B-103503, MAY 24, 1951, 30 COMP. GEN. 481

B-103503, MAY 24, 1951, 30 COMP. GEN. 481

LEAVES OF ABSENCE - MILITARY - ACCRUAL - MAXIMUM LIMITATION UNDER THE ACT OF SEPTEMBER 23, 1950, AMENDING SECTION 3 (B) OF THE ARMED FORCES LEAVE ACT OF 1946 AUTHORIZING MEMBERS OF THE ARMED FORCES TO CHARGE LEAVE TAKEN DURING THE CURRENT FISCAL YEAR TO LEAVE WHICH ACCRUES DURING SUCH YEAR WITHOUT REGARD TO THE 60-DAY LIMITATION, A MEMBER WHO HAD 60 DAYS' ACCUMULATED LEAVE TO HIS CREDIT ON JUNE 30, 1950, AND WHO THERETOFORE HAD TAKEN NO LEAVE DURING THE FISCAL YEAR ENDING JUNE 30, 1951, AND WHO IS TO BE RETIRED OR RELEASED FROM ACTIVE DUTY JUNE 30, 1951, MAY BE GRANTED 30 DAYS' LEAVE TO EXPIRE ON SUCH DATE OF TRANSFER TO THE RETIRED LIST OR RELEASE FROM ACTIVE DUTY, WITHOUT AFFECTING HIS RIGHT TO BE COMPENSATED FOR THE 60 DAYS' ACCUMULATED LEAVE REMAINING TO HIS CREDIT ON THE DATE OF RETIREMENT OR RELEASE FROM ACTIVE DUTY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MAY 24, 1951:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 16, 1951, REQUESTING DECISION WHETHER, UNDER EXISTING LAW, AN OFFICER WHO IS TO BE TRANSFERRED TO THE RETIRED LIST ON JUNE 30, 1951, AND WHO, AT THE BEGINNING OF THE CURRENT FISCAL YEAR, HAD 60 DAYS' ACCUMULATED LEAVE TO HIS CREDIT, AND WHO HAD TAKEN NO LEAVE DURING THE FISCAL YEAR, LEGALLY MAY BE GRANTED 30 DAYS' LEAVE FOR THE PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH HE WILL BE TRANSFERRED TO THE RETIRED LIST, AND THEN BE ENTITLED TO CASH SETTLEMENT FOR 60 DAYS' UNUSED LEAVE UPON RETIREMENT.

SECTION 3 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, APPROVED AUGUST 9, 1946, 60 STAT. 964, PROVIDES AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF THIS ACT OR OF ANY OTHER LAW OR REGULATION, NO MEMBER OF THE ARMED FORCES (OTHER THAN A MEMBER ON TERMINAL LEAVE ON SEPTEMBER 1, 1946) SHALL BE PERMITTED TO ACCUMULATE OR TO HAVE TO HIS CREDIT, AT ANY TIME AFTER AUGUST 31, 1946, ACCUMULATED OR ACCRUED LEAVE AGGREGATING IN EXCESS OF SIXTY DAYS.

IN DECISION OF AUGUST 18, 1949, 29 COMP. GEN. 83, IT WAS HELD THAT IN APPLYING THE PROVISIONS OF THE SAID SECTION 3 (B), 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 IN EXCESS OF 60 DAYS WHICH MAY BE USED FOR LEAVE PURPOSES. SUBSEQUENT TO SUCH DECISION, THE SAID SECTION 3 (B) OF THE ARMED FORCES LEAVE ACT WAS AMENDED BY PUBLIC LAW 818, APPROVED SEPTEMBER 23, 1950, TO READ AS FOLLOWS:

CHANGE THE PERIOD AT THE END THEREOF TO A COMMA AND INSERT: "EXCEPT THAT LEAVE ACTUALLY TAKEN DURING ANY FISCAL YEAR MAY BE CHARGED TO LEAVE ACCRUING DURING SUCH FISCAL YEAR WITHOUT REGARD TO SUCH SIXTY-DAY LIMITATION: PROVIDED, THAT NO CASH SETTLEMENT SHALL BE MADE FOR UNUSED OR ACCUMULATED LEAVE IN EXCESS OF SIXTY DAYS UPON DISCHARGE OR RETIREMENT SUBSEQUENT TO AUGUST 31, 1946.'

SEC. 2. THIS ACT SHALL BE EFFECTIVE AUGUST 31, 1946. THE OBVIOUS PURPOSE OF SUCH AMENDMENT WAS TO PERMIT MEMBERS, ON AND AFTER AUGUST 31, 1946, TO CHARGE LEAVE TAKEN DURING THE CURRENT FISCAL YEAR TO LEAVE WHICH ACCRUES DURING SUCH YEAR WITHOUT REGARD TO THE 60-DAY LIMITATION. INDICATED IN THE REPORT (3004) OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON S. 2724, WHICH BECAME THE SAID ACT OF SEPTEMBER 23, 1950, THE AMENDMENT TO SECTION 3 (B) WOULD MEAN THAT A MEMBER WHO HAD 60 DAYS' LEAVE TO HIS CREDIT ON JULY 1, 1948, COULD TAKE 30 DAYS' LEAVE IN JUNE 1949 AND ENTER THE NEW FISCAL YEAR 1950 WITH THE SAME 60 DAYS' LEAVE THAT HE HAD TO HIS CREDIT THE YEAR PREVIOUSLY. THERE IS NOTHING IN THE SAID ACT OR ITS LEGISLATIVE HISTORY WHICH REMOTELY INDICATES THAT IT WAS INTENDED TO MAKE A DISTINCTION IN THAT RESPECT BETWEEN A MEMBER WHO IS CONTINUED ON ACTIVE DUTY AFTER JUNE 30 AND A MEMBER WHO IS TO BE RETIRED OR RELEASED FROM ACTIVE DUTY ON THAT DATE. HENCE, A MEMBER WHO HAD 60 DAYS' ACCUMULATED LEAVE TO HIS CREDIT ON JUNE 30, 1950, AND WHO THERETOFORE HAD TAKEN NO LEAVE DURING THE FISCAL YEAR ENDING JUNE 30, 1951, MAY BE GRANTED 30 DAYS' LEAVE TO EXPIRE ON SUCH DATE OF TRANSFER TO THE RETIRED LIST OR RELEASE FROM ACTIVE DUTY, WITHOUT AFFECTING HIS RIGHT TO BE COMPENSATED FOR THE 60 DAYS' ACCUMULATED LEAVE REMAINING TO HIS CREDIT ON THE DATE OF RETIREMENT OR RELEASE FROM ACTIVE DUTY. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.