B-150909, JUN. 21, 1963

B-150909, JUN. 21, 1963

TO MR. EDUARDO A. MIGUELINO:

REFERENCE IS MADE TO YOUR LETTER OF MAY 14, 1963, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR ARREARS OF PAY FOR PERIODS OF UNAUTHORIZED ABSENCE SUBSEQUENT TO YOUR ENLISTMENT IN THE UNITED STATES NAVY ON OCTOBER 30, 1945. ALSO, THE NAVY DEPARTMENT HAS REFERRED TO THIS OFFICE YOUR LETTER OF JANUARY 15, 1963, ADDRESSED TO THE BUREAU OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, WASHINGTON, D.C., IN WHICH YOU INQUIRED RELATIVE TO YOUR CLAIM FOR PAY BELIEVED TO BE DUE FOR THE PERIOD IMMEDIATELY PRIOR TO AUGUST 24, 1949, AND FOR PAYMENT OF LEAVE ACCRUED DURING THE PERIOD JANUARY 1, 1948, TO AUGUST 23, 1949. YOU ALSO INQUIRED AS TO WHETHER PAY IS DUE FOR THE PERIOD OF YOUR DETENTION IN THE UNITED STATES NAVAL BRIG, SANGLEY POINT, CAVITE, PHILIPPINES, JULY 27 TO AUGUST 22, 1953.

WE ADVISED YOU IN OUR LETTER OF MARCH 18, 1963, B-150909, THAT YOU WERE NOT ENTITLED TO PAY FOR THE PERIODS YOU WERE ABSENT FROM DUTY FOR THE REASON THAT SUCH ABSENCE WAS WITHOUT LEAVE AND THAT YOU WERE NOT ENTITLED TO PAY FOR THE PERIOD YOU WERE IN NAVAL CUSTODY BECAUSE YOU WERE NOT RESTORED TO DUTY AFTER THE NORMAL EXPIRATION DATE OF YOUR ENLISTMENT, OCTOBER 29, 1949.

YOU NOW CONTEND THAT YOU ARE ENTITLED TO THE PAY ON THE PREMISE THAT YOUR ENLISTMENT PERIOD ,ACTUALLY AND AUTOMATICALLY CONTINUED TO OPERATE UNTIL AUGUST 23, 1961.' IN SUPPORT OF SUCH CONTENTION, YOU SAY THAT YOU WERE UNDER NAVAL CUSTODY DURING THE PERIOD JULY 27 TO AUGUST 22, 1953, AND THAT THE NAVY MAINTAINED YOUR SERVICE RECORDS AND DID NOT DISCHARGE YOU UNTIL AUGUST 23, 1961.

WHEN YOU ENLISTED IN THE NAVY ON OCTOBER 30, 1945, YOU CONTRACTED TO PERFORM HONEST AND FAITHFUL SERVICE FOR A FOUR-YEAR PERIOD. YOUR ENTITLEMENT TO PAY AND ALLOWANCES, THEREFORE, WAS CONTINGENT UPON THE RENDITION OF SUCH SERVICE UNTIL THE NORMAL EXPIRATION OF THE ENLISTMENT, THAT IS, UNTIL OCTOBER 29, 1949. HOWEVER, ON AUGUST 24, 1949, YOU WENT ON LEAVE WITHOUT PROPER AUTHORIZATION AND FROM THAT DATE UNTIL OCTOBER 29, 1949, THE NAVY CARRIED YOU ON THEIR ROLLS IN AN UNAUTHORIZED LEAVE STATUS.

SINCE IT IS CLEAR THAT YOU WERE ABSENT WITHOUT LEAVE AND PERFORMED NO SERVICE DURING THAT SHORT PERIOD, YOU ARE NOT ENTITLED TO ANY PAY AND ALLOWANCES THEREFOR.

WHILE IT APPEARS THAT YOU WERE DETAINED BY NAVAL AUTHORITIES DURING THE PERIOD JULY 27 TO AUGUST 22, 1953, AT NO TIME DURING THAT PERIOD WERE YOU RESTORED TO DUTY SO AS TO BECOME ENTITLED TO PAY AND ALLOWANCES. YOUR DISCHARGE ON AUGUST 23, 1961, COULD NOT LEGALLY SERVE TO ENTITLE YOU TO PAY AND ALLOWANCES FOR THE PERIODS DURING WHICH YOU PERFORMED NO REGULAR MILITARY DUTIES BECAUSE OF ABSENCE WITHOUT LEAVE OR DETENTION BY NAVAL AUTHORITIES. YOU ARE NOT ENTITLED TO ANY PAY OR ALLOWANCES AFTER OCTOBER 29, 1949, THE DATE YOUR ENLISTMENT EXPIRED, BECAUSE YOU WERE NOT RESTORED TO A DUTY STATUS AFTER THAT DATE.

WITH REGARD TO THAT PORTION OF YOUR CLAIM COVERING THE ARREARS OF PAY FOR THE PERIOD PRIOR TO AUGUST 24, 1949, THE DEPARTMENT OF THE NAVY, NAVY FINANCE CENTER, CLEVELAND, OHIO, REPORTED ON MARCH 12, 1963, THAT YOUR ACTIVE DUTY PAY RECORD WAS CLOSED AND THAT AN OVERPAYMENT EXISTS IN YOUR ACCOUNT.

SECTION 4 OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, CH. 475, 61 STAT. 748, 37 U.S.C. 33, PROVIDED THAT ANY MEMBER OF THE ARMED FORCES DISCHARGED AFTER AUGUST 31, 1946, SHALL BE COMPENSATED IN CASH FOR UNUSED LEAVE STANDING TO HIS CREDIT AT THE TIME OF DISCHARGE. HOWEVER, IT ALSO PROVIDED (37 U.S.C. 33 (D) (, AS FOLLOWS:

"ANY MEMBER OF THE ARMED FORCES DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS SHALL FORFEIT ALL UNUSED ACCRUED LEAVE TO HIS CREDIT AT THE TIME OF DISCHARGE.'

SINCE THE RECORD SHOWS THAT YOU WERE DISCHARGED ON AUGUST 23, 1961, UNDER OTHER THAN HONORABLE CONDITIONS, IT IS CLEAR THAT THE ABOVE QUOTED PROVISION OF LAW PROHIBITS A LUMP-SUM PAYMENT TO YOU FOR YOUR ACCRUED LEAVE, IF ANY, STANDING TO YOUR CREDIT ON THE DATE OF YOUR DISCHARGE. ACCORDINGLY, NO AMOUNT IS DUE YOU IN CONNECTION WITH THAT PORTION OF YOUR CLAIM.

IN VIEW OF THE FOREGOING, THERE IS NO FURTHER ACTION THAT WE MAY TAKE ON YOUR CLAIM.