B-127629, MAY 17, 1965

B-127629, MAY 17, 1965

TO MR. EDWARD A. ZAPOLSKY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 20, 1956, REQUESTING REVIEW OF OUR SETTLEMENT DATED MARCH 15, 1956, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PAY FOR UNUSED LEAVE UPON YOUR RELEASE FROM ACTIVE DUTY ON SEPTEMBER 25, 1950, AND JULY 7, 1951, AS FIRST LIEUTENANT, NATIONAL GUARD. YOU EXPRESS THE VIEW THAT THE AMOUNT PAID YOU FOR UNUSED LEAVE SHOULD HAVE INCLUDED INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY, REQUIRED BY COMPETENT ORDERS, AS A CREW MEMBER INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHT.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT SINCE THE APPLICABLE LAWS AND REGULATIONS COVERING PAYMENT FOR UNUSED LEAVE SPECIFY THAT PAYMENT WILL BE MADE ON THE BASIS OF BASE AND LONGEVITY PAY AND ALLOWANCES, THERE IS NO AUTHORITY FOR THE INCLUSION OF HAZARDOUS DUTY PAY IN THE AMOUNT SO PAID. YOU SAY THAT YOU CONCUR THAT APPLICABLE LAWS AND REGULATIONS COVERING PAYMENT FOR UNUSED LEAVE PROBABLY SPECIFY THAT PAYMENT WILL BE MADE ON THE BASIS OF BASE AND LONGEVITY PAY AND ALLOWANCES. YOU ALSO SAY, HOWEVER, THAT SUCH LAWS AND REGULATIONS DO NOT SPECIFICALLY DISALLOW PAYMENT OF INCENTIVE PAY WHERE APPLICABLE AND THAT IF THEY DO, YOU WOULD LIKE TO BE INFORMED AS TO THE ARMY REGULATIONS WHICH APPLY. IT APPEARS TO BE YOUR BELIEF THAT SINCE THERE ARE REGULATIONS WHICH PROVIDE FOR THE PAYMENT OF SUCH PAY TO A MEMBER OF THE ARMED FORCES WHEN ON LEAVE--- IF OTHERWISE ENTITLED TO SUCH PAY--- THAT SUCH PAY SHOULD LIKEWISE BE INCLUDED IN THE AMOUNT PAID FOR UNUSED ACCRUED LEAVE.

THE APPLICABLE STATUTORY PROVISIONS ARE CONTAINED IN SECTION 4 OF THE ARMED FORCES LEAVE ACT OF 1946 AS AMENDED BY THE ACT OF AUGUST 4, 1947, 61 STAT. 748. SUBSECTION (B) OF THAT SECTION PROVIDES, WITH EXCEPTIONS NOT HERE MATERIAL, THAT WHEN ABSENT WITH LEAVE, MEMBERS SHALL BE ENTILED DURING SUCH ABSENCE NOT EXCEEDING THE AGGREGATE NUMBER OF DAYS' LEAVE AUTHORIZED BY THE ACT TO THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT ON LEAVE AND TO ANY ADDITIONAL ALLOWANCE OR ALLOWANCES OTHERWISE PROVIDED BY LAW FOR MEMBERS WHILE ON LEAVE. SO FAR AS IS HERE PERTINENT, SUBSECTION (C) OF SECTION 4 PROVIDES THAT 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.

THE APPLICABLE REGULATIONS APPEARED IN PARAGRAPH 173 OF WAR DEPARTMENT TECHNICAL MANUAL NO. 14-501, AS SHOWN IN CHANGE 2, DATED SEPTEMBER 12, 1947:

"A. ANY MEMBER OF THE ARMED FORCES DISCHARGED AFTER 31 AUGUST 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. IN MAKING THE COMPUTATION FOR AMOUNT TO BE PAID FOR UNUSED LEAVE, ITEMS OF ADDITIONAL PAY (AIDE, AVIATION, GLIDER, PARACHUTE, FOREIGN SERVICE, SEA DUTY, AWARD, OR BADGE) WILL NOT BE USED. * * *"

THOSE REGULATIONS WERE IN EFFECT UNTIL SUPERSEDED BY DEPARTMENT OF THE ARMY SPECIAL REGULATIONS NO. 35-1020-1, DATED AUGUST 27, 1952, PARAGRAPH 1 OF WHICH PROVIDED IN PERTINENT PART AS FOLLOWS:

"D. IN MAKING THE COMPUTATION FOR AMOUNT TO BE PAID FOR UNUSED LEAVE, ITEMS OF INCENTIVE OR SPECIAL PAY (THAT IS, AERIAL FLIGHT, GLIDER, PARACHUTE, FOREIGN DUTY, SEA DUTY, DIVING, MEDICAL AND DENTAL) OR CLOTHING ALLOWANCE ITEMS WILL NOT BE USED.'

SINCE THE INCLUSION OF ITEMS OF INCENTIVE OR SPECIAL PAY IN PAYMENTS FOR UNUSED ACCRUED LEAVE WAS NOT AUTHORIZED BY THE APPLICABLE LAWS AND REGULATIONS, THE SETTLEMENT OF MARCH 15, 1956, CORRECTLY DISALLOWED YOUR CLAIM.