B-153922, JAN. 18, 1965, 44 COMP. GEN. 403

B-153922, JAN. 18, 1965, 44 COMP. GEN. 403

LEAVES OF ABSENCE - MILITARY PERSONNEL - PAYMENTS FOR UNUSED LEAVE ON DISCHARGE, ETC. - FURLOUGH PERIOD PRIOR TO DISCHARGE THE UNUSED ACCRUED LEAVE DUE A REGULAR NAVY OFFICER AT DATE OF DISCHARGE, WHO PRIOR TO DISCHARGE WAS IN A FURLOUGH STATUS AND RECEIVING HALF PAY AS AUTHORIZED IN 10 U.S.C. 6406, AND ACCRUING NO LEAVE, IS PAYABLE AT FULL PAY AT THE RATE AUTHORIZED FOR THE OFFICER'S RANK, LIEUTENANT COLONEL, AND LENGTH OF SERVICE AS OF DATE OF DISCHARGE, THE LUMP-SUM LEAVE PAYMENT TO INCLUDE BASIC ALLOWANCES FOR QUARTERS AND SUBSISTENCE, EACH ALLOWANCE COMPUTED ON THE FULL MONTHLY RATE, THE PLACEMENT OF THE OFFICER ON FURLOUGH NOT HAVING TERMINATED HIS STATUS AS AN OFFICER OF THE REGULAR NAVY, THE LEAVE HE HAD EARNED PRIOR TO FURLOUGH, OR THE BASIC PAY AND ALLOWANCES DUE INCIDENT TO THE LEAVE REMAINED UNAFFECTED AND HE IS ENTITLED TO PAYMENT PURSUANT TO 37 U.S.C. 501 (B); HOWEVER, THE OFFICER NOT HAVING PERFORMED ANY "ACTIVE SERVICE" WHILE ON FURLOUGH, ALTHOUGH RETAINING HIS ACTIVE DUTY STATUS, IS NOT ENTITLED TO ACCRUE LEAVE FOR THAT PERIOD.

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, JANUARY 18, 1965:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 23, 1964, WITH ENCLOSURES, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NO. DO-N-811, REQUESTING DECISION AS TO ENTITLEMENT OF FORMER LIEUTENANT COMMANDER FRANCIS W. HOGAN, USN, TO PAYMENT FOR UNUSED ACCRUED LEAVE AT DATE OF DISCHARGE. THE MEMBER WAS IN A FURLOUGH STATUS AND RECEIVING HALF PAY AS AUTHORIZED IN 10 U.S.C. 6406 FROM APRIL 13, 1963, TO JUNE 30, 1964, ON WHICH DATE HE WAS HONORABLY DISCHARGED FROM THE UNITED STATED NAVY. THE QUESTIONS SUBMITTED ARE AS FOLLOWS:

A. IS THE MEMBER ENTITLED TO THE PAYMENT FOR TWENTY DAYS UNUSED LEAVE AT DISCHARGE? IF SO, WILL THE PAYMENT BE AT FULL OR HALF PAY?

B. SINCE THE MEMBER WAS IN A FURLOUGH STATUS, WILL BASIC ALLOWANCE FOR QUARTERS AND SUBSISTENCE BE INCLUDED IN THE LUMP SUM LEAVE PAYMENT? SO, WILL THE ALLOWANCES FOR LUMP SUM LEAVE BE PAID AT FULL OR HALF OF THE MONTHLY RATE?

C. IS THE MEMBER ENTITLED TO ACCRUE LEAVE WHILE IN A FURLOUGH STATUS?

IN ACCORDANCE WITH OUR DECISION OF MAY 20, 1964, B-153922, 43 COMP. GEN. 740, THE FORMER MEMBER HAS BEEN PAID READJUSTMENT PAY UNDER 10 U.S.C. 6384, WHICH AUTHORIZES SUCH PAYMENT TO OFFICERS ,HONORABLY DISCHARGED FROM THE NAVAL SERVICE.' THAT DECISION AUTHORIZED COMPUTATION OF READJUSTMENT PAY UNDER THE CIRCUMSTANCES THERE CONSIDERED AT THE HALF PAY RATE RECEIVED IN A FURLOUGH STATUS.

MEMBERS OF THE ARMED FORCES ACCRUE LEAVE UNDER 10 U.S.C. 701 AT THE RATE OF 2 1/2 CALENDAR DAYS FOR EACH MONTH OF "ACTIVE SERVICE," EXCLUDING PERIODS OF ABSENCE FROM DUTY WITHOUT LEAVE, ABSENCE OVER LEAVE AND CONFINEMENT AS THE RESULT OF A COURT-MARTIAL SENTENCE. YOU INDICATE THAT COMMANDER HOGAN HAD EARNED AND HAD BEEN CREDITED WITH 20 DAYS OF LEAVE WHICH REMAINED UNUSED AT THE TIME HE WAS PLACED ON FURLOUGH, APRIL 12, 1963. UNDER THE PROVISIONS OF 37 U.S.C. 501 (B) AN OFFICER IS ENTITLED TO BE PAID IN CASH FOR HIS ACCRUED LEAVE "ON THE BASIS OF THE BASIC PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED ON THE DATE OF DISCHARGE.' THE BASIC PAY AND ALLOWANCES TO WHICH AN OFFICER IS ENTITLED ON THE DATE OF DISCHARGE NORMALLY IS THE ACTIVE DUTY PAY AND ALLOWANCES OF HIS RANK ON THAT DAY, NOTWITHSTANDING THE FACT THAT FOR SOME REASON SUCH AS BEING ON LEAVE WITHOUT PAY HE ACTUALLY RECEIVES NO PAY AND ALLOWANCES FOR THE DAY OF DISCHARGE. CF. 10 U.S.C. 6384 (B), WHICH AUTHORIZES PAYMENT OF A LUMP SUM TO BE COMPUTED ON THE BASIC PAY "RECEIVED" AT THE TIME OF DISCHARGE. THE PLACEMENT OF AN OFFICER ON FURLOUGH UNDER 10 U.S.C. 6406 DOES NOT TERMINATE HIS STATUS AS AN OFFICER OF THE REGULAR NAVY AND THERE IS NOTHING IN THE LAW WHICH IMPLIES THAT SUCH A FURLOUGH COULD CAUSE HIM TO LOSE THE LEAVE WHICH HE HAS PREVIOUSLY EARNED OR THE BASIC PAY AND ALLOWANCES OTHERWISE DUE HIM INCIDENT TO SUCH LEAVE. SEE DISCUSSION AS TO VESTED RIGHTS IN 31 COMP. GEN. 619, 623.

WHILE WE HELD IN OUR DECISION OF MAY 20, 1964, CITED ABOVE, THAT IT DID NOT APPEAR PROPER TO VIEW AN OFFICER OF THE REGULAR NAVY WHILE ON FURLOUGH AS BEING IN ANY STATUS OTHER THAN AN ACTIVE-DUTY STATUS FOR PURPOSES OF ENTITLEMENT TO READJUSTMENT PAY UNDER 10 U.S.C. 6384, IT IS CLEAR THAT FROM THE TIME COMMANDER HOGAN WAS PLACED ON FURLOUGH UNTIL HIS DISCHARGE FROM THE NAVAL SERVICE ON JUNE 30, 1964, HE WAS NOT REQUIRED TO PERFORM ANY ACTUAL DUTY AND PRESUMABLY HE PERFORMED NONE. HIS DISCHARGE WAS EFFECTED WHILE HE REMAINED IN A FURLOUGH STATUS, WITHOUT ANY RETURN TO DUTY. THE RULE APPEARS TO BE WELL ESTABLISHED THAT CUMULATIVE LEAVE OF ABSENCE IS EARNED BY SERVICE. PHRASED DIFFERENTLY, LEAVE IS A RIGHT TO BE ABSENT FROM DUTY WHICH IS EARNED WHILE PRESENT FOR DUTY. 7 COMP. GEN. 615, 616, AND B-131442, JANUARY 20, 1958. SINCE COMMANDER HOGAN DID NOT REPORT FOR DUTY WHILE ON FURLOUGH, THERE APPEARS TO BE NO BASIS FOR A CONCLUSION THAT HE PERFORMED ANY "ACTIVE SERVICE" WITHIN THE MEANING OF THAT TERM AS USED IN 10 U.S.C. 701. HIS LEAVE RIGHTS INSOFAR AS THE NUMBER OF DAYS FOR WHICH HE IS ENTITLED TO BE PAID ARE FOR DETERMINATION AS OF APRIL 12, 1963. YOUR QUESTIONS ARE ANSWERED AS FOLLOWS:

A. AFFIRMATIVE; FULL PAY AT THE RATE AUTHORIZED FOR AN OFFICER OF HIS RANK AND LENGTH OF SERVICE AS OF DATE OF DISCHARGE.

B. THE BASIC ALLOWANCES FOR QUARTERS AND SUBSISTENCE TO WHICH THE MEMBER WOULD HAVE BEEN ENTITLED ON DATE OF DISCHARGE IF NOT ON FURLOUGH SHOULD BE INCLUDED IN THE LUMP-SUM LEAVE PAYMENT, EACH ALLOWANCE COMPUTED ON THE FULL MONTHLY RATE.