B-173769, NOV 23, 1971, 51 COMP GEN 312

B-173769: Nov 23, 1971

Additional Materials:

Contact:

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

 

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

PROVIDED IN 37 U.S.C. 501(B) FOR ALL MEMBERS OF THE UNIFORMED SERVICES UPON SEPARATION - WHETHER ENLISTED MEMBERS OR WARRANT OR COMMISSIONED OFFICERS - IS AUTHORIZED TO BE COMPUTED AT REGULAR MILITARY COMPENSATION CONSISTING OF BASIC PAY AND SUBSISTENCE AND QUARTERS ALLOWANCES AND. AN ARMY OFFICER UPON RETIREMENT ENTITLED TO PAYMENT PURSUANT TO PARAGRAPH 40401 AND TABLE 4-4-5 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL MAY NOT HAVE HIS PAYMENT INCREASED BY INCLUDING STATION HOUSING AND COST-OF-LIVING ALLOWANCES IN THE COMPUTATION OF THE 60 DAYS' ACCRUED LEAVE TO HIS CREDIT AS THESE ALLOWANCES ARE NOT PAYABLE BY VIRTUE OF MEMBERSHIP IN THE UNIFORMED SERVICES BUT ACCRUE INCIDENT TO PARTICULAR DUTY ASSIGNMENTS.

B-173769, NOV 23, 1971, 51 COMP GEN 312

LEAVES OF ABSENCE - MILITARY PERSONNEL - PAYMENTS FOR UNUSED LEAVE ON DISCHARGE, ETC. - ALLOWANCES FOR INCLUSION THE LUMP SUM PAYMENT FOR ACCRUED LEAVE, NOT TO EXCEED 60 DAYS, PROVIDED IN 37 U.S.C. 501(B) FOR ALL MEMBERS OF THE UNIFORMED SERVICES UPON SEPARATION - WHETHER ENLISTED MEMBERS OR WARRANT OR COMMISSIONED OFFICERS - IS AUTHORIZED TO BE COMPUTED AT REGULAR MILITARY COMPENSATION CONSISTING OF BASIC PAY AND SUBSISTENCE AND QUARTERS ALLOWANCES AND, THEREFORE, AN ARMY OFFICER UPON RETIREMENT ENTITLED TO PAYMENT PURSUANT TO PARAGRAPH 40401 AND TABLE 4-4-5 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL MAY NOT HAVE HIS PAYMENT INCREASED BY INCLUDING STATION HOUSING AND COST-OF-LIVING ALLOWANCES IN THE COMPUTATION OF THE 60 DAYS' ACCRUED LEAVE TO HIS CREDIT AS THESE ALLOWANCES ARE NOT PAYABLE BY VIRTUE OF MEMBERSHIP IN THE UNIFORMED SERVICES BUT ACCRUE INCIDENT TO PARTICULAR DUTY ASSIGNMENTS.

TO LIEUTENANT COLONEL L. E. SHOLTES, DEPARTMENT OF THE ARMY, NOVEMBER 23, 1971:

REFERENCE IS MADE TO YOUR LETTER OF MAY 23, 1971, WITH ENCLOSURES, IN WHICH YOU REQUEST A DECISION WHETHER THE ITEMS OF STATION HOUSING ALLOWANCE AND COST-OF-LIVING ALLOWANCE ARE TO BE INCLUDED IN THE COMPUTATION OF THE PAYMENT FOR ACCRUED LEAVE DUE LIEUTENANT COLONEL WILLIAM E. COLEMAN, UNITED STATES ARMY, UPON THE DATE HIS ACTIVE SERVICE TERMINATED INCIDENT TO HIS RETIREMENT. YOU SAY HE CONTEMPLATED RETIRING EFFECTIVE AUGUST 1, 1971. THE REQUEST HAS BEEN ASSIGNED CONTROL NO. DO-A- 1132 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

IN YOUR LETTER YOU SAY THAT THE OFFICER IS ENTITLED TO 60 DAYS' ACCRUED LEAVE AND IN ACCORDANCE WITH PARAGRAPH 40401 AND TABLE 4-4-5 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, HE WAS ADVISED THAT THE ACCRUED LEAVE PAYMENT WOULD INCLUDE BASIC PAY, BASIC ALLOWANCE FOR QUARTERS AND BASIC ALLOWANCE FOR SUBSISTENCE, BASED ON HIS GRADE ON DATE OF SEPARATION. HOWEVER, THE OFFICER CONTENDS THAT STATION HOUSING ALLOWANCE AND COST-OF-LIVING ALLOWANCE SHOULD ALSO BE INCLUDED IN THE COMPUTATION OF THE ACCRUED LEAVE. YOU THEREFORE PRESENT FOR DECISION THE QUESTION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER WHICH YOU ENCLOSED REFLECTING STATION HOUSING AND COST-OF-LIVING ALLOWANCES FOR 60 DAYS' ACCRUED LEAVE, STATING THAT OTHER ITEMS (BASIC PAY, BASIC ALLOWANCE FOR QUARTERS AND BASIC ALLOWANCE FOR SUBSISTENCE) WILL BE SETTLED SEPARATELY.

THE STATUTORY AUTHORITY FOR THE PAYMENT FOR ACCRUED LEAVE TO THE CREDIT OF AN OFFICER OF AN ARMED FORCE UPON SEPARATION OR RELEASE FROM ACTIVE DUTY IS CONTAINED IN SECTION 501(B) OF TITLE 37, UNITED STATES CODE, WHICH PROVIDES GENERALLY THAT ON THE DATE OF HIS DISCHARGE (INCLUDING RELEASE FROM ACTIVE DUTY), HE IS ENTITLED TO BE PAID FOR THE ACCRUED LEAVE TO HIS CREDIT ON THE BASIS OF THE BASIC PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED ON THAT DAY.

PARAGRAPH 40401, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, IMPLEMENTING THE STATUTORY AUTHORITY REFERRED TO ABOVE, PROVIDES IN PERTINENT PART THAT A MEMBER WHO IS DISCHARGED UNDER HONORABLE CONDITIONS IS ENTITLED TO PAYMENT FOR UNUSED ACCRUED LEAVE UNLESS HE CONTINUES ON ACTIVE DUTY UNDER CONDITIONS WHICH REQUIRE ACCRUED LEAVE TO BE CARRIED FORWARD. PARAGRAPH 40402 STATES THAT TABLE 4-4-5 OF THE MANUAL SHOWS THE ITEMS TO BE INCLUDED IN THE ACCRUED LEAVE PAYMENT AND HOW TO COMPUTE THE PAYMENT. TABLE 4-4-5 PROVIDES IN RULES 4 AND 5 THAT AN OFFICER'S ACCRUED LEAVE PAYMENT IS COMPUTED ON THE NUMBER OF DAYS' ACCRUED LEAVE, BUT NOT MORE THAN 60, TO INCLUDE BASIC PAY, BASIC ALLOWANCE FOR SUBSISTENCE AND BASIC ALLOWANCE FOR QUARTERS AT RATES APPLICABLE FOR A MEMBER WITH OR WITHOUT DEPENDENTS AS APPLICABLE ON DATE OF SEPARATION.

IN SUPPORT OF HIS CLAIM, COLONEL COLEMAN PRESENTS A BRIEF IN WHICH HE CONTENDS THAT THE TERM "BASIC PAY AND ALLOWANCES" AS USED IN 37 U.S.C. 501(B) INCLUDES BASIC PAY, BASIC ALLOWANCE FOR SUBSISTENCE, BASIC ALLOWANCE FOR QUARTERS, COST-OF-LIVING ALLOWANCES AND STATION HOUSING ALLOWANCES. HE ANALYZES THE PHRASING OF SECTION 501(B) AS PRESENTLY IN EFFECT AND AS ORIGINALLY ENACTED AND CODIFIED IN 37 U.S.C. 33(C) (1946 ED.) AND SAYS IT IS REASONABLE TO CONCLUDE THAT CONGRESS DID NOT INTEND FOR THE WORD "ALLOWANCES" TO BE MODIFIED BY THE LIMITING WORD "BASE" OR "BASIC" IN THE PHRASING OF THE PROVISIONS WHICH SET FORTH THE BASIS UPON WHICH ACCRUED LEAVE IS TO BE PAID TO WARRANT OR COMMISSIONED OFFICERS UPON DISCHARGE.

IN FURTHER SUPPORT OF HIS CONTENTION, HE CITES 35 COMP. GEN. 699 (1956) AND 44 COMP. GEN. 403 (1965) AND QUOTES CERTAIN PASSAGES FROM EACH DECISION TO SHOW THAT IN OUR DISCUSSION OF THE PAYMENTS DUE THE INDIVIDUAL MEMBERS INVOLVED, THE WORD "BASIC" WAS USED TO MODIFY "PAY" ONLY. THEREFORE ALLEGES THAT IT IS REASONABLE TO CONCLUDE THAT ALL ALLOWANCES, NOT JUST BASIC ALLOWANCE FOR QUARTERS AND BASIC ALLOWANCE FOR SUBSISTENCE, ARE TO BE INCLUDED IN COMPUTING THE PAY AND ALLOWANCES FOR ACCRUED UNUSED LEAVE DUE AN OFFICER AT DATE OF TERMINATION OF ACTIVE DUTY.

THE LEGISLATIVE HISTORY OF THE ARMED FORCES LEAVE ACT OF 1946 SHOWS THAT H.R. 4051, 79TH CONGRESS, WHICH BECAME THAT ACT (PUBLIC LAW 704, 79TH CONGRESS, DATED AUGUST 9, 1946, 60 STAT. 963) WAS ORIGINALLY PASSED BY THE HOUSE OF REPRESENTATIVES AS A MEASURE TO GRANT TO ENLISTED PERSONNEL ONLY LEAVE WHILE IN THE SERVICE AND A LUMP-SUM PAYMENT FOR ACCUMULATED LEAVE UPON DISCHARGE. THE LUMP SUM WAS TO BE COMPUTED AT THE RATE OF BASE AND LONGEVITY PAY AND MONETARY ALLOWANCES FOR SUBSISTENCE AND QUARTERS WHICH THE INDIVIDUAL WAS RECEIVING IMMEDIATELY PRIOR TO DISCHARGE. AS FINALLY PASSED, IT WAS REVISED TO ESTABLISH A COMPREHENSIVE LEAVE SYSTEM IN WHICH DISTINCTION IN LEAVE BENEFITS BETWEEN OFFICERS AND ENLISTED PERSONNEL WAS TO BE ENTIRELY ELIMINATED.

THE ACT AS AMENDED AUGUST 4, 1947, 61 STAT. 748, PROVIDES IN SECTION 4(C) THEREOF THAT ANY MEMBER OF THE ARMED FORCES DISCHARGED AFTER AUGUST 31, 1946, HAVING UNUSED LEAVE TO HIS CREDIT AT TIME OF DISCHARGE SHALL BE COMPENSATED FOR SUCH UNUSED LEAVE IN CASH ON THE BASIS OF THE BASE AND LONGEVITY PAY AND ALLOWANCES APPLICABLE TO SUCH MEMBER ON THE DATE OF DISCHARGE, INCLUDING FOR ENLISTED PERSONS THE ALLOWANCES AS PROVIDED FOR ENLISTED PERSONS IN SUBSECTION (A) THEREOF. SUBSECTION (A) PROVIDES THAT COMPENSATION FOR LEAVE ACCUMULATED AS AN ENLISTED MEMBER SHALL BE COMPUTED ON THE BASIS OF THE APPLICABLE BASE AND LONGEVITY PAY, A SUBSISTANCE ALLOWANCE AT THE RATE OF 70 CENTS A DAY, AND IN THE CASE OF ENLISTED MEMBERS OF THE FIRST THREE GRADES WITH DEPENDENTS, A QUARTERS ALLOWANCE AT THE RATE OF $1.25 A DAY. THESE PROVISIONS WERE CODIFIED AS SECTION 33(C) OF TITLE 37, U.S.C. (1952 ED.) AND WERE SUBSEQUENTLY RECODIFIED WITH MINOR CHANGES AS SECTION 501(B) OF TITLE 37 (1964 ED.).

THE LEGISLATIVE HISTORY OF THE 1946 ACT, AS AMENDED BY THE 1947 ACT, CONTAINS LITTLE DISCUSSION WITH RESPECT TO THE ALLOWANCES TO BE INCLUDED IN THE COMPUTATION OF THE LEAVE PAYMENT TO BE MADE TO OFFICERS, BUT THE PRIMARY PURPOSE OF THE LEGISLATION WAS TO PLACE ENLISTED PERSONNEL SUBSTANTIALLY ON A PARITY WITH OFFICERS IN THE MATTER OF LEAVE BENEFITS. SINCE THE LEAVE LAWS SPECIFICALLY AUTHORIZED A SUBSISTENCE ALLOWANCE AND A QUARTERS ALLOWANCE TO BE INCLUDED IN THE LEAVE PAYMENT TO BE MADE TO ELIGIBLE ENLISTED PERSONNEL, IT SEEMS APPARENT THAT THOSE ALLOWANCES WERE AUTHORIZED TO CORRESPOND TO THE QUARTERS AND SUBSISTENCE ALLOWANCES TO BE INCLUDED IN THE PAYMENT TO OFFICERS AND THAT THERE WAS NO INTENTION TO INCLUDE ANY OTHER ALLOWANCES IN THE SUM-SUM LEAVE PAYMENT.

COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE ARE INCLUDED AS MEMBERS OF THE UNIFORMED SERVICES BUT WERE NOT SPECIFICALLY INCLUDED AS PART OF THE "ARMED FORCES" ENTITLED TO LEAVE BENEFITS UNDER THE ARMED FORCES LEAVE ACT OF 1946. UNDER THE PROVISIONS OF PUBLIC LAW 677, CH. 654, 81ST CONGRESS, DATED AUGUST 9, 1950, 64 STAT. 426, TO CORRECT THIS DISPARITY, COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, INCLUDING THOSE OF THE RESERVE CORPS ON ACTIVE DUTY, WERE GIVEN THE RIGHT, UNDER CERTAIN CONDITIONS, TO BE COMPENSATED FOR USUSED ACCUMULATED LEAVE UPON SEPARATION, RETIREMENT, OR RELEASE FROM ACTIVE DUTY. THIS COMPENSATION CONSISTED OF A LUMP-SUM PAYMENT TO BE COMPUTED ON THE BASIS OF THE BASIC PAY, SUBSISTENCE ALLOWANCE AND THE ALLOWANCE FOR RENTAL OF QUARTERS, WHETHER OR NOT THEY ARE RECEIVING THAT ALLOWANCE ON THAT DATE. THIS PROVISION WAS RECODIFIED AS SUBSECTION (G) OF SECTION 501, TITLE 37. THE LEGISLATIVE HISTORY OF THAT ACT DESCRIBED THE LUMP-SUM PAYMENT AS COMPARABLE TO THAT PAID TO COMMISSIONED OFFICERS OF THE ARMY, NAVY AND MARINE CORPS.

THUS IT SEEMS CLEAR FROM THE ANALYSIS OF THE VARIOUS PROVISIONS CITED THAT IT WAS THE INTENTION OF THE CONGRESS IN THE ENACTMENT OF PROVISIONS FOR THE LUMP-SUM PAYMENT FOR ACCRUED LEAVE TO ALL MEMBERS OF THE UNIFORMED SERVICES, WHETHER ENLISTED MEMBERS OR WARRANT OR COMMISSIONED OFFICERS, TO PROVIDE A UNIFORM BASIS UPON WHICH ALL SUCH ACCRUED LEAVE SHOULD BE COMPUTED, NAMELY, THEIR USUAL AND REGULAR MILITARY COMPENSATION CONSISTING OF BASIC PAY, A SUBSISTENCE ALLOWANCE AND AN ALLOWANCE FOR QUARTERS TO ELIGIBLE MEMBERS UPON RELEASE FROM ACTIVE DUTY OR SEPARATION OR DISCHARGE FROM THE SERVICE.

IN OUR OPINION, THEREFORE, THE IMPLEMENTING PROVISIONS CONTAINED IN PARAGRAPH 40401, 40402 AND TABLE 4-4-5, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, CORRECTLY REFLECT THE INTENTION OF THE CONGRESS IN PROVIDING FOR THE PAYMENT FOR ACCRUED LEAVE AND SHOULD BE FOLLOWED IN DETERMINING THE AMOUNT DUE ALL MILITARY PERSONNEL FOR ACCRUED LEAVE, IF OTHERWISE ELIGIBLE, UPON DISCHARGE OR SEPARATION FROM THE SERVICE.

STATION HOUSING ALLOWANCES AND COST-OF-LIVING ALLOWANCES ARE NOT PAYABLE BY VIRTUE OF MEMBERSHIP IN A UNIFORMED SERVICE BUT ACCRUE INCIDENT TO PARTICULAR DUTY ASSIGNMENTS AND, ACCORDINGLY, ANY SUCH ALLOWANCES TO WHICH COLONEL COLEMAN MAY HAVE BEEN ENTITLED ON THE DATE OF SEPARATION FROM THE ACTIVE SERVICE MAY NOT BE INCLUDED IN THE COMPUTATION OF THE PAYMENT FOR ACCRUED LEAVE THAT IS AUTHORIZED TO BE PAID TO HIM UPON SEPARATION OR RELEASE FROM ACTIVE DUTY. PAYMENT IS NOT AUTHORIZED ON THE VOUCHER WHICH, TOGETHER WITH SUPPORTING PAPERS, WILL BE RETAINED HERE.