B-142075, MAY 20, 1960, 39 COMP. GEN. 787

B-142075, MAY 20, 1960, 39 COMP. GEN. 787

MILITARY PERSONNEL - ACTIVE DUTY PAY - CALL TO ACTIVE DUTY AS DISTINGUISHED FROM PLACEMENT ON THE ACTIVE LIST AN OFFICER WHO WAS REAPPOINTED TO THE ACTIVE LIST OF THE REGULAR ARMY FROM THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE ONE DAY AND ON THE SAME DAY RETIRED EFFECTIVE THE FOLLOWING DAY MAY NOT BE REGARDED AS HAVING BEEN RECALLED TO ACTIVE DUTY UNDER THE APPOINTMENT WHEN NO ACTIVE DUTY WAS CONTEMPLATED FOR ENTITLEMENT TO ACTIVE DUTY PAY AND ALLOWANCES FOR ONE DAY IN VIEW OF PARAGRAPH 1-5A (1) OF ARMY REGULATIONS 37-104, WHICH PROVIDES THAT THE PAY OF AN OFFICER OF THE REGULAR ARMY COMMENCES ON THE DATE THE OFFICER BEGINS TO COMPLY WITH THE ORDERS CALLING HIM TO ACTIVE DUTY REGARDLESS OF DATE OF APPOINTMENT, AND THE ARMED FORCES LEAVE ACT OF 1946, WHICH CHANGED FOR MILITARY OFFICERS THE GENERAL RULE THAT COMPENSATION ATTACHES TO AN OFFICE AND ACCRUES WITHOUT REGARD TO THE PERFORMANCE OF DUTY.

TO LIEUTENANT COLONEL FRED R. HUSTON, DEPARTMENT OF THE ARMY, MAY 20, 1960:

BY FIRST ENDORSEMENT OF FEBRUARY 15, 1960, THE FIELD DIVISION, OFFICE OF THE CHIEF OF FINANCE, FORWARDED YOUR LETTER OF JANUARY 13, 1960, WITH ENCLOSURES, SUBMITTING FOR ADVANCE DECISION (ASSIGNED D.O. NO. 480 BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE) A VOUCHER STATED IN FAVOR OF BRIGADIER GENERAL LEONARD J. GREELEY, USA, RETIRED, FOR PAY AND ALLOWANCES FOR ONE DAY, SEPTEMBER 30, 1959, IN THE CIRCUMSTANCES SHOWN.

IT APPEARS THAT GENERAL GREELEY WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE ARMY ON SEPTEMBER 30, 1954. PARAGRAPH 75, SPECIAL ORDERS NO. 182, HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., DATED SEPTEMBER 15, 1959, STATES THAT, BY DIRECTION OF THE PRESIDENT, ANNOUNCEMENT IS MADE OF THE REAPPOINTMENT OF LEONARD J. GREELEY TO THE ACTIVE LIST OF THE REGULAR ARMY OF THE UNITED STATES IN THE PERMANENT GRADE OF COLONEL, REGULAR ARMY, AND IN THE TEMPORARY GRADE OF BRIGADIER GENERAL, ARMY OF THE UNITED STATES, FROM THE TEMPORARY DISABILITY RETIRED LIST UNDER THE PROVISIONS OF 10 U.S.C. 1211, 3442, 3447. SUCH ORDERS PROVIDE THAT THE OATH OF OFFICE WILL NOT BE EXECUTED PRIOR TO RECEIPT OF A LETTER OF APPOINTMENT AND APPROPRIATE INSTRUCTIONS. WHILE NOT SHOWN IN THE REQUEST FOR DECISION, IT HAS BEEN INFORMALLY ASCERTAINED FROM THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, THAT THE REAPPOINTMENT OF GENERAL GREELEY WAS CONFIRMED BY THE SENATE ON SEPTEMBER 9, 1959. PARAGRAPH 7, SPECIAL ORDERS NO. 193, HEADQUARTERS, DEPARTMENT OF THE ARMY, DATED SEPTEMBER 30, 1959, STATES THAT BRIGADIER GENERAL LEONARD J. GREELEY, UNITED STATES ARMY, HAVING ACCEPTED REAPPOINTMENT TO THE ACTIVE LIST OF THE REGULAR ARMY ON SEPTEMBER 30, 1959, FROM THE TEMPORARY DISABILITY RETIRED LIST, IS PLACED ON THE UNITED STATES ARMY RETIRED LIST IN THE GRADE OF BRIGADIER GENERAL, EFFECTIVE OCTOBER 1, 1959, UNDER THE REQUIREMENTS OF 10 U.S.C. 3921 AND 3963.

YOU STATE THAT BECAUSE GENERAL GREELEY WAS PLACED ON THE ACTIVE LIST OF THE REGULAR ARMY FOR ONE DAY, SEPTEMBER 30, 1959, THE RETIRED PAY BRANCH, FINANCE CENTER, U.S. ARMY, ADVISED HIM THAT HIS RETIRED PAY FOR SEPTEMBER 30, 1959, WOULD BE WITHHELD FROM HIS OCTOBER 1959 RETIRED PAY. YOU ALSO POINT OUT THAT THE ORDERS OF SEPTEMBER 15 AND 30, 1959, DID NOT SPECIFICALLY CALL THE OFFICER TO ACTIVE DUTY, AS DISTINGUISHED FROM BEING PLACED ON THE ACTIVE LIST OF THE REGULAR ARMY. ON SUCH BASIS, YOU QUESTION WHETHER GENERAL GREELEY WAS ON ACTIVE DUTY ON SEPTEMBER 30, 1959, SO AS TO BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THAT DAY.

10 U.S.C. 1210 (A) PROVIDES THAT A PHYSICAL EXAMINATION SHALL BE GIVEN AT LEAST ONCE EVERY 18 MONTHS TO EACH MEMBER OF THE ARMED FORCES WHOSE NAME IS ON THE TEMPORARY DISABILITY RETIRED LIST TO DETERMINE WHETHER THERE HAS BEEN A CHANGE IN THE DISABILITY FOR WHICH HE WAS TEMPORARILY RETIRED. SUBSECTION (F) PROVIDES THAT IF, AS A RESULT OF A PERIODIC EXAMINATION UNDER SUBSECTION (A) OR UPON A FINAL DETERMINATION UNDER SUBSECTION (B), IT IS DETERMINED THAT THE MEMBER IS PHYSICALLY FIT TO PERFORM THE DUTIES OF HIS OFFICE, GRADE, RANK, AND RATING, THE SECRETARY SHALL TREAT HIM AS PROVIDED IN SECTION 1211 OF THIS TITLE.

10 U.S.C. 1211 PROVIDES IN PERTINENT PART AS FOLLOWS:

(A) WITH HIS CONSENT, ANY MEMBER OF THE ARMY OR THE AIR FORCE WHOSE NAME IS ON THE TEMPORARY DISABILITY RETIRED LIST, AND WHO IS FOUND TO BE PHYSICALLY FIT TO PERFORM THE DUTIES OF HIS OFFICE, GRADE, OR RANK UNDER SECTION 1210 (F) OF THIS TITLE, SHALL---

(1) IF A COMMISSIONED OFFICER OF A REGULAR COMPONENT, BE RECALLED TO ACTIVE DUTY AND, AS SOON AS PRACTICABLE, MAY BE REAPPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO THE ACTIVE LIST OF HIS REGULAR COMPONENT IN THE REGULAR GRADE HELD BY HIM WHEN HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, OR IN THE NEXT HIGHER REGULAR GRADE;

(C) IF A MEMBER IS APPOINTED, REAPPOINTED, ENLISTED, OR REENLISTED, OR RESUMES HIS STATUS IN THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE, UNDER SUBSECTION (A) OR (B), HIS STATUS ON THE TEMPORARY DISABILITY RETIRED LIST TERMINATES ON THE DATE OF HIS APPOINTMENT, REAPPOINTMENT, ENLISTMENT, REENLISTMENT, OR RESUMPTION, AS THE CASE MAY BE. HOWEVER, IF SUCH A MEMBER DOES NOT CONSENT TO THE ACTION PROPOSED UNDER SUBSECTION (A) OR (B), HIS STATUS ON THE TEMPORARY DISABILITY RETIRED LIST AND HIS DISABILITY RETIRED PAY SHALL BE TERMINATED AS SOON AS PRACTICABLE.

(D) DISABILITY RETIRED PAY OF A MEMBER COVERED BY THIS SECTION TERMINATES

(1) ON THE DATE WHEN HE IS RECALLED TO ACTIVE DUTY UNDER SUBSECTION (A) (1) OR (2) OR SUBSECTION (B) (1), (2). OR (3), FOR AN OFFICER OF A REGULAR COMPONENT;

(2) ON THE DATE WHEN HE RESUMES HIS STATUS IN THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE UNDER SUBSECTION (B) (5), FOR A MEMBER OF THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE; AND

(3) ON THE DATE WHEN HE IS APPOINTED, REAPPOINTED, ENLISTED, OR REENLISTED, FOR ANY OTHER MEMBER OF THE ARMED FORCES.

PARAGRAPH 16/81 (F) (1), ARMY REGULATIONS 37-104, DATED DECEMBER 2, 1957, PROVIDES THAT A MEMBER WHOSE NAME APPEARS ON THE TEMPORARY DISABILITY RETIRED LIST WILL HAVE HIS STATUS THEREON TERMINATED AT SUCH TIME AS A PERIODIC PHYSICAL EXAMINATION DISCLOSES THAT HE IS PHYSICALLY FIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, OR GRADE. SUBPARAGRAPH (2) A OF THE REGULATIONS PROVIDES THAT IF SUCH A MEMBER IS AN OFFICER OF THE REGULAR ARMY, HIS DISABILITY RETIRED PAY WILL BE TERMINATED ON THE DATE PRIOR TO THE DATE OF HIS RECALL TO ACTIVE DUTY, AND THAT HIS STATUS ON THE TEMPORARY DISABILITY RETIRED LIST WILL BE TERMINATED ON THE DAY PRIOR TO HIS REAPPOINTMENT TO THE ACTIVE LIST.

THE GENERAL RULE THAT COMPENSATION ATTACHES TO THE OFFICE AND ACCRUES TO THE INCUMBENT WITHOUT REGARD TO THE PERFORMANCE OF DUTY WAS CHANGED FOR MILITARY OFFICERS BY THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED, 37 U.S.C. 31A-39. UNDER THE PROVISIONS OF THAT STATUTE, MEMBERS OF THE ARMED FORCES ARE ENTITLED TO LEAVE AT THE RATE OF TWO AND ONE-HALF CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE, TO BE TAKEN BY THE MEMBERS CONCERNED AS VACATION OR ABSENCE FROM DUTY WITH PAY, ANNUALLY AS ACCRUING OR OTHERWISE, IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SECRETARIES CONCERNED. SECTION 4 (B) OF THE STATUTE, AS AMENDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, 37 U.S.C. 33 (B), PROVIDES THAT THE SECRETARIES CONCERNED MAY AUTHORIZE MEMBERS TO BE ABSENT FROM DUTY IN EXCESS OF THE NUMBER OF DAYS' LEAVE AUTHORIZED IN THE STATUTE BUT THAT "THEY SHALL NOT BE ENTITLED TO ANY PAY OR ALLOWANCES DURING SUCH ABSENCE," UNLESS THE ABSENCE IS ON ACCOUNT OF SICKNESS OR WOUNDS, OR THE MEMBER IS DIRECTED BY THE SECRETARY TO BE ABSENT FROM DUTY TO AWAIT ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS. AS A FURTHER EXCEPTION TO THE PROVISIONS RESPECTING NONENTITLEMENT TO PAY AND ALLOWANCES WHEN ON AUTHORIZED EXCESS LEAVE, THE SECTION PROVIDES THAT THE SECRETARY OF THE ARMY MAY AUTHORIZE PERSONS WHO HAVE ACCEPTED APPOINTMENTS AS COMMISSIONED OFFICERS OF THE REGULAR ARMY PURSUANT TO THE PROVISIONS OF THE ACT OF DECEMBER 28, 1945, 59 STAT. 663, AS AMENDED, TO BE ABSENT FROM DUTY TO AWAIT ORDERS ASSIGNING THEM TO THEIR INITIAL DUTY STATIONS AND THAT DURING SUCH ABSENCE THEY SHALL RECEIVE THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT SO ABSENT.

PARAGRAPH 1-5A (1), ARMY REGULATIONS 37-104, PROVIDES IN PERTINENT PART THAT THE PAY OF AN OFFICER OF THE REGULAR ARMY COMMENCES ON THE DATE THE OFFICER OFFICIALLY AND NECESSARILY BEGINS TO COMPLY WITH THE ORDERS CALLING HIM TO ACTIVE DUTY REGARDLESS OF THE DATE OF APPOINTMENT.

THE RECORD IN THIS CASE DOES NOT SHOW THAT GENERAL GREELEY WAS RECALLED TO ACTIVE DUTY. HE WAS REAPPOINTED TO THE ACTIVE LIST OF THE REGULAR ARMY FROM THE TEMPORARY DISABILITY RETIRED LIST, EFFECTIVE SEPTEMBER 30, 1959, AND ON THE SAME DAY HE WAS RETIRED EFFECTIVE OCTOBER 1, 1959. APPARENTLY NO ACTIVE DUTY WAS CONTEMPLATED UNDER THE APPOINTMENT TO THE ACTIVE LIST. HENCE, UNDER THE APPLICABLE PROVISIONS OF PARAGRAPH 1-5A (1), ARMY REGULATIONS 37-104, IT APPEARS THAT GENERAL GREELEY IS NOT ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR SEPTEMBER 30, 1959, SINCE HE WAS NOT RECALLED TO ACTIVE DUTY FOR THAT DAY.

ACCORDINGLY, ON THE PRESENT RECORD, PAYMENT ON THE SUBMITTED VOUCHER IS NOT AUTHORIZED AND IT WILL BE RETAINED HERE.