B-84463, AUGUST 18, 1949, 29 COMP. GEN. 83

B-84463, AUGUST 18, 1949, 29 COMP. GEN. 83

LEAVES OF ABSENCE - MILITARY - ACCRUAL - MAXIMUM LIMITATION IN APPLYING THE PROVISIONS OF SECTION 3 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, PROHIBITING THE ACCUMULATION OR CREDITING "AT ANY TIME" OF LEAVE IN EXCESS OF 60 DAYS, TO MEMBERS OF THE ARMED FORCES WHO HAVE ACCUMULATED THE MAXIMUM OF 60 DAYS' LEAVE, NO FURTHER LEAVE MAY BE REGARDED AS BEING ACCUMULATED UNTIL SUCH 60 DAYS HAVE BEEN REDUCED BY THE ACTUAL TAKING OF LEAVE, SO THAT LEAVE TAKEN ACTUALLY SHOULD BE CHARGED AS OF THAT TIME AGAINST THE 60-DAY ACCUMULATION, INSTEAD OF PERMITTING AN INTERIM ACCUMULATION OF LEAVE IN EXCESS OF 60 DAYS WHICH MAY BE USED FOR LEAVE PURPOSES.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, AUGUST 18, 1949:

THE PAY VOUCHER OF LT. GEN. ALLEN H. TURNAGE, UNITED STATES MARINE CORPS, FOR DECEMBER 1947 ( VOUCHER NO. 5322, DECEMBER 1947 ACCOUNT OF G. R. FRANK), SHOWS THAT THE OFFICER RECEIVED, IN ADDITION TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD NOVEMBER 26 TO DECEMBER 31, 1947, A LUMP-SUM SETTLEMENT OF $1,249.33, FOR 40 DAYS' UNUSED LEAVE PURPORTEDLY TO HIS CREDIT ON DECEMBER 31, 1947, THE DATE PRECEDING HIS TRANSFER TO THE RETIRED LIST. THE QUESTION HAS BEEN RAISED AS TO WHETHER THE METHOD OF COMPUTING THE UNUSED LEAVE TO THE OFFICER'S CREDIT ON THE DATE OF HIS RETIREMENT IS IN ACCORDANCE WITH THE 60-DAY LIMITATION IMPOSED UPON THE AMOUNT OF ACCUMULATED OR ACCRUED LEAVE WHICH MEMBERS OF THE ARMED FORCES ARE PERMITTED TO ACCUMULATE OR TO HAVE TO THEIR CREDIT AT ANY TIME AFTER AUGUST 31, 1946, UNDER THE PROVISIONS OF SECTION 3 OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963. IT WILL BE NOTED THAT UNDER SECTION 3 (A) OF SAID ACT OF 1946 EACH MEMBER OF THE ARMED FORCES IS "ENTITLED TO LEAVE AT THE RATE OF TWO AND ONE-HALF CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE" AND THAT SECTION 3 (B), 60 STAT. 964, EXPRESSLY PROVIDES THAT, NOTWITHSTANDING ANY OTHER PROVISION OF THAT ACT OR OF ANY LAW OR REGULATION,"NO MEMBER OF THE ARMED FORCES * * * SHALL BE PERMITTED TO ACCUMULATE OR TO HAVE TO HIS CREDIT, AT ANY TIME AFTER AUGUST 3 1946, ACCUMULATED OR ACCRUED LEAVE AGGREGATING IN EXCESS OF 60 DAYS.' HOWEVER, SECTION 5 (C) OF THE NAVY LEAVE REGULATIONS ( JOINT BUREAU OF PERSONNEL AND BUREAU OF SUPPLIES AND ACCOUNTS LETTER OF AUGUST 2 1947), APPLICABLE TO PERSONNEL OF NAVY AND MARINE CORPS, PROVIDES IN PERTINENT PART AS FOLLOWS:

(C) EARNED LEAVE IS THE TERM USED TO DESCRIBE THE LEAVE POTENTIAL OF AN INDIVIDUAL AS OF ANY GIVEN DATE DURING THE FISCAL YEAR. IT IS DETERMINED BY COMPLETING THE FOLLOWING FORMULA:

FROM THE AMOUNT OF ACCRUED LEAVE, SUBTRACT THE AMOUNT OF LEAVE WHICH HAS BEEN TAKEN, OR COMPENSATED FOR IN CASH, SINCE THE BEGINNING OF THE FISCAL YEAR TO THE GIVEN DATE. TO THAT REMAINDER, ADD THE AMOUNT OF LEAVE WHICH HAS BEEN EARNED SINCE THE BEGINNING OF THE FISCAL YEAR TO THE GIVEN DATE. EARNED LEAVE MAY BE IN EXCESS OF 60 DAYS DURING THE FISCAL YEAR, BUT MUST BE REDUCED TO 60 AS OF THE BEGINNING OF THE NEXT FISCAL YEAR, OR UPON COMPLETION OF SEPARATION PROCESSING, AS DIRECTED IN SECTION 8 (B) (9).

TO THE EXTENT THAT THE PROVISION IN THE SAID REGULATION THAT "EARNED" LEAVE MAY BE IN EXCESS OF 60 DAYS DURING THE FISCAL YEAR WAS INTENDED OR MAY BE APPLIED AS PERMITTING LEAVE PRIVILEGES IN EXCESS OF THOSE ALLOWABLE UNDER THE STATUTORY LIMITATION OF A 60-DAY CREDIT "AT ANY TIME," IT APPEARS TO BE CONTRARY TO LAW.

THE BASIS FOR THE SAID PROVISION IN THE REGULATION IS, PRESUMABLY, THAT SINCE LEAVE IS NOT ADMINISTRATIVELY CREDITED UNTIL THE END OF THE FISCAL YEAR, THE INDIVIDUAL DOES NOT "ACCUMULATE OR HAVE TO HIS CREDIT" DURING THE FISCAL YEAR ACCUMULATED OR ACCRUED LEAVE AGGREGATING IN EXCESS OF 60 DAYS. HOWEVER, THE FACT THAT, FOR POSSIBLE ADMINISTRATIVE CONVENIENCE, LEAVE ACTUALLY MAY NOT BE ENTERED OR CREDITED ON AN INDIVIDUAL'S LEAVE RECORD UNTIL THE END OF THE FISCAL YEAR WOULD NOT APPEAR TO BE DETERMINATIVE OF HIS LEAVE RIGHTS DURING THE FISCAL YEAR. EACH MEMBER OF THE ARMED FORCES IS ENTITLED TO LEAVE AT THE RATE OF TWO AND ONE-HALF CALENDAR DAYS PER MONTH WITHOUT REGARD TO ANNUAL PERIODS, AND IT WOULD SEEM CLEAR THAT AT THE END OF EACH MONTH A MEMBER WOULD ACCUMULATE OR HAVE TO HIS CREDIT AN ADDITIONAL 2 1/2 DAYS' LEAVE, IRRESPECTIVE OF WHETHER SUCH LEAVE ACTUALLY BE ENTERED ON HIS LEAVE RECORD OR WHETHER IT BE CALLED ACCUMULATED LEAVE OR EARNED LEAVE.

IN A LETTER DATED JULY 12, 1948, THE ASSISTANT CHIEF OF THE AUDIT DIVISION OF THIS OFFICE REQUESTED THE CHIEF OF NAVAL PERSONNEL TO OUTLINE THE PRECISE BASIS ON WHICH IT ADMINISTRATIVELY WAS CONCLUDED THAT THE 60- DAY ACCRUAL AND CUMULATION LIMITATION CONTAINED IN THE ARMED FORCES LEAVE ACT IS APPLICABLE ONLY AT THE END OF A FISCAL YEAR, OR, IN THE CASE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY AT OTHER THAN THE END OF A FISCAL YEAR, AS OF THE DATE OF SUCH DISCHARGE OR RELEASE. IN A REPLY THERETO DATED OCTOBER 21, 1948, THE ASSISTANT CHIEF OF NAVAL PERSONNEL STATED THAT THE 1946 ACT WAS THE FIRST LEAVE STATUTE THAT THE NAVY HAD TO ADMINISTER FOR OFFICERS AND ENLISTED PERSONNEL ALIKE AND THAT THE NAVY NATURALLY REFERRED TO A COMPARABLE LEAVE SYSTEM WHICH HAD BEEN APPROVED BY THIS OFFICE, NAMELY, THAT FOR CIVIL SERVICE EMPLOYEES.

WHILE, AS INDICATED BY THE ASSISTANT CHIEF OF NAVAL PERSONNEL, THE NAVY REGULATIONS HAVE IN EFFECT ATTEMPTED TO EXTEND TO MEMBERS OF THE NAVAL FORCES A RIGHT TO CURRENT LEAVE IN EXCESS OF THE 60-DAY LIMITATION BY ANALOGY TO THE "ANNUAL" LEAVE PRIVILEGES OF CIVILIAN EMPLOYEES, IT WILL BE NOTED THAT THE LIMITATION ON CUMULATIVE LEAVE CONTAINED IN THE LAW GOVERNING ANNUAL LEAVE FOR CIVILIAN EMPLOYEES, 49 STAT. 1161, IS DIRECTED TO "THE PART UNUSED IN ANY YEAR," THAT IS, THE LEAVE TO AN EMPLOYEE'S CREDIT AT THE END OF A CALENDAR YEAR, WHEREAS THE ARMED FORCES LEAVE ACT OF 1946 SPECIFICALLY LIMITS TO 60 DAYS THE AMOUNT OF LEAVE THAT A MEMBER MAY HAVE TO HIS CREDIT "AT ANY TIME" AFTER AUGUST 31, 1946. IN THAT RESPECT THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946 DIFFER MATERIALLY FROM THE "ANNUAL" LEAVE PROVISIONS FOR CIVILIAN EMPLOYEES, REFERRED TO BY THE ASSISTANT CHIEF OF NAVAL PERSONNEL, BUT ARE SIMILAR TO THE PROVISIONS OF THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, APPLICABLE TO CIVILIAN EMPLOYEES OF THE GOVERNMENT, WHICH ACT PROVIDES THAT CUMULATIVE SICK LEAVE "AT THE RATE OF 1 1/4 DAYS PER MONTH" SHALL BE GRANTED TO ALL CIVILIAN EMPLOYEES,"THE TOTAL ACCUMULATION NOT TO EXCEED NINETY DAYS.' APPLYING SUCH PROVISION, SECTION 30.302 OF THE ANNUAL AND SICK LEAVE REGULATIONS FOR CIVILIAN EMPLOYEES SPECIFICALLY PROVIDES WITH RESPECT TO SICK LEAVE THAT "THE BALANCE TO THE CREDIT OF THE EMPLOYEE AT THE END OF ANY MONTH SHALL NOT EXCEED NINETY DAYS.'

FOR SUCH REASONS, THE PROVISION RESPECTING "EARNED" LEAVE IN THE NAVY LEAVE REGULATIONS HERE INVOLVED MAY NOT BE APPLIED AS AUTHORIZING AN INTERIM ACCUMULATION OF "EARNED" LEAVE IN EXCESS OF 60 DAYS WHICH MAY BE USED FOR LEAVE PURPOSES, BUT SUCH REGULATION SHOULD BE APPLIED ON THE BASIS THAT AFTER A MAXIMUM OF 60 DAYS' LEAVE HAS BEEN ACCUMULATED OR "EARNED" FROM MONTH TO MONTH, NO FURTHER LEAVE MAY BE REGARDED AS BEING "EARNED" UNTIL SUCH 60 DAYS HAVE BEEN REDUCED BY THE ACTUAL TAKING OF LEAVE. THE NET EFFECT WOULD BE TO REQUIRE THAT LEAVE TAKEN BE ACTUALLY CHARGED AS OF THAT TIME AGAINST THE 60-DAY ACCUMULATION, INSTEAD OF PERMITTING IT TO BE CARRIED FORWARD AND CHARGED BACK AGAINST SO-CALLED EARNED LEAVE TREATED AS ACCRUING IN EXCESS OF 60 DAYS OVER A FISCAL YEAR PERIOD.

IN THE PARTICULAR CASE HERE INVOLVED IT APPEARS FROM A COPY OF ORDERS DATED DECEMBER 12, 1947, THAT GENERAL TURNAGE HAD 60 DAYS' ACCRUED LEAVE TO HIS CREDIT ON JUNE 30, 1947, AND THAT HE WAS GRANTED 35 DAYS' LEAVE FROM NOVEMBER 27 TO DECEMBER 31, 1947, BOTH DATES INCLUSIVE. UNDER THE NAVY METHOD OF COMPUTATION HE WAS PAID FOR 40 DAYS' LEAVE IMMEDIATELY AFTER HAVING USED 35 DAYS' LEAVE, OR A TOTAL OF 75 DAYS, NOTWITHSTANDING THE STATUTORY PROHIBITION AGAINST A LEAVE CREDIT OF MORE THAN 60 DAYS "AT ANY TIME.' UNDER THAT PROHIBITION HE COULD HAVE HAD NO MORE THAN 60 DAYS' LEAVE TO HIS CREDIT WHEN HE WENT ON LEAVE, NOVEMBER 27, 1947, FOR 35 DAYS. SUCH 35 DAYS' LEAVE TAKEN REDUCED HIS CREDIT TO 25 DAYS, PLUS NOT MORE THAN 3 DAYS' LEAVE ACCRUING DURING SUCH 35 DAYS, OR A TOTAL OF 28 DAYS, INSTEAD OF THE 40 DAYS FOR WHICH HE WAS PAID UPON RETIREMENT JANUARY 1, 1948. IT THUS SEEMS CLEAR THAT THE NAVY METHOD OF COMPUTATION RESULTED IN AN OVERPAYMENT TO GENERAL TURNAGE FOR 12 DAYS' LEAVE, IN THE AMOUNT OF $374.80, CONTRARY TO THE PLAIN TERMS OF THE STATUTE. THE AUDIT DIVISION OF THIS OFFICE HAS BEEN INSTRUCTED ACCORDINGLY TO WITHHOLD CREDIT IN THE ACCOUNT OF THE DISBURSING OFFICER FOR THE AMOUNT OF SUCH OVERPAYMENT AND TO TAKE LIKE ACTION IN ALL SIMILAR CASES.

IN VIEW OF THE FOREGOING, AND SINCE IT IS UNDERSTOOD THAT THE OTHER BRANCHES OF THE ARMED FORCES ARE APPLYING SUCH MAXIMUM 60-DAY LIMITATION IN THE SAME MANNER AS THE DEPARTMENT OF THE NAVY, THE MATTER IS BROUGHT TO YOUR ATTENTION FOR SUCH CORRECTIVE ACTION AS MAY BE APPROPRIATE.