B-169435, JUN. 16, 1970

B-169435, JUN. 16, 1970

MILITARY PERSONNEL--STATUS--COLLEGE ATTENDANCE OFFICER ATTENDING LAW SCHOOL PURSUANT TO ORDERS EFFECTIVE JAN. 29, 1968, PLACING HIM ON EXCESS LEAVE WITHOUT PAY AND ALLOWANCES, MAY NOT BE PAID FOR ACTIVE DUTY PERFORMED BETWEEN DEC. 19 AND 30, 1969. ALTHOUGH ORIGINAL ORDERS AUTHORIZING HIS RETURN TO ACTIVE DUTY DURING SUMMER VACATION WERE AMENDED DEC. 31, 1969, TO INCLUDE OTHER NORMAL EXTENDED VACATION PERIODS, SUCH AMENDMENT IS FOR PROSPECTIVE APPLICATION AND THEREFORE FURNISHES NO BASIS FOR PAYMENT OF PAY AND ALLOWANCES FOR ACTIVE DUTY PERFORMED PRIOR TO DEC. 31, 1969. AMENDMENT MAY BE ACCEPTED, HOWEVER, AS AUTHORIZING PAY AND ALLOWANCES FOR PERIOD DEC. 31, 1969, THROUGH JAN. 4, 1970. SEE 24 COMP. GEN. 439.

TO MAJOR J. D. KELLY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 12, 1970 (FILE REFERENCE AAF), WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT TO CAPTAIN NEAL F. LEHMAN, AN OFFICER ATTENDING LAW SCHOOL, OF AN AMOUNT REPRESENTING PAY AND ALLOWANCES FOR THE PERIOD DECEMBER 19, 1969, TO JANUARY 4, 1970, UNDER THE CIRCUMSTANCES DISCLOSED. YOUR REQUEST WAS FORWARDED HERE UNDER DATE OF MARCH 25, 1970, BY THE DEPUTY ASSISTANT COMPTROLLER FOR ACCOUNTING AND FINANCE AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1073, BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BY SPECIAL ORDER NO. AC-1415, USAF, SECURITY SERVICE, SAN ANTONIO, TEXAS, CAPTAIN LEHMAN WAS PLACED ON EXCESS LEAVE NOT TO EXCEED 48 MONTHS, WITHOUT PAY AND ALLOWANCES, EFFECTIVE JANUARY 29, 1968, FOR THE PURPOSE OF ATTENDING THE SCHOOL OF LAW, ST. MARY'S UNIVERSITY, SAN ANTONIO, TEXAS. THE ORDERS EXPRESSLY PROVIDE THAT "OFFICER IS FURTHER AUTHORIZED TO RETURN TO ACTIVE DUTY WITH FULL PAY AND ALLOWANCES DURING SUMMER VACATION." THOSE ORDERS WERE AMENDED BY SPECIAL ORDER NO. AC 2005, DATED DECEMBER 31, 1969, ISSUED BY THE SAME ORGANIZATION, TO INCLUDE "ALSO DURING OTHER NORMAL PERIODS OF EXTENDED VACATION GRANTED BY THE LAW SCHOOL WHEN THE OFFICER IS NOT REQUIRED TO ATTEND LAW SCHOOL, HE WILL BE ASSIGNED APPROPRIATE DUTIES WITH THE OFFICE OF THE STAFF JUDGE ADVOCATE OF THE UNIT OF ASSIGNMENT AND WILL BE ENTITLED TO PAY AND ALLOWANCES FOR SUCH PERIODS."

IT APPEARS THAT IN RESPONSE TO AN INQUIRY FROM THE OFFICER AS TO HIS RIGHT TO PERFORM ACTIVE DUTY DURING THE 1969 CHRISTMAS HOLIDAYS AND TO RECEIVE PAY AND ALLOWANCES FOR SUCH DUTY, THE OFFICE OF THE JUDGE ADVOCATE GENERAL, HEADQUARTERS UNITED STATES AIR FORCE, WASHINGTON, D. C; IN LETTER DATED OCTOBER 30, 1969, STATED, IN SUBSTANCE, THAT UNDER PARAGRAPH 5, AIR FORCE REGULATION 36-7, THERE WAS NO LEGAL OBJECTION TO THE OFFICER'S REVERSION TO A DUTY STATUS FOR PERIODS APPROXIMATING TWO WEEKS, PROVIDED HE COULD BE EFFECTIVELY UTILIZED IN AN ACTIVE DUTY STATUS FOR THAT PERIOD. IT WAS POINTED OUT THAT APPROVAL OF SUCH REQUESTS IS DISCRETIONARY WITH THE COMMAND TO WHICH THE OFFICER IS ASSIGNED. LETTER DATED NOVEMBER 7, 1969, THE STAFF JUDGE ADVOCATE, LACKLAND AIR FORCE BASE, TEXAS, ADVISED CAPTAIN LEHMAN THAT HE COULD BE EFFECTIVELY UTILIZED IN AN ACTIVE DUTY STATUS DURING THE CHRISTMAS HOLIDAYS OF 1969.

IT FURTHER APPEARS THAT DURING THE PERIOD FROM DECEMBER 19, 1969, TO JANUARY 4, 1970, THE OFFICER WAS ASSIGNED APPROPRIATE DUTIES DURING THAT PERIOD IN THE OFFICE OF THE STAFF JUDGE ADVOCATE, LACKLAND AIR FORCE BASE, TEXAS. HE RETURNED TO CONTINUE HIS LEGAL EDUCATION AT ST. MARY'S UNIVERSITY ON JANUARY 5, 1970.

YOU EXPRESSED DOUBT AS TO THE VALIDITY OF THE CLAIM SINCE THE OFFICER SIGNED IN FROM LEAVE TO PERFORM DUTY DURING THE CHRISTMAS HOLIDAYS WHEREAS THE ORIGINAL ORDERS LIMITED THE RETURN TO ACTIVE DUTY DURING THE SUMMER VACATION. YOU ASK WHETHER THE ORDERS OF DECEMBER 31, 1969, ARE VALID FOR PAYMENT OF PAY AND ALLOWANCES FROM DECEMBER 19, 1969, TO JANUARY 4, 1970.

THE SECRETARY OF THE AIR FORCE MAY GRANT MEMBERS OF THE AIR FORCE LEAVE IN EXCESS OF THE NUMBER OF DAYS AUTHORIZED BY STATUTE AND WHERE SUCH EXCESS LEAVE IS AUTHORIZED NO ENTITLEMENT TO PAY OR ALLOWANCES ACCRUES DURING SUCH ABSENCE. SEE 37 U.S.C. 502(B). AIR FORCE REGULATION 36-7 DATED MARCH 13, 1967, IN EFFECT DURING THE PERIOD HERE INVOLVED, EXPLAINS HOW A REGULAR AIR FORCE OFFICER OR CADET MAY APPLY FOR LAW TRAINING (IN AN EXCESS LEAVE STATUS) TO QUALIFY AS AN AIR FORCE JUDGE ADVOCATE, AND PRESCRIBES THE ELIGIBILITY REQUIREMENTS. PARAGRAPH 5 OF THAT REGULATION PROVIDES AS FOLLOWS:

"5. COSTS OF TRAINING. THE OFFICER (STUDENT) IS NOT ENTITLED TO PAY AND ALLOWANCES WHILE HE IS IN EXCESS-LEAVE STATUS. HE WILL BEAR THE TOTAL COST OF TUITION AND ASSOCIATED EDUCATIONAL EXPENSES. DURING NORMAL PERIODS OF EXTENDED VACATION GRANTED BY THE LAW SCHOOL WHEN THE OFFICER IS NOT REQUIRED TO ATTEND LAW SCHOOL, HE WILL BE ASSIGNED APPROPRIATE DUTIES WITH THE OFFICE OF THE STAFF JUDGE ADVOCATE OF THE UNIT OF ASSIGNMENT AND WILL BE ENTITLED TO PAY AND ALLOWANCES FOR SUCH PERIODS."

WHILE THE OFFICE OF THE JUDGE ADVOCATE GENERAL IN LETTER OF OCTOBER 30, 1969, MENTIONED ABOVE, STATED THAT THERE WAS NO LEGAL OBJECTION TO THE OFFICER'S REVERSION TO A DUTY STATUS FOR PERIODS APPROXIMATING TWO WEEKS, THE VIEW IS EXPRESSED IN THAT LETTER THAT THE PHRASE "PERIODS) OF EXTENDED VACATION" AS USED IN PARAGRAPH 5 OF THE ABOVE-QUOTED REGULATION, CONTEMPLATES THE PERIOD BETWEEN THE NORMAL SPRING TERM AND THE BEGINNING OF THE NORMAL FALL TERM OF LAW SCHOOL, AT WHICH TIME THE OFFICER WILL BE ASSIGNED APPROPRIATE DUTIES AND ENTITLED TO PAY AND ALLOWANCES. THE ORDER ISSUING AUTHORITY AT THE UNITED STATES AIR FORCE SECURITY SERVICE, SAN ANTONIO, TEXAS, PRESUMABLY INTERPRETED THE REGULATION IN THE SAME MANNER AND CONSEQUENTLY WHEN THE ORIGINAL ORDERS DATED SEPTEMBER 11, 1967, WERE ISSUED THERE WAS NO INTENT TO AUTHORIZE A RETURN TO ACTIVE DUTY WITH PAY AND ALLOWANCES OTHER THAN "DURING SUMMER VACATION."

IT IS WELL SETTLED THAT RETROACTIVE ORDERS GENERALLY ARE WITHOUT EFFECT TO INCREASE OR DECREASE THE VESTED RIGHTS OF GOVERNMENT PERSONNEL. SEE 24 COMP. GEN. 439, 441. HOWEVER, THE ORDERS DATED DECEMBER 31, 1969, DO NOT PURPORT TO AMEND RETROACTIVELY THE ORIGINAL ORDERS OF SEPTEMBER 11, 1967, AND THEY MUST BE CONSIDERED AS BEING APPLIED PROSPECTIVELY. CONSEQUENTLY, THOSE ORDERS FURNISHED NO BASIS FOR THE PAYMENT OF PAY AND ALLOWANCES FOR ANY PART OF THE PERIOD OF ACTIVE DUTY PERFORMED PRIOR TO THAT DATE. THEY MAY BE ACCEPTED AS AUTHORIZING PAY AND ALLOWANCES FOR THE PERIOD DECEMBER 31, 1969, THROUGH JANUARY 4, 1970.

ACCORDINGLY, THE MILITARY PAY ORDER AND SUPPORTING PAPERS ARE RETURNED HEREWITH AND IF THE PAY ORDER IS AMENDED TO CONFORM TO THE FOREGOING, PAYMENT IS AUTHORIZED THEREON, IF OTHERWISE CORRECT.