B-153149, FEBRUARY 6, 1964, 43 COMP. GEN. 539

B-153149, FEBRUARY 6, 1964, 43 COMP. GEN. 539

LEAVES OF ABSENCE - MILITARY PERSONNEL - ADVANCE LEAVE - ENLISTMENT EXTENSION PRIOR TO ACCRUAL A MINUS LEAVE BALANCE IN THE ACCOUNT OF A MEMBER OF THE UNITED STATES MARINE CORPS ON THE DAY HIS ENLISTMENT EXPIRED AND WAS EXTENDED FOR 2 YEARS UNDER 10 U.S.C. 5539 IS EXCESS LEAVE WHICH MAY NOT BE CARRIED FORWARD BUT IS FOR CHECK AGE AGAINST THE MEMBER'S FINAL PAY ACCOUNT UNDER THE EXPIRED ENLISTMENT IN ACCORDANCE WITH PARAGRAPH 044241-3C (2) OF THE NAVY COMPTROLLER MANUAL, AND, ALTHOUGH THE MEMBER WOULD BE ENTITLED TO A LUMP-SUM LEAVE PAYMENT PURSUANT TO 37 U.S.C. 501 (B), OR TO CARRY ANY UNUSED LEAVE BALANCE FORWARD AS THOUGH HE HAD BEEN REGULARLY DISCHARGED AND HAD IMMEDIATELY REENLISTED, THERE IS NO AUTHORITY FOR CARRYING A MINUS LEAVE BALANCE FORWARD, AND THE MEMBER HAVING BEEN ADVANCED LEAVE IN EXCESS OF ACCRUAL, THE MINUS LEAVE BALANCE IS EXCESS LEAVE FOR CHECK AGE AGAINST HIS PAY ACCOUNT, 37 U.S.C. 502 (B) LIMITING PAY AND ALLOWANCES TO THE NUMBER OF LEAVE DAYS AUTHORIZED BY 10 U.S.C. 701.

TO MAJOR S. A. WEIMER, JR., UNITED STATES MARINE CORPS, FEBRUARY 6, 1964:

BY FIRST INDORSEMENT DATED DECEMBER 13, 1963, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER DATED DECEMBER 13, 1963, WITH ENCLOSURES, IN WHICH YOU REQUEST ADVANCE DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNT OF CORPORAL ROBERT L. HAWKINS, 1889877, U.S. MARINE CORPS, IN THE SUM OF $78.84, UNDER THE CIRCUMSTANCES STATED BELOW. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. DO-MC-739 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD SHOWS THAT CORPORAL HAWKINS' ENLISTMENT EXPIRED ON AUGUST 28, 1963, AND ON THAT DAY HE EXTENDED HIS ENLISTMENT FOR TWO FULL YEARS; THAT HE WAS PAID THE SUM OF $320 AS REENLISTMENT BONUS, AND MILEAGE ALLOWANCE IN THE SUM OF $40.62; AND THAT HE HAD A MINUS LEAVE BALANCE OF 11 DAYS CHARGED AS EXCESS LEAVE FOR WHICH THE SUM OF $78.84 WAS CHECKED IN HIS PAY ACCOUNT.

IN YOUR LETTER IT IS STATED THAT THE PROVISIONS OF 37 U.S.C. 501 AND 502, WHICH PROVIDE FOR PAYMENT FOR UNUSED ACCRUED LEAVE, HAVE BEEN RECOGNIZED BY OUR OFFICE IN 30 COMP. GEN. 103 AS APPLICABLE FOR CASH SETTLEMENT FOR UNUSED LEAVE AT TIME OF FIRST EXTENSION OF ENLISTMENT. ALSO, YOU REFER TO DEPARTMENT OF DEFENSE INSTRUCTION 1327.2 OF MAY 24, 1960, WHICH ESTABLISHED UNIFORM POLICIES FOR THE GRANTING OF ADVANCE AND EXCESS LEAVE TO MILITARY PERSONNEL. YOU SAY THAT SUCH INSTRUCTION DEFINES ADVANCE LEAVE AS LEAVE GRANTED A SERVICE MEMBER, WITH PAY AND ALLOWANCES, PRIOR TO ITS ACTUAL ACCRUAL BASED ON THE REASONABLE EXPECTATION THAT THE AMOUNT ADVANCED WILL BE EARNED PRIOR TO THE MEMBER'S SEPARATION, AND THAT EXCESS LEAVE IS DEFINED AS AUTHORIZED LEAVE, OVER AND BEYOND ANY ACCRUED OR ADVANCE LEAVE THAT CAN BE GRANTED, DURING WHICH THE MEMBER IS NOT ENTITLED TO PAY AND/OR ALLOWANCES. ALSO, YOU QUOTE ASD MEMORANDUM TO SERVICE SECRETARIES, IN PERTINENT PART, AS FOLLOWS:

WHEN A MEMBER IS DISCHARGED EARLY FOR THE CONVENIENCE OF THE GOVERNMENT FOR THE PURPOSE OF IMMEDIATE REENLISTMENT, THE SERVICE WILL BE CONSIDERED CONTINUOUS FOR THE PURPOSE OF BALANCING THE LEAVE ACCOUNT. IN SUCH CASES A MINUS LEAVE BALANCE WILL BE CARRIED FORWARD. A MINUS LEAVE BALANCE ON DISCHARGE AT EXPIRATION OF ENLISTMENT FOLLOWED BY IMMEDIATE REENLISTMENT WILL NOT BE CARRIED FORWARD. A CHECK AGE WILL BE ENTERED IN THE MEMBER'S FINAL PAY ACCOUNT FOR SUCH MINUS LEAVE BALANCE.

YOU SAY THAT A MEMBER IS GRANTED ADVANCE LEAVE ON THE BASIS THAT HE WILL EARN SUFFICIENT LEAVE CREDITS PRIOR TO HIS ULTIMATE SEPARATION DATE, AND SUCH ADVANCE LEAVE IS CARRIED IN HIS LEAVE ACCOUNT AS MINUS LEAVE. HOWEVER, ON THE EFFECTIVE DATE OF HIS EXTENSION OF HIS ENLISTMENT, SUCH MINUS LEAVE IS VIEWED AS EXCESS LEAVE FOR WHICH A CHECK AGE IS ENTERED IN HIS PAY ACCOUNT.

ALSO, YOU SAY THAT SINCE AN EXTENSION OF AN ENLISTMENT MERELY EXTENDS THE TERM OF OBLIGATED SERVICE UNDER THE ORIGINAL CONTRACT AND WILL CAUSE THE COMBINED SERVICE TO BE CONSIDERED A CONTINUOUS PERIOD, IT IS INCONSISTENT TO VIEW MINUS LEAVE AS ADVANCE LEAVE (BASED ON THE EXPECTATION THAT THE AMOUNT WILL BE EARNED PRIOR TO THE MEMBER'S SEPARATION) UNTIL THE EFFECTIVE DATE OF AN EXTENSION, AND AT THAT TIME DECLARE IT EXCESS.

IT APPEARS TO BE YOUR VIEW THAT SINCE CORPORAL HAWKINS WILL EARN SUFFICIENT LEAVE CREDITS PRIOR TO HIS ULTIMATE SEPARATION DATE THE MINUS LEAVE BALANCE COULD HAVE BEEN CARRIED FORWARD IN HIS LEAVE ACCOUNT, AND THAT THE CHECK AGE MADE IN HIS PAY RECORD FOR THE MINUS LEAVE BALANCE AT THE TIME OF EXPIRATION OF HIS ENLISTMENT WAS NOT REQUIRED BY THE APPLICABLE LAW AND REGULATIONS.

A MEMBER OF THE ARMED FORCES IS ENTITLED UNDER THE PERTINENT STATUTE, 10 U.S.C. 701 (A), TO LEAVE AT THE RATE OF 2 1/2 CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE. SECTION 704 PROVIDES THAT SUCH LEAVE MAY BE TAKEN ON A CALENDAR-DAY BASIS AS VACATION OR ABSENCE FROM DUTY WITH PAY, ANNUALLY AS ACCRUING OR OTHERWISE, IN ACCORDANCE WITH REGULATIONS TO BE ISSUED BY THE SECRETARY CONCERNED. UNDER THE PROVISION OF 37 U.S.C. 502 (B) A MEMBER WHO IS AUTHORIZED BY THE SECRETARY CONCERNED, OR HIS DESIGNATED REPRESENTATIVE, TO BE ABSENT FOR A PERIOD THAT IS LONGER THAN THE LEAVE AUTHORIZED BY SECTION 701 OF TITLE 10 IS NOT ENTITLED TO PAY OR ALLOWANCES DURING THE PART OF HIS ABSENCE THAT IS MORE THAN THE NUMBER OF DAYS' LEAVE AUTHORIZED BY THAT SECTION. SECTION 501 (B) OF TITLE 37 AUTHORIZES A LUMP -SUM PAYMENT FOR ACCRUED LEAVE TO THE MEMBER'S CREDIT AT TIME OF DISCHARGE. HOWEVER, SUCH PAYMENT IS NOT AUTHORIZED IF THE MEMBER

* * * ELECTS TO CARRY OVER HIS UNUSED LEAVE TO A NEW ENLISTMENT IN HIS ARMED FORCE ON THE DAY AFTER THE DATE OF HIS DISCHARGE.

WHILE THE LAW RECOGNIZES A RIGHT TO CARRY OVER ACCRUED LEAVE TO THE NEW ENLISTMENT, THERE IS NO CORRESPONDING STATUTORY PROVISION FOR CARRYING FORWARD TO THE NEW ENLISTMENT A MINUS LEAVE CREDIT IN THE MEMBER'S ACCOUNT AS A RESULT OF HAVING BEEN GRANTED LEAVE IN EXCESS OF THE AMOUNT ACCRUED IN THE OLD ENLISTMENT.

PARAGRAPH 044170 OF THE NAVY COMPTROLLER MANUAL DEFINES THE TERM "DISCHARGE.' IT PROVIDES 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 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. PARAGRAPH 044241-3C (2) OF THE MANUAL PROVIDES, IN PART, THAT:

* * * IF LEAVE RECORD ACCOUNTING AT THE TIME AN ENLISTED MEMBER OF THE REGULAR MARINE CORPS FIRST EXTENDS HIS ENLISTMENT PRODUCES A MINUS LEAVE CREDIT, PROPER CHECK AGE OF PAY AND ALLOWANCES WILL BE MADE FOR EXCESS LEAVE NOTWITHSTANDING THE FACT THAT SUCH CHECK AGE MAY RESULT IN A BALANCE OVERPAID AT THE TIME OF SUCH EXTENSION. * * *.

PARAGRAPH 9103 OF THE MARINE CORPS PERSONNEL MANUAL DEFINES ADVANCE LEAVE AS LEAVE GRANTED TO A SERVICE MEMBER WITH PAY AND ALLOWANCES PRIOR TO ITS ACCRUAL. PARAGRAPH 9104 OF THOSE REGULATIONS PROVIDES THAT EXCESS LEAVE IS AUTHORIZED LEAVE OVER AND BEYOND ANY ACCRUED OR ADVANCED LEAVE THAT CAN BE GRANTED; THAT PERSONNEL ARE NOT ENTITLED TO PAY AND ALLOWANCES, INCLUDING LEAVE ACCRUAL, DURING PERIODS OF EXCESS LEAVE; AND THAT, IN ADDITION, THE TERM "EXCESS LEAVE" IS USED TO DESCRIBE MINUS BALANCE OF LEAVE AT THE TIME OF SEPARATION.

THE PERTINENT PROVISIONS OF 10 U.S.C. 5539 PERMIT A MEMBER OF THE REGULAR NAVY OR REGULAR MARINE CORPS TO EXTEND HIS ENLISTMENT UNDER SECRETARIAL REGULATIONS FOR LESS THAN 1 YEAR OR FOR A PERIOD OF 1, 2, 3 OR 4 YEARS. ALSO, UNDER THE PROVISIONS OF 37 U.S.C. 906 (B), A MEMBER OF THE REGULAR NAVY OR REGULAR MARINE CORPS, AS THE CASE MAY BE, WHO EXTENDS HIS ENLISTMENT UNDER SECTION 5539 OF TITLE 10 IS ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH HE HAD REENLISTED. IN VIEW OF THESE PROVISIONS WE HAVE CONSISTENTLY REGARDED MEMBERS WHO EXTEND ENLISTMENTS UPON EXPIRATION OF TERM OF SERVICE AS ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH REGULARLY DISCHARGED AND IMMEDIATELY REENLISTED. 30 COMP. GEN. 103; 35 ID. 663; 39 ID. 455 AND 711; 42 COMP. GEN. 447, B-150599, MARCH 4, 1963; AND B-150737, MARCH 27, 1963.

THE APPLICABLE STATUTE AND REGULATIONS CONTEMPLATE THAT ADVANCE LEAVE GRANTED BY COMMANDERS TO MEMBERS WILL NOT EXCEED THAT WHICH WOULD NORMALLY BE EARNED BY THE MEMBER DURING THE REMAINING PERIOD OF HIS OBLIGATED ACTIVE DUTY AND THAT A MINUS LEAVE BALANCE AT THE TIME OF DISCHARGE, FIRST EXTENSION OF AN ENLISTMENT, SEPARATION FROM ACTIVE DUTY, DESERTION OR DEATH WILL BE CONSIDERED AS EXCESS LEAVE. THE REGULATIONS SPECIFICALLY PROVIDE THAT CHECK AGE WILL BE MADE FOR SUCH EXCESS LEAVE EVEN THOUGH IT MAY RESULT IN THE ACCOUNT BEING OVERPAID AT THE TIME OF THE EXTENSION.

THE RECORD FURNISHED DOES NOT SHOW WHEN HAWKINS AGREED TO EXTEND HIS ENLISTMENT OR WHETHER THE LEAVE INVOLVED WAS GRANTED BEFORE OR AFTER HE AGREED TO THE EXTENSION. HOWEVER, SINCE THE LEAVE GRANTED EXCEEDED THE LEAVE THAT HE HAD ACCRUED AT THE TIME THE NORMAL TERM OF HIS ENLISTMENT EXPIRED, IT PROPERLY WAS REGARDED AS EXCESS LEAVE AND THE CHECK AGE WAS MADE IN ACCORDANCE WITH THE REGULATIONS ISSUED PURSUANT TO THE PROVISIONS OF 37 U.S.C. 502 (B) THAT A MEMBER IS NOT ENTITLED TO PAY OR ALLOWANCES DURING THE PART OF HIS ABSENCE THAT IS MORE THAN THE NUMBER OF DAYS' LEAVE AUTHORIZED BY 10 U.S.C. 701.

ACCORDINGLY, NO ADJUSTMENT IN THE MEMBER'S PAY ACCOUNT IS AUTHORIZED. THE PAPERS FORWARDED WITH YOUR LETTER WILL BE RETAINED HERE.