B-106199, FEBRUARY 13, 1952, 31 COMP. GEN. 387

B-106199, FEBRUARY 13, 1952, 31 COMP. GEN. 387

LEAVES OF ABSENCE - MILITARY - CASH SETTLEMENT - TRANSFERS BETWEEN REGULAR NAVY AND NAVAL RESERVE AN OFFICER WHO WAS COMMISSIONED IN THE REGULAR NAVY UNDER THE ACT OF AUGUST 13, 1946, WHICH PROVIDES FOR THE TRAINING OF NAVAL OFFICERS, AND WHO WAS TRANSFERRED TO THE NAVAL RESERVE PURSUANT TO THAT ACT AND CONTINUED ON ACTIVE DUTY WITHOUT A BREAK IN SERVICE, MAY NOT BE REGARDED AS HAVING BEEN 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, SO AS TO BE ENTITLED TO A CASH SETTLEMENT FOR UNUSED LEAVE TO HIS CREDIT ON THE DATE OF SUCH TRANSFER.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. G. R. WAFFLE, DEPARTMENT OF THE NAVY, FEBRUARY 13, 1952:

THERE HAS BEEN RECEIVED FROM THE JUDGE ADVOCATE GENERAL OF THE NAVY BY LETTER OF OCTOBER 18, 1951, YOUR LETTER OF AUGUST 27, 1951, REQUESTING AN ADVANCE DECISION AS TO WHETHER ENSIGN JOHN W. KLINE, AN OFFICER IN THE REGULAR NAVY WHO TRANSFERRED TO THE U.S. NAVAL RESERVE IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF AUGUST 13, 1946, 60 STAT. 1057, AND CONTINUED ON ACTIVE DUTY AS AN ENSIGN, IS ENTITLED TO CASH SETTLEMENT FOR UNUSED LEAVE TO HIS CREDIT AT THE TIME OF SUCH TRANSFER.

IT IS UNDERSTOOD THAT ENSIGN KLINE WAS COMMISSIONED IN THE REGULAR NAVY PURSUANT TO THE PROVISIONS OF THE SAID ACT OF AUGUST 13, 1946, 60 STAT. 1057, WHICH BROADLY PROVIDES FOR THE TRAINING OF OFFICERS FOR THE NAVAL SERVICE, SECTION 2 OF WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

NO INDIVIDUAL SHALL BE ENROLLED IN THE TRAINING PROGRAM WHICH THIS ACT ESTABLISHES UNLESS * * * (C) HE SIGNS AN AGREEMENT TO ACCEPT A COMMISSION IN THE NAVY OR MARINE CORPS IF OFFERED AND, HAVING ACCEPTED SUCH COMMISSION, HE WILL, IN THE EVENT OF TERMINATION THEREOF, ACCEPT SUCH COMMISSION IN THE ORGANIZED NAVAL OR MARINE CORPS RESERVE THAT MAY BE OFFERED HIM AND THEREAFTER WILL NOT RESIGN FROM THE RESERVE PRIOR TO THE SIXTH ANNIVERSARY OF THE DATE OF RANK STATED IN HIS ORIGINAL COMMISSION IN THE REGULAR NAVY OR MARINE CORPS. * * * IT IS ALSO UNDERSTOOD THAT ENSIGN KLINE WAS NOT SELECTED FOR RETENTION IN THE REGULAR NAVY. HIS COMMISSION IN THE REGULAR NAVY THEREUPON WAS TERMINATED EFFECTIVE ON THE DATE PRECEDING THE DATE OF HIS ACCEPTANCE OF A COMMISSION IN THE NAVAL RESERVE AND HE CONTINUED ON ACTIVE DUTY IN HIS RESERVE STATUS AT THE STATION TO WHICH HE WAS THEN ASSIGNED. IT APPEARS THAT HIS COMMISSION IN THE REGULAR NAVY WAS TERMINATED ON JUNE 13, 1950, AND THAT HE EXECUTED HIS OATH AND ACCEPTANCE OF APPOINTMENT IN THE NAVAL RESERVE AND REPORTED FOR DUTY UNDER THAT APPOINTMENT ON JUNE 14, 1950.

SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, WHICH AMENDED SECTION 4 OF THE ARMED FORCES LEAVE ACT OF 1946, PROVIDES IN PART 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 SAID SECTION 4 DOES NOT SPECIFICALLY AUTHORIZE, NOR DOES IT PRECLUDE, CASH SETTLEMENT FOR UNUSED LEAVE TO THE CREDIT OF AN OFFICER WHOSE COMMISSION IN THE REGULAR NAVY IS TERMINATED AND WHO IS COMMISSIONED IN THE NAVAL RESERVE AND CONTINUES ON ACTIVE DUTY WITHOUT BREAK IN SERVICE. TO DETERMINE HIS RIGHT TO SUCH CASH SETTLEMENT, IT MUST BE DECIDED WHETHER SUCH AN OFFICER RECEIVED A "DISCHARGE" WITHIN THE MEANING OF THAT TERM AS USED IN THE ARMED FORCES LEAVE ACT. THE TERM "DISCHARGE" AS APPLIED TO COMMISSIONED OFFICERS IS DEFINED IN SECTION 2 (B) OF THE ARMED FORCES LEAVE ACT, 60 STAT. 963, AS A "SEPARATION OR RELEASE FROM ACTIVE DUTY" UNDER HONORABLE CONDITIONS. THE CHANGE IN STATUS FROM THAT OF AN OFFICER OF THE REGULAR NAVY TO AN OFFICER OF THE NAVAL RESERVE IN THE CASE OF AN OFFICER WHO IS CONTINUED ON ACTIVE DUTY WITHOUT BREAK IN SERVICE IS SIMILAR TO THE CHANGE IN STATUS OF AN OFFICER WHO IS TRANSFERRED FROM THE ACTIVE LIST TO THE RETIRED LIST AND CONTINUED ON ACTIVE DUTY WITHOUT BREAK IN SERVICE. IN THAT CONNECTION, IT WAS HELD IN B-95042, JANUARY 31, 1951, 30 COMP. GEN. 328, THAT 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 THAT THEREFORE SUCH OFFICER IS NOT ENTITLED TO CASH SETTLEMENT FOR UNUSED LEAVE UPON BEING PLACED ON THE RETIRED LIST. IN AN OPINION DATED AUGUST 6, 1951, THE JUDGE ADVOCATE GENERAL OF THE NAVY CONCLUDED THAT ENSIGN KLINE'S CASE COMES SQUARELY WITHIN THE IMPORT OF THE SAID DECISION OF JANUARY 31, 1951, AND THAT, IN HIS OPINION, THE OFFICER IS NOT ENTITLED TO BE COMPENSATED FOR UNUSED LEAVE TO HIS CREDIT ON THE DATE OF HIS TRANSFER TO THE NAVAL RESERVE. I FIND NO SUBSTANTIAL BASIS FOR DISAGREEING WITH THE SAID CONCLUSION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY AND ACCORDINGLY CONCLUDE THAT ENSIGN KLINE'S PAY ACCOUNT MAY NOT BE CREDITED WITH THE COMMUTED VALUE OF THE UNUSED LEAVE TO HIS CREDIT ON THE DATE OF HIS TRANSFER FROM THE REGULAR NAVY TO THE NAVAL RESERVE. SEE B-99835, APRIL 10, 1951. IT IS INFORMALLY UNDERSTOOD, HOWEVER, THAT ENSIGN KLINE WAS RELEASED FROM ACTIVE DUTY SEPTEMBER 11, 1951, AND THAT HE HAD 60 DAYS' UNUSED LEAVE TO HIS CREDIT ON THAT DATE FOR WHICH HE PRESUMABLY RECEIVED A CASH SETTLEMENT.