B-64009, MARCH 26, 1947, 26 COMP. GEN. 695

B-64009: Mar 26, 1947

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DURING WHICH TIME THEY WERE EMPLOYED IN CIVILIAN POSITIONS. AN ARMY OFFICER WHO WAS EMPLOYED IN A CIVILIAN POSITION DURING A PERIOD OF LEAVE OF ABSENCE GRANTED IMMEDIATELY PRIOR TO RETIREMENT UNDER ORDERS DIRECTING HIM TO PROCEED TO HIS HOME IN CONNECTION WITH HIS RELEASE FROM ACTIVE DUTY ON ACCOUNT OF PHYSICAL DISABILITY IS TO BE REGARDED AS HAVING BEEN IN A "TERMINAL LEAVE" STATUS WITHIN THE MEANING OF THE ACT OF NOVEMBER 21. AS FOLLOWS: YOUR DECISION IS REQUESTED AS TO WHETHER THE FOLLOWING NAMED PERSONS WERE ON TERMINAL LEAVE WITHIN THE MEANING OF PUBLIC LAW 226. YOU WILL CONFER WITH A CIVIL READJUSTMENT OFFICER WHO WILL EXPLAIN THE BENEFITS OF PUBLIC LAW 346-78TH CONGRESS ( G.I. YOU WILL.

B-64009, MARCH 26, 1947, 26 COMP. GEN. 695

OFFICERS AND EMPLOYEES - EMPLOYMENT WHILE AWAITING ORDERS PENDING RETIREMENT; EMPLOYMENT DURING LEAVE PRIOR TO RETIREMENT WHERE ORDERS DIRECTING A NAVAL RESERVE OFFICER AND A MARINE CORPS RESERVE OFFICER, UPON COMPLETION OF EXAMINATION FOR RETIREMENT, TO AWAIT ORDERS PENDING ACTION ON RETIREMENT PROCEEDINGS AND TO PROCEED TO THEIR HOMES, DID NOT GRANT LEAVES OF ABSENCE FOR THE PERIOD BETWEEN THE TERMINATION DATE OF THEIR HOSPITALIZATION AND THE DATE OF RETIREMENT, DURING WHICH TIME THEY WERE EMPLOYED IN CIVILIAN POSITIONS, SUCH OFFICERS MAY NOT BE REGARDED AS HAVING BEEN IN A "TERMINAL LEAVE" STATUS WITHIN THE MEANING OF THE ACT OF NOVEMBER 21, 1945, SO AS TO BE ENTITLED CONCURRENTLY TO RECEIVE CIVILIAN COMPENSATION AND MILITARY PAY AND ALLOWANCES FOR SUCH PERIOD. AN ARMY OFFICER WHO WAS EMPLOYED IN A CIVILIAN POSITION DURING A PERIOD OF LEAVE OF ABSENCE GRANTED IMMEDIATELY PRIOR TO RETIREMENT UNDER ORDERS DIRECTING HIM TO PROCEED TO HIS HOME IN CONNECTION WITH HIS RELEASE FROM ACTIVE DUTY ON ACCOUNT OF PHYSICAL DISABILITY IS TO BE REGARDED AS HAVING BEEN IN A "TERMINAL LEAVE" STATUS WITHIN THE MEANING OF THE ACT OF NOVEMBER 21, 1945, SO AS TO BE ENTITLED CONCURRENTLY TO RECEIVE CIVILIAN COMPENSATION AND MILITARY PAY AND ALLOWANCES DURING SUCH PERIOD.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, MARCH 26, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 21, 1947, AS FOLLOWS:

YOUR DECISION IS REQUESTED AS TO WHETHER THE FOLLOWING NAMED PERSONS WERE ON TERMINAL LEAVE WITHIN THE MEANING OF PUBLIC LAW 226, 79TH CONGRESS, APPROVED NOVEMBER 21, 1945 ( SECTION 61A, TITLE 5, U.S.C.), WHEN APPOINTED TO CIVILIAN POSITIONS BY THE VETERANS' ADMINISTRATION AFTER THEY HAD BEEN RELEASED FROM HOSPITALIZATION AND "ACTIVE SERVICE" BUT BEFORE THEY HAD BEEN PLACED ON THE RETIRED LIST:

LIEUTENANT GEORGE T. DEAN, CEC, USNR,

FIRST LIEUTENANT CARL W. MASSEY, USMCR: AND

COLONEL GEORGE L. WEBBER, AUS.

LIEUTENANT GEORGE T. DEAN, CEC, USNR.

IT APPEARS FROM INFORMATION ON FILE IN THE VETERANS' ADMINISTRATION THAT ON JUNE 27, 1946, THE SECRETARY OF THE NAVY ADVISED LIEUTENANT DEAN AS FOLLOWS:

"1. WHEN DIRECTED BY THE MEDICAL OFFICER IN COMMAND, YOU WILL CONFER WITH A CIVIL READJUSTMENT OFFICER WHO WILL EXPLAIN THE BENEFITS OF PUBLIC LAW 346-78TH CONGRESS ( G.I. BILL OF RIGHTS).

"2. IN ACCORDANCE WITH THE RECOMMENDATION OF A BOARD OF MEDICAL SURVEY BEFORE WHICH YOU RECENTLY APPEARED, YOU WILL, WHEN NOTIFIED BY THE PRESIDENT, NAVAL RETIRING BOARD, SAN DIEGO, CALIFORNIA, THAT THE NECESSARY PAPERS HAVE ARRIVED, PROCEED AND REPORT TO THAT OFFICER FOR EXAMINATION FOR RETIREMENT.

"3. UPON THE COMPLETION OF THIS EXAMINATION, YOU WILL AWAIT ORDERS PENDING ACTION ON THE PROCEEDINGS OF THE NAVAL RETIRING BOARD IN YOUR CASE. YOU WILL PROCEED TO YOUR HOME. IN ORDER TO BE REIMBURSED YOU WILL COMPLETE ALL TRAVEL WITHIN ONE YEAR FROM DATE OF DISCHARGE FROM ATTENDANCE BEFORE THE NAVAL RETIRING BOARD, BUT NOT LATER THAN ONE YEAR FROM DATE OF RETIREMENT, OR WITHIN ONE YEAR AFTER TERMINATION OF THE WAR, WHICHEVER IS LATER.

"4. UPON DISCHARGE FROM ATTENDANCE BEFORE THE NAVAL RETIRING BOARD, FURNISH THE BUREAU OF NAVAL PERSONNEL AND THE DISBURSING OFFICER CARRYING YOUR PAY ACCOUNTS A COPY OF THESE ORDERS BEARING ALL ENDORSEMENTS. ALSO, REPORT YOUR MAIL ADDRESS AND SUBSEQUENT CHANGES THEREOF, TO THE BUREAU OF NAVAL PERSONNEL (ATTENTION PERS-325), AND TO THE COMMANDANT OF THE NAVAL DISTRICT IN WHICH YOU RESIDE.

"5. THE RECORDS OF THE BUREAU INDICATE THAT YOUR HOME OF RECORD AT THE TIME YOU WERE ORDERED TO ACTIVE DUTY WAS AUBURN, ALABAMA, AND THAT YOU WERE ORDERED TO ACTIVE DUTY FROM THAT PLACE.

"6. AS REQUIRED BY LAW, THE CHIEF OF NAVAL PERSONNEL HAS DETERMINED THAT YOUR RELEASE FROM ACTIVE NAVAL SERVICE IS CONSIDERED TO BE UNDER HONORABLE CONDITIONS, AND YOU ARE ENTITLED TO A CERTIFICATE OF SATISFACTORY SERVICE.

"7.IN THE EVENT YOU ARE PLACED ON THE RETIRED LIST, YOU WILL REGARD YOURSELF RELIEVED OF ALL ACTIVE DUTY IN THE NAVAL RESERVE.

"8. DURING THE PERIOD BETWEEN THE DATE OF DISCHARGE FROM ATTENDANCE BEFORE THE NAVAL RETIRING BOARD AND DATE RELIEVED OF ALL ACTIVE DUTY, YOU MAY, AT YOUR OPTION, WEAR CIVILIAN CLOTHES, AND YOU ARE AUTHORIZED TO ENGAGE IN ANY OCCUPATION NOT PROHIBITED BY LAW FOR MILITARY PERSONNEL.'

IT APPEARS FROM FIRST ENDORSEMENT DATED JULY 8, 1946, ON THE ABOVE QUOTED ORDER, THAT LIEUTENANT DEAN WAS GIVEN AN HONORABLE SERVICE LAPEL BUTTON AND A CERTIFICATE OF SATISFACTORY SERVICE; AND WAS DIRECTED TO "CARRY OUT BASIC ORDERS.'

IT APPEARS BY SECOND ENDORSEMENT DATED JULY 22, 1946, ON THE ABOVE QUOTED ORDER, THAT LIEUTENANT DEAN WAS DISCHARGED FROM HOSPITALIZATION AND TREATMENT ON THAT DATE; THAT HE WAS DIRECTED TO THE PRESIDENT, NAVAL RETIRING BOARD, SAN DIEGO, CALIFORNIA, AT 10900 ON 23 JULY 1946 FOR EXAMINATION; AND THAT UPON COMPLETION OF EXAMINATION HE WOULD CARRY OUT THE REMAINDER OF BASIC ORDERS.

IT APPEARS FROM THIRD ENDORSEMENT DATED JULY 26, 1946, ON THE ABOVE QUOTED ORDER, THAT LIEUTENANT DEAN REPORTED FOR EXAMINATION FOR RETIREMENT ON 23 JULY 1946; THAT EXAMINATION WAS COMPLETED ON 26 JULY 1946; AND HE WAS DISCHARGED FROM FURTHER ATTENDANCE BEFORE THE NAVAL RETIRING BOARD AND WAS DIRECTED TO CARRY OUT BASIC ORDERS.

IT IS INDICATED BY INFORMATION ON FILE IN THE VETERANS ADMINISTRATION THAT LIEUTENANT DEAN WAS RETIRED EFFECTIVE NOVEMBER 1, 1946.

LIEUTENANT CARL W. MASSEY, USMCR.

IT APPEARS FROM INFORMATION ON FILE IN THE VETERANS ADMINISTRATION THAT ON JULY 11, 1946, LIEUTENANT MASSEY WAS ADVISED BY THE COMMANDANT OF THE MARINE CORPS THAT:

"1. AFTER APPEARANCE BEFORE THE NAVAL RETIRING BOARD, MARINE CORPS BASE, SAN DIEGO, CALIF., AND WHEN DIRECTED BY THE MEDICAL OFFICER IN COMMAND, NAVAL HOSPITAL, MARE ISLAND, CALIF., YOU WILL STAND DETACHED FROM YOUR PRESENT STATION AND WILL CONTINUE TREATMENT AT THE NAVAL HOSPITAL, MARE ISLAND, CALIF.

"2. ON DISCHARGE FROM TREATMENT AT THE NAVAL HOSPITAL, MARE ISLAND, CALIF. YOU WILL AWAIT ORDERS PENDING ACTION ON THE RETIREMENT PROCEEDINGS IN YOUR CASE. YOU WILL PROCEED TO YOUR HOME AND COMPLETE ALL TRAVEL WITHIN ONE YEAR AFTER DATE OF DISCHARGE FROM TREATMENT. IN CASE OF RETIREMENT, TRAVEL MUST BE PERFORMED WITHIN ONE YEAR OF THE EFFECTIVE DATE THEREOF.

"3. IN THE EVENT YOU ARE PLACED ON THE RETIRED LIST, YOU WILL STAND RELIEVED FROM ALL ACTIVE DUTY IN THE MARINE CORPS AS OF THE EFFECTIVE DATE OF RETIREMENT.

"4. IMMEDIATELY UPON DETACHMENT, YOU WILL REPORT YOUR ADDRESS TO THIS OFFICE.

"5. THE TRAVEL HEREIN ENJOINED IS NECESSARY IN THE PUBLIC SERVICE.

"6. THE RECORDS OF THIS HEADQUARTERS SHOW THAT YOU WERE ASSIGNED TO ACTIVE DUTY AT PHOENIX, ARIZ., AND AT THAT TIME YOUR USUAL RESIDENCE WAS IN THAT CITY.

"7. WHILE AWAITING ORDERS YOU MAY, AT YOUR OPTION, WEAR CIVILIAN CLOTHES; AND, WHILE WEARING CIVILIAN CLOTHES, YOU ARE AUTHORIZED TO ENGAGE IN ANY OCCUPATION NOT CONTRARY TO LAW.'

IT ALSO APPEARS THAT ON JULY 12, 1946, LIEUTENANT MASSEY WAS ADVISED BY THE SECRETARY OF THE NAVY THAT:

"1. WHEN DIRECTED BY THE PRESIDENT, NAVAL RETIRING BOARD, MARINE CORPS BASE, SAN DIEGO, ALIF., YOU WILL PROCEED TO THE MARINE CORPS BASE, SAN DIEGO, CALIF., AND REPORT TO THAT OFFICER FOR EXAMINATION TO DETERMINE WHETHER OR NOT YOU ARE INCAPACITATED TO PERFORM THE DUTIES OF YOUR OFFICE.

"2. IN THE EVENT THE RETIRING BOARD FINDS YOU TO BE INCAPACITATED TO PERFORM THE DUTIES OF YOUR OFFICE, IT HAS BEEN INSTRUCTED TO STATE IN THE PROCEEDINGS:

"WHETHER OR NOT THE DISABILITY EXISTED PRIOR TO DATE UPON WHICH YOU REPORTED FOR ACTIVE DUTY FOR EXTENDED NAVAL SERVICE IN EXCESS OF THIRTY DAYS.

"WHETHER OR NOT THE DISABILITY WAS INCURRED WHILE YOU WERE SERVING UNDER TEMPORARY APPOINTMENT IN HIGHER RANK.

3. UPON THE COMPLETION OF THIS EXAMINATION, YOU WILL RETURN TO THE NAVAL HOSPITAL, MARE ISLAND, CALIF., AND CONTINUE TREATMENT AT THAT HOSPITAL.

"4. THE TRAVEL HEREIN ENJOINED IS NECESSARY IN THE PUBLIC SERVICE. YOU WILL BE ALLOWED A PER DIEM OF SEVEN DOLLARS IN LIEU OF SUBSISTENCE WHILE ABSENT FROM YOUR REGULAR STATION.

"BY DIRECTION OF THE PRESIDENT.'

BY FIRST ENDORSEMENT DATED JULY 19, 1946, IT APPEARS THAT LIEUTENANT MASSEY REPORTED TO THE PRESIDENT, NAVAL RETIRING BOARD, MARINE CORPS BASE, SAN DIEGO, CALIFORNIA, AND WHEN DIRECTED BY PROPER AUTHORITY, HE WOULD RETURN TO THE NAVAL HOSPITAL, MARE ISLAND, CALIFORNIA, FOR CONTINUED TREATMENT.

FROM SECOND ENDORSEMENT DATED JULY 23, 1946, IT APPEARS THAT LIEUTENANT MASSEY REPORTED TO THE PRESIDENT, NAVAL RETIRING BOARD, MARINE CORPS BASE, SAN DIEGO, CALIFORNIA, ON JULY 22, 1946, AND THAT EXAMINATION WAS COMPLETED JULY 23, 1946, AND HE WAS DIRECTED TO PROCEED AND CARRY OUT BASIC ORDERS.

IT APPEARS BY THIRD ENDORSEMENT DATED JULY 24, 1946, ON HIS BASIC ORDERS, THAT LIEUTENANT MASSEY REPORTED FOR CONTINUED TREATMENT TO THE U.S. NAVAL HOSPITAL, MARE ISLAND, CALIFORNIA, ON THAT DATE.

ON OCTOBER 10, 1946, THE COMMANDANT OF THE MARINE CORPS ADVISED LIEUTENANT MASSEY THAT:

"1. THE NAVAL RETIRING BOARD, BEFORE WHICH YOU APPEARED ON 23 JULY, 1946, FOUND YOU PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE, SUCH INCAPACITY BEING THE RESULT OF AN INCIDENT OF THE SERVICE, INCURRED IN LINE OF DUTY FROM DISEASE OR INJURY WHILE EMPLOYED ON EXTENDED ACTIVE NAVAL SERVICE IN EXCESS OF THIRTY DAYS, AND WHILE SERVING UNDER TEMPORARY APPOINTMENT IN THE RANK OF FIRST LIEUTENANT IN TIME OF WAR OR NATIONAL EMERGENCY. THE RECORDS FURTHER SHOW THAT YOUR INCAPACITY WAS INCURRED IN COMBAT WITH ENEMY JAPANESE FORCES.

"2. THE PRESIDENT OF THE UNITED STATES, ON 25 SEPTEMBER 1946, APPROVED THE FINDINGS OF THE BOARD AND DIRECTED THAT YOU BE RETIRED FROM ACTIVE SERVICE AND PLACED ON THE RETIRED LIST IN CONFORMITY WITH THE PROVISIONS OF U.S. CODE, TITLE 34, SECTIONS 417, 855C-1 AND 350G (A).

"3. ACCORDINGLY, YOU WILL REGARD YOURSELF AS HAVING BEEN TRANSFERRED TO THE RETIRED LIST OF OFFICERS OF THE MARINE CORPS RESERVE ON 1 OCTOBER 1946, WITH THE RANK OF FIRST LIEUTENANT.

"4. THE COMMANDANT REGRETS THAT PHYSICAL DISABILITY NECESSITATES YOUR SEPARATION FROM THE ACTIVE LIST OF THE MARINE CORPS RESERVE AND WISHES YOU MANY YEARS OF HAPPINESS AND PROSPERITY.'

LIEUTENANT COLONEL GEORGE L. WEBBER, AUS.

IT APPEARS FROM INFORMATION ON FILE IN THE VETERANS ADMINISTRATION THAT ON FEBRUARY 14, 1946, THE ARMY SERVICE FORCES, ARMY MEDICAL CENTER, WASHINGTON 12, D.C., ISSUED THE FOLLOWING ORDER WITH REFERENCE TO LIEUTENANT COLONEL GEORGE L. WEBBER:

SPECIAL ORDER 14 FEBRUARY 1946

NUMBER 45 EXTRACT

"21. DP EACH OF THE FOLLOWING NAMED OFFS NOW AT WALTER REED GH AMC WASHINGTON DC IS HELD FR ASSGMT AND DY AT THE STA INDICATED, IS ASGD TO SEP C SHOWN AFTER HOME ADDRESS (FOR RECORD PURPOSES ONLY. EDCMR AS INDICATED. NO TVL INVOLVED IN CONNECTION THERETO) TO ARRIVE HOME ON THE DATE SPECIFIED, REVERT TO AN INACTIVE STATUS BY REASON OF PHYSICAL DISAB. AUS APPTS WILL CONTINUE IN FORCE DURING THE PERIOD OF THE PRESENT EMERGENCY AND FOR SIX MOS THEREAFTER UNLESS SOONER TERMINATED DP. TVL TIME AND LV OF ABS IS GTD EA OFFICER AS INDICATED.

( CHART OMITTED (

IT ALSO APPEARS THAT ON MAY 2, 1946, THE ADJUTANT GENERAL OF THE ARMY ADVISED COLONEL GEORGE L. WEBBER, THROUGH THE COMMANDING GENERAL, NINTH SERVICE COMMAND, THAT:

"1. YOU ARE THIS DATE BEING CERTIFIED TO THE ADMINISTRATOR OF VETERANS' AFFAIRS UNDER THE PROVISIONS OF THE ACT OF 3 APRIL 1939 FOR RETIREMENT PAY IN THE AMOUNT OF $325 MONTHLY, EFFECTIVE 24 JUNE 1946.

"2. INFORMATION AS TO THE PROBABLE DATE YOU WILL RECEIVE SUCH RETIREMENT PAY, IF DESIRED, SHOULD BE OBTAINED FROM THE UNITED STATES VETERANS ADMINISTRATION, WASHINGTON, D.C.

"3. IF YOU ARE NOT PRESENTLY RESIDING AT THE ADDRESS INDICATED ABOVE, IT IS SUGGESTED THAT YOU NOTIFY THE ADMINISTRATOR OF VETERANS' AFFAIRS, WASHINGTON, D.C., AS TO YOUR CORRECT ADDRESS IN ORDER TO EXPEDITE THE RECEIPT OF YOUR RETIREMENT PAY BENEFITS.'

IT WILL BE NOTED FROM THE FOREGOING THAT LIEUTENANT DEAN AND LIEUTENANT MASSEY WERE NOT IN A LEAVE STATUS PENDING THE DETERMINATION WHETHER THEY SHOULD BE RETIRED; BUT THAT COLONEL WEBBER WAS IN A LEAVE STATUS FROM MARCH 2, 1946, TO THE DATE OF HIS RETIREMENT ON JUNE 24, 1946.

SECTION 2 (A) OF THE ACT OF AUGUST 1, 1941, AS ADDED THERETO BY PUBLIC LAW 226, APPROVED NOVEMBER 21, 1945, 59 STAT. 584, 5 U.S.C. 61A 1, 1940 ED., SUPP. V, REFERRED TO IN YOUR LETTER, SUPRA, PROVIDES:

ANY PERSON, WHO, SUBSEQUENT TO MAY 1, 1940, SHALL HAVE PERFORMED ACTIVE SERVICE IN THE ARMED FORCES, MAY, WHILE ON TERMINAL LEAVE PENDING SEPARATION FROM OR RELEASE FROM ACTIVE DUTY IN SUCH SERVICE UNDER HONORABLE CONDITIONS, ENTER OR REENTER EMPLOYMENT OF THE GOVERNMENT OF THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE GOVERNMENT OF THE UNITED STATES, OR ANY DEPARTMENT, AGENCY, OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), AND, IN ADDITION TO COMPENSATION FOR SUCH EMPLOYMENT, SHALL BE ENTITLED TO RECEIVE PAY AND ALLOWANCES FROM THE ARMED FORCES FOR THE UNEXPIRED PORTION OF SUCH TERMINAL LEAVE AT THE SAME RATES AND TO THE SAME EXTENT AS IF HE HAD NOT ENTERED OR REENTERED SUCH EMPLOYMENT. ( ITALICS SUPPLIED.)

PARAGRAPH 3 OF THE ORDERS OF JUNE 27, 1946, FROM THE SECRETARY OF THE NAVY TO LIEUTENANT DEAN, QUOTED IN YOUR LETTER, DIRECTED THE OFFICER, UPON COMPLETION OF EXAMINATION FOR RETIRMENT, TO ,AWAIT ORDERS PENDING ACTION ON THE PROCEEDINGS OF THE NAVAL RETIRING BOARD" AND TO PROCEED TO HIS HOME, THE TRAVEL TO BE COMPLETED WITHIN A YEAR. SIMILARLY, PARAGRAPH 2 OF THE ORDERS DATED JULY 11, 1946, FROM THE COMMANDANT OF THE MARINE CORPS TO LIEUTENANT MASSEY DIRECTED THAT OFFICER, AFTER DISCHARGE FROM TREATMENT AT THE NAVAL HOSPITAL, MARE ISLAND, CALIFORNIA, TO "AWAIT ORDERS PENDING ACTION ON THE RETIREMENT PROCEEDINGS IN YOUR CASE" AND TO PROCEED TO HIS HOME WITHIN A YEAR. SUCH ORDERS APPARENTLY WERE ISSUED IN CONSONANCE WITH THE CONCLUSION REACHED BY THIS OFFICE IN DECISION OF MAY 21, 1943, B- 33933, UPON A SUBMISSION OF THE FOLLOWING MATTER BY THE SECRETARY OF THE NAVY: THIS DEPARTMENT IS CONCERNED IN CONNECTION WITH THE IMMEDIATE DISPOSITION TO BE MADE IN THE CASES OF NAVAL RESERVE OFFICERS WHO HAVE BEEN FOUND TO BE NO LONGER PHYSICALLY FIT FOR ACTIVE DUTY AND WHO ARE TO BE EXAMINED BY THE NAVAL RETIRING BOARDS TO DETERMINE ULTIMATE DISPOSITION.

IN MANY OF THESE INSTANCES, FURTHER TREATMENT IS NOT INDICATED AND IT IS THEREFORE, ADVISABLE THAT THEY BE DISCHARGED FROM THE HOSPITALS IN ORDER THAT BEDS MAY BE AVAILABLE FOR OTHERS WHO MAY REQUIRE HOSPITALIZATION. THOSE INSTANCES WHERE THE OFFICER CONCERNED WILL UNDOUBTEDLY BE RETIRED BY REASON OF DISEASE OR WOUNDS INCURRED IN THE LINE OF DUTY, THE DEPARTMENT FEELS THAT PLACEMENT IN A WAITING ORDERS STATUS PENDING ACTION ON THE REPORT OF A NAVAL RETIRING BOARD IS THE PROPER SOLUTION. IT IS THIS PROCEDURE THAT THE DEPARTMENT WISHES TO ESTABLISH, PROVIDED THE OFFICER WILL BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES WHILE IN SUCH STATUS.

THE SECRETARY OF THE NAVY WAS ADVISED AS FOLLOWS:

WHILE THE STATUTES MAY NOT BE REGARDED AS CONTEMPLATING THAT A RESERVE OFFICER FOUND PHYSICALLY UNFIT FOR ACTIVE DUTY WILL BE CONTINUED INDEFINITELY ON ACTIVE DUTY EXCEPT FOR AUTHORIZED MEDICAL TREATMENT AND HOSPITALIZATION, IT IS, OF COURSE, PRIMARILY A MATTER FOR ADMINISTRATIVE DETERMINATION, WITHIN THE BOUNDS OF THE STATUTES, WHETHER AND WHEN A RESERVE OFFICER SHALL BE ORDERED TO ACTIVE DUTY, AND, IF ON ACTIVE DUTY, WHEN HE SHALL BE RELEASED. OFFICERS OF THE REGULAR NAVY ENTITLED TO RETIREMENT FOR DISEASE OR WOUNDS INCURRED IN LINE OF DUTY REMAIN IN AN ACTIVE DUTY PAY STATUS PENDING RETIREMENT AND I DO NOT BELIEVE IT WOULD CONTRAVENE THE SPIRIT OF THE STATUTES TO CONTINUE A RESERVE OFFICER IN A SIMILAR STATUS TEMPORARILY FOR A REASONABLE TIME FOLLOWING HIS RELEASE FROM THE HOSPITAL, PENDING ACTION IN DUE COURSE THE REPORT OF A NAVAL RETIRING BOARD, IN CASES WHERE THERE IS NO REASON TO DOUBT THAT THE OFFICER IS ENTITLED TO RETIREMENT, AND WHERE IT IS ADMINISTRATIVELY DETERMINED THAT SUCH ACTION IS APPROPRIATE. COMPARE DECISION OF JUNE 15, 1922, 1 COMP. GEN. 736. THAT OFFICERS IN A "WAITING ORDERS" STATUS ARE ENTITLED TO THEIR PAY AND ALLOWANCES OTHERWISE AUTHORIZED SEE, ALSO, UNITED STATES V. WILLIAMSON, 23 WALL. 411; UNITED STATES V. PHISTERER, 94 U.S. 219; AND UNITED STATES V. LIPPITT, 100 U.S. 663.

WHILE THE ORDERS IN SUCH CASES, AS SHOWN BY THE ORDERS HERE INVOLVED, MAY ALLOW AN OFFICER ESSENTIALLY AS MUCH FREEDOM WHILE AWAITING FURTHER ORDERS AS HE WOULD HAVE IF HE WERE ON LEAVE OR ,TERMINAL LEAVE," NEVERTHELESS HIS STATUS REMAINS THAT OF BEING ON DUTY, AWAITING ORDERS, AND NOT THAT OF BEING ON LEAVE. THE ORDERS IN THE PRESENT CASES DO NOT GRANT LEAVE NOR WAS THE ISSUANCE OF SUCH ORDERS DEPENDENT ON THE OFFICER'S BEING ENTITLED TO LEAVE. CF. 23 COMP. GEN. 193. THE WORDS ,TERMINAL LEAVE" AS USED IN PUBLIC LAW 226, NOVEMBER 21, 1945, SUPRA, DENOTE THAT PERIOD OF LEAVE WHICH MAY BE GRANTED JUST PRIOR TO RELEASE FROM ACTIVE DUTY, WHERE AN OFFICER HAS NOT PREVIOUSLY BEEN GRANTED ALL THE LEAVE AUTHORIZED BY STATUTE FOR HIS PERIOD OF ACTIVE DUTY, THE EFFECT BEING TO CONTINUE AN OFFICER IN AN ACTIVE DUTY PAY STATUS FOR SUCH PERIOD BEYOND THE TIME HE OTHERWISE WOULD HAVE BEEN RELEASED FROM SUCH STATUS. THERE WOULD APPEAR TO BE NO BASIS, HOWEVER, TO CONSTRUE THE SPECIFIC WORDS OF THE STATUTE "WHILE ON TERMINAL LEAVE" AS INCLUDING OTHER PERIODS WHEN AN OFFICER MIGHT BE RETAINED ON ACTIVE DUTY, WITHOUT REGARD TO ANY RIGHT TO LEAVE, AND WITHOUT BEING GRANTED ANY LEAVE. IT IS TO BE ASSUMED THAT THE CONGRESS USED THE WORDS "TERMINAL LEAVE" IN THEIR COMMONLY ACCEPTED SENSE AND DID NOT INTEND TO INCLUDE PERIODS NOT COVERED BY LEAVE AUTHORIZED BY LAW, ALTHOUGH SUCH PERIODS MIGHT OTHERWISE HAVE MANY OF THE PRACTICAL ATTRIBUTES OF LEAVE. SEE 25 COMP. GEN. 866.

IN THE LIGHT OF THE FOREGOING, IT IS CONCLUDED THAT UNDER THE CIRCUMSTANCES SET FORTH IN YOUR LETTER LIEUTENANT DEAN AND LIEUTENANT MASSEY WERE NOT IN A "TERMINAL LEAVE" STATUS WITHIN THE MEANING OF THAT PHRASE AS USED IN SECTION 2 (A) OF THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE SAID ACT OF NOVEMBER 21, 1945, SUPRA, FOR THE PERIOD INTERVENING BETWEEN THE TERMINATION DATE OF THEIR HOSPITALIZATION AND THE DATE ON WHICH THEY WERE PLACED ON THE RETIRED LIST.

WITH RESPECT TO THE CASE OF LIEUTENANT COLONEL GEORGE L. WEBBER, AUS, IT APPEARS THAT BY SPECIAL ORDER NO. 45, DATED FEBRUARY 14, 1946, HE WAS ORDERED HOME IN CONNECTION WITH HIS RELEASE FROM ACTIVE DUTY ON ACCOUNT OF PHYSICAL DISABILITY AND WAS GRANTED TRAVEL TIME OF 14 DAYS AND LEAVE OF ABSENCE OF 114 DAYS. IT FURTHER APPEARS THAT LIEUTENANT COLONEL WEBBER WAS RETIRED EFFECTIVE JUNE 24, 1946. IN DECISION OF JUNE 13, 1946, 25 COMP. GEN. 866, RESPECTING THE STATUS--- FOR PURPOSES OF THE SAID ACT OF NOVEMBER 21, 1945--- OF AN OFFICER OF THE ARMY GRANTED TERMINAL TRAVEL TIME IN CONNECTION WITH HIS RELEASE FROM ACTIVE DUTY, IT WAS HELD (QUOTING THE SYLLABUS) AS FOLLOWS:

THE TERM "TERMINAL LEAVE" AS USED IN THE ACT OF NOVEMBER 21, 1945, PERMITTING ANY PERSON TO ENTER OR REENTER UPON GOVERNMENT CIVILIAN EMPLOYMENT WHILE ON MILITARY TERMINAL LEAVE AND CONCURRENTLY TO RECEIVE CIVILIAN COMPENSATION AND MILITARY PAY AND ALLOWANCES DOES NOT INCLUDE TRAVEL TIME DENOMINATED AS TERMINAL TRAVEL--- A PERIOD IMMEDIATELY PRIOR TO BUT NOT CONSTITUTING ANY PART OF A PERIOD OF TERMINAL LEAVE--- SO AS TO PERMIT ANY PERSON TO ENTER OR REENTER UPON SUCH CIVILIAN EMPLOYMENT DURING A PERIOD OF MILITARY TERMINAL TRAVEL WITHOUT REGARD TO THE DUAL COMPENSATION AND EMPLOYMENT STATUTES.

ACCORDINGLY, DURING THE PERIOD FEBRUARY 16 THROUGH MARCH 1, 1946, COVERED BY HIS AUTHORIZED TRAVEL TIME, LIEUTENANT COLONEL WEBBER WAS NOT ON "TERMINAL LEAVE.' HOWEVER, ON AND AFTER MARCH 2, 1946, THE BEGINNING DATE OF HIS 114 DAYS' LEAVE, HE WAS IN A TERMINAL LEAVE STATUS WITHIN THE PROVISIONS OF THE SAID 1945 STATUTE.