B-127140, MAY 28, 1956, 35 COMP. GEN. 666

B-127140, MAY 28, 1956, 35 COMP. GEN. 666

LEAVES OF ABSENCE - MILITARY, NAVAL, ETC., PERSONNEL - LEAVE ACCRUED BUT UNUSED PRIOR TO RELIEF FROM ACTIVE DUTY - COURT-MARTIAL CONVICTION AFTER TERMINATION OF ACTIVE DUTY AN ENLISTED NAVY RESERVIST WHO, AFTER TERMINATION OF A REQUIRED TERM OF ACTIVE SERVICE, WAS CONVICTED BY COURT-MARTIAL AND SENTENCED TO REDUCTION IN GRADE FROM COMMISSARY MAN SEAMAN TO SEAMAN RECRUIT AND TO CONFINEMENT AND SUBSEQUENTLY RELEASED TO INACTIVE DUTY IN THE NAVAL RESERVE IS REGARDED AS HAVING CONTINUED UNDER A RESERVE ENLISTMENT CONTRACT; AND THEREFORE THE MEMBER IS ENTITLED TO PAYMENT FOR ACCUMULATED UNUSED LEAVE COMPUTED ON THE BASIS OF PAY APPLICABLE TO A SEAMAN RECRUIT.

TO DISBURSING OFFICER, UNITED STATES NAVAL RETRAINING COMMAND, MAY 28, 1956:

YOUR LETTER OF JANUARY 18, 1956, 105:RER:BT L16-4 SER: D28-56, REQUESTS DECISION WHETHER, ON THE FACTS PRESENTED, YOU ARE AUTHORIZED TO CREDIT AND PAY WILLIAM 1. STEPHENSON, JR., 439 34 13, SEAMAN RECRUIT, USNR-R, FOR ACCUMULATED UNUSED LEAVE, AND, IF SO, YOU REQUEST TO BE ADVISED OF THE RATE OF BASIC PAY TO BE USED IN COMPUTING THE AMOUNT DUE.

YOU SAY THAT ON OCTOBER 11, 1955, THE ENLISTED RESERVIST, WHOSE TERM OF OBLIGATED SERVICE HAD TERMINATED AUGUST 30, 1955, WAS CONVICTED BY A SPECIAL COURT-MARTIAL OF A VIOLATION OF ARTICLE 86, UNIFORM CODE OF MILITARY JUSTICE, 50 U.S.C. 680 (ABSENCE WITHOUT LEAVE), AND SENTENCED TO REDUCTION IN GRADE FROM COMMISSARY MAN SEAMAN TO SEAMAN RECRUIT AND TO CONFINEMENT AT HARD LABOR FOR 4 MONTHS. HE WAS RELEASED FROM CONFINEMENT ON JANUARY 9, 1956, AND ON THE SAME DAY WAS RELEASED TO INACTIVE DUTY IN THE U.S. NAVAL RESERVE ( READY). WHEN RELEASED TO INACTIVE DUTY 29 DAYS OF HIS ACCUMULATED LEAVE HAD NOT BEEN USED.

AN ENLISTED MAN RETAINED IN THE SERVICE BEYOND THE TERM OF HIS ENLISTMENT AWAITING TRIAL IS NOT ENTITLED TO PAY AND ALLOWANCES AFTER EXPIRATION OF ENLISTMENT WHERE THE TRIAL RESULTS IN CONVICTION. 17 COMP. GEN. 103; B- 117743, APRIL 23, 1954. COMPARE 30 COMP. GEN. 449; 35 COMP. GEN. 366, 368. ON THE BASIS THAT UNDER SUCH RULE THIS RESERVIST HAD NO RATE OF PAY WHEN RELEASED TO INACTIVE DUTY, YOU EXPRESS DOUBT THAT HE MAY BE PAID FOR HIS UNUSED LEAVE.

THIS CASE, HOWEVER, APPEARS TO INVOLVE A RETENTION AFTER THE EXPIRATION OF A FIXED TOUR OF ORDERED ACTIVE DUTY RATHER THAN A RETENTION AFTER EXPIRATION OF ENLISTMENT. SINCE THE RESERVE ENLISTMENT CONTRACT CONTINUED IN FULL FORCE AND EFFECT AND THE INDIVIDUAL'S NAVAL RESERVE STATUS WAS NOT AFFECTED, THE RULE RELATING TO THE PAYMENT OF PAY AND ALLOWANCES DURING CONFINEMENT AFTER EXPIRATION OF THE CONTRACT OF ENLISTMENT IS NOT FOR APPLICATION.

SECTIONS 240 AND 241 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 492, 50 U.S.C. 971, 972, PROVIDE, WITH RESPECT TO ENTITLEMENT OF MEMBERS OF THE RESERVE COMPONENTS TO PAY AND ALLOWANCES, AS FOLLOWS:

SEC. 240. SUBJECT TO THE PROVISIONS OF THIS ACT, MEMBERS OF THE RESERVE COMPONENTS MAY BE ORDERED TO ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, OR OTHER DUTY WITH PAY AND ALLOWANCES AS PROVIDED BY LAW, OR, WITH THEIR CONSENT, WITHOUT PAY. DUTY WITHOUT PAY SHALL BE COUNTED FOR ALL PURPOSES THE SAME AS LIKE DUTY WITH PAY.

SEC. 241. MEMBERS OF THE RESERVE COMPONENTS RETAINED OR CONTINUED ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING PURSUANT TO LAW AFTER THE EXPIRATION OF THEIR TERM OF SERVICE ARE ENTITLED TO PAY AND ALLOWANCES WHILE ON SUCH DUTY EXCEPT TO THE EXTENT THAT FORFEITURE THEREOF IS ADJUDGED BY AN APPROVED SENTENCE OF A COURT-MARTIAL OR NONJUDICIAL PUNISHMENT BY A COMMANDING OFFICER, OR UNLESS OTHERWISE IN A NONPAY STATUS PURSUANT TO LAW.

UNDER THE PROVISIONS OF SECTION 4 OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 964, AS AMENDED, 37 U.S.C. 33, PAY AND ALLOWANCES ACCRUE TO A MEMBER OF THE ARMED FORCES DURING A PERIOD OF ABSENCE WITHOUT LEAVE. WHILE SUCH PAY AND ALLOWANCES ARE FORFEITED BY THE PROVISIONS OF THE AMENDED SECTION 4 UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE, THE MEMBER IS NEVERTHELESS, UNDER SUCH PROVISIONS, ENTITLED TO BE COMPENSATED FOR UNUSED ACCRUED LEAVE STANDING TO HIS CREDIT AT TIME OF DISCHARGE "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.' THE TERM "DISCHARGE" AS USED IN SUCH PROVISIONS INCLUDES RELEASE FROM ACTIVE DUTY, AND UNQUESTIONABLY THERE IS A RATE OF PAY APPLICABLE TO THE GRADE HELD BY AN ENLISTED RESERVIST EVEN THOUGH THE RESERVIST MAY BE IN A NONPAY STATUS. THUS, EVEN THOUGH THIS RESERVIST WAS NOT RETAINED AFTER THE EXPIRATION OF HIS ORDERED TOUR OF ACTIVE DUTY FOR THE PERFORMANCE OF DUTY BUT TO AWAIT THE COMPLETION OF CRIMINAL PROCEEDINGS AGAINST HIM FOR A VIOLATION OF AN ARTICLE OF THE UNIFORM CODE OF MILITARY JUSTICE AND APPARENTLY IS TO BE REGARDED AS BEING IN A "NONPAY STATUS PURSUANT TO LAW" AFTER AUGUST 30, 1955 (COMPARE 17 COMP. GEN. 103), HE IS ENTITLED TO BE COMPENSATED FOR HIS UNUSED LEAVE AS AUTHORIZED BY THE STATUTE.

UNDER THE PROVISIONS OF ARTICLE 57 OF THE UNIFORM CODE OF MILITARY JUSTICE, 50 U.S.C. 638, THE SENTENCE OF THE COURT-MARTIAL IN THIS CASE, INSOFAR AS THE REDUCTION IN GRADE IS CONCERNED, BECAME EFFECTIVE ON THE DATE IT WAS ORDERED EXECUTED. HENCE, STEPHENSON'S GRADE WHEN RELEASED TO INACTIVE DUTY WAS SEAMAN RECRUIT AND, THEREFORE, THE PAYMENT TO HIM FOR ANY PROPERLY ACCRUED AND UNUSED LEAVE IS FOR COMPUTATION ON THE BASIS OF THE BASIC PAY APPLICABLE TO A SEAMAN RECRUIT WITH HIS LENGTH OF SERVICE, PLUS THE SPECIFIED ALLOWANCES.