B-95042, JANUARY 31, 1951, 30 COMP. GEN. 328

B-95042: Jan 31, 1951

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

LEAVES OF ABSENCE - MILITARY - CASH SETTLEMENT - RETIRED OFFICER RETAINED ON ACTIVE DUTY AN OFFICER WHO WAS PLACED ON THE RETIRED LIST OF THE NAVY BUT RETAINED ON ACTIVE DUTY WITHOUT BREAK IN SERVICE IS NOT SEPARATED OR RELEASED FROM ACTIVE DUTY WITHIN THE CONTEMPLATION OF THE TERM "DISCHARGE" AS USED IN THE ARMED FORCES LEAVE ACT OF 1946. THEREFORE SUCH OFFICER IS NOT ENTITLED TO CASH SETTLEMENT FOR UNUSED LEAVE UPON BEING PLACED ON THE RETIRED LIST. 1951: REFERENCE IS MADE TO YOUR LETTER OF APRIL 27. REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT IN THE AMOUNT OF $1. 424 REPRESENTING THE VALUE OF 60 DAYS' ACCUMULATED LEAVE TO THE CREDIT OF AN OFFICER OF THE REGULAR NAVY WHO WAS PLACED ON THE RETIRED LIST OF THE NAVY AND VOLUNTARILY CONTINUED ON ACTIVE DUTY AFTER RETIREMENT.

B-95042, JANUARY 31, 1951, 30 COMP. GEN. 328

LEAVES OF ABSENCE - MILITARY - CASH SETTLEMENT - RETIRED OFFICER RETAINED ON ACTIVE DUTY AN OFFICER WHO WAS PLACED ON THE RETIRED LIST OF THE NAVY BUT RETAINED ON ACTIVE DUTY WITHOUT BREAK IN SERVICE IS NOT SEPARATED OR RELEASED FROM ACTIVE DUTY WITHIN THE CONTEMPLATION OF THE TERM "DISCHARGE" AS USED IN THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, AND THEREFORE SUCH OFFICER IS NOT ENTITLED TO CASH SETTLEMENT FOR UNUSED LEAVE UPON BEING PLACED ON THE RETIRED LIST, HOWEVER UPON RELEASE FROM ACTIVE DUTY THE OFFICER MAY BE COMPENSATED, WITHIN STATUTORY LIMITATIONS, FOR UNUSED LEAVE THEN TO HIS CREDIT.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. R. H. FERRIS, DEPARTMENT OF THE NAVY, JANUARY 31, 1951:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 27, 1950, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT IN THE AMOUNT OF $1,424 REPRESENTING THE VALUE OF 60 DAYS' ACCUMULATED LEAVE TO THE CREDIT OF AN OFFICER OF THE REGULAR NAVY WHO WAS PLACED ON THE RETIRED LIST OF THE NAVY AND VOLUNTARILY CONTINUED ON ACTIVE DUTY AFTER RETIREMENT, WITHOUT BREAK IN SERVICE, FOR AN ADDITIONAL YEAR.

SECTION 3 (A) OF THE ARMED FORCES LEAVE ACT OF 1946, PUBLIC LAW 704, APPROVED AUGUST 9, 1946, 60 STAT. 963, PROVIDES, INTER ALIA, THAT IN THE CASE OF MEMBERS WHO ARE RETIRED AFTER AUGUST 9, 1946, AND AFTER RETIREMENT ARE CONTINUED ON OR RECALLED TO ACTIVE DUTY, LEAVE ACCRUED DURING SERVICE PRIOR TO RETIREMENT MAY BE CARRIED OVER THE PERIOD OF SERVICE AFTER RETIREMENT. SUCH PROVISION IN SECTION 3 (A) WAS A PART OF THE ORIGINAL ACT WHICH, AS ORIGINALLY ENACTED, DID NOT AUTHORIZE PAYMENT FOR UNUSED LEAVE TO A MEMBER'S CREDIT UPON "DISCHARGE.' THE PURPOSE OF SUCH PROVISION WAS TO PREVENT THE FORFEITURE OF UNUSED LEAVE UPON RETIREMENT IN CASES OF MEMBERS CONTINUED ON OR RECALLED TO ACTIVE DUTY AFTER RETIREMENT, THE DECISIONS OF THIS OFFICE PREVIOUSLY HAVING HELD THAT OFFICERS PLACED ON THE RETIRED LIST BUT RETAINED ON ACTIVE DUTY COULD NOT THEREAFTER TAKE OR BE GRANTED THE LEAVE WHICH ACCUMULATED TO THEIR CREDIT PRIOR TO THE EFFECTIVE DATE OF RETIREMENT. 24 COMP. GEN. 291; B-44030, FEBRUARY 22, 1945. IT IS CLEAR, THEREFORE, THAT THE SAID PROVISION IN SECTION 3 (A) WAS NOT INTENDED TO GIVE A MEMBER AN OPTION TO TAKE A CASH SETTLEMENT FOR UNUSED LEAVE UPON RETIREMENT WHERE HE WAS CONTINUED ON ACTIVE DUTY AFTER RETIREMENT. PAYMENT FOR UNUSED LEAVE TO A MEMBER'S CREDIT UPON DISCHARGE AFTER AUGUST 31, 1947, 61 STAT. 748, AMENDING SECTION 4 OF THE ORIGINAL ACT TO READ AS FOLLOWS:

(C) ANY MEMBER OF THE ARMED FORCES DISCHARGED AFTER AUGUST 31, 1946, HAVING UNUSED ACCRUED LEAVE STANDING TO HIS CREDIT AT TIME OF DISCHARGE SHALL BE COMPENSATED FOR SUCH UNUSED LEAVE IN CASH ON THE BASIS OF THE BASE AND LONGEVITY PAY, AND ALLOWANCES, APPLICABLE TO SUCH MEMBER ON THE DATE OF DISCHARGE INCLUDING FOR ENLISTED PERSONS THE ALLOWANCES AS PROVIDED FOR SUCH ENLISTED PERSONS IN SUBSECTION (A) OF THIS SECTION: PROVIDED, THAT NO CASH SETTLEMENT SHALL BE MADE TO ANY MEMBER (1) DISCHARGED FOR THE PURPOSE OF ACCEPTING A COMMISSION OR WARRANT OR ENTERING INTO AN ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES, OR (2) ELECTING TO CARRY OVER SUCH UNUSED LEAVE TO A NEW ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES ON THE DAY FOLLOWING DATE OF DISCHARGE. A MEMBER EXCLUDED FROM CASH SETTLEMENT BY THE FOREGOING PROVISION AND A MEMBER REVERTING FROM WARRANT OR COMMISSIONED OFFICER TO ENLISTED STATUS SHALL CARRY ANY UNUSED ACCRUED LEAVE STANDING TO HIS CREDIT FROM ONE STATUS TO ANOTHER WITHIN HIS RESPECTIVE BRANCH OF THE ARMED FORCES. UNUSED LEAVE SETTLED AND COMPENSATED FOR IN CASH IN ACCORDANCE WITH THIS SUBSECTION SHALL NOT BE CONSIDERED AS SERVICE FOR ANY PURPOSE. SETTLEMENT AND COMPENSATION IN ACCORDANCE WITH THIS SUBSECTION SHALL BE MADE ONLY TO A LIVING MEMBER OR LIVING FORMER MEMBER OF THE ARMED FORCES.

IT WILL BE NOTED THAT THE PROVISION IN SUCH SECTION DOES NOT SPECIFICALLY AUTHORIZE, NOR DOES IT PRECLUDE, CASH SETTLEMENT FOR UNUSED LEAVE TO THE CREDIT OF MEMBERS WHO, UPON RETIREMENT, ARE CONTINUED ON ACTIVE DUTY. THE QUESTION, THEREFORE, APPEARS TO BE WHETHER SUCH A MEMBER PROPERLY MAY BE CONSIDERED AS HAVING RECEIVED A "DISCHARGE" WITHIN THE MEANING OF THAT TERM AS USED IN SAID ACT. THE TERM "DISCHARGE," AS APPLIED TO COMMISSIONED OFFICERS, IS DEFINED IN SECTION 2 (B) OF THE SAID ACT AS A "SEPARATION OR RELEASE FROM ACTIVE DUTY" UNDER HONORABLE CONDITIONS. AS A GENERAL PROPOSITION, A MEMBER OF THE ARMED FORCES IS RELEASED FROM ACTIVE DUTY UPON RETIREMENT. HOWEVER, WHERE, AS IN THE PRESENT CASE, THE OFFICER IS CONTINUED ON ACTIVE DUTY AFTER RETIREMENT, WITHOUT BREAK IN ACTIVE SERVICE, IT IS DOUBTFUL WHETHER THE MERE TRANSFER OF SUCH AN OFFICER FROM THE ACTIVE LIST TO THE RETIRED LIST PROPERLY MAY BE CONSIDERED AS A "SEPARATION OR RELEASE FROM ACTIVE DUTY" AND, HENCE, AS A "DISCHARGE" WITHIN THE CONTEMPLATION OF THAT TERM AS USED IN THE ARMED FORCES LEAVE ACT. ARTICLE C-6707, BUREAU OF NAVAL PERSONNEL MANUAL, RESPECTING CASH SETTLEMENT FOR UNUSED LEAVE OF OFFICERS BEING RETIRED OTHER THAN FOR PHYSICAL DISABILITY, REFERS TO OFFICERS ,RETIRED AND RELEASED TO INACTIVE DUTY.' ALSO, PARAGRAPH 3 (B) (5), ARMY REGULATION 600-115, PROVIDES THAT "IF SERVICE OF INDIVIDUAL IS CONTINUOUS, AS INDICATED IN EXAMPLES BELOW, LEAVE ACCRUED AND NOT USED IN THE FIRST INSTANCE SHALL BE CARRIED OVER AND TAKEN IN THE LATTER SERVICE.' ONE OF THE EXAMPLES GIVEN IS THAT OF " MILITARY PERSONNEL RETIRED AND IMMEDIATELY RECALLED TO ACTIVE DUTY.' THE PROVISIONS OF PARAGRAPH 600-115, ARMY REGULATION, WERE MADE APPLICABLE TO THE AIR FORCE BY AIR FORCE REGULATION 5-9, DECEMBER 9, 1949. ALSO, ARTICLE 14350, MARINE CORPS MANUAL, PROVIDES THAT CASH SETTLEMENT FOR UNUSED LEAVE SHALL BE MADE TO PERSONS "SEPARATED FROM ACTIVE UTY" AND DEFINES THAT TERM AS INCLUDING, IN THE CASE OF OFFICERS, INTER ALIA, OFFICERS TRANSFERRED TO INACTIVE STATUS ON THE RETIRED LIST.

ALTHOUGH THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, THE ADMINISTRATIVE INTERPRETATION APPEARS TO BE IN CONSONANCE WITH THE GENERAL DESIGN AND PURPOSE OF THE STATUTE AND THIS OFFICE FINDS NO SUBSTANTIAL REASON TO DISAGREE THEREWITH. YOU ARE ADVISED ACCORDINGLY THAT PAYMENT IN THE PRESENT CASE IS NOT AUTHORIZED. HOWEVER, WHEN THE RETIRED OFFICER IS RELEASED FROM ACTIVE DUTY HE WILL BE ENTITLED, OF COURSE, TO BE COMPENSATED FOR ANY UNUSED LEAVE TO HIS CREDIT AT THAT TIME, WITHIN THE LIMITATIONS PRESCRIBED BY STATUTE.