B-151831, SEP. 23, 1963, 43 COMP. GEN. 287

B-151831, SEP. 23, 1963, 43 COMP. GEN. 287

LEAVES OF ABSENCE - MILITARY PERSONNEL - PAYMENTS FOR UNUSED LEAVE ON DISCHARGE, ETC. - ENLISTMENT EXTENSION, DISCHARGE, REENLISTMENT, ETC. REGULATIONS WHICH PROVIDE A LUMP-SUM LEAVE PAYMENT TO AN ENLISTED MEMBER OF THE REGULAR NAVY OR REGULAR MARINE CORPS, WHO PURSUANT TO 10 U.S.C. 5539 EXTENDS OR REEXTENDS HIS ENLISTMENT AND RECEIVES UNDER 37 U.S.C. 906 (B) THE SAME PAY AND ALLOWANCES AS THOUGH HE HAD REENLISTED, THE MEMBER BEING CONSIDERED DISCHARGED AND ENTITLED TO PAYMENT IN ACCORDANCE WITH 37 U.S.C. 501, MAY BE AMENDED TO ENTITLE AN ENLISTED MEMBER OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE UPON FIRST VOLUNTARILY EXTENDING HIS ENLISTMENT TO A LUMP-SUM PAYMENT FOR ACCRUED LEAVE, IF HE SO ELECTS, AT THE TIME OF THE EXTENSION OF HIS ENLISTMENT, THE ENLISTMENT PROVISIONS IN 10 U.S.C. 5539, LIKE THE EARLY DISCHARGE PROVISION IN 10 U.S.C. 6295, WHICH ARE APPLICABLE TO MEMBERS OF THE NAVAL RESERVE, DERIVING FROM THE ACT OF AUGUST 22, 1912, THE BENEFITS OF 10 U.S.C. 5539, AND 37 U.S.C. 906 (B) ARE EQUALLY FOR APPLICATION TO ENLISTED MEMBERS OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE FOR THE PURPOSE OF ENTITLEMENT TO A CASH SETTLEMENT FOR UNUSED LEAVE.

TO THE SECRETARY OF THE NAVY, SEPTEMBER 23, 1963:

REFERENCE IS MADE TO LETTER OF JUNE 18, 1963, FROM THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT), ASSIGNED SUBMISSION NO. SS-N -709 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, REQUESTING A DECISION AS TO WHETHER CURRENT REGULATIONS MAY BE AMENDED TO MAKE BENEFITS UNDER THE PROVISIONS OF 10 U.S.C. 5539 AND 37 U.S.C. 906 (B) EQUALLY APPLICABLE TO A MEMBER OF THE NAVAL RESERVE OR MARINE CORPS RESERVE WHO FIRST VOLUNTARILY EXTENDS HIS ENLISTMENT IN ACCORDANCE WITH APPLICABLE REGULATIONS FOR THE PURPOSE OF ENTITLEMENT TO A CASH SETTLEMENT FOR UNUSED LEAVE.

SECTION 5539 OF TITLE 10, U.S. CODE, PROVIDES IN PERTINENT PART THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY, A MEMBER OF THE REGULAR NAVY OR REGULAR MARINE CORPS MAY EXTEND OR REEXTEND HIS ENLISTMENT BY WRITTEN AGREEMENT FOR LESS THAN 1 YEAR OR FOR A PERIOD OF 1, 2, 3, OR 4 FULL YEARS, AND 37 U.S.C. 906 (B) PROVIDES THAT SUCH AN EXTENSION OF ENLISTMENT ENTITLES THE MEMBER TO THE SAME PAY AND ALLOWANCES AS THOUGH HE HAD REENLISTED. SECTION 511 OF TITLE 10, U.S. CODE, PROVIDES IN PART THAT EXCEPT AS OTHERWISE PRESCRIBED BY LAW, ENLISTMENTS AS RESERVES ARE FOR TERMS PRESCRIBED BY THE SECRETARY CONCERNED. THE ASSISTANT SECRETARY'S LETTER REFERS TO REGULATIONS GOVERNING THE TERMS AND CONDITIONS UNDER WHICH MEMBERS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE ARE PERMITTED TO EXTEND THEIR ENLISTMENTS AS SET FORTH IN ARTICLE C-1407 (2) (C), BUREAU OF NAVAL PERSONNEL MANUAL, AND PARAGRAPHS 2201-2A AND 2206, MARINE CORPS PERSONNEL MANUAL, RESPECTIVELY. THE LETTER ALSO REFERS TO THE PROVISIONS OF PARAGRAPH 044170-1A, NAVY COMPTROLLER MANUAL, GOVERNING THE PAYMENT OF LUMP-SUM LEAVE, WHICH PROVIDES IN PART THAT AN ENLISTED MEMBER OF THE REGULAR NAVY OR REGULAR MARINE CORPS WHO VOLUNTARILY FIRST EXTENDS AN ENLISTMENT, REGARDLESS OF THE DURATION, AS AUTHORIZED UNDER 10 U.S.C. 5539, IS ENTITLED TO LUMP-SUM LEAVE SETTLEMENT FOR THE BALANCE OF UNUSED LEAVE, AND SUCH MEMBER WILL BE CONSIDERED ,DISCHARGED" FOR THE PURPOSE OF THAT SECTION ON THE DATE HIS ENLISTMENT WOULD HAVE EXPIRED HAD IT NOT BEEN EXTENDED.

A MEMBER OF THE ARMED FORCES IS ENTITLED UNDER THE PROVISIONS OF 37 U.S.C. 501 TO COMPENSATION IN CASH FOR UNUSED ACCRUED LEAVE (NOT IN EXCESS OF 60 DAYS) TO HIS CREDIT AT THE TIME OF HIS DISCHARGE, EXCEPT, INSOFAR AS HERE CONCERNED, NO CASH SETTLEMENT IS AUTHORIZED TO ANY MEMBER WHO IS DISCHARGED FOR THE PURPOSE OF ENTERING INTO AN ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES ON THE DAY FOLLOWING THE DATE OF DISCHARGE. SEE 37 U.S.C. 501 (B) (1). A DISCHARGE AT EXPIRATION OF A PRESCRIBED TERM OF SERVICE FOLLOWED BY REENLISTMENT IS NOT, HOWEVER, REGARDED AS A DISCHARGE FOR THE PURPOSE OF ENLISTMENT WITHIN THE MEANING OF THAT PROVISION. 30 COMP. GEN. 103.

IN OUR DECISION OF SEPTEMBER 14, 1950, 30 COMP. GEN. 103, CITED IN THE ASSISTANT SECRETARY'S LETTER, THERE WAS CONSIDERED THE EFFECT OF THE PROVISIONS OF THE ACT OF JULY 27, 1950, 64 STAT. 379, 10 U.S.C. 628 NOTE (1952 ED.), AND EXECUTIVE ORDER NO. 10145, DATED JULY 27, 1950, ISSUED PURSUANT TO THAT ACT--- EXTENDING ALL ENLISTMENTS IN THE ARMED FORCES TO EXPIRE PRIOR TO JULY 9, 1951, FOR A PERIOD NOT TO EXCEED 12 MONTHS--- AND IT WAS HELD THAT ENLISTED MEMBERS OF THE NAVY WHO, UPON DISCHARGE AT THE EXPIRATION OF THEIR ENLISTMENTS, VOLUNTARILY EXTEND THEIR ENLISTMENTS DURING THE TEMPORARY PERIOD PROVIDED BY THAT ACT ARE ENTITLED TO A CASH SETTLEMENT FOR UNUSED LEAVE. IN 36 COMP. GEN. 727 WE HELD (IN ANSWER TO QUESTION 3) THAT A MEMBER OF A REGULAR COMPONENT WHO EXTENDS HIS ENLISTMENT FOR A PERIOD OF LESS THAN 1 YEAR OR FOR 2 OR MORE YEARS UNDER THE PROVISIONS OF THE ACT OF AUGUST 22, 1912, AS AMENDED BY THE ACT OF JULY 12, 1955, 69 STAT. 299, 10 U.S.C. 5539, IS ENTITLED TO A CASH SETTLEMENT FOR THE UNUSED LEAVE STANDING TO HIS CREDIT AT THE TIME OF SUCH EXTENSION.

WE HAVE RECOGNIZED THAT THE EARLY DISCHARGE PROVISIONS IN 10 U.S.C. 6295, STATED AS RELATING TO ENLISTED MEMBERS OF THE REGULAR NAVY (FORMERLY CONTAINED IN THE ACT OF AUGUST 22, 1912, CH. 335, 37 STAT. 331, 34 U.S.C. 195 (1952 ED.) (, ARE ALSO APPLICABLE TO MEMBERS OF THE NAVAL RESERVE. SEE OUR DECISION OF JANUARY 10, 1951, 30 COMP. GEN. 280. IN THAT DECISION IT WAS HELD THAT AN ENLISTED MEMBER OF THE NAVAL RESERVE UPON EARLY DISCHARGE AND IMMEDIATE REENLISTMENT WAS ENTITLED TO PAYMENT FOR UNUSED LEAVE. THAT DECISION WAS FURTHER DISCUSSED AND AMPLIFIED IN OUR DECISION OF JANUARY 28, 1963, B-149114, 42 COMP. GEN. 399, WHEREIN IT WAS STATED THAT THE DECISION OF JANUARY 10, 1951, GAVE CONSIDERATION TO SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, 1177, 34 U.S.C. 853E (1946 ED.), WHICH PROVIDED THAT ENLISTED MEN OF THE NAVAL RESERVE WHEN EMPLOYED ON ACTIVE DUTY WITH PAY SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ENLISTED MEN IN THE REGULAR NAVY OF THE SAME GRADE OR RATING AND THE SAME LENGTH OF SERVICE, AND THAT WHILE THAT PROVISION WAS REPEALED BY SECTION 803 OF THE ARMED FORCES RESERVE ACT OF 1952, 66STAT. 505, 34 U.S.C. 771, RESERVE AND REGULAR ENLISTED MEN ON ACTIVE DUTY WITH PAY RECEIVE THE SAME PAY AND ALLOWANCES UNDER 37 U.S.C. 203. THE ASSISTANT SECRETARY IN HIS LETTER SAYS THAT APPLYING THIS SAME LINE OF REASONING TO AN EXTENSION OF AN ENLISTMENT, IT WOULD APPEAR THAT WHEN A MEMBER AT THE EXPIRATION OF HIS RESERVE ENLISTMENT EXTENDS SUCH ENLISTMENT BE WOULD BE ENTITLED, IF HE SO ELECTS, TO CASH SETTLEMENT FOR ANY UNUSED LEAVE STANDING TO HIS CREDIT ON THE DATE HIS ENLISTMENT WOULD HAVE EXPIRED HAD IT NOT BEEN EXTENDED.

THE PROVISIONS OF THE ABOVE-MENTIONED 1912 ACT WERE MADE APPLICABLE TO "ANY ENLISTED MAN," AND IN THIS CONNECTION WE NOTED IN THE DECISION OF JANUARY 10, 1951, 30 COMP. GEN. 280, THAT SINCE THE U.S. NAVAL RESERVE, AS SUCH, WAS NOT ESTABLISHED UNTIL MARCH 3, 1915, THOSE PROVISIONS APPARENTLY WERE NOT APPLICABLE TO MEMBERS OF THE NAVAL RESERVE. THERE IS FOR NOTING THAT THE TERM "ANY ENLISTED MAN" WAS INCLUDED IN THE EXTENSION OF ENLISTMENT CODIFICATION PROVISIONS IN 34 U.S.C. 184 (1952 ED.), BUT THAT SUCH TERM WAS REPLACED WITH THE TERM REGULAR NAVY OR REGULAR MARINE CORPS IN THE CODIFICATION OF 10 U.S.C. 5539, BECAUSE OF THE BELIEF THAT THE SECTION WAS APPLICABLE TO MEMBERS OF THE REGULAR COMPONENTS ONLY. SEE THE CODIFIER'S NOTES UNDER 10 U.S.C. 5539.

THE EXTENSION OF ENLISTMENT PROVISIONS IN THE ABOVE-MENTIONED 1912 ACT APPLICABLE TO THE NAVY AND MARINE CORPS WERE AMENDED BY SECTION 1 OF THE ACT OF JULY 12, 1955, 69 STAT. 299, 34 U.S.C. 184, TO AUTHORIZE AN EXTENSION OF ENLISTMENT FOR A PERIOD OF LESS THAN 1 YEAR. A SIMILAR EXTENSION OF ENLISTMENT FOR LESS THAN 1 YEAR WAS AUTHORIZED IN SECTION 2 OF THAT ACT, 10 U.S.C. 628B (SUPP. III, 1952 ED.), FOR "ANY ENLISTED MAN" IN THE ARMY OR AIR FORCE. BOTH 10 U.S.C. 5539 AND SECTION 2 OF THE ACT OF JULY 12, 1955, PROVIDE THAT A MEMBER WHO EXTENDS HIS ENLISTMENT IS ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH HE HAD REENLISTED. SEE 10 U.S.C. 3263 APPLICABLE TO ENLISTED MEMBERS OF THE ARMY AND A SIMILAR PROVISION IN 10 U.S.C. 8263 PERTAINING TO THE AIR FORCE. WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE 1955 ACT WHICH WOULD INDICATE THAT ITS PROVISIONS WERE APPLICABLE ONLY TO MEMBERS OF A REGULAR COMPONENT. HAD CONGRESS INTENDED TO RESTRICT THE PROVISIONS OF THAT ACT TO MEMBERS OF REGULAR COMPONENTS ONLY, WE BELIEVE APPROPRIATE LANGUAGE WOULD HAVE BEEN USED TO CARRY OUT SUCH AN INTENT.

IN VIEW OF THE ABOVE, SINCE THE EXTENSION OF ENLISTMENT PROVISIONS IN 10 U.S.C. 5539, LIKE THE EARLY DISCHARGE PROVISION IN 10 U.S.C. 6295, ARE DERIVED FROM THE SAME ACT, NAMELY THE ABOVE-MENTIONED ACT OF AUGUST 22, 1912, AND SINCE WE HAVE HELD THAT THE EARLY DISCHARGE PROVISIONS ARE APPLICABLE TO MEMBERS OF THE NAVAL RESERVE, IT IS OUR VIEW THAT FOR THE REASONS STATED IN THE ABOVE-MENTIONED DECISIONS, AN ENLISTED MEMBER OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE UPON FIRST VOLUNTARILY EXTENDING HIS ENLISTMENT IS ENTITLED TO A LUMP-SUM PAYMENT FOR ACCRUED LEAVE, IF HE SO ELECTS, AT THE TIME OF THE EXTENSION OF HIS ENLISTMENT. ACCORDINGLY, WE PERCEIVE NO LEGAL OBJECTION TO AMENDING THE REGULATIONS AS PROPOSED.