B-129314, OCTOBER 23, 1956, 36 COMP. GEN. 334

B-129314, OCTOBER 23, 1956, 36 COMP. GEN. 334

MILITARY PERSONNEL - LEAVE PAYMENTS - ENLISTED MEMBERS RECEIVING CADET AND MIDSHIPMAN APPOINTMENTS AN ENLISTED OR INDUCTED MEMBER OF THE UNIFORMED SERVICES WHO ACCEPTS AN APPOINTMENT AS A CADET OR MIDSHIPMAN IS CONSIDERED AS "DISCHARGED" FROM HIS ENLISTMENT OR INDUCTED STATUS AS THAT TERM IS USED IN THE ARMED FORCES LEAVE ACT OF 1946, AND IS ENTITLED TO COMPENSATION FOR UNUSED ACCRUED LEAVE; AND THE DATE OF DISCHARGE MAY BE CONSIDERED AS THE DAY PRECEDING THE DATE OF ACCEPTANCE OF THE CADET OR MIDSHIPMAN APPOINTMENT.

TO THE SECRETARY OF DEFENSE, OCTOBER 23, 1956:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 24, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON CERTAIN QUESTIONS STATED IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 150, RELATING TO WHETHER LUMP-SUM LEAVE PAYMENTS MAY BE MADE UNDER AUTHORITY OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, TO ENLISTED OR INDUCTED MEMBERS OF THE ARMED FORCES FOR THEIR ACCRUED LEAVE UPON ACCEPTANCE OF AN APPOINTMENT AS A CADET OR MIDSHIPMAN TO ONE OF THE SERVICE ACADEMIES, IN VIEW OF THE PROVISIONS OF PUBLIC LAW 614, 84TH CONGRESS, APPROVED JUNE 25, 1956.

THE ACT OF JUNE 25, 1956, 70 STAT. 333, 50 U.S.C. 1411-1414, PROVIDES AS FOLLOWS:

THAT THE ENLISTMENT CONTRACT OR PERIOD OF OBLIGATED SERVICE OF A REGULAR, RESERVE, OR INDUCTED MEMBER OF ANY OF THE ARMED FORCES, WHO HEREAFTER ACCEPT AN APPOINTMENT AS A CADET AT THE UNITED STATES MILITARY ACADEMY OR THE UNITED STATES AIR FORCE ACADEMY, OR AN APPOINTMENT AS A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY OR AN APPOINTMENT AS A MIDSHIPMAN IN THE NAVAL RESERVE OR AN APPOINTMENT AS A CADET AT THE UNITED STATES COAST GUARD ACADEMY, SHALL NOT BE TERMINATED BY REASON OF ACCEPTANCE OF SUCH APPOINTMENT, DURING THE CONTINUATION OF THE CADET OR MIDSHIPMAN STATUS OF SUCH MEMBER. A MEMBER SO APPOINTED FROM ENLISTED STATUS SHALL BE ENTITLED ONLY TO THE PAY AND ALLOWANCES, COMPENSATION, PENSIONS OR BENEFITS PROVIDED BY LAW FOR A CADET AT THE UNITED STATES MILITARY ACADEMY OR THE UNITED STATES AIR FORCE ACADEMY, A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY, A CADET OF THE UNITED STATES COAST GUARD ACADEMY, OR THE COMPENSATION AND EMOLUMENTS ACCRUING TO SUCH RESERVE MIDSHIPMAN BY VIRTUE OF HIS STATUS IN THE NAVAL RESERVE.

SEC. 2. A PERSON WHO HEREAFTER ACCEPTS AN APPOINTMENT AS A CADET AT THE UNITED STATES MILITARY ACADEMY OR THE UNITED STATES AIR FORCE ACADEMY, OR AS A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY, OR AS A MIDSHIPMAN IN THE NAVAL RESERVE OR AS A CADET AT THE UNITED STATES COAST GUARD ACADEMY, WHILE HAVING A PERIOD OF OBLIGATED SERVICE AS AN ENLISTED MEMBER OF ANY OF THE ARMED FORCES OR WHILE SERVING UNDER AN ENLISTMENT CONTRACT, AND WHO THEREAFTER IS SEPARATED FROM THE UNITED STATES MILITARY ACADEMY, FROM THE UNITED STATES AIR FORCE ACADEMY, OR FROM THE UNITED STATES NAVAL ACADEMY OR FROM A RESERVE MIDSHIPMAN TRAINING PROGRAM, OR FROM THE UNITED STATES COAST GUARD ACADEMY, FOR REASONS OTHER THAN THE ACCEPTANCE OF A COMMISSION IN THE REGULAR OR RESERVE COMPONENTS OF ONE OF THE ARMED FORCES, OR FOR PHYSICAL DISABILITY, SHALL HAVE HIS APPOINTMENT AS A CADET OR MIDSHIPMAN TERMINATED, AND HIS ENLISTED STATUS SHALL THEREUPON BE RESUMED. A PERSON SO REVERTED TO HIS FORMER ENLISTED STATUS SHALL BE CONTINUED IN SUCH ENLISTED STATUS FOR THE REMAINDER OF HIS OBLIGATED SERVICE OR UNTIL SOONER PROMOTED OR DISCHARGED. IN COMPUTING THE UNEXPIRED PORTION OF AN ENLISTMENT CONTRACT OR PERIOD OF OBLIGATED SERVICE, FOR PURPOSES OF THIS ACT, TIME SERVED AS A CADET OR MIDSHIPMAN SHALL BE COUNTED AS TIME SERVED UNDER SUCH CONTRACT OR PERIOD OF OBLIGATED SERVICE.

SEC. 3. A PERSON WHOSE ENLISTMENT CONTRACT OR PERIOD OF OBLIGATED SERVICE IS CONTINUED PURSUANT TO THIS ACT, SHALL NOT, WHILE A CADET OR MIDSHIPMAN, BE A CHARGE AGAINST THE ALLOWED NUMBER OF PERSONNEL IN THE ARMED FORCE IN WHICH HE WAS ENLISTED OR INDUCTED.

SEC. 4. THE PERIOD OF TIME SERVED UNDER AN ENLISTMENT CONTRACT OR PERIOD OF OBLIGATED SERVICE WHILE ALSO SERVING AS A CADET OR MIDSHIPMAN UNDER AN APPOINTMENT MADE AFTER THE DATE OF ENACTMENT OF THIS ACT SHALL NOT BE COUNTED IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER OF AN ARMED FORCE.

THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED, 37 U.S.C.A. 31A-39, IN PERTINENT PART, PROVIDES (QUOTING FROM TITLE 37, U.S.C. ANNOTATED):

EACH MEMBER OF THE ARMED FORCES SHALL BE ENTITLED TO LEAVE AT THE RATE OF TWO AND ONE-HALF CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE, EXCLUDING PERIODS OF (1) ABSENCE FROM DUTY WITHOUT LEAVE, (2) ABSENCE OVER LEAVE, AND (3) CONFINEMENT AS THE RESULT OF A SENTENCE OF COURT MARTIAL * * *. ( SECTION 31A (A) (

THE TERM "DISCHARGE" MEANS (1) IN THE CASE OF ENLISTED PERSONNEL, SEPARATION OR RELEASE FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS OR APPOINTMENT AS A COMMISSIONED OFFICER OR WARRANT FFICER; AND (2), IN THE CASE OF COMMISSIONED OR WARRANT OFFICER, SEPARATION OR RELEASE FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS. ( SECTION 32 (B) (

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 LEAVES TO A NEW ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES OF 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 THE SUBSECTION SHALL BE MADE ONLY TO A LIVING MEMBER OR LIVING FORMER MEMBER OF THE ARMED FORCES. ( SECTION 33 (C) (

THE PROVISIONS OF SECTIONS 31A-33 AND 34-38 OF THIS TITLE, SHALL NOT APPLY TO CADETS AT THE UNITED STATES MILITARY ACADEMY OR THE UNITED STATES NAVAL ACADEMY, OR TO CADETS OR MIDSHIPMEN SERVING ELSEWHERE IN THE ARMED FORCES. THE RESPECTIVE SECRETARIES ARE AUTHORIZED TO PRESCRIBE REGULATIONS CONCERNING LEAVE FOR CADETS AND MIDSHIPMEN. ( SECTION 38)

THE FOLLOWING QUESTIONS, BASED ON THESE STATUTORY PROVISIONS, ARE PRESENTED IN COMMITTEE ACTION NO. 150:

1. CAN PAYMENT FOR UNUSED LEAVE, PROVIDED FOR BY ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED, BE MADE TO AN ENLISTED MEMBER WHO HAS BEEN SELECTED FOR APPOINTMENT TO ONE OF THE SERVICE ACADEMIES:

(A) ON THE DAY BEFORE SUCH APPOINTMENT IS ACCEPTED?

(B) ON THE DATE OF DISCHARGE FROM ENLISTED STATUS WHERE SUCH DISCHARGE OCCURS AFTER APPOINTMENT IS MADE BUT WHILE CADET OR MIDSHIPMAN STATUS CONTINUES?

2. IF THE ANSWER TO 1 (B) IS AFFIRMATIVE, WHAT IS THE EFFECTIVE DATE FOR THE PURPOSE OF DETERMINING THE RATE OF PAY AND ALLOWANCES "APPLICABLE" TO THE MEMBER "ON THE DATE OF DISCHARGE?

3. IF PAYMENT FOR UNUSED ACCRUED LEAVE IS NOT AUTHORIZED UNDER 1 (A) OR (B), MAY SUCH LEAVE BE CARRIED FORWARD TO COMMISSIONED STATUS?

4. IF PAYMENT FOR UNUSED ACCRUED LEAVE IS NOT AUTHORIZED UNDER 1 (A), MAY PAYMENT FOR SUCH LEAVE BE MADE AT THE TIME OF SEPARATION FROM THE ACADEMY BY REASON OF PHYSICAL DISABILITY?

THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, GRANTS TO EACH MEMBER OF THE ARMED FORCES LEAVE AT THE RATE OF TWO AND ONE-HALF CALENDAR DAYS (UNDER THE CONDITIONS AND SUBJECT TO THE RESTRICTIONS SPECIFIED IN THE ACT) FOR EACH MONTH OF ACTIVE SERVICE. EACH MEMBER OF THE ARMED FORCES IS ENTITLED TO COMPENSATION IN CASH FOR UNUSED ACCRUED LEAVE, NOT IN EXCESS OF 60 DAYS, TO HIS CREDIT AT THE TIME OF HIS "DISCHARGE" (AS SUCH TERM IS DEFINED IN THE ACT), EXCEPT THAT NO CASH SETTLEMENT IS AUTHORIZED TO ANY MEMBER WHO IS DISCHARGED FOR THE PURPOSE OF ACCEPTING A COMMISSION OR WARRANT OR ENTERING INTO AN ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES, OR WHO ELECTS TO CARRY OVER HIS UNUSED ACCRUED LEAVE TO A NEW ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES ON THE DAY FOLLOWING THE DATE OF HIS DISCHARGE. THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946 DO NOT APPLY TO CADETS OR MIDSHIPMEN. 37 U.S.C.A. 38.

SECTION 1 OF PUBLIC LAW 614, WHICH BECAME EFFECTIVE JUNE 25, 1956, PROVIDES THAT THE ENLISTMENT CONTRACT OR THE PERIOD OF OBLIGATED SERVICE OF A REGULAR, RESERVE, OR INDUCTED MEMBER OF ANY OF THE ARMED FORCES, WHO THEREAFTER ACCEPTS AN APPOINTMENT AS A CADET OR MIDSHIPMAN SHALL NOT BE TERMINATED BY REASON OF THE ACCEPTANCE OF SUCH APPOINTMENT DURING THE CONTINUATION OF THE CADET OR MIDSHIPMAN STATUS OF SUCH MEMBER. SECTION 1 OF THE ACT ALSO SPECIFICALLY PROVIDES THAT A MEMBER SO APPOINTED FROM AN ENLISTED STATUS "SHALL BE ENTITLED ONLY TO THE PAY AND ALLOWANCES, COMPENSATION, PENSIONS, OR BENEFITS PROVIDED BY LAW" FOR A CADET OR MIDSHIPMAN. UNDER THESE PROVISIONS OF LAW AN ENLISTED OR INDUCTED MEMBER OF THE ARMED FORCES WHO ACCEPTS AN APPOINTMENT AS A CADET OR MIDSHIPMAN IS NOT ENTITLED DURING THE CONTINUATION OF HIS CADET OR MIDSHIPMAN STATUS TO THE BENEFITS PRESCRIBED IN THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, AND WHILE SERVING AS A CADET OR MIDSHIPMAN, SUCH A MEMBER IS LIMITED AND RESTRICTED TO THE LEAVE BENEFITS PRESCRIBED BY THE SECRETARY CONCERNED FOR THE CADETS OR MIDSHIPMEN OF THAT PARTICULAR BRANCH OF THE ARMED FORCES.

SINCE AN ENLISTED OR INDUCTED MEMBER OF THE ARMED FORCES WHO ACCEPTS AN APPOINTMENT AS A CADET OR MIDSHIPMAN IS THUS PRECLUDED FROM CARRYING FORWARD INTO HIS CADET OR MIDSHIPMAN STATUS ANY UNUSED ACCRUED LEAVE TO HIS CREDIT AT THE TIME HE ACCEPTS SUCH AN APPOINTMENT AND SINCE DURING THE CONTINUATION OF HIS CADET OR MIDSHIPMAN STATUS SUCH A MEMBER IS NOT ENTITLED TO THE BENEFITS OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, IT REASONABLY APPEARS THAT THE MEMBER'S ENLISTED OR INDUCTED STATUS IS NOT CONSIDERED AS PRECLUDING A HOLDING THAT HE IS, IN EFFECT,"DISCHARGED" FOR LEAVE PURPOSES SINCE AN ACTUAL CHANGE WITH RESPECT TO THE MEMBER'S LEAVE RIGHTS AND BENEFITS PRESCRIBED BY LAW ATTENDS HIS ACCEPTANCE OF AN APPOINTMENT AS A CADET OR MIDSHIPMAN. COMPARE DECISION OF DECEMBER 8, 1942, 22 COMP. GEN. 516, CITED IN COMMITTEE ACTION NO. 150.

IT IS CONCLUDED, THEREFORE, THAT AN ENLISTED OR INDUCTED MEMBER OF THE ARMED FORCES WHO ACCEPTS AN APPOINTMENT AS A CADET OR MIDSHIPMAN MAY BE CONSIDERED AS "DISCHARGED" FROM HIS ENLISTED OR INDUCTED STATUS WITHIN THE MEANING OF THAT TERM AS USED IN THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED. IN SUCH A CASE, THE EFFECTIVE DATE OF DISCHARGE FOR PURPOSES OF CASH COMPENSATION FOR UNUSED ACCRUED LEAVE AS PRESCRIBED IN THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, PROPERLY MAY BE VIEWED AS THE DAY PRECEDING THE DATE OF ACCEPTANCE OF THE APPOINTMENT AS A CADET OR MIDSHIPMAN. QUESTION 1 (A) IS ANSWERED ACCORDINGLY.

IN VIEW OF THE AFFIRMATIVE ANSWER TO QUESTION 1 (A), NO ANSWER IS REQUIRED TO THE REMAINING QUESTIONS 1 (B), 2, 3 AND 4.

A FURTHER QUESTION IS PRESENTED IN THE LETTER OF SEPTEMBER 24, 1956, AS TO "WHETHER PAY FOR EXCESS LEAVE IS REQUIRED TO BE COLLECTED FROM SUCH ENLISTED MEN PRIOR TO CLOSING THEIR MILITARY PAY RECORDS UPON PROCESSING FOR ADMISSION TO A SERVICE ACADEMY.' THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.