B-128398, AUG. 15, 1956

B-128398, AUG. 15, 1956

TO MAJOR HAROLD HORNER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 12, 1956, REQUESTING REVIEW OF OUR SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR A LUMP-SUM PAYMENT UNDER THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, FOR UNUSED LEAVE STATED TO HAVE ACCRUED TO YOUR CREDIT DURING THE PERIOD FROM OCTOBER 1, 1949, THROUGH FEBRUARY 11, 1951, WHILE YOU WERE IN ATTENDANCE AS A MEMBER OF THE TENNESSEE NATIONAL GUARD AT THE ARMY FIELD FORCES COURSE OF INSTRUCTION FOR NATIONAL GUARD OFFICERS, FORT MONROE, VIRGINIA.

YOUR CLAIM WAS DISALLOWED ON THE GROUND THAT PAYMENT WAS NOT AUTHORIZED UNDER THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, BECAUSE YOUR SERVICE WAS CONTINUOUS. THE ORDERS OF THE OFFICE, CHIEF OF ARMY FIELD FORCES, FORT MONROE, VIRGINIA, DATED FEBRUARY 7, 1951, RELIEVED YOU FROM DUTY AT THAT PLACE ON FEBRUARY 11, 1951, FOR THE PURPOSE OF ACCEPTING EXTENDED ACTIVE DUTY ON FEBRUARY 12, 1951, AND HENCE YOU WERE NOT "DISCHARGED" SO AS TO BECOME ENTITLED TO A CASH SETTLEMENT FOR YOUR UNUSED LEAVE AS OF FEBRUARY 11, 1951.

YOU REQUEST RECONSIDERATION OF YOUR CLAIM IN VIEW OF OUR DECISION OF DECEMBER 10, 1953, B-116595, THAT, UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 AND THE ARMED FORCES LEAVE ACT OF 1946, NATIONAL GUARDSMEN ARE ENTITLED TO ACCRUE LEAVE AND TO RECEIVE LUMP-SUM PAYMENT FOR ANY ACCRUED LEAVE NOT USED AT TIME OF RELIEF FROM ACTIVE DUTY FOR TRAINING FOR PERIODS OF DUTY PERFORMED IN EXCESS OF 30 DAYS COMMENCING OCTOBER 1, 1949.

SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, 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 * * *.'

THE TERM "DISCHARGE," AS APPLIED TO COMMISSIONED OFFICERS, IS DEFINED IN SECTION 2 (B) OF THE ACT AS A "SEPARATION OR RELEASE FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS.'

YOU WERE NEITHER SEPARATED FROM THE SERVICE NOR RELEASED FROM ACTIVE DUTY AT ANY TIME DURING THE PERIOD FOR WHICH YOU CLAIMED PAY FOR LEAVE. UNDER THE ORDERS OF FEBRUARY 7, 1951, AS UNDER OTHER ORDERS ISSUED DURING YOUR PERIOD OF DUTY, YOU WERE CONTINUED ON ACTIVE DUTY WITHOUT ANY BREAK IN SERVICE AND IT APPEARS THAT YOU HAVE REMAINED ON ACTIVE DUTY TO THE PRESENT TIME. HENCE, IT IS CLEAR, ON THE PRESENT RECORD, THAT THERE WAS NO "DISCHARGE" WITHIN THE PROVISIONS OF THE ARMED FORCES LEAVE ACT ENTITLING YOU TO COMPENSATION FOR UNUSED LEAVE. SEE 30 COMP. GEN. 328; 31 ID. 387, AND 34 ID. 656. IF YOU WERE NOT PROPERLY CREDITED WITH THE UNUSED LEAVE WHICH HAD ACCRUED FOR THE PERIOD ENDING FEBRUARY 11, 1951, THAT FACT DOES NOT CHANGE THE CONDITIONS OF THE APPLICABLE STATUTE WHICH MUST BE MET BEFORE PAYMENT IS AUTHORIZED.