B-61818, JANUARY 23, 1947, 26 COMP. GEN. 523

B-61818: Jan 23, 1947

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WHO ARE ENTITLED TO THE BENEFITS OF ARMY LEAVE LAWS BY REASON OF THE PAY AND ALLOWANCE ASSIMILATION PROVISIONS OF SECTION 1612. ARE ENTITLED TO HALF PAY FOR LEAVE IN EXCESS OF THAT AUTHORIZED BY SECTION 3 OF THE ARMED FORCES LEAVE ACT OF 1946. ON THE BASIS THAT HALF PAY FOR EXCESS LEAVE IS PROVIDED FOR ARMY OFFICERS BY SECTION 1265. WHICH LATTER PROVISION OF LAW IS NOT REPEALED BY THE 1946 ACT. THE PROVISIONS OF SECTION 3 OF THE ARMED FORCES LEAVE ACT OF 1946 THAT REGULATIONS GOVERNING THE GRANTING OF LEAVE ISSUED BY THE SEVERAL SECRETARIES OF THE DEPARTMENTS CONCERNED "SHALL PROVIDE EQUAL TREATMENT FOR OFFICERS AND ENLISTED MEN" HAVE NO EFFECT TO AUTHORIZE EXTENDING TO ENLISTED MEN THE BENEFITS OF PRE-EXISTING LEAVE LAWS EXCLUSIVELY APPLICABLE TO OFFICERS.

B-61818, JANUARY 23, 1947, 26 COMP. GEN. 523

LEAVES OF ABSENCE - HALF PAY FOR EXCESS LEAVE - MARINE CORPS OFFICERS; ENLISTED MEN MARINE CORPS OFFICERS, WHO ARE ENTITLED TO THE BENEFITS OF ARMY LEAVE LAWS BY REASON OF THE PAY AND ALLOWANCE ASSIMILATION PROVISIONS OF SECTION 1612, REVISED STATUTES, ARE ENTITLED TO HALF PAY FOR LEAVE IN EXCESS OF THAT AUTHORIZED BY SECTION 3 OF THE ARMED FORCES LEAVE ACT OF 1946, ON THE BASIS THAT HALF PAY FOR EXCESS LEAVE IS PROVIDED FOR ARMY OFFICERS BY SECTION 1265, REVISED STATUTES, WHICH LATTER PROVISION OF LAW IS NOT REPEALED BY THE 1946 ACT. THE PROVISIONS OF SECTION 3 OF THE ARMED FORCES LEAVE ACT OF 1946 THAT REGULATIONS GOVERNING THE GRANTING OF LEAVE ISSUED BY THE SEVERAL SECRETARIES OF THE DEPARTMENTS CONCERNED "SHALL PROVIDE EQUAL TREATMENT FOR OFFICERS AND ENLISTED MEN" HAVE NO EFFECT TO AUTHORIZE EXTENDING TO ENLISTED MEN THE BENEFITS OF PRE-EXISTING LEAVE LAWS EXCLUSIVELY APPLICABLE TO OFFICERS, SO THAT PAYMENT OF HALF PAY TO ENLISTED MEN FOR LEAVE IN EXCESS OF THAT PERMITTED BY SAID ACT IS NOT AUTHORIZED BY REASON OF THE FACT THAT OFFICERS ARE ENTITLED TO HALF PAY FOR SUCH EXCESS LEAVE UNDER SECTION 1265, REVISED STATUTES.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 23, 1947:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 8, 1946, WITH ENCLOSURE FROM THE COMMANDANT, U.S. MARINE CORPS, REQUESTING DECISION ON TWO QUESTIONS PRESENTED AS FOLLOWS:

(A) ARE OFFICERS ON LEAVE IN EXCESS OF THAT AUTHORIZED BY THE ARMED FORCES LEAVE ACT OF 1946 ENTITLED TO HALF PAY AS PROVIDED IN SECTION 1265, REVISED STATUTES?

(B) IF THE ANSWER TO (A) IS IN THE AFFIRMATIVE, ARE ENLISTED PERSONNEL ON LEAVE IN EXCESS OF THAT AUTHORIZED BY THE ARMED FORCES LEAVE ACT OF 1946 ENTITLED TO HALF PAY IN VIEW OF THE EQUALIZATION PROVISIONS OF LEAVE RIGHTS INCLUDED IN SECTION 3 (A) OF SAID ACT?

THE LETTER FROM THE COMMANDANT OF THE MARINE CORPS, DATED OCTOBER 16, 1946, READS IN PART AS FOLLOWS:

1. IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL OF THE UNITED STATES ON THE QUESTIONS HEREINAFTER PRESENTED.

2. SUBSECTION (A) OF SECTION 3 OF THE ARMED FORCES LEAVE ACT OF 1946, PUBLIC LAW 704, 79TH CONGRESS, APPROVED AUGUST 9, 1946, PROVIDES THAT EACH MEMBER OF THE ARMED FORCES SHALL BE ENTITLED TO LEAVE AT THE RATE OF 2 1/2 CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE, WITH CERTAIN EXCEPTIONS. THIS SECTION FURTHER PROVIDES THAT LEAVE MAY BE TAKEN BY MEMBERS ON A CALENDAR DAY BASIS AS A VACATION OR ABSENCE FROM DUTY WITH PAY, ANNUALLY AS ACCRUING OR OTHERWISE, IN ACCORDANCE WITH REGULATIONS TO BE ISSUED BY THE SEVERAL SECRETARIES, AND THAT SUCH REGULATIONS SHALL PROVIDE EQUAL TREATMENT FOR OFFICERS AND ENLISTED MEN.

3. SUBSECTION (B) OF SECTION 3 PROVIDES THAT NO MEMBER OF THE ARMED FORCES SHALL BE PERMITTED TO ACCUMULATE OR TO HAVE TO HIS CREDIT, AT ANY TIME AFTER AUGUST 31, 1946, ACCUMULATED OR ACCRUED LEAVE AGGREGATING IN EXCESS OF 60 DAYS.

4. SECTION 4 OF THE ARMED FORCES LEAVE ACT OF 1946 PROVIDES, IN PART, AS FOLLOWS:

"IN THE CASE OF ALL OTHER LEAVE PROVIDED UNDER THIS ACT, MEMBERS SHALL BE ENTITLED DURING SUCH LEAVE TO THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT ON LEAVE AND TO ANY ADDITIONAL OR OTHER ALLOWANCE OR ALLOWANCES OTHERWISE AUTHORIZED OR PROVIDED BY LAW FOR MEMBERS WHILE ON AVE.' ACCORDINGLY, WHILE ON LEAVE WHICH HAS ACCRUED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3 OF THE ARMED FORCES LEAVE ACT OF 1946, PERSONNEL ARE "ENTITLED DURING SUCH LEAVE TO THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT ON LEAVE.' THE QUESTION THEREFORE ARISES AS TO WHAT PAY AND ALLOWANCES, IF ANY, PERSONNEL (OFFICERS AND ENLISTED MEN) ARE ENTITLED IF GRANTED LEAVE IN EXCESS OF THAT ACCRUED TO THEM UNDER THE PROVISIONS OF SECTION 3 OF SAID ACT.

5. SECTION 1265, REVISED STATUTES, PROVIDES THAT:

"OFFICERS WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR LAWFULLY ABSENT FROM DUTY AND WAITING ORDERS, SHALL RECEIVE FULL PAY; WHEN ABSENT WITH LEAVE, FOR OTHER CAUSES, FULL PAY DURING SUCH ABSENCE NOT EXCEEDING IN THE AGGREGATE THIRTY DAYS IN ONE YEAR, AND HALF PAY DURING SUCH ABSENCE EXCEEDING THIRTY DAYS IN ONE YEAR. WHEN ABSENT WITHOUT LEAVE, THEY SHALL FORFEIT ALL PAY DURING SUCH ABSENCE, UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE.'

6. SECTION 9 OF THE ARMED FORCES LEAVE ACT OF 1946 SPECIFICALLY REPEALS PRIOR LEAVE LAWS WITH RESPECT TO THE GRANTING OF LEAVE TO OFFICER PERSONNEL. HOWEVER, NO PROVISION IS MADE IN THIS OR ANY OTHER SECTION OF THE ARMED FORCES LEAVE ACT OF 1946 FOR SPECIFIC REPEAL OF SECTION 1265, REVISED STATUTES, WHICH PROVIDES FOR THE PAYMENT OF HALF PAY TO "OFFICERS" WHILE ON EXCESS LEAVE.

SECTION 3 OF THE ARMED FORCES LEAVE ACT, 1946, PUBLIC LAW 704, APPROVED AUGUST 9, 1946, 60 STAT. 963, PROVIDES AS FOLLOWS:

(A) EACH MEMBER OF THE ARMED FORCES SHALL BE ENTITLED TO LEAVE AT THE RATE OF TWO AND ONE-HALF CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE, EXCLUDING PERIODS OF (1) ABSENCE FROM DUTY WITHOUT LEAVE, (2) ABSENCE OVER LEAVE, AND (3) CONFINEMENT AS THE RESULT OF A SENTENCE OF COURT-MARTIAL. EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION, SUCH LEAVE MAY BE ACCUMULATED IN AN AMOUNT NOT TO EXCEED ONE HUNDRED AND TWENTY CALENDAR DAYS. ANY LEAVE SO ACCUMULATED SHALL NOT, HOWEVER, SURVIVE DEATH OCCURRING DURING ACTIVE MILITARY SERVICE. ENLISTED MEMBERS OR FORMER ENLISTED MEMBERS OF THE ARMED FORCES SHALL BE CONSIDERED TO BE ENTITLED TO SUCH LEAVE FROM AND AFTER SEPTEMBER 8, 1939, BUT SHALL NOT BE CONSIDERED TO HAVE ANY LEAVE ACCUMULATED OR ACCRUED AS OF THE DATE OF THE ENACTMENT OF THIS ACT, OR THE DATE OF DISCHARGE IF PRIOR TO SUCH DATE OF ENACTMENT, IN EXCESS OF THE AMOUNT WHICH WOULD HAVE BEEN ACCUMULATED AND ACCRUED IF THEIR LEAVE HAD BEEN ACCUMULATED AND ACCRUED FROM AND AFTER SEPTEMBER 8, 1939, ON THE SAME BASIS AS LEAVE IS ACCUMULATED AND ACCRUED IN THE CASE OF COMMISSIONED OFFICERS IN THE REGULAR COMPONENTS OF THEIR RESPECTIVE BRANCHES OF THE ARMED FORCES. EXCEPT IN THE CASE OF LEAVE TO BE SETTLED AND COMPENSATED FOR UNDER SECTION 6 OF THIS ACT, LEAVE MAY BE TAKEN BY A MEMBER ON A CALENDAR-DAY BASIS AS VACATION OR ABSENCE FROM DUTY WITH PAY, ANNUALLY AS ACCRUING OR OTHERWISE, IN ACCORDANCE WITH REGULATIONS TO BE ISSUED BY THE SEVERAL SECRETARIES. SUCH REGULATIONS SHALL PROVIDE EQUAL TREATMENT FOR OFFICERS AND ENLISTED MEN, SHALL ESTABLISH TO THE FULLEST EXTENT PRACTICABLE UNIFORM POLICIES FOR THE SEVERAL BRANCHES OF THE ARMED FORCES, AND SHALL PROVIDE THAT LEAVE SHALL BE TAKEN ANNUALLY AS ACCRUING TO THE EXTENT CONSISTENT WITH MILITARY REQUIREMENTS AND OTHER EXIGENCIES. MEMBERS WHO REENLIST AFTER THE DATE OF ENACTMENT OF THIS ACT MAY BE AUTHORIZED REENLISTMENT LEAVE IN THE DISCRETION OF THE SECRETARY FOR A PERIOD NOT EXCEEDING NINETY DAYS, AND SUCH LEAVE SHALL BE DEDUCTED FROM LEAVE ACCRUED DURING ACTIVE SERVICE PRIOR TO REENLISTMENT OR CHARGED AGAINST ANY LEAVE WHICH MAY ACCRUE DURING FUTURE ACTIVE SERVICE OR BOTH. IN THE CASE OF MEMBERS WHO ARE RETIRED AFTER THE DATE OF ENACTMENT OF THIS ACT AND AFTER RETIREMENT ARE CONTINUED ON OR RECALLED TO ACTIVE DUTY, LEAVE ACCRUED DURING SERVICE PRIOR TO RETIREMENT MAY BE CARRIED OVER TO THE PERIOD OF SERVICE AFTER RETIREMENT. LEAVE TAKEN PRIOR TO DISCHARGE BEFORE OR AFTER THE ENACTMENT OF THIS ACT SHALL BE CONSIDERED AS ACTIVE MILITARY SERVICE; BUT LEAVE SETTLED AND COMPENSATED FOR UNDER SECTION 6 OF THIS ACT SHALL NOT BE CONSIDERED AS ACTIVE MILITARY SERVICE.

(B) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ACT OR OF ANY OTHER LAW OR REGULATION, NO MEMBER OF THE ARMED FORCES (OTHER THAN A MEMBER ON TERMINAL LEAVE ON SEPTEMBER 1, 1946) SHALL BE PERMITTED TO ACCUMULATE OR TO HAVE TO HIS CREDIT, AT ANY TIME AFTER AUGUST 31, 1946, ACCUMULATED OR ACCRUED LEAVE AGGREGATING IN EXCESS OF SIXTY DAYS.

THE ARMY LEAVE LAWS ENACTED PRIOR TO THE ARMED FORCES LEAVE ACT OF 1946, INCLUDING SECTION 1265, REVISED STATUTES, QUOTED IN THE ENCLOSURE, HAVE BEEN REGARDED AS BEING APPLICABLE TO OFFICERS OF THE MARINE CORPS BY VIRTUE OF THE PROVISION IN SECTION 1612, REVISED STATUTES, PROVIDING THAT OFFICERS OF THE MARINE CORPS SHALL RECEIVE THE SAME PAY AND ALLOWANCES PROVIDED BY OR IN PURSUANCE OF LAW FOR OFFICERS OF LIKE GRADES IN THE INFANTRY OF THE ARMY. COMP. GEN. 454; A-37354, AUGUST 3, 1931.

WHILE SECTION 9 OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 967, SPECIFICALLY REPEALED THE ACT OF MAY 8, 1874, 18 STAT. 43, AS AMENDED BY THE ACT OF JULY 29, 1876, 19 STAT. 102, 10 U.S.C. 842, RELATING TO LEAVE OF OFFICERS OF THE MILITARY AND NAVAL SERVICES, NOTHING CONTAINED IN THE SAID SECTION 9, OR OTHERWISE, EXPRESSLY OR IMPLIEDLY REPEALED THE PROVISIONS OF SECTION 1265, REVISED STATUTES. THE LATTER STATUTE PERMITS THE PAYMENT OF FULL PAY TO OFFICERS OF THE MILITARY AND NAVAL SERVICES WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR LAWFULLY ABSENT FROM DUTY AND WAITING ORDERS, AND, IN EFFECT, AUTHORIZES AN OFFICER ON THE ACTIVE LIST TO BE PAID HALF PAY WHEN ABSENT WITH LEAVE IN EXCESS OF THAT PERMITTED BY THE ARMED FORCES LEAVE ACT OF 1946. HOWEVER, A PROVISION IN THE ACT OF FEBRUARY 11, 1925, 43 STAT. 879, 34 U.S.C. 871, FURTHER LIMITS THE PAY THAT MAY ACCRUE TO OFFICERS WHILE ON LEAVE OF ABSENCE. THE SAID PROVISION READS AS FOLLOWS:

NO OFFICER OF THE NAVY OR MARINE CORPS, WHILE ON LEAVE OF ABSENCE ENGAGED IN A SERVICE OTHER THAN THAT OF THE GOVERNMENT OF THE UNITED STATES, SHALL BE ENTITLED TO ANY PAY OR ALLOWANCES FOR A PERIOD IN EXCESS OF THAT FOR WHICH HE IS ENTITLED TO FULL PAY, UNLESS THE PRESIDENT OTHERWISE DIRECTS.

IN DECISION OF NOVEMBER 14, 1945, 25 COMP. GEN. 402, IT WAS STATED, WITH RESPECT TO THE SAID ACT OF FEBRUARY 11, 1925, THAT:

THE SAID PROVISION IS A RESTRICTION ON THE PAY ACCRUING TO OFFICERS OF THE NAVY AND MARINE CORPS DURING LEAVE OF ABSENCE, AND, IN EFFECT, DEPRIVES OFFICERS "ENGAGED IN A SERVICE OTHER THAN THAT OF THE GOVERNMENT OF THE UNITED STATES" OF THE HALF PAY AUTHORIZED UNDER SECTION 1265, REVISED STATUTES, DURING PERIODS OF EXCESS LEAVE, UNLESS THE PRESIDENT OTHERWISE DIRECTS. SEE 8 COMP. GEN. 482. HOWEVER, WHERE A FEW DAYS' EXCESS LEAVE OF ABSENCE IS GRANTED AN OFFICER, EVIDENTLY FOR THE PURPOSE OF AFFORDING HIM A BRIEF PERIOD OF REST AND RELAXATION, UNDER CIRCUMSTANCES SUCH AS THOSE HERE INVOLVED, IT REASONABLY IS NOT TO BE CONSIDERED, IN THE ABSENCE OF ANY INDICATION TO THE CONTRARY, THAT SUCH LEAVE WAS GRANTED OR TAKEN TO PERMIT THE OFFICER TO ENGAGE IN A SERVICE OTHER THAN THAT OF THE GOVERNMENT OF THE UNITED STATES,WITHIN THE CONTEMPLATION OF THE SAID PROVISION IN THE ACT OF FEBRUARY 11, 1925. * *

HENCE, IT WAS CONCLUDED IN THE SAID DECISION THAT THE NAVAL OFFICER THERE INVOLVED WAS ENTITLED TO HALF PAY AS AUTHORIZED UNDER SECTION 1265, REVISED STATUTES, DURING THE PERIOD OF HIS EXCESS LEAVE. THE CONCLUSION REACHED THEREIN IN THAT RESPECT IS EQUALLY APPLICABLE TO OFFICERS OF THE MARINE CORPS. HENCE, OFFICERS OTHERWISE ENTITLED TO HALF PAY UNDER THE PROVISIONS OF SECTION 1265, REVISED STATUTES, ARE ENTITLED TO SUCH PAY DURING A PERIOD OF LEAVE IN EXCESS OF THAT AUTHORIZED BY THE ARMED FORCES LEAVE ACT OF 1946. QUESTION A IS ANSWERED ACCORDINGLY.

UNDER SECTION 3 OF THE ARMED FORCES LEAVE ACT OF 1946, SUPRA, MEMBERS OF THE ARMED FORCES, INCLUDING ENLISTED MEN, ARE ENTITLED TO LEAVE AT THE RATE OF TWO AND ONE-HALF CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE, EXCLUDING PERIODS OF ABSENCE OVER LEAVE, ETC., WHICH MAY BE TAKEN ON A CALENDAR DAY BASIS AS VACATION OR ABSENCE FROM DUTY WITH PAY, ANNUALLY AS ACCRUING, OR OTHERWISE, IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SEVERAL SECRETARIES. IN VIEW OF SUCH PROVISION ENTITLING OFFICERS AND ENLISTED MEN TO A SPECIFIED NUMBER OF DAYS OF LEAVE PER MONTH AS VACATION OR ABSENCE FROM DUTY, IT NECESSARILY FOLLOWS THAT WHEN AN OFFICER OR ENLISTED MAN IS ON "VACATION OR ABSENT FROM DUTY" IN EXCESS OF THAT AUTHORIZED UNDER THE SAID SECTION 3 AND REGULATIONS ISSUED PURSUANT THERETO, HE IS NOT ENTITLED TO PAY DURING A PERIOD OF EXCESS LEAVE, IN THE ABSENCE OF AN EXPRESS PROVISION OF LAW TO THAT EFFECT. ALTHOUGH PAYMENT OF HALF PAY WHILE ON LEAVE OF ABSENCE IN EXCESS OF THAT AUTHORIZED BY LAW IS PROVIDED FOR UNDER SECTION 1265, REVISED STATUTES, SUCH STATUTORY PROVISION IS EXPRESSLY RESTRICTED TO "OFFICERS," AND THE FACT THAT SECTION 3 OF THE SAID ACT OF 1946 PROVIDES THAT REGULATIONS ISSUED BY THE SEVERAL SECRETARIES GOVERNING THE GRANTING OF LEAVE "SHALL PROVIDE EQUAL TREATMENT FOR OFFICERS AND ENLISTED MEN" MAY NOT BE--- AND PRESUMABLY HAS NOT BEEN-- - VIEWED AS EXTENDING TO ENLISTED PERSONNEL THE BENEFITS OF PRE-EXISTING LEAVE LAWS--- SUCH AS SECTION 1265, REVISED STATUTES--- EXCLUSIVELY APPLICABLE TO "OFFICERS" OF THE MILITARY AND NAVAL SERVICES. ACCORDINGLY, QUESTION B IS ANSWERED IN THE NEGATIVE.