

"/2) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, SUCH A RETIRED MEMBER IS NOT, WHILE SO EMPLOYED, CONSIDERED TO BE ON ACTIVE DUTY OR INACTIVE DUTY TRAINING FOR ANY PURPOSE.'

REGULATIONS IMPLEMENTING THIS LAW PROVIDE IN PARAGRAPH IV B.2, DEPARTMENT OF DEFENSE DIRECTIVE NO. 1205.13 DATED DECEMBER 22, 1965, IN PERTINENT PART AS FOLLOWS:

"* * * RETIRED PERSONNEL SO EMPLOYED SHALL RECEIVE THEIR RETIRED OR RETAINER PAY AND AN ADDITIONAL AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THEIR RETIRED PAY AND THE ACTIVE DUTY PAY AND ALLOWANCES, EXCLUDING HAZARDOUS DUTY PAY, WHICH THEY WOULD RECEIVE IF ORDERED TO ACTIVE DUTY.'

THE "APPLICATION AND AGREEMENT FOR ESTABLISHMENT OF A JUNIOR RESERVE OFFICERS' TRAINING CORPS UNIT" (DA FORM 3126), WHICH ACCOMPANIED THE ASSISTANT SECRETARY'S LETTER, PROVIDES IN PARAGRAPH 2E THAT THE INSTITUTION AGREES "TO PAY RETIRED PERSONNEL EMPLOYED PURSUANT TO 2D ABOVE AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THEIR RETIRED PAY AND THE ACTIVE DUTY PAY AND ALLOWANCES, EXCLUDING HAZARDOUS DUTY PAY, WHICH THEY WOULD RECEIVE IF ORDERED TO ACTIVE DUTY.' THIS PROVISION APPEARS TO BE SUBSTANTIALLY IN LINE WITH THE ABOVE-QUOTED DEPARTMENT OF DEFENSE DIRECTIVE.

THE TERM "ACTIVE DUTY PAY AND ALLOWANCES" AS USED IN 10 U.S.C. 2031 (D) (1) IS NOT THERE DEFINED AND WE FIND LITTLE IN THE LEGISLATIVE HISTORY OF THAT LAW WHICH IS HELPFUL IN DETERMINING WHETHER AN ACCRUED LEAVE PAYMENT IS CONSIDERED TO BE ONE OF THE ITEMS OF PAY AND ALLOWANCES INTENDED TO BE INCLUDED IN THAT TERM. IN THIS CONNECTION, REGULATIONS GOVERNING THE ARMY JUNIOR RESERVE OFFICERS' TRAINING CORPS PROGRAM PROVIDE IN PARAGRAPH 20B (5), ARMY REGULATION 145-10, CHANGE NO. 1, DATED MAY 20, 1966, IN PERTINENT PART, AS FOLLOWS:

"FOR INDIVIDUALS SO EMPLOYED, ACTIVE DUTY PAY AND ALLOWANCES MEAN THE CURRENT PAY AND ALLOWANCES AUTHORIZED FOR THE RANK OR GRADE OF THE INDIVIDUAL IF HE WERE CALLED TO ACTIVE DUTY. THE ALLOWANCES INCLUDE QUARTERS AND SUBSISTENCE ALLOWANCES FOR ALL INDIVIDUALS SO EMPLOYED AND UNIFORM MAINTENANCE ALLOWANCE FOR ENLISTED PERSONNEL. SPECIAL AND INCENTIVE PAYS ARE EXCLUDED.'

A MEMBER OF THE UNIFORMED SERVICES SERVING ON ACTIVE DUTY ACCRUES LEAVE ON THE BASIS OF 2-1/2 CALENDAR DAYS FOR EACH MONTH OF "ACTIVE SERVICE" AS PROVIDED IN 10 U.S.C. 701 (A), BUT HE MAY NOT ACCUMULATE MORE THAN 60 DAYS LEAVE AS SPECIFIED IN SECTION 701 (B). GENERALLY, PAYMENT FOR UNUSED ACCRUED LEAVE IS MADE AT THE TIME OF DISCHARGE. SEE 37 U.S.C. 501 (B). MILITARY RETIREES EMPLOYED BY SCHOOLS ARE NOT CONSIDERED TO BE ON "ACTIVE DUTY OR INACTIVE DUTY TRAINING FOR ANY PURPOSE" (10 U.S.C. 2031 (D) (2)

GENERALLY, THE GRANTING OF LEAVE TO A MILITARY RETIREE EMPLOYED BY A SCHOOL IN THE TRAINING PROGRAM IS PRIMARILY A MATTER BETWEEN THE SCHOOL AND THE RETIREE. HOWEVER, THE FACT THAT THE SCHOOL MAY HAVE A LEAVE POLICY APPLICABLE TO ITS EMPLOYEES (TEACHERS), INCLUDING THE MILITARY RETIREE INSTRUCTORS EMPLOYED BY SUCH SCHOOLS, UNDER WHICH THE INDIVIDUAL IS PERMITTED TO ACCUMULATE AS MUCH AS 90 DAYS' LEAVE, AFFORDS NO BASIS FOR CONCLUDING THAT THE GOVERNMENT IS OBLIGATED TO PAY THE INSTITUTION ANY PART OF THE ACCRUED LEAVE PAYMENT AT THE TERMINATION OF HIS EMPLOYMENT WITH THE SCHOOL. ON THE CONTRARY, ONCE THE RETIREE'S EMPLOYMENT IS TERMINATED AND HE NO LONGER IS PERFORMING THE DUTIES FOR WHICH HE WAS EMPLOYED, HE MAY NOT BE CONSIDERED AS BEING ,EMPLOYED" WITHIN THE MEANING OF 10 U.S.C. 2031 (D) (1) FOR PURPOSES OF OBLIGATING THE MILITARY SERVICE CONCERNED TO PAY ANY PART OF THE ACCRUED LEAVE PAYMENT. ACCORDINGLY, NO PART OF SUCH AN ACCRUED LEAVE PAYMENT IS AUTHORIZED TO BE MADE AT GOVERNMENT EXPENSE.

WHILE THE QUESTION OF THE GOVERNMENT'S OBLIGATION TO PAY A PART OF THE PAY AND ALLOWANCES INVOLVED DURING PERIODS OF LEAVE TAKEN BY THE RETIREE ON A CURRENT BASIS WHILE SO EMPLOYED IS NOT SPECIFICALLY RAISED IN THE SUBMISSION, WE BELIEVE THIS MATTER WARRANTS CONSIDERATION AT THIS TIME. AS INDICATED ABOVE, THE QUESTION OF LEAVE IS A MATTER PRIMARILY BETWEEN THE SCHOOL AND THE MILITARY RETIREE. WHILE WE HAVE NO SPECIFIC INFORMATION ON THIS MATTER, WE UNDERSTAND INFORMALLY THAT THE EMPLOYMENT CONTRACTS BETWEEN THE SCHOOLS AND THE RETIREES WOULD NOT NECESSARILY BE UNIFORM BUT WOULD VARY DEPENDING ON THE POLICY OF EACH SCHOOL. IN OTHER WORDS, THE EMPLOYMENT CONTRACT MAY COVER AN ORDINARY SCHOOL TERM OF 9 MONTHS, EXCLUDING THE SUMMER MONTHS (JUNE, JULY AND AUGUST), OR THE CONTRACT MAY BE FOR A FULL 12-MONTH PERIOD. THE QUESTION ARISES, FOR LEAVE PURPOSES, WHAT IS THE STATUS OF THE MILITARY RETIREE DURING THE SUMMER MONTHS, WHEN HE IS ABSENT FROM THE SCHOOL AND CONSEQUENTLY NOT PERFORMING ANY ADMINISTRATIVE AND INSTRUCTIONAL DUTIES WITH THE ROTC UNIT AT THE SCHOOL.

UNDER THE PROVISIONS OF PARAGRAPH 20, ARMY REGULATION 145-5, DATED SEPTEMBER 16, 1964, ACTIVE DUTY MILITARY PERSONNEL ON ROTC DUTY AT EDUCATIONAL INSTITUTIONS ARE AVAILABLE TO THE MAJOR COMMANDER DURING THE PERIOD OF SUMMER VACATION FOR SUCH DUTY AS HE MAY DEEM NECESSARY IN THE OPERATION OF ROTC SUMMER CAMPS. PARAGRAPH 20 OF THAT REGULATION PROVIDES THAT CONSIDERATION BE GIVEN IN ARRANGING DETAILS FOR SUMMER TRAINING DUTY TO INSURE THAT EACH INDIVIDUAL IS PROVIDED AN OPPORTUNITY FOR A REASONABLE AMOUNT OF LEAVE DURING THE SUMMER MONTHS. IT IS OUR UNDERSTANDING THAT ANY ACTIVE DUTY MILITARY PERSONNEL DETAILED TO THE INSTITUTIONS UNDER THE JUNIOR RESERVE OFFICERS' TRAINING PROGRAM AS PROVIDED IN 10 U.S.C. 2031 (C) (1), WOULD BE GOVERNED BY THE PROVISIONS OF PARAGRAPH 20, ARMY REGULATION 145-5. UNLIKE ACTIVE DUTY PERSONNEL, THE MILITARY RETIREE'S PRESENCE FOR DUTY, IN THE ABSENCE OF A SUMMER SCHOOL ROTC PROGRAM, WOULD NOT SEEM TO BE REQUIRED DURING THE SUMMER MONTHS.

SINCE LEAVE IS A FRINGE BENEFIT GENERALLY RECOGNIZED AS PART OF AN EMPLOYMENT CONTRACT, AND SINCE ACTIVE DUTY PERSONNEL DETAILED TO THE INSTITUTION UNDER THE JUNIOR ROTC PROGRAM WOULD BE ENTITLED TO LEAVE AS PROVIDED IN 10 U.S.C. 701 (A), WE WOULD HAVE NO OBJECTION SHOULD THE MILITARY DEPARTMENTS DECIDE TO ISSUE REGULATIONS PROVIDING THAT THE SCHOOLS INVOLVED MAY AUTHORIZE LEAVES OF ABSENCE ON A CURRENT BASIS OF NOT TO EXCEED 30 DAYS FOR ANY ONE CALENDAR YEAR FOR THOSE MILITARY RETIREES EMPLOYED BY SUCH SCHOOLS. SUCH LEAVE, OF COURSE, MAY NOT BE ACCUMULATED FOR PAYMENT ON A LUMP-SUM BASIS.