B-145549, JUN. 16, 1961

B-145549, JUN. 16, 1961

TO COMMANDER ALEXANDER SMITH, U.S.C.G., RETIRED:

YOUR LETTER OF FEBRUARY 8, 1961, FORWARDED BY THE COMMANDANT, UNITED STATES COAST GUARD, REQUESTS REVIEW OF SETTLEMENT DATED NOVEMBER 16, 1959, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF 24 DAY'S LEAVE CHARGED TO YOUR LEAVE BALANCE WHILE IN AN AWAITING ORDERS STATUS, AUGUST 1 TO 30, 1959, PENDING THE COMPLETION OF TEMPORARY PHYSICAL DISABILITY RETIREMENT PROCEEDINGS.

YOU CITE THE CASE OF CHIEF WARRANT OFFICER WILBURN P. CONNER AS INVOLVING A SITUATION SIMILAR TO THAT EXISTING AT THE TIME OF YOUR RETIREMENT IN THAT HE, LIKE YOU, WAS RECEIVING OUT-PATIENT TREATMENT PRIOR TO HIS RETIREMENT FOR PHYSICAL DISABILITY. YOU STATE THAT HE WAS PAID FOR ALL OF HIS ACCUMULATED LEAVE UP TO THE DATE OF HIS DETACHMENT FROM HIS DUTIES AND STATION BECAUSE OF PHYSICAL DISABILITY. WHILE YOU CONTEND THAT HIS CASE IS SIMILAR IN EVERY RESPECT TO YOURS, YOU CONCEDE THAT, UNLIKE THE ORDERS ISSUED IN YOUR CASE, THE ORDERS DETACHING MR. CONNER FROM ACTIVE DUTY DIRECTED THAT HE CONTINUE TO RECEIVE OUT-PATIENT MEDICAL TREATMENT AT THE UNITED STATES PUBLIC HEALTH SERVICE HOSPITAL, SAN FRANCISCO, CALIFORNIA. YOU STATE FURTHER THAT THE OMISSION OF A SIMILAR PROVISION FROM YOUR ORDERS WAS DUE TO AN ADMINISTRATIVE OVERSIGHT AND THAT THIS OMISSION SHOULD NOT PRECLUDE PAYMENT OF A JUST CLAIM. APPARENTLY, HE WAS NOT PLACED IN AN AWAITING ORDERS STATUS.

COPIES OF RECORDS ON FILE IN THIS OFFICE IN CONNECTION WITH YOUR CLAIM SHOW THAT BY ORDER NO. 30051/99201X, DATED AUGUST 18, 1959, YOU WERE TEMPORARILY RETIRED EFFECTIVE SEPTEMBER 1, 1959, BY REASON OF TEMPORARY PHYSICAL DISABILITY AMOUNTING TO 30 PERCENTUM. IT APPEARS THAT BY LETTER DATED AUGUST 7, 1959, YOU ACKNOWLEDGED RECEIPT OF ORDERS PLACING YOU IN AN AWAITING ORDERS STATUS AS OF JULY 28, 1959, IN WHICH LETTER YOU STATED THAT YOU WERE NOT DETACHED AND DID NOT PROCEED TO YOUR HOME IN AN AWAITING ORDERS STATUS UNTIL AUGUST 1, 1959. IN VIEW OF THIS YOU REQUESTED AMENDED ORDERS TO COMMENCE THAT STATUS ON AUGUST 1, 1959. THIS WAS ACCOMPLISHED BY MESSAGE 112206Z, FROM THE COMMANDER, TWELFTH COAST GUARD DISTRICT.

AMENDMENT NO. 27, DATED JULY 17, 1959, OF ARTICLE 17-B-40, COAST GUARD PERSONNEL MANUAL, PROVIDES AS FOLLOWS:

"/A) AFTER THE BOARD HAS ARRIVED AT ITS RECOMMENDED FINDINGS, A RECOMMENDATION SHALL ALSO BE MADE AS TO THE ASSIGNMENT OF THE EVALUEE PENDING FINAL ACTION ON THE CASE. THE BOARD MAY RECOMMEND CONTINUED TREATMENT, LIMITED DUTY, FULL DUTY, AWAITING ORDERS, OR SICK LEAVE; HOWEVER, SICK LEAVE WILL ONLY BE RECOMMENDED WHEN THE EVALUEE IS EXPECTED TO RETURN TO DUTY AND EITHER (1) A REASONABLE PERIOD OF CONVALESCENCE IS REQUIRED, OR (2) OUT PATIENT TREATMENT IS NECESSARY AND THE ASSIGNMENT TO LIMITED OR FULL DUTY IS TEMPORARILY NOT APPROPRIATE. * * * IF "AWAITING ORDERS" IS RECOMMENDED, THE EVALUEE SHALL BE ADVISED THAT ANY PERIOD IN THAT STATUS WILL BE CHARGED AGAINST HIS LEAVE. * * *"

ARTICLE 17-B-41 (D) PROVIDES AS FOLLOWS:

"SICK LEAVE SHOULD BE RECOMMENDED WHEN A FITNESS FOR DUTY IS ANTICIPATED AT AN EARLY DATE. * * * WHEN RETIREMENT OR SEPARATION IS PENDING, A MEMBER SHALL BE PLACED IN AWAITING ORDERS STATUS IF HE IS NOT HOSPITALIZED OR PERFORMING FULL OR LIMITED DUTY.'

AMENDMENT NO. 24, ARTICLE 7-A-4 (G), PROVIDES AS FOLLOWS:

"/G) AWAITING ORDERS STATUS. A MILITARY PERSON FOUND BY A PHYSICAL EVALUATION BOARD TO BE UNFIT TO PERFORM THE DUTIES OF HIS GRADE OR RATE, WHO IS NOT IN NEED OF FURTHER HOSPITALIZATION, MAY, IF NOT FIT FOR FULL OR LIMITED DUTY, BE ORDERED TO BE ABSENT FROM DUTY IN AN AWAITING ORDERS STATUS PENDING FINAL ACTION ON THE PHYSICAL EVALUATION BOARD. SUCH ABSENCE SHALL BE CHARGED TO EARNED LEAVE. * * *"

COAST GUARD MESSAGE 161745Z FROM THE COMMANDER, TWELFTH COAST GUARD DISTRICT, TO THE COMMANDANT OF THE COAST GUARD, ADVISED THE LATTER OFFICIAL OF THE FINDINGS OF THE PHYSICAL EVALUATION BOARD RECONVENED JULY 15, 1959, IN YOUR CASE, AND RECOMMENDED AN AWAITING ORDERS STATUS FOR YOU DURING THE INTERIM PERIOD BEFORE YOUR RETIREMENT. APPARENTLY, ORDERS WERE ISSUED IN JULY 1959 PLACING YOU IN SUCH STATUS. YOUR REQUEST BY LETTER DATED AUGUST 18, 1959, THAT YOUR STATUS BE CHANGED TO SICK LEAVE, WAS NOT FAVORABLY CONSIDERED.

SECTION 4 (E) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY THE ACT OF AUGUST 4, 1947, 37 U.S.C. 33 (E), PROVIDES THAT DETERMINATION OF THE NUMBER OF CALENDAR DAYS TO LEAVE TO WHICH A MEMBER OR FORMER MEMBER IS ENTITLED, INCLUDING THE NUMBER OF CALENDAR DAYS OF ABSENCE FROM DUTY OR VACATION TO BE COUNTED OR CHARGED AGAINST SUCH LEAVE, SHALL BE MADE IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE RESPECTIVE SECRETARIES AND THAT ALL DECISIONS BY THE SECRETARIES UNDER THIS SECTION "SHALL BE FINAL AND CONCLUSIVE AND SHALL NOT BE SUBJECT TO REVIEW BY ANY COURT OR BY ANY OFFICER OF THE UNITED STATES.'

THE PRESENT RECORD BEFORE THIS OFFICE FURNISHES NO BASIS FOR A CONCLUSION THAT THE ADMINISTRATIVE ACTION TAKEN IN EFFECTING AN AWAITING ORDERS STATUS IN YOUR CASE WAS NOT IN ACCORDANCE WITH EXISTING REGULATIONS SET FORTH IN ARTICLE 7-A-4 (G), COAST GUARD PERSONNEL MANUAL. WHILE YOU HAVE STATED THAT YOU RECEIVED OUT-PATIENT PHYSICAL THERAPY TREATMENTS AT THE PUBLIC HEALTH SERVICE HOSPITAL DURING 12 OF THE 24 DAYS IN AUGUST 1959 FOR WHICH YOU WERE CHARGED LEAVE AND THAT SUCH TREATMENTS WERE NECESSARY, YOU HAVE FURNISHED NO ORDERS DIRECTING YOU TO REPORT FOR SUCH TREATMENTS AND NO OTHER INFORMATION HAS BEEN FURNISHED WHICH SHOWS THAT YOU WERE ,IN NEED OF FURTHER HOSPITALIZATION" WITHIN THE MEANING OF THAT PHRASE AS USED IN THE REGULATIONS. THAT MATTER WAS ONE WHICH WAS EXCLUSIVELY WITHIN THE PROVINCE OF THE COAST GUARD FOR DETERMINATION. NO AUTHORITY EXISTED TO ASSIGN YOU TO A SICK LEAVE STATUS SINCE YOUR RETURN TO DUTY WAS NOT CONTEMPLATED. SEE ARTICLES 17-B-40 (A) AND ARTICLE 17-B-41 (D) OF THAT MANUAL.

SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT, 37 U.S.C. 33 (B), CONTEMPLATES THAT WHENEVER A MEMBER OF THE ARMED FORCES IS "DIRECTED BY THE SECRETARY TO BE ABSENT FROM DUTY TO AWAIT ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS," A CHARGE FOR LEAVE FOR THE NUMBER OF DAYS INVOLVED MUST BE MADE FOR SUCH ABSENCE TO THE EXTENT "OF THE NUMBER OF DAYS' LEAVE" CREDITABLE TO THE MEMBER UNDER THAT ACT. YOU WERE AUTHORIZED TO BE ABSENT IN AN AWAITING ORDERS STATUS AND UNDER THE PROVISIONS OF SECTION 4 (E) OF THAT ACT, WE ARE WITHOUT AUTHORITY TO QUESTION THE LEAVE CHARGED AGAINST YOU DURING THAT PERIOD.

CONCERNING THE CASE OF CHIEF WARRANT OFFICER WILBURN P. CONNER CITED BY YOU, WE HAVE NO INFORMATION WITH RESPECT TO THIS MATTER. IF IT WAS DETERMINED THAT HIS CONDITION WAS SUCH THAT HE SHOULD BE RETAINED IN A STATUS NOT REQUIRING A CHARGE FOR LEAVE PRIOR TO HIS RETIREMENT, WE MUST ACCEPT THAT DETERMINATION. WHATEVER THE BASIS FOR PAYMENT OF ACCRUED LEAVE IN HIS CASE, YOUR RIGHTS ARE DETERMINED BY THE APPLICABLE STATUTES AND REGULATIONS IN EFFECT DURING THE PERIOD OF YOUR CLAIM. FOR THE REASONS STATED ABOVE, THIS OFFICE MAY NOT QUESTION THE LEAVE ACTION TAKEN IN YOUR CASE.

THERE BEING NO BASIS ON WHICH YOUR CLAIM MAY BE ALLOWED, THE DISALLOWANCE OF NOVEMBER 16, 1959, IS SUSTAINED.