B-165492, NOV. 27, 1968

B-165492: Nov 27, 1968

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B. ADAMS: THIS IS WITH REFERENCE TO YOUR LETTER OF OCTOBER 15. WAS ORDERED TO HIS HOME IN CHESTERFIELD. AR 635-40) HE WAS CHARGED LEAVE FOR THIS PERIOD TO THE EXTENT AVAILABLE BUT WAS NOT REQUIRED TO PERFORM ANY MILITARY DUTIES. BROWN WAS TEMPORARILY APPOINTED TO A POSITION OF LABORER AT THE CENTER. IT WAS DETERMINED THAT MR. WAS WITHHELD. BROWN WAS ACTUALLY DISCHARGED FROM THE ARMY FOR PHYSICAL DISABILITY ON OCTOBER 12. MAY HE BE CONSIDERED TO HAVE BEEN IN A TERMINAL LEAVE STATUS EFFECTIVE 21 JUNE 68 AND. GEN. 400 (AT P. 403) IN THAT BROWN WAS NOT REQUIRED TO PERFORM ANY MILITARY DUTIES. HE WOULD HAVE BEEN SEPARATED FROM MILITARY SERVICE ON 20 JUNE 1968 DUE TO EXPIRATION OF HIS TERM OF SERVICE.

B-165492, NOV. 27, 1968

TO MAJOR G. B. ADAMS:

THIS IS WITH REFERENCE TO YOUR LETTER OF OCTOBER 15, 1968, FORWARDING FOR ADVANCE DECISION A VOUCHER FOR PAY IN THE AMOUNT OF $152.59 IN THE CASE OF WILLIAM BROWN, JR., AN EMPLOYEE OF THE DEFENSE SUPPLY CENTER, RICHMOND, VIRGINIA.

YOUR LETTER INDICATES THAT ON JUNE 21, 1968, MR. BROWN, THEN AN SP-4 IN THE ARMY, WAS ORDERED TO HIS HOME IN CHESTERFIELD, VIRGINIA, FROM WALTER REED ARMY MEDICAL CENTER, WASHINGTON, D.C., TO AWAIT FINAL ORDERS IN CONNECTION WITH HIS PHYSICAL EVALUATION BOARD PROCEEDINGS. YOU STATE THAT IN ACCORDANCE WITH ARMY REGULATIONS (PARAGRAPH 6-5, AR 635-40) HE WAS CHARGED LEAVE FOR THIS PERIOD TO THE EXTENT AVAILABLE BUT WAS NOT REQUIRED TO PERFORM ANY MILITARY DUTIES.

ON JULY 24, 1968, MR. BROWN WAS TEMPORARILY APPOINTED TO A POSITION OF LABORER AT THE CENTER, NOT TO EXCEED 700 HOURS. BETWEEN JULY 24 AND SEPTEMBER 21, 1968, MR. BROWN RECEIVED $541.78 IN NET PAY FROM THIS EMPLOYMENT. ON OCTOBER 7, 1968, IT WAS DETERMINED THAT MR. BROWN HAS NOT YET BEEN RELEASED FROM ACTIVE DUTY AND THEREFORE PAYMENT FOR HIS SERVICES DURING THE PERIOD SEPTEMBER 22 TO OCTOBER 5, 1968, WAS WITHHELD. MR. BROWN WAS ACTUALLY DISCHARGED FROM THE ARMY FOR PHYSICAL DISABILITY ON OCTOBER 12, 1968.

IN CONNECTION WITH THE FOREGOING YOU ASK THE FOLLOWING QUESTIONS:

"A. UNDER THE CIRCUMSTANCES BY WHICH SP-4 BROWN HAD PROCEEDED TO HIS HOME AND SUBSEQUENTLY SOUGHT EMPLOYMENT, MAY HE BE CONSIDERED TO HAVE BEEN IN A TERMINAL LEAVE STATUS EFFECTIVE 21 JUNE 68 AND, THEREFORE, ELIGIBLE TO ACCEPT A CIVILIAN POSITION IN THE GOVERNMENT OF THE UNITED STATES UNDER THE PROVISIONS OF 5 U.S.C.A 5534A (1967/? IT WOULD SEEM THAT THE CIRCUMSTANCES SATISFY NOT ONLY THE SENSE OF TERMINAL LEAVE- AS USED IN THE STATUTE BUT ALSO THE COMPATIBLE REQUISITES SET FORTH IN 18 COMP. GEN. 213 AND REITERATED IN 46 COMP. GEN. 400 (AT P. 403) IN THAT BROWN WAS NOT REQUIRED TO PERFORM ANY MILITARY DUTIES. ADDITIONALLY, HAD BROWN NOT BEEN INJURED AND THEREFORE NOT PLACED ON LEAVE PENDING FINAL ACTION BY THE SECRETARY OF THE ARMY ON THE PHYSICAL DISABILITY DISCHARGE, HE WOULD HAVE BEEN SEPARATED FROM MILITARY SERVICE ON 20 JUNE 1968 DUE TO EXPIRATION OF HIS TERM OF SERVICE.

"B. IF THE ANSWER TO A. ABOVE IS NEGATIVE, WAS HIS ORIGINAL APPOINTMENT TO A 700 HOUR POSITION NULL AND VOID?

"C. IF THE ANSWER TO B. ABOVE IS AFFIRMATIVE, IS BROWN ELIGIBLE FOR EMPLOYMENT AS OF 13 OCTOBER 68 ON A NEW 700 HOUR APPOINTMENT OR ANY OTHER TYPE APPOINTMENT SINCE HE WAS DISCHARGED FOR PHYSICAL DISABILITY ON 12 OCTOBER 68. SUCH AUTHORITY WOULD FACILITATE COLLECTION OF$541.78 NET PAY PREVIOUSLY PAID.'

WITH RESPECT TO ENTITLEMENT TO PAY FOR SERVICES AS A CIVILIAN WHILE STILL ON ACTIVE MILITARY DUTY WE HAVE HELD THAT THE DUAL COMPENSATION ACT OF 1964, 79 STAT. 493, DID NOT AFFECT THE LONGSTANDING RULE OF INCOMPATIBILITY BETWEEN AN APPOINTMENT TO A CIVILIAN POSITION AND ACTIVE MILITARY SERVICE. 46 COMP. GEN. 400, 403. HOWEVER, WITH RESPECT TO MILITARY PERSONNEL ON LEAVE PENDING RELEASE FROM ACTIVE SERVICE AN EXCEPTION HAS BEEN PROVIDED:

"SEC. 5534A. DUAL EMPLOYMENT AND PAY DURING TERMINAL LEAVE FROM UNIFORMED SERVICES

"A MEMBER OF A UNIFORMED SERVICE WHO HAS PERFORMED ACTIVE SERVICE AND WHO IS ON TERMINAL LEAVE PENDING SEPARATION FROM, OR RELEASE FROM ACTIVE DUTY IN, THAT SERVICE UNDER HONORABLE CONDITIONS MAY ACCEPT A CIVILIAN OFFICE OR POSITION IN THE GOVERNMENT OF THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS, OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, AND HE IS ENTITLED TO RECEIVE THE PAY OF THAT OFFICE OR POSITION IN ADDITION TO PAY AND ALLOWANCES FROM THE UNIFORMED SERVICE FOR THE UNEXPIRED PORTION OF THE TERMINAL LEAVE.'

UNDER 37 U.S.C. 502 A MEMBER OF THE ARMY ABSENT FROM DUTY AWAITING ORDERS PENDING THE RESULTS OF DISABILITY RETIREMENT PROCEEDINGS FOR A PERIOD LONGER THAN THE LEAVE TO WHICH HE HAS EARNED UNDER 10 U.S.C. 701 IS ENTITLED TO PAY AND ALLOWANCES.

THE REPORT INDICATES THAT FROM JUNE 21, 1968, MR. BROWN WAS AT HOME ON LEAVE, RELIEVED OF ALL MILITARY DUTIES, WHILE AWAITING THE RESULTS OF A PHYSICAL EVALUATION BOARD TO DETERMINE THE EXTENT OF HIS DISABILITIES FOR RETIREMENT PURPOSES. HIS PERIOD OF REQUIRED SERVICE HAD EXPIRED ON JUNE 20, 1968, PRIOR TO HIS DEPARTURE FROM WALTER REED ARMY MEDICAL CENTER AND MORE THAN A MONTH PRIOR TO HIS APPOINTMENT TO THE CIVILIAN POSITION.

ALTHOUGH MR. BROWN WAS DRAWING MILITARY PAY UNTIL OCTOBER 12, 1968, HE WAS IN EFFECT ON TERMINAL LEAVE MARKING THE END OF HIS MILITARY SERVICE DURING THIS PERIOD. UNDER THE CIRCUMSTANCES HIS CASE IS CONSIDERED TO COME WITHIN THE EXCEPTION PROVIDED IN 5 U.S.C. 5534A PERMITTING RECEIPT OF CIVILIAN AND MILITARY PAY. ACCORDINGLY, THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE PROCESSED FOR PAYMENT IF OTHERWISE CORRECT.