B-97814, JANUARY 11, 1951, 30 COMP. GEN. 285

B-97814: Jan 11, 1951

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PAY - RETIRED - LONGEVITY CREDITS - LEAVE WITHOUT PAY A LEAVE OF ABSENCE WITHOUT PAY GRANTED AN ENLISTED MAN DOES NOT RELEASE HIM FROM THE CONTROL OF THE SERVICE AND IS TO BE REGARDED AS ACTIVE SERVICE WITHIN THE MEANING OF SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949. SO THAT AN ENLISTED MEMBER OF THE COAST GUARD WHO WAS RETIRED FOR PERMANENT DISABILITY PURSUANT TO SECTION 402 MAY BE CREDITED WITH A PERIOD OF AUTHORIZED LEAVE WITHOUT PAY IN COMPUTING THE CUMULATIVE YEARS OF SERVICE TO BE USED IN DETERMINING HIS RETIRED PAY. 1951: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31. IS STATED TO REPRESENT THE DIFFERENCE IN THE RETIRED PAY OF A CHIEF PETTY OFFICER RECEIVED BY HIM FOR THE PERIOD APRIL 1.

B-97814, JANUARY 11, 1951, 30 COMP. GEN. 285

PAY - RETIRED - LONGEVITY CREDITS - LEAVE WITHOUT PAY A LEAVE OF ABSENCE WITHOUT PAY GRANTED AN ENLISTED MAN DOES NOT RELEASE HIM FROM THE CONTROL OF THE SERVICE AND IS TO BE REGARDED AS ACTIVE SERVICE WITHIN THE MEANING OF SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, SO THAT AN ENLISTED MEMBER OF THE COAST GUARD WHO WAS RETIRED FOR PERMANENT DISABILITY PURSUANT TO SECTION 402 MAY BE CREDITED WITH A PERIOD OF AUTHORIZED LEAVE WITHOUT PAY IN COMPUTING THE CUMULATIVE YEARS OF SERVICE TO BE USED IN DETERMINING HIS RETIRED PAY.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. R. L. EDMANDS, U.S. COAST GUARD, JANUARY 11, 1951:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31, 1950, REQUESTING A DECISION AS TO WHETHER A VOUCHER SUBMITTED THEREWITH IN FAVOR OF HOWARD J. JOHNSON, BOATSWAIN'S MATE, CHIEF, U.S. COAST GUARD (RETIRED), MAY BE CERTIFIED FOR PAYMENT. THE AMOUNT CLAIMED THEREON, $33.09, IS STATED TO REPRESENT THE DIFFERENCE IN THE RETIRED PAY OF A CHIEF PETTY OFFICER RECEIVED BY HIM FOR THE PERIOD APRIL 1, 1950, TO JUNE 30, 1950, COMPUTED AT THE RATE OF 75 PERCENT OF THE MONTHLY BASIC PAY OF A MAN WITH OVER 32 YEARS' CUMULATIVE SERVICE, AND THAT TO WHICH HE BELIEVES HE IS ENTITLED, BASED UPON MORE THAN 26 YEARS' CUMULATIVE SERVICE.

IT APPEARS THAT ON MARCH 29, 1950, THE SECRETARY OF THE TREASURY APPROVED THE FINDINGS OF A COAST GUARD PHYSICAL EVALUATION BOARD WHICH FOUND MR. JOHNSON UNFIT TO PERFORM THE DUTIES OF HIS RATING BY REASON OF PHYSICAL DISABILITY AMOUNTING TO 100 PERCENT, INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY, AND DIRECTED THAT HE BE PLACED ON THE PERMANENT DISABILITY RETIRED LIST OF THE UNITED STATES COAST GUARD IN ACCORDANCE WITH SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 816. BY LETTER OF MARCH 30, 1950, THE COMMANDANT OF THE COAST GUARD ADVISED HIM THAT AS A RESULT OF THE FOREGOING ACTION HE WAS RETIRED ON MARCH 28 (29), 1950, FOR PERMANENT DISABILITY IN ACCORDANCE WITH THE SAID SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, AND THAT HIS RETIRED PAY WOULD COMMENCE APRIL 1, 1950, IN ACCORDANCE WITH SECTION 1 OF THE ACT OF APRIL 23, 1930, 46 STAT. 253. YOU STATE THAT ON MARCH 27, 1950, HE HAD COMPLETED 25 YEARS, 11 MONTHS" AND 28 DAYS' SERVICE, ALL OF WHICH WAS CREDITABLE FOR PAY PURPOSES.

THE SAID ACT OF APRIL 23, 1930, PROVIDES AS FOLLOWS:

THAT HEREAFTER RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE ST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID ST DAY OF THE MONTH FOR RETIREMENTS HEREAFTER MADE SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS MAY NOW BE AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE/OCCURRED IF THIS ACT HAD NOT BEEN ENACTED.

UNDER THE ABOVE-QUOTED PROVISIONS OF THE ACT OF APRIL 23, 1930, THE EFFECTIVE DATE OF MR. JOHNSON'S RETIREMENT WAS APRIL 1, 1950, RATHER THAN MARCH 29, 1950. HOWEVER, IT IS SPECIFICALLY PROVIDED THEREIN THAT THE RATE OF RETIRED PAY SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF SAID ACT HAD NOT BEEN ENACTED. IF THE ACT OF APRIL 23, 1930, HAD NOT BEEN ENACTED, THE ACTION TAKEN BY THE SECRETARY OF THE TREASURY ON MARCH 29, 1950, WOULD HAVE EFFECTED MR. JOHNSON'S RETIREMENT ON THAT DATE, AND IF HE HAD ONLY 25 YEARS, 11 MONTHS, AND 28 DAYS OF SERVICE CREDITABLE FOR PAY PURPOSES ON MARCH 27, 1950, HE WOULD NOT HAVE COMPLETED OVER 26 YEARS OF SERVICE AT THE TIME HIS RETIREMENT WOULD HAVE BECOME EFFECTIVE BUT FOR THE SAID ACT OF APRIL 23, 1930, AND, HENCE, HIS RETIRED PAY WOULD HAVE TO BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY PAYABLE TO PERSONNEL HAVING OVER 22 YEARS OF SERVICE. HOWEVER, AS HEREINAFTER NOTED, IT APPEARS THAT HE HAD OVER 26 YEARS OF SERVICE CREDITABLE FOR PAY PURPOSES PRIOR TO MARCH 29, 1950.

SECTION 202 (A) OF SAID CAREER COMPENSATION ACT OF 1949 LISTS CERTAIN CATEGORIES OF SERVICE WHICH SHALL BE CREDITED IN COMPUTING THE CUMULATIVE YEARS OF SERVICE TO BE USED IN DETERMINING THE AMOUNT OF BASIC PAY TO WHICH MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED, INCLUDING "/1) FULL TIME FOR ALL PERIODS OF ACTIVE SERVICE" AND "/2) FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED.' THE PROVISO CONTAINED IN SUBSECTION (B) OF SAID SECTION 202, 63 STAT. 808, STATES:

* * * THAT, EXCEPT FOR ACTIVE SERVICE AS PRESCRIBED IN SECTION 202 (A) (1), THE SERVICE CREDIT AUTHORIZED IN THIS SECTION SHALL NOT BE INCLUDED TO INCREASE RETIRED PAY, DISABILITY RETIREMENT PAY, OR RETAINER PAY WHILE ON A RETIRED LIST, ON A TEMPORARY DISABILITY RETIRED LIST, IN A RETIRED STATUS, OR IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, EXCEPT AS PROVIDED IN TITLE IV OF THIS ACT. INFORMATION BEFORE THIS OFFICE INDICATES THAT MR. JOHNSON ENTERED THE SERVICE ON MARCH 25, 1924, AND THAT HE SERVED CONTINUOUSLY, WITHOUT ANY BREAK IN SERVICE, UNTIL MARCH 29, 1950, WHEN HIS RETIREMENT WAS APPROVED BY THE SECRETARY. THUS IT APPEARS THAT AT THE TIME HIS RETIREMENT WAS APPROVED HE HAD A TOTAL OF 26 YEARS AND 5 DAYS' SERVICE. HOWEVER, HE WAS ABSENT ON AUTHORIZED LEAVE WITHOUT PAY FOR A PERIOD OF 5 DAYS FROM FEBRUARY 11 TO 15, 1925, UNDER REGULATIONS THEN IN EFFECT WHICH PERMITTED THE GRANTING OF EMERGENCY LEAVE WITHOUT PAY. IF SUCH PERIOD OF ABSENCE MAY BE CONSIDERED AS ACTIVE SERVICE WITHIN THE MEANING OF THE SAID SECTION 202 (A) (1), 63 STAT. 807, THEN IT IS EVIDENT THAT HE IS ENTITLED TO RETIRED PAY BASED ON HIS HAVING HAD OVER 26 YEARS' SERVICE.

WHILE THERE WOULD APPEAR TO BE NO QUESTION THAT THE TIME LOST DUE TO ABSENCE BY REASON OF SICKNESS DUE TO MISCONDUCT, ABSENCE WITHOUT LEAVE, ETC., CANNOT BE CONSIDERED ACTIVE SERVICE--- 22 COMP. GEN. 759--- THE CONCLUSION THAT IT CANNOT BE CONSIDERED ACTIVE SERVICE IS PREDICATED NOT ON THE FACT THAT THE MAN WAS NOT IN A PAY STATUS DURING THE PERIOD IN QUESTION BUT ON THE FACT THAT HE HAS DEPRIVED THE GOVERNMENT OF HIS SERVICES BY DELIBERATELY ABSENTING HIMSELF FROM DUTY WITHOUT AUTHORITY OR BY BEING UNABLE TO PERFORM HIS DUTIES BY REASON OF HIS OWN MISCONDUCT THUS MAKING HIS ABSENCE, TO AN EXTENT, UNAUTHORIZED. LIKEWISE, IT HAS BEEN INDICATED THAT AN ENLISTED MAN WHO WAS GRANTED A FURLOUGH WITHOUT PAY FOR A PERIOD COVERING THE UNEXPIRED PORTION OF HIS ENLISTMENT UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 380, COULD NOT BE CONSIDERED AS BEING IN THE ACTIVE SERVICE DURING THE PERIOD OF SUCH FURLOUGH. 22 COMP. GEN. 759, SUPRA. BUT AGAIN, THAT CONCLUSION WAS NOT PREDICATED ON THE MERE FACT THAT THE MAN WAS NOT IN A PAY STATUS DURING SUCH PERIOD BUT WAS BASED ON THE FACT THAT SUCH FURLOUGH WAS IN THE NATURE OF A RELEASE FROM ACTIVE DUTY, THE LAW SPECIFICALLY PROVIDING THAT SUCH ENLISTED MEN WOULD BE "SUBJECT TO RECALL" ONLY IN TIME OF WAR OR NATIONAL EMERGENCY, TO COMPLETE THE UNEXPIRED PORTION OF THEIR ENLISTMENT. ON THE OTHER HAND, I DO NOT THINK THERE IS ANY QUESTION BUT THAT THE PERIODS A MAN MAY BE ABSENT WITH LEAVE ARE TO BE CONSIDERED AS ACTIVE SERVICE, NOT SIMPLY BECAUSE HE IS IN A PAY STATUS DURING SUCH PERIODS BUT BECAUSE SUCH ABSENCE WAS PROPERLY AUTHORIZED; THE MAN CONTINUED TO BE SUBJECT TO THE CONTROL OF HIS SERVICE; AND HE WAS READY AND WILLING TO, AND DID, RETURN TO HIS NORMAL DUTIES AT THE EXPIRATION OF SUCH LEAVE OF ABSENCE, OR SOONER, IF SO ORDERED. THUS VIEWED, IT WOULD APPEAR THAT THE FACT THAT MR. JOHNSON WAS NOT IN A PAY STATUS DURING THE FIVE DAYS HE WAS ON AUTHORIZED LEAVE IS IMMATERIAL AND SUCH PERIOD MAY BE CONSIDERED AS ACTIVE SERVICE WITHIN THE PURVIEW OF SECTION 202 (A) (1) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA.

THE VOUCHER SUBMITTED WITH YOUR LETTER IS RETURNED HEREWITH, PAYMENT THEREOF BEING AUTHORIZED, IF IT IS OTHERWISE CORRECT.