B-69763, OCTOBER 23, 1947, 27 COMP. GEN. 234

B-69763, OCTOBER 23, 1947, 27 COMP. GEN. 234

FURLOUGH TRAVEL ALLOWANCE - ENTITLEMENT AS AFFECTED BY SUBSEQUENT AMENDMENT OF ENLISTMENT CONTRACT IN VIEW OF THE PROVISIONS OF ARMY REGULATIONS AUTHORIZING THE GRANTING OF NOT TO EXCEED 30 DAYS' LEAVE IN ADVANCE OF ACCRUAL UPON REENLISTMENT FOR 3 YEARS ONLY, AND OF THE PROVISIONS IN SECTION 6 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945 FOR THE PAYMENT OF FURLOUGH TRAVEL ALLOWANCE TO ENLISTED MEN GRANTED A REENLISTMENT FURLOUGH, THE FURLOUGH TRAVEL ALLOWANCE ERRONEOUSLY PAID IN CASE OF AN ARMY ENLISTED MAN WHO REENLISTED FOR A PERIOD OF ONE YEAR AND THEREAFTER WAS GRANTED A REENLISTMENT FURLOUGH MAY NOT BE RETAINED BY REASON OF THE FACT THAT HE SUBSEQUENTLY AMENDED HIS ORIGINAL ENLISTMENT CONTRACT TO A THREE-YEAR ENLISTMENT. 26 COMP. GEN. 83, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, OCTOBER 23, 1947:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 17, 1947, REQUESTING DECISION WHETHER AN ENLISTED MAN PAID A FURLOUGH TRAVEL ALLOWANCE UPON REENLISTMENT IN THE ARMY UNDER THE CIRCUMSTANCES SET FORTH IN SAID LETTER IS REQUIRED TO REFUND SUCH ALLOWANCE. YOUR LETTER, IN PERTINENT PART, IS AS FOLLOWS:

ON 10 SEPTEMBER 1946, AN ENLISTED MAN REENLISTED IN THE ARMY FOR 1 YEAR, UNDER THE PROVISIONS OF SECTION IV, PARAGRAPH 12B, WAR DEPARTMENT CIRCULAR 110, 1946, AS AMENDED BY SECTION I, WAR DEPARTMENT CIRCULAR 267, 1946, AND AT THE TIME OF SUCH REENLISTMENT WAS AUTHORIZED A 30-DAY FURLOUGH. PURSUANT TO THE PROVISIONS OF THE ACT OF 6 OCTOBER 1945, SUPRA, HE WAS PAID A FURLOUGH TRAVEL ALLOWANCE IN THE AMOUNT OF $321.60, FOR TRAVEL AUTHORIZED WHILE ON FURLOUGH FROM FORT MONROE, VIRGINIA, TO SAN FRANCISCO, CALIFORNIA, AND RETURN.

SECTION 6 OF THE ACT OF 6 OCTOBER 1945, SUPRA, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

" SEC. 6. EVERY PERSON DISCHARGED OR RELEASED FROM THE MILITARY OR NAVAL FORCES ON OR AFTER JUNE 1, 1945, WHO ENLISTS OR REENLISTS IN THE REGULAR MILITARY * * * ESTABLISHMENT * * * AND WHO IS GRANTED A REENLISTMENT FURLOUGH OR LEAVE, SHALL BE PAID IN ADVANCE AT HIS OPTION, AT THE TIME SUCH FURLOUGH OR LEAVE BECOMES EFFECTIVE, A FURLOUGH TRAVEL ALLOWANCE AT THE RATE OF 5 CENTS A MILE FOR THE DISTANCE BETWEEN HIS HOME OR SUCH OTHER PLACE AS, SUBJECT TO REGULATIONS PRESCRIBED BY THE SECRETARY OF THE DEPARTMENT CONCERNED, HE MAY SELECT, AND THE PLACE AT WHICH HE IS STATIONED WHEN THE FURLOUGH OR LEAVE BECOMES EFFECTIVE, AND FOR THE DISTANCE BETWEEN HIS HOME, OR OTHER PLACE SO SELECTED, AND THE PLACE AT WHICH HE IS ORDERED TO REPORT FOR DUTY AT THE TERMINATION OF THE FURLOUGH OR LEAVE. * * *

PARAGRAPH 4H (1), ARMY REGULATION 600-115, DATED 20 AUGUST 1946 (EFFECTIVE 1 SEPTEMBER 1946), AUTHORIZES REENLISTMENT FURLOUGHS IN CASES OF REENLISTMENT FOR 3 YEARS ONLY. THE SUBJECT ENLISTED MAN, HAVING REENLISTED (FOR A PERIOD OF LESS THAN 3 YEARS) AFTER THE EFFECTIVE DATE OF THIS REGULATION, WAS NOT ELIGIBLE FOR A REENLISTMENT FURLOUGH. HOWEVER, UNDER THE DATE OF 17 JANUARY 1947, HE EXTENDED HIS INITIAL ENLISTMENT CONTRACT TO A 3-YEAR ENLISTMENT, COMMENCING 10 SEPTEMBER 1946.

THE PROVISION QUOTED IN YOUR LETTER FROM THE ACT OF OCTOBER 6, 1945, 59 STAT. 539, APPEARS TO CONTEMPLATE THE PAYMENT OF A FURLOUGH TRAVEL ALLOWANCE ONLY TO ENLISTED MEN WHO ARE GRANTED A REENLISTMENT FURLOUGH OR LEAVE AND UNDER THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, LEAVE IS AUTHORIZED TO BE TAKEN "IN ACCORDANCE WITH REGULATIONS TO BE ISSUED BY THE SEVERAL SECRETARIES.' HENCE, IT APPEARS THAT THE PAYMENT OF THE FURLOUGH TRAVEL ALLOWANCE IS NOT AUTHORIZED UNLESS REENLISTMENT FURLOUGH OR LEAVE IS PROPERLY GRANTED AND THE GRANTING OF SUCH ABSENCE HAS BEEN LEFT TO THE DISCRETION OF THE MILITARY AUTHORITIES.

PARAGRAPH 4H (1), ARMY REGULATIONS 600-115, TO WHICH YOU REFER, AND WHICH WAS IN EFFECT ON SEPTEMBER 10, 1946, WHEN THE ENLISTED MAN MENTIONED IN YOUR LETTER REENLISTED, PROVIDES THAT UPON REENLISTMENT, NOT TO EXCEED 30 DAYS' LEAVE "IN ADVANCE OF ACCRUAL MAY BE GRANTED AT TIME OF 3-YEAR ENLISTMENT PERIOD ONLY, AND IS CHARGEABLE AS LEAVE.' ( ITALICS ADDED.) NEITHER YOUR LETTER NOR THE ENCLOSURE STATES WHETHER ALL OR ANY PART OF THE LEAVE GRANTED THE ENLISTED MAN TO WHOM YOU REFER HAD ACCRUED TO HIM PRIOR TO HIS REENLISTMENT ON SEPTEMBER 10, 1946. HOWEVER, SINCE YOU REFER TO PARAGRAPH 4H (1) ARMY REGULATIONS 600-115, AS BEING APPLICABLE TO THE MATTER, IT WILL BE PRESUMED FOR THE PURPOSE OF THIS DECISION THAT NONE OF THE LEAVE GRANTED HAD ACCRUED TO THE ENLISTED MAN PRIOR TO THE DATE OF SUCH REENLISTMENT. HENCE, IN VIEW OF THE SAID REGULATION, AND SINCE THE ENLISTED MAN REENLISTED FOR A PERIOD OF BUT ONE YEAR, HE WAS NOT ENTITLED TO A REENLISTMENT FURLOUGH AT THAT TIME. THUS, THE CONDITIONS OF THE STATUTE AUTHORIZING FURLOUGH TRAVEL ALLOWANCE WERE NOT MET. THE FACT THAT HE LATER AMENDED HIS ENLISTMENT CONTRACT TO A THREE-YEAR ENLISTMENT IS IMMATERIAL, SINCE A RIGHT TO SUCH ALLOWANCE CAN ACCRUE UNDER THE LAW AND REGULATIONS ONLY AT TIME OF A THREE-YEAR ENLISTMENT. AT THE TIME THE ENLISTED MAN HERE INVOLVED REENLISTED, HE WAS NOT ELIGIBLE TO BE PAID A REENLISTMENT TRAVEL ALLOWANCE AND HIS RIGHTS WHICH BECAME FIXED AT THAT TIME MAY NOT BE CHANGED BY THE AMENDMENT OF HIS ENLISTMENT CONTRACT. FOLLOWS THAT THE AMOUNT PAID TO THE ENLISTED MAN AS FURLOUGH TRAVEL ALLOWANCE SHOULD BE REFUNDED BY HIM.

THE FOREGOING CONCLUSION IS CONSISTENT WITH THOSE REACHED IN A DECISION OF THIS OFFICE TO THE SECRETARY OF WAR, DATED AUGUST 5, 1946, 26 COMP. GEN. 83, IN WHICH IT WAS HELD THAT AN ENLISTED MAN WHO IS PERMITTED BY THE WAR DEPARTMENT TO AMEND HIS CURRENT ENLISTMENT CONTRACT ENTERED INTO PRIOR TO JULY 1, 1946, TO A THREE-YEAR ENLISTMENT CONTRACT, IS ENTITLED TO THE BENEFITS OF SECTION 9 OF SAID ACT OF OCTOBER 6, 1945, 59 STAT. 541, DURING THE FULL PERIOD OF HIS ENLISTMENT. A RIGHT TO SUCH BENEFITS--- A MONTHLY FAMILY ALLOWANCE--- IS A CONTINUING ONE, AND ACCRUES EACH MONTH DURING THE PERIOD OF ENLISTMENT. AN AMENDMENT OF AN ENLISTMENT CONTRACT TO A FULL THREE YEARS MERELY EXTENDS THE PERIOD DURING WHICH SUCH BENEFITS CAN ACCRUE, IT DOES NOT INCREASE THE AMOUNT OF BENEFITS WHICH THERETOFORE HAD ACCRUED. HOWEVER, AS INDICATED ABOVE, A RIGHT TO A FURLOUGH TRAVEL ALLOWANCE CAN ACCRUE ONLY AT THE TIME OF ENLISTMENT OR REENLISTMENT. AN ENLISTED MAN WAS NOT ENTITLED TO SUCH ALLOWANCE AT THAT TIME, ANY SUBSEQUENT ACTION IN CHANGING THE PERIOD OF ENLISTMENT IS WITHOUT EFFECT TO INCREASE HIS RIGHTS IN THE PREMISES.