B-132285, AUGUST 13, 1957, 37 COMP. GEN. 103

B-132285, AUGUST 13, 1957, 37 COMP. GEN. 103

MILITARY PERSONNEL - PAY AND ALLOWANCES FOR TRAVEL TIME - PAY FOR UNUSED LEAVE - MUSTERING-OUT PAY ALTHOUGH UNDER THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THE ACT OF JULY 12, 1955, A RESERVE MEMBER OF THE ARMED SERVICES MAY BE PAID PAY AND ALLOWANCES FOR TRAVEL TIME INCIDENT TO RELEASE FROM ACTIVE DUTY PRIOR TO DEPARTURE HOME FROM THE LAST DUTY STATION, IF THE MEMBER DIES PRIOR TO EXPIRATION OF THE TRAVEL TIME, THE MEMBER'S RIGHT TO PAY AND ALLOWANCES CEASES ON THE DAY OF DEATH AND ANY OVERPAYMENT SHOULD BE COLLECTED FROM THE MEMBER'S ESTATE. THE RIGHT OF A RESERVE MEMBER OF THE ARMED SERVICES TO MUSTERING-OUT PAY UNDER SECTIONS 501 AND 502 OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952 AND TO PAY FOR ACCRUED LEAVE UNDER SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, ONLY ARISES AT THE TIME OF FINAL DISCHARGE FROM ACTIVE SERVICE, AND PAYMENT OF MUSTERING-OUT PAY AND PAY FOR ACCRUED LEAVE IS NOT AUTHORIZED PRIOR TO DEPARTURE FROM THE LAST DUTY STATION.

TO THE SECRETARY OF DEFENSE, AUGUST 13, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF JUNE 19, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON SEVERAL QUESTIONS DISCUSSED IN THE ENCLOSURE ( COMMITTEE ACTION NO. 187, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE) RELATING TO THE PAYMENT OF PAY AND ALLOWANCES FOR TRAVEL TIME, UNUSED LEAVE, AND MUSTERING -OUT PAY FOR RESERVE MEMBERS PRIOR TO DEPARTURE FROM LAST DUTY STATION INCIDENT TO RELEASE FROM ACTIVE DUTY.

THE QUESTIONS ON WHICH DECISION IS REQUESTED ARE AS FOLLOWS:

1. ARE THE SERVICES AUTHORIZED TO PAY OTHERWISE APPROPRIATE AMOUNTS FOR (1) PAY AND ALLOWANCES FOR TRAVEL TIME, (2) UNUSED LEAVE, AND (3) MUSTERING-OUT PAY, PRIOR TO A RESERVE MEMBER'S DEPARTURE FROM HIS LAST DUTY STATION?

2. IF THE ANSWER TO QUESTION 1 IS AFFIRMATIVE AND THE RESERVE MEMBER CONCERNED DIES PRIOR TO THE EXPIRATION OF THE TIME AUTHORIZED FOR HIS TRAVEL HOME, THE FOLLOWING QUESTIONS ARISE:

(A) MUST THE SERVICES ATTEMPT TO COLLECT FROM THE RESERVE MEMBER'S ESTATE ALL OR ANY PORTION OF THE AMOUNTS PAID FOR (1) PAY AND ALLOWANCES FOR TRAVEL TIME, (2) UNUSED LEAVE, OR (3) MUSTERING OUT PAY?

(B) MAY THE SERVICES PAY OTHERWISE APPROPRIATE SECOND AND THIRD INSTALLMENTS OF MUSTERING-OUT PAY TO THE RESERVE MEMBER'S SURVIVOR?

SECTION 210 (D) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. ( SUPP. IV) 232 (D), PROVIDES THAT IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES CALLED OR ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF THIRTY DAYS,"ACTIVE DUTY SHALL INCLUDE THE TIME REQUIRED TO PERFORM TRAVEL * * * FROM LAST STATION TO OME" BY THE MODE OF TRANSPORTATION AUTHORIZED IN ORDERS, AND, UNDER THE PROVISIONS THEREOF AS ADDED BY THE ACT OF JULY 12, 1955, 69 STAT. 294, 37 U.S.C. 232, THAT:

ANY PAY AND ALLOWANCES AUTHORIZED BY THIS ACT WHICH WILL LAWFULLY ACCRUE TO MEMBERS FOR THEIR RETURN HOME INCIDENT TO RELEASE FROM ACTIVE DUTY OR TRAINING DUTY MAY BE PAID TO SUCH MEMBERS PRIOR TO THEIR DEPARTURE FROM THEIR LAST STATION INCIDENT TO SUCH RELEASE, WITHOUT REGARD TO THE ACTUAL PERFORMANCE OF SUCH TRAVEL.

IT APPEARS CLEAR THAT UNDER SUCH PROVISIONS OF LAW AND PRESIDENTIAL REGULATIONS A MEMBER OF A RESERVE COMPONENT WHO IS ORDERED TO ACTIVE DUTY FOR THE PRESCRIBED PERIOD CONTINUES IN AN ACTIVE DUTY STATUS UNTIL THE EXPIRATION OF THE NECESSARY TRAVEL TIME TO HIS HOME INCIDENT TO HIS RELEASE FROM ACTIVE DUTY.

SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 37 U.S.C. 33 (C), AUTHORIZES COMPENSATION TO A MEMBER FOR UNUSED LEAVE "STANDING TO HIS CREDIT AT TIME OF DISCHARGE," ON THE BASIS OF THE PAY AND ALLOWANCES APPLICABLE TO SUCH MEMBER "ON THE DATE OF DISCHARGE" AND THE TERM ,DISCHARGE" IS DEFINED IN SECTION 2 (B) OF THAT ACT, AS AMENDED, 37 U.S.C. 32 (B), AS INCLUDING A RELEASE FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS. SECTIONS 501 AND 502 OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, 38 U.S.C. 1011, 1012, AUTHORIZE THE PAYMENT OF MUSTERING-OUT PAY TO EACH MEMBER OF THE ARMED FORCES AS THERE PROVIDED "WHO IS DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS," PAYMENT TO BE MADE "AT THE TIME OF FINAL DISCHARGE OR ULTIMATE RELIEF FROM ACTIVE SERVICE" AND ONE OR TWO MONTHS AFTER THAT TIME, IF PAYABLE IN INSTALLMENTS. SINCE THE LATTER PROVISIONS OF LAW EXPRESSLY DIRECT THE PAYMENT OF MUSTERING-OUT PAY AT AND AFTER THE TIME OF RELEASE FROM ACTIVE DUTY, SUCH PAYMENTS ARE NOT AUTHORIZED TO BE MADE BEFORE THAT TIME. SIMILARLY, SINCE A RESERVE MEMBER'S RIGHT TO PAY FOR ACCRUED LEAVE IS BASED ON THE ACCRUED LEAVE STANDING TO HIS CREDIT AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY AND SECTION 3 (A) OF THE 1946 LEAVE ACT, AS AMENDED, 37 U.S.C. 31 (A), PROVIDES THAT "ANY LEAVE SO ACCUMULATED SHALL NOT, HOWEVER, SURVIVE DEATH OCCURRING DURING ACTIVE MILITARY SERVICE," IT DOES NOT APPEAR THAT THE CONGRESS INTENDED THAT COMPENSATION FOR ACCRUED LEAVE SHOULD BE PAID PRIOR TO A RESERVE MEMBER'S RELEASE FROM ACTIVE DUTY. SINCE A RESERVE MEMBER REMAINS IN AN ACTIVE DUTY STATUS UNTIL EXPIRATION OF THE NECESSARY TRAVEL TIME TO HIS HOME, PAYMENT FOR ACCRUED LEAVE AND MUSTERING-OUT PAY PRIOR TO HIS DEPARTURE FROM HIS LAST STATION IS NOT AUTHORIZED BY LAW.

IN CONTRAST WITH THE LAST TWO CITED PROVISIONS OF LAW, EXPRESS PROVISION IS MADE IN THE ACT OF JULY 12, 1955, WITH RESPECT TO THE PAY AND ALLOWANCES PAYABLE UNDER THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 231, PERMITTING PAYMENT PRIOR TO DEPARTURE FROM LAST STATION INCIDENT TO RELEASE FROM ACTIVE DUTY. PRIOR TO THAT TIME TRAVEL AND TRANSPORTATION ALLOWANCES WERE AUTHORIZED TO BE PAID ON RELEASE FROM ACTIVE DUTY WITHOUT REGARD TO WHETHER OR NOT TRAVEL WAS PERFORMED TO THE HOME AND THE SPECIFIC PROVISIONS CONTAINED IN THE ACT OF JULY 12, 1955, WERE CONSIDERED NECESSARY TO PERMIT ADVANCE PAYMENT OF OTHER PAY AND ALLOWANCES AUTHORIZED UNDER THE 1949 ACT FOR THE TRAVEL TIME TO A MEMBER'S HOME. IN THE ABSENCE OF A SIMILAR PROVISION RELATING TO MUSTERING-OUT PAY AND PAY FOR ACCRUED LEAVE, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE ONLY AS TO PAY AND ALLOWANCES FOR TRAVEL TIME.

WITH RESPECT TO WHETHER THE SERVICES MUST COLLECT ALL OR ANY PART OF THE AMOUNT PAID AS PAY AND ALLOWANCES FOR THE TRAVEL TIME TO THE HOME IN CASES WHERE A RESERVE MEMBER DIES PRIOR TO THE EXPIRATION OF TIME AUTHORIZED FOR HIS TRAVEL HOME, THE LANGUAGE IN SECTION 201 (D) OF THE 1949 ACT, AS AMENDED, 37 U.S.C. 232 (D), WHICH AUTHORIZES PAYMENT OF SUCH PAY AND ALLOWANCES "WITHOUT REGARD TO THE ACTUAL PERFORMANCE OF SUCH TRAVEL," MUST BE READ IN CONNECTION WITH OTHER PROVISIONS IN THAT SECTION WHICH LIMIT ENTITLEMENT TO BASIC PAY TO PERIODS "WHEN ON THE ACTIVE LIST, WHEN ON ACTIVE DUTY" AND WHICH AUTHORIZE PAYMENT OF PAY AND ALLOWANCES "AUTHORIZED BY THIS ACT WHICH WILL LAWFULLY ACCRUE TO MEMBERS FOR THEIR RETURN HOME.' CONSTRUED TOGETHER SUCH STATUTORY PROVISIONS APPEAR TO CONTEMPLATE THE ACCRUING OF PAY AND ALLOWANCES ON A DAY TO DAY BASIS AS EARNED WHILE IN AN ACTIVE DUTY STATUS. WHILE ADVANCE PAYMENT IS AUTHORIZED BASED ON AUTHORIZED TRAVEL TIME TO THE HOME, IF DEATH OCCURS PRIOR TO THE EXPIRATION OF THE TRAVEL TIME, A RESERVE MEMBER'S RIGHT TO PAY AND ALLOWANCES CEASES ON THE DAY OF HIS DEATH AND ANY OVERPAYMENT SHOULD BE COLLECTED FROM HIS ESTATE, IF IT IS NOT OTHERWISE REFUNDED. QUESTION 2 (A) (1) IS ANSWERED IN THE AFFIRMATIVE.

CONCERNING THE OBSERVATIONS THAT IF PAYMENT OF MUSTERING-OUT PAY AND PAY FOR ACCRUED LEAVE IS NOT PERMITTED PRIOR TO DEPARTURE FROM LAST STATION, THE RESULTING DELAY WOULD BE PURPOSELESS UNLESS SAFEGUARDS WERE INSTITUTED TO AVOID PAYING MEMBERS WHO MAY DIE EN ROUTE, AND THAT TO ESTABLISH SUCH SAFEGUARDS IT WOULD BE NECESSARY TO REQUIRE THE SUBMISSION OF A CLAIM FOR SUCH AMOUNTS FROM THE MEMBERS INVOLVED IN EVERY CASE, IT IS OUR VIEW THAT SUCH COURSE OF ACTION WOULD NOT BE REQUIRED. RESERVE MEMBERS WHO MIGHT DIE EN ROUTE HOME AFTER A TOUR OF DUTY WOULD BE FEW IN NUMBER AND THE AMOUNTS INVOLVED WHICH MIGHT COME INTO THE POSSESSION OF THE ADMINISTRATOR OR EXECUTOR OF THE ESTATE IN SUCH CASES, AND WHICH COULD NOT BE COLLECTED FROM THE ESTATE, WOULD BE VERY SMALL IN COMPARISON WITH THE COST OF PROCESSING THE ONE MILLION OR MORE CLAIMS PER YEAR THAT WOULD BE RECEIVED UNDER THE SUGGESTED SAFEGUARDING PROCEDURE.