B-116410, NOV 10, 1972

B-116410, NOV 10, 1972

PRECIS-UNAVAILABLE COMPUTATION OF LEAVE FOR SERVICE WHERE AN ENLISTED MEMBER IS DISCHARGED TO ACCEPT A COMMISSION OR DISCHARGED EARLY FOR THE PURPOSE OF REENLISTMENT PRIOR TO EXPIRATION OF TERM OF SERVICE (PETS) (CODE 85026)

AUDITOR IN CHARGE, AIR FORCE AUDIT STAFF - WALTER A. VIRBICK ASSISTANT GENERAL COUNSEL - LOUIS PALMER:

REFERENCE IS MADE TO YOUR MEMORANDUM OF JUNE 2, 1971, WITH ENCLOSURES, TO MR. OSCAR B. CARPENTER, JR., FORMER ASSISTANT GENERAL COUNSEL, REGARDING THIS SUBJECT.

YOU STATE THAT THE AIR FORCE METHOD OF COMPUTING LEAVE IN CASES OF ENLISTED MEMBERS WHO ARE DISCHARGED TO ACCEPT COMMISSIONS OR ARE DISCHARGED EARLY FOR THE PURPOSE OF REENLISTMENT PRIOR TO THE EXPIRATION OF THEIR TERMS OF SERVICE IN SOME CASES ALLOWS THE MEMBER ONE MORE DAY OF LEAVE, FOR WHICH HE IS PAID UPON FINAL SEPARATION, THAN DOES YOUR METHOD OF COMPUTATION. AS AN EXAMPLE YOU CITED A CASE, TO WHICH AN EXCEPTION WAS TAKEN, WHICH INVOLVED A MEMBER WHO WAS IN AN ENLISTED STATUS FROM DECEMBER 30, 1966, THROUGH MARCH 16, 1967, AND IN AN OFFICER STATUS FROM MARCH 17, 1967, THROUGH SEPTEMBER 2, 1969. THE AIR FORCE COMPUTED THE MEMBER'S LEAVE ON THE BASIS OF TWO PERIODS OF SERVICE ALLOWING HIM 7 DAYS' LEAVE FOR HIS ENLISTED PERIOD AND 74 1/2 DAYS' LEAVE FOR HIS OFFICER PERIOD, FOR A TOTAL OF 81 1/2 DAYS ROUNDED TO 82 DAYS UPON SEPARATION. YOU SAY, HOWEVER, THAT YOU COMPUTED THE MEMBER'S LEAVE ON THE BASIS OF A SINGLE CONTINUOUS PERIOD OF SERVICE, ON WHICH BASIS HE ACCRUED ONLY 81 DAYS' LEAVE.

YOU CITE THE CURRENT AIR FORCE LEAVE MANUAL (AFM 35-22) EFFECTIVE FEBRUARY 12, 1971, AND ITS PREDECESSOR, EFFECTIVE DECEMBER 16, 1964, WHICH PROVIDE IN PARAGRAPH 1-5H AND SUPERSEDED PARAGRAPH 43A THAT, "LEAVE WILL BE COMPUTED FOR ALL MEMBERS BY FISCAL YEAR OR PORTION THEREOF ***." YOU ALSO CITE PARAGRAPHS 1-5H(4)(A) AND (D) OF THE CURRENT MANUAL WHICH PROVIDE THAT "ACCRUED LEAVE MUST BE CARRIED FORWARD TO A NEW STATUS OR PERIOD OF SERVICE WHEN:

"(A) MEMBER IS DISCHARGED EARLY FOR THE CONVENIENCE OF THE GOVERNMENT AND REENLISTS THE FOLLOWING DAY ***. THIS INCLUDES CARRYING FORWARD A MINUS LEAVE BALANCE WHICH WILL NOT BE FINALIZED AND COLLECTED IN THIS INSTANCE.

"(D) ENLISTED MEMBER IS DISCHARGED TO ACCEPT A COMMISSION OR AN APPOINTMENT AS A WARRANT OFFICER IN THE AIR FORCE."

PARAGRAPH 43G(3) OF THE SUPERSEDED MANUAL PROVIDED THAT, "WHERE THE SERVICE OF A MEMBER IS CONTINUOUS *** LEAVE ACCRUED AND NOT USED IN THE FIRST PERIOD OF SERVICE WILL BE CARRIED OVER TO THE LATTER PERIOD OF SERVICE" SUCH AS "AN ENLISTED MEMBER WHO IS DISCHARGED TO ACCEPT A COMMISSION OR AN APPOINTMENT AS A WARRANT OFFICER IN THE AIR FORCE" AND, PARAGRAPH 43H OF THE SUPERSEDED MANUAL PROVIDED THAT, "WHEN A MEMBER IS DISCHARGED EARLY FOR THE CONVENIENCE OF THE GOVERNMENT, FOR THE PURPOSE OF IMMEDIATE REENLISTMENT ***, THE SERVICE WILL BE CONSIDERED CONTINUOUS FOR THE PURPOSE OF BALANCING THE LEAVE ACCOUNT." YOU SAY YOU HAVE INTERPRETED PARAGRAPH 43H, IN THE CASE OF PETS DISCHARGES, TO MEAN THAT THE MEMBER COULD NOT ACCRUE MORE THAN 30 DAYS' LEAVE DURING ANY ONE FISCAL YEAR. HOWEVER, THE CURRENT MANUAL DOES NOT PROVIDE FOR THIS.

IN VIEW OF THE DIFFERENCES IN METHODS OF COMPUTATION YOU REQUEST OUR INFORMAL OPINION AS TO WHETHER UNDER THESE CIRCUMSTANCES A MEMBER IS ENTITLED TO ACCRUE LEAVE FOR TWO SEPARATE PERIODS OF SERVICE OR WHETHER THE ACCRUAL SHOULD BE FOR A CONTINUOUS PERIOD BASED ON THE FISCAL YEAR.

SECTION 501(B) OF TITLE 37, IN AUTHORIZING PAYMENT TO A MEMBER FOR ACCRUED LEAVE STANDING TO HIS CREDIT UPON DISCHARGE, PROVIDES IN PERTINENT PART:

"*** HOWEVER, A PAYMENT MAY NOT BE MADE UNDER THIS SUBSECTION TO A MEMBER WHO -

"(1) IS DISCHARGED FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT OR A WARRANT, OR ENTERING INTO AN ENLISTMENT, IN HIS ARMED FORCE; ***

"A MEMBER TO WHOM A PAYMENT MAY NOT BE MADE UNDER THIS SUBSECTION *** CARRIES THE ACCRUED LEAVE STANDING TO HIS CREDIT FROM THE ONE STATUS TO THE OTHER WITHIN HIS ARMED FORCE."

SECTION 701(A) OF TITLE 10, U.S.C. PROVIDES IN PART THAT IF MEMBER OF AN ARMED FORCE IS ENTITLED TO LEAVE AT THE RATE OF 2 1/2 CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE ***." SECTION 704 OF TITLE 10 PROVIDES IN PERTINENT PART:

"(A) UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, OR HIS DESIGNATED REPRESENTATIVE, LEAVE MAY BE TAKEN BY A MEMBER ON A CALENDAR DAY BASIS AS VACATION OR ABSENCE FROM DUTY WITH PAY, ANNUALLY AS ACCRUING, OR OTHERWISE.

"(B) REGULATIONS PRESCRIBED UNDER SUBSECTION (A) SHALL --

"(2) ESTABLISH TO THE FULLEST EXTENT PRACTICABLE UNIFORM POLICIES FOR THE SEVERAL ARMED FORCES;

"(4) PROVIDE FOR THE DETERMINATION OF THE NUMBER OF CALENDAR DAYS OF LEAVE TO WHICH A MEMBER IS ENTITLED, INCLUDING THE NUMBER OF CALENDAR DAYS OF ABSENCE FROM DUTY OR VACATION TO BE COUNTED OR CHARGED AGAINST LEAVE."

IN CONSTRUING SECTIONS 3 AND 4 OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, FROM WHICH 10 U.S.C. 701 AND 704, SUPRA, WERE DERIVED, WE SAID THAT IT WAS WITHIN THE DISCRETION GRANTED THE SECRETARIES BY THE ACT TO PRESCRIBE REGULATIONS FOR CREDITING LEAVE FOR FRACTIONAL MONTHS, INCLUDING A PROVISION THAT WHENEVER THE SUM OF THE TOTAL CREDITS RESULTS IN A FRACTIONAL PART OF A DAY, CREDIT WILL BE GIVEN FOR A FULL DAY, NOTWITHSTANDING THAT SUCH REGULATIONS MAY RESULT IN SOME MEMBERS BEING CREDITED WITH LEAVE SLIGHTLY IN EXCESS OF THAT WHICH WOULD BE CREDITED TO THEM BY ANOTHER METHOD OF COMPUTATION. WE ALSO STATED THAT THAT METHOD WAS ADOPTED BY THE SERVICES "AS A PRACTICAL ADMINISTRATIVE SOLUTION OF THE FRACTIONAL COMPUTATION PROBLEM POSED BY THE STATUTE AND THIS OFFICE CANNOT SAY AS A MATTER OF LAW THAT SUCH REGULATIONS ARE NOT WITHIN THE AUTHORITY GRANTED BY SECTION 4(E) OF THE ACT." SEE 33 COMP. GEN. 337 (1954).

HOWEVER, IN COMPUTING THE LEAVE OF ENLISTED MEMBERS DISCHARGED TO ACCEPT A COMMISSION OR DISCHARGED EARLY FOR THE PURPOSE OF REENLISTING PRIOR TO THE EXPIRATION OF TERM OF SERVICE, THERE DOES NOT APPEAR TO BE ANY SOUND REASON WHY FOR LEAVE PURPOSES SERVICE IN THOSE CIRCUMSTANCES SHOULD BE CONSIDERED TWO SEPARATE PERIODS OF SERVICE WITH LEAVE COMPUTED SEPARATELY FOR EACH PERIOD. ACCORDINGLY, IT IS OUR VIEW THAT SUCH SERVICE SHOULD BE CONSIDERED ONE CONTINUOUS PERIOD IN THE COMPUTATION OF LEAVE. WE HAVE BEEN INFORMALLY ADVISED THAT THIS VIEW IS IN ACCORDANCE WITH THE VIEWS OF THE SERVICES, INCLUDING THE AIR FORCE.

IN REGARD TO THE CASE WHICH YOU CITED IN YOUR MEMORANDUM WE AGREE THAT THE MEMBER'S LEAVE SHOULD BE COMPUTED AS ONE CONTINUOUS PERIOD OF SERVICE AND, AS YOU INDICATE, THE MEMBER IS ENTITLED TO ONLY 81 DAYS' LEAVE, NOT 82 DAYS AS COMPUTED BY THE AIR FORCE.