B-49350, JANUARY 11, 1946, 25 COMP. GEN. 516

B-49350: Jan 11, 1946

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LEAVES OF ABSENCE - MILITARY - WARRANT OFFICERS TEMPORARILY COMMISSIONED IN ARMY OF UNITED STATES WARRANT OFFICERS OF THE ARMY WHO ARE TEMPORARILY COMMISSIONED IN THE ARMY OF THE UNITED STATES. SUCH OFFICERS ARE ENTITLED TO CARRY FORWARD THEIR ACCUMULATE LEAVE INTO THEIR COMMISSIONED OFFICER STATUS. ROBISON WAS APPOINTED WARRANT OFFICER (JUNIOR GRADE). HE WAS APPOINTED TO THE TEMPORARY GRADE OF CHIEF WARRANT OFFICER (JUNIOR GRADE) IN THE REGULAR ARMY. HE WAS DISCHARGED FROM HIS WARRANT OFFICER STATUS IN ORDER TO ACCEPT TEMPORARY APPOINTMENT AS A CAPTAIN. THERE WAS NO INTERRUPTION IN THE CONTINUITY OF HIS SERVICE. SEEMS TO INDICATE THAT CAPTAIN ROBISON IS ENTITLED TO CARRY OVER SUCH ACCRUED LEAVE CREDITS INTO HIS STATUS AS A COMMISSIONED OFFICER.

B-49350, JANUARY 11, 1946, 25 COMP. GEN. 516

LEAVES OF ABSENCE - MILITARY - WARRANT OFFICERS TEMPORARILY COMMISSIONED IN ARMY OF UNITED STATES WARRANT OFFICERS OF THE ARMY WHO ARE TEMPORARILY COMMISSIONED IN THE ARMY OF THE UNITED STATES, PURSUANT TO THE ACT OF SEPTEMBER 22, 1941, AS AMENDED, WITH NO BREAK IN SERVICE, CONTINUE TO SERVE ON DUTY AS "OFFICERS" OF THE ARMY WITHIN THE MEANING OF THE ARMY LEAVE ACTS (SECTION 1265, REVISED STATUTES, AND THE ACT OF JULY 29, 1876), AND, THEREFORE, SUCH OFFICERS ARE ENTITLED TO CARRY FORWARD THEIR ACCUMULATE LEAVE INTO THEIR COMMISSIONED OFFICER STATUS, IRRESPECTIVE OF WHETHER THEY SERVED AS WARRANT OFFICERS IN THE REGULAR ARMY OR THE ARMY OF THE UNITED STATES. COMP. GEN. 313; 24 ID. 291, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, JANUARY 11, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 24, 1945, AS FOLLOWS:

WILLIAM C. ROBISON WAS APPOINTED WARRANT OFFICER (JUNIOR GRADE), REGULAR ARMY, ON 18 SEPTEMBER 1941, PURSUANT TO SECTION 2, ACT OF 21 AUGUST 1941 (55 STAT. 652; 10 U.S.C., SUP. III, 591). ON 17 SEPTEMBER 1942, PURSUANT TO SECTION 3 OF THE MENTIONED ACT, HE WAS APPOINTED TO THE TEMPORARY GRADE OF CHIEF WARRANT OFFICER (JUNIOR GRADE) IN THE REGULAR ARMY. THEREAFTER, ON 21 SEPTEMBER 1942, HE WAS DISCHARGED FROM HIS WARRANT OFFICER STATUS IN ORDER TO ACCEPT TEMPORARY APPOINTMENT AS A CAPTAIN, ARMY OF THE UNITED STATES, UNDER THE PROVISIONS OF THE ACT OF 22 SEPTEMBER 1941 (55 STAT. 728), AS AMENDED BY THE ACT OF 7 JULY 1943 (57 STAT. 380; 10 U.S.C., SUP. III, 484, NOTE). CAPTAIN ROBISON HAD A CREDIT OF TWENTY-FIVE DAYS' ACCRUED LEAVE NOT AVAILED OF BY HIM AS A WARRANT OFFICER ON THE DATE UPON WHICH HE ENTERED UPON DUTY IN HIS TEMPORARY GRADE OF CAPTAIN, ARMY OF THE UNITED STATES. THERE WAS NO INTERRUPTION IN THE CONTINUITY OF HIS SERVICE.

ALTHOUGH SUBPARAGRAPH 3B (6) (A), ARMY REGULATIONS 605-115, 17 JUNE 1944, AT LEAST BY ANALOGY, SEEMS TO INDICATE THAT CAPTAIN ROBISON IS ENTITLED TO CARRY OVER SUCH ACCRUED LEAVE CREDITS INTO HIS STATUS AS A COMMISSIONED OFFICER, THERE EXISTS SOME DOUBT WITHIN THIS DEPARTMENT WITH RESPECT TO THE MATTER IN THE LIGHT OF TWO DECISIONS BY YOUR OFFICE (B-44030, OCT. 10, 1944; 3 COMP. GEN. 313). BECAUSE OF THE GENERAL IMPORTANCE THEREOF, YOUR ADVANCE DECISION ON THIS QUESTION IS, THEREFORE, RESPECTIVELY REQUESTED. THE QUESTION IS ALSO RESPECTFULLY PRESENTED WHETHER YOUR ANSWER TO THE FOREGOING PROBLEM WOULD BE DIFFERENT IF CAPTAIN ROBISON HAD ORIGINALLY BEEN APPOINTED A TEMPORARY WARRANT OFFICER, ARMY OF THE UNITED STATES, AND HIS ENTIRE SERVICE HAD BEEN IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT.

IN THE DECISION OF OCTOBER 10, 1944 (B-44030), 24 COMP. GEN. 291, TO WHICH YOU REFER AND WHICH WAS RECONSIDERED AND AFFIRMED IN DECISION OF FEBRUARY 22, 1945 (B-44030), IT WAS HELD IN ANSWER TO QUESTION 2 THAT AN OFFICER OF THE NAVY WHO WAS PLACED ON THE RETIRED LIST DUE TO PHYSICAL DISABILITY AND IMMEDIATELY RECALLED TO ACTIVE DUTY AS A RETIRED OFFICER MAY NOT BE GRANTED LEAVE WHICH HAD ACCUMULATED TO HIS CREDIT AS AN OFFICER ON THE ACTIVE LIST PRIOR TO RETIREMENT. IT WAS SAID IN THAT DECISION:

THE RETIREMENT OF AN OFFICER EFFECTS A COMPLETE SEVERANCE FROM ACTIVE SERVICE, AND ASSIGNMENT TO ACTIVE DUTY THEREAFTER MUST BE BY COMPETENT ORDERS ASSIGNING HIM TO ACTIVE DUTY AS A RETIRED OFFICER. HIS RIGHTS, BENEFITS AND PRIVILEGES AS AN OFFICER ON THE ACTIVE LIST TERMINATE UPON THE EFFECTIVE DATE OF HIS RETIREMENT AND WHEN THEREAFTER ASSIGNED TO ACTIVE DUTY HIS RIGHTS ARE GOVERNED BY THE LAWS APPLICABLE TO RETIRED OFFICERS. AS INDICATED BY THE DECISION QUOTED IN PART ABOVE, THE STATUTES HAVE BEEN VIEWED AS CONTEMPLATING THAT THE LEAVE ACCRUING TO AN OFFICER ON THE ACTIVE LIST MAY BE GRANTED AND TAKEN ONLY WHILE THE OFFICER REMAINS IN SUCH STATUS, AND MAY NOT BE GRANTED OR TAKEN AFTER THE EFFECTIVE DATE OF HIS RETIREMENT. * * *

IN THE DECISION OF NOVEMBER 19, 1923, 3 COMP. GEN. 313, ALSO REFERRED TO IN YOUR LETTER, IT WAS HELD THAT AN OFFICER OF THE NAVAL RESERVE FORCE WHO WAS GIVEN AN APPOINTMENT IN THE REGULAR NAVY PURSUANT TO THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 4, 1920, 41 STAT. 834, MIGHT NOT BE GRANTED LEAVE AS AN OFFICER OF THE REGULAR NAVY ON THE BASIS OF LEAVE CREDITS WHICH THERETOFORE HAD ACCRUED TO HIM IN HIS STATUS AS A NAVAL RESERVIST. IN THAT DECISION IT WAS SAID THAT THE APPOINTMENT IN THE REGULAR NAVY WAS AN ORIGINAL ENTRY INTO SUCH SERVICE AND THAT, THE NAVAL RESERVE FORCE AND THE REGULAR NAVY BEING DISTINCT SERVICES, THE RIGHTS AND PRIVILEGES WHICH ACCRUED UNDER THE FORMER SERVICE MIGHT BE CARRIED TO THE LATTER SERVICE ONLY WHEN SO PROVIDED BY STATUTE.

IN THE PRESENT CASE, IT IS STATED THAT WILLIAM C. ROBISON WAS APPOINTED A WARRANT OFFICER, JUNIOR GRADE, IN THE REGULAR ARMY, PURSUANT TO THE PROVISION OF SECTION 2 OF THE ACT OF AUGUST 21, 1941, 55 STAT. 652, AND THEREAFTER WAS APPOINTED TO THE "TEMPORARY GRADE OF CHIEF WARRANT OFFICER (JUNIOR GRADE) IN THE REGULAR ARMY" (PRESUMABLY TEMPORARY GRADE OF CHIEF WARRANT OFFICER, ARMY OF THE UNITED STATES) PURSUANT TO THE PROVISIONS OF SECTION 3 OF THE SAID ACT, WHICH PROVIDES AS FOLLOWS:

SEC. 3. IN TIME OF WAR OR DURING THE PERIOD OF ANY NATIONAL EMERGENCY DECLARED BY CONGRESS OR PROCLAIMED BY THE PRESIDENT, THE SECRETARY OF WAR IS AUTHORIZED, UNDER SUCH REGULATIONS AS HE SHALL PRESCRIBE, TO MAKE TEMPORARY APPOINTMENTS IN THE GRADES OF CHIEF WARRANT OFFICER AND WARRANT OFFICER (JUNIOR GRADE). SUCH TEMPORARY APPOINTMENTS SHALL BE IN THE ARMY OF THE UNITED STATES, SHALL NOT EXCEED A NUMBER EQUAL TO ONE-HALF OF 1 PERCENTUM OF THE ENLISTED STRENGTH OF THE ARMY OF THE UNITED STATES IN ACTIVE MILITARY SERVICE, AND SHALL REMAIN IN EFFECT AT THE PLEASURE OF THE SECRETARY OF WAR, BUT IN NO CASE SHALL THEY CONTINUE BEYOND SIX MONTHS AFTER THE TERMINATION OF THE WAR OR PERIOD OF NATIONAL EMERGENCY. PERSONS APPOINTED IN THE ARMY OF THE UNITED STATES AS TEMPORARY CHIEF WARRANT OFFICERS OR AS TEMPORARY WARRANT OFFICERS (JUNIOR GRADE), WHILE IN ACTIVE FEDERAL SERVICE, SHALL, WHILE SO SERVING, BE ENTITLED TO THE RANK, PAY, AND ALLOWANCES OF THE GRADES TO WHICH THEY ARE TEMPORARILY APPOINTED, AND SHALL BE ENTITLED TO COUNT SUCH SERVICE AS WARRANT OR ENLISTED SERVICE FOR ALL PURPOSES: PROVIDED, THAT THE SECRETARY OF WAR IS HEREBY AUTHORIZED TO DESIGNATE BY NAME A NUMBER OF PERMANENT OR TEMPORARY CHIEF WARRANT OFFICERS (NOT EXCEEDING 1 PERCENTUM OF THE MAXIMUM AUTHORIZED NUMBER OF PERMANENT AND TEMPORARY WARRANT OFFICERS) TO RECEIVE THE BASE PAY AND ALLOWANCES PROVIDED BY EXISTING LAW FOR OFFICERS IN THE FOURTH PAY PERIOD, AND TO DESIGNATE BY NAME AN ADDITIONAL NUMBER OF PERMANENT OR TEMPORARY CHIEF WARRANT OFFICERS (NOT EXCEEDING 2 PERCENTUM OF THE MAXIMUM AUTHORIZED NUMBER OF TEMPORARY AND PERMANENT WARRANT OFFICERS) TO RECEIVE THE BASE PAY AND ALLOWANCES PROVIDED BY EXISTING LAW FOR OFFICERS IN THE THIRD PAY PERIOD, BUT NO CHIEF WARRANT OFFICER SO DESIGNATED SHALL RECEIVE SUCH BASE PAY AND ALLOWANCES EXCEPT DURING THE PERIOD PRESCRIBED BY THE SECRETARY OF WAR. SUCH TEMPORARY APPOINTEES SHALL BE ENTITLED TO THE BENEFITS OF ALL EXISTING LAWS AND REGULATIONS GOVERNING RETIREMENT, PENSIONS, AND DISABILITY AS ARE APPLICABLE TO MEMBERS OF THE ARMY OF THE UNITED STATES WHEN CALLED OR ORDERED INTO THE ACTIVE MILITARY SERVICE BY THE FEDERAL GOVERNMENT UNDER EXISTING STATUTORY AUTHORIZATIONS. ALL PERSONS TEMPORARILY APPOINTED AS CHIEF WARRANT OFFICERS OR AS WARRANT OFFICERS (JUNIOR GRADE) IN THE ARMY OF THE UNITED STATES UNDER THE AUTHORITY OF THIS SECTION, SHALL, AS LONG AS THEY CONTINUE TO HOLD SUCH APPOINTMENTS, BE AVAILABLE FOR ASSIGNMENT TO ACTIVE DUTY WITH ANY UNIT OF THE ARMY OF THE UNITED STATES. PERSONS TEMPORARILY APPOINTED AS CHIEF WARRANT OFFICERS OR AS WARRANT OFFICERS (JUNIOR GRADE), IN THE ARMY OF THE UNITED STATES UNDER THE AUTHORITY OF THIS SECTION WHO, AT THE TIME OF THEIR RESPECTIVE TEMPORARY APPOINTMENTS HAVE A MILITARY STATUS IN THE ARMY OF THE UNITED STATES OR ANY COMPONENT THEREOF MAY ACCEPT SUCH TEMPORARY APPOINTMENTS WITHOUT PREJUDICE TO THE MILITARY STATUS WHICH THEY SO HELD AND UPON TERMINATION OF SUCH TEMPORARY APPOINTMENTS SUCH PERSONS MAY REVERT TO THE GRADES WHICH THEY HELD AT THE TIME OF THEIR TEMPORARY APPOINTMENTS. THEREAFTER, ON SEPTEMBER 21, 1942, MR. ROBISON WAS DISCHARGED AS A WARRANT OFFICER FOR THE PURPOSE OF ACCEPTING A TEMPORARY APPOINTMENT AS CAPTAIN, ARMY OF THE UNITED STATES, PURSUANT TO THE ACT OF SEPTEMBER 22, 1941, 55 STAT. 728, WHICH, AS SUBSEQUENTLY AMENDED BY THE ACT OF JULY 7, 1943, 57 STAT. 380, TO INCORPORATE THEREIN THE THIRD PROVISO (10 U.S.C., SUPP. IV, 484), READS AS FOLLOWS:

THAT DURING THE PRESENT EMERGENCY, TEMPORARY APPOINTMENTS AS OFFICERS IN THE ARMY OF THE UNITED STATES MAY BE MADE, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, FROM AMONG QUALIFIED PERSONS WITHOUT APPOINTING SUCH PERSONS AS OFFICERS IN ANY PARTICULAR COMPONENT OF THE ARMY OF THE UNITED STATES. ALL PERSONS SO APPOINTED AS OFFICERS SHALL BE COMMISSIONED IN THE ARMY OF THE UNITED STATES AND MAY BE ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES TO SERVE THEREIN FOR SUCH PERIODS OF TIME AS THE PRESIDENT MAY PRESCRIBE. SUCH APPOINTMENTS IN GRADES BELOW THAT OF BRIGADIER GENERAL SHALL BE MADE BY THE PRESIDENT ALONE, AND GENERAL OFFICERS BY AND WITH THE ADVICE AND CONSENT OF THE SENATE: PROVIDED, THAT ANY APPOINTMENT MADE UNDER THE PROVISIONS OF THIS ACT MAY BE VACATED AT ANY TIME BY THE PRESIDENT AND, IF NOT SOONER VACATED, SHALL CONTINUE DURING THE PRESENT EMERGENCY AND SIX MONTHS THEREAFTER; PROVIDED FURTHER, THAT ANY PERSON APPOINTED AS AN OFFICER IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THIS ACT SHALL RECEIVE THE SAME PAY AND ALLOWANCES AND BE ENTITLED TO THE SAME RIGHTS, PRIVILEGES, AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE: PROVIDED FURTHER, THAT NO WARRANT OFFICER TEMPORARILY APPOINTED AS A COMMISSIONED OFFICER UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT: AND PROVIDED FURTHER, THAT NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED TO PROHIBIT THE APPOINTMENT OF OFFICERS IN THE VARIOUS COMPONENTS OF THE ARMY OF THE UNITED STATES IN ACCORDANCE WITH EXISTING LAWS.

SECTION 1265, REVISED STATUTES, 10 U.S.C. 841, PROVIDES THAT "OFFICERS" OF THE ARMY WHEN ABSENT WITH LEAVE SHALL RECEIVE FULL PAY DURING SUCH ABSENCE NOT EXCEEDING IN THE AGGREGATE THIRTY DAYS IN ONE YEAR, AND THE ACT OF JULY 29, 1876, 19 STAT. 102 (10 U.S.C. 842), PROVIDES AS FOLLOWS:

ALL OFFICERS ON DUTY SHALL BE ALLOWED IN THE DISCRETION OF THE SECRETARY OF WAR, SIXTY DAYS' LEAVE OF ABSENCE WITHOUT DEDUCTION OF PAY OR ALLOWANCE: PROVIDED, THAT THE SAME BE TAKEN ONCE IN TWO YEARS: AND PROVIDED FURTHER, THAT THE LEAVE OF ABSENCE MAY BE EXTENDED TO THREE MONTHS, IF TAKEN ONCE ONLY IN THREE YEARS, OR FOUR MONTHS IF TAKEN ONLY ONCE IN FOUR YEARS.

WHILE A WARRANT OFFICER OF THE ARMY IS NEITHER AN ENLISTED MAN NOR A COMMISSIONED OFFICER HE HAS BEEN CONSIDERED AN "OFFICER" OF THE ARMY WITHIN THE MEANING OF CERTAIN LAWS APPLICABLE TO OFFICERS, INCLUDING THE SAID ARMY LEAVE LAWS. SEE 18 COMP. DEC. 564; 27 ID. 516; ID. 883; 6 COMP. GEN. 433; ID. 550; 16 ID. 232; 21 ID. 708. CF. WALTON V. STATES, 89 C.1CLS. 28. ALSO, SEE THE PROVISION IN THE ACT OF AUGUST 29, 1916, 39 STAT. 578, PROVIDING THAT WARRANT OFFICERS OF THE NAVY SHALL BE ALLOWED SUCH LEAVE OF ABSENCE, WITH FULL PAY, AS IS NOW OR HEREAFTER MAY BE ALLOWED OTHER OFFICERS OF THE NAVY.

THE ARMY LEAVE LAWS SPECIFICALLY PERMIT "ALL OFFICERS ON DUTY" TO ACCUMULATE LEAVE FROM YEAR TO YEAR, IN THE DISCRETION OF THE SECRETARY OF WAR, WITHIN THE LIMITATIONS THEREIN SPECIFIED, AND NO DISTINCTION IS MADE BETWEEN WARRANT OFFICERS AND COMMISSIONED OFFICERS NOR BETWEEN OFFICERS ASSIGNED TO A PARTICULAR COMPONENT OF THE ARMY OF THE UNITED STATES--- SUCH AS THE REGULAR ARMY--- AND THOSE NOT SO ASSIGNED. THE FACT THAT A COMMISSIONED OFFICER OF THE REGULAR ARMY MAY BE TEMPORARILY APPOINTED TO A HIGHER GRADE IN THE ARMY OF THE UNITED STATES UNDER THE ACT OF SEPTEMBER 22, 1941, AS AMENDED, SUPRA, DOES NOT EFFECT A FORFEITURE OF THE ACCUMULATED LEAVE WHICH WAS TO HIS CREDIT AT THE TIME OF SUCH TEMPORARY APPOINTMENT. THIS OFFICE PERCEIVES NO REASON FOR A DIFFERENT RULE IN THE CASE OF A WARRANT OFFICER--- EITHER OF THE REGULAR ARMY OR THE ARMY OF THE UNITED STATES--- WHO MAY BE TEMPORARILY APPOINTED TO A HIGHER WARRANT GRADE OR TO A COMMISSIONED GRADE IN THE ARMY OF THE UNITED STATES, SINCE IN SUCH CASES THERE IS NO SUCH ESSENTIAL CHANGE IN STATUS AS WAS INVOLVED IN THE TWO CITED DECISIONS, BUT THE INDIVIDUAL CONTINUES TO SERVE ON DUTY AS AN ,OFFICER" OF THE ARMY WITHIN THE MEANING OF, AND SUBJECT TO, THE SAME STATUTORY LEAVE PROVISIONS AS THERETOFORE, WHETHER HE PREVIOUSLY SERVED AS A WARRANT OFFICER, A CHIEF WARRANT OFFICER OR A COMMISSIONED OFFICER, AND IRRESPECTIVE OF WHETHER THE APPOINTMENTS WERE IN THE REGULAR ARMY OR IN THE ARMY OF THE UNITED STATES.

ACCORDINGLY, YOU ARE ADVISED THAT THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO PAYMENTS, OTHERWISE PROPER, MADE TO CAPTAIN ROBISON AND OTHER OFFICERS ON THE BASIS THAT THEY WERE ENTITLED TO CARRY FORWARD THEIR ACCRUED LEAVE CREDITS WHEN APPOINTED AS COMMISSIONED OFFICERS FROM A WARRANT OFFICER STATUS, WITH NO BREAK IN SERVICE, WHETHER THEY SERVED AS WARRANT OFFICERS IN THE REGULAR ARMY OR IN THE ARMY OF THE UNITED STATES.