B-175404, JUL 10, 1972

B-175404, JUL 10, 1972

MILITARY PERSONNEL - LUMP SUM LEAVE PAYMENT - ENTITLEMENT DECISION SUSTAINING PRIOR DENIAL OF A CLAIM OF COL. MARK V. BRUNSON, USA, RETIRED, FOR A LUMP SUM LEAVE PAYMENT AND INTEREST BELIEVED DUE INCIDENT TO HIS RETIREMENT FROM THE ARMY. A MEMBER FOUND UNFIT TO PERFORM THE DUTIES OF HIS GRADE AND GIVEN A PLACE TO AWAIT FURTHER ORDERS IN CONNECTION WITH DISABILITY RETIREMENT PROCEEDINGS IS ON AUTHORIZED ABSENCE FROM DUTY, AND UNDER SECTION 4(B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, MUST BE CHARGED LEAVE TO THE EXTENT POSSIBLE. 32 COMP. GEN. 348. ACCORDINGLY, THE PRIOR DENIAL IS SUSTAINED, NOTWITHSTANDING THE FACT THAT NEITHER CLAIMANT NOR THE ORDER - ISSUING ACTIVITY KNEW THAT SUCH RESULT WOULD ACCRUE.

TO COLONEL MARK V. BRUNSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER, WITH ENCLOSURES, DATED DECEMBER 28, 1971, IN WHICH YOU CLAIM ADDITIONAL LUMP SUM LEAVE PAYMENT BELIEVED DUE AT YOUR RETIREMENT FROM THE ARMY ON MARCH 31, 1953, PLUS INTEREST FROM THAT DATE. YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT DATED MARCH 3, 1954, FOR THE REASON THAT YOU WERE PAID IN FULL FOR YOUR UNUSED LEAVE AT THE TIME OF YOUR RETIREMENT.

THE RECORD SHOWS THAT ON FEBRUARY 9, 1953, YOU APPEARED BEFORE A PHYSICAL EVALUATION BOARD AT BROOKE ARMY HOSPITAL, FORT SAM HOUSTON, TEXAS, WHICH FOUND THE EXISTENCE OF A 60 PERCENT PHYSICAL DISABILITY WHICH WAS INCURRED IN THE LINE OF DUTY. SPECIAL ORDER NO. 28, HEADQUARTERS BROOKE ARMY HOSPITAL, DATED FEBRUARY 10, 1953, WITH YOUR COCURRENCE PLACED YOU ON DETACHED SERVICE AT YOUR HOME IN SAN ANTONIO, TEXAS, WITHOUT EXPENSE TO THE GOVERNMENT, EFFECTIVE ON OR ABOUT FEBRUARY 9, 1953, PENDING FINAL ACTION BY THE DEPARTMENT OF THE ARMY ON THE BOARD PROCEEDINGS.

THE RECORD FURTHER SHOWS THAT ON MARCH 4, 1953, YOU WERE INFORMALLY ADVISED BY PERSONNEL AT BROOKE ARMY HOSPITAL THAT IN ACCORDANCE WITH A DECISION OF THIS OFFICE (B-111899, FEBRUARY 4, 1953, 32 COMP. GEN. 348), YOUR ABSENCE FROM FEBRUARY 9, 1953, HAD BEEN CHARGED AGAINST ACCRUED LEAVE. YOU REPORTED FOR DUTY LATER THAT DAY. SPECIAL ORDER NO. 44, SAME HEADQUARTERS, DATED MARCH 5, 1953, CONFIRMED A VERBAL ORDER OF THE COMMANDING OFFICER ISSUED THE PREVIOUS DAY WHICH PLACED YOU ON DETACHED SERVICE FOR DUTY AT FORT SAM HOUSTON. BY SPECIAL ORDER NO 54, DEPARTMENT OF THE ARMY, MARCH 20, 1953, YOU WERE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST (TDRL) OF THE ARMY EFFECTIVE MARCH 31, 1953, AND LATER YOU WERE PERMANENTLY RETIRED EFFECTIVE AUGUST 31, 1953.

YOU SAY THAT AS OF MARCH 31, 1953, YOU WERE ENTITLED TO PAYMENT FOR 60 DAYS' UNUSED LEAVE, BUT THAT BECAUSE OF A RULING BY THE FINANCE OFFICER AT FORT SAM HOUSTON, YOU WERE PAID ONLY FOR 45 DAYS' LEAVE. YOU CLAIM 15 DAYS' PAY AND ALLOWANCES WITH INTEREST FROM MARCH 31, 1953.

EXAMINATION OF THE RECORD DISCLOSES THAT YOU HAD 60 DAYS' UNUSED LEAVE TO YOUR CREDIT AS OF JULY 1, 1952, AND THAT AN ADDITIONAL 23 DAYS' LEAVE ACCRUED FROM JULY 1, 1952, TO MARCH 31, 1953, FOR A TOTAL OF 83 DAYS OF LEAVE ENTITLEMENT. YOU HAD LEAVE FROM JANUARY 13-19, 1953 (7 DAYS), AND FROM FEBRUARY 4-8, 1953 (5 DAYS). YOU WERE CHARGED LEAVE FOR THE PERIOD FROM FEBRUARY 9-MARCH 3, 1953 (23 DAYS) WHILE AT HOME ON DETACHED SERVICE. YOU WERE PAID PAY AND ALLOWANCES OF $1,457.38 FOR 48 DAYS' (83- 35) UNUSED LEAVE ON PLACEMENT ON THE TDRL.

IN 32 COMP. GEN. 348, COPY ENCLOSED, WE HELD THAT A MEMBER OF THE MILITARY SERVICE WHO HAS BEEN FOUND BY A PHYSICAL EVALUATION BOARD TO BE UNFIT TO PERFORM THE DUTIES OF HIS RANK OR GRADE AND WHO IS GIVEN ORDERS TO A DESIGNATED PLACE TO AWAIT FURTHER ORDERS IN CONNECTION WITH DISABILITY RETIREMENT PROCEEDINGS IS ON AUTHORIZED ABSENCE FROM DUTY, AND UNDER SECTION 4(B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, THE PERIOD SPENT AT HOME OR ELSEWHERE IS REQUIRED TO BE CHARGED AGAINST THE MEMBER'S LEAVE BALANCE TO THE EXTENT POSSIBLE. SEE ALSO DECISION B-162806, FEBRUARY 21, 1968, COPY ENCLOSED.

SINCE ORDERS ISSUED FEBRUARY 10, 1953, PLACED YOU ON DETACHED SERVICE AT HOME WHILE AWAITING FINAL ACTION ON THE PHYSICAL EVALUATION BOARD'S FINDING THAT YOU WERE NOT PHYSICALLY FIT TO PERFORM THE DUTIES OF YOUR RANK OR GRADE, YOU WERE PROPERLY CHARGED LEAVE FOR THE PERIOD YOU REMAINED AT HOME.

WHILE IT APPEARS THAT NEITHER YOU NOR THE ORDER - ISSUING AUTHORITY INITIALLY WERE AWARE THAT YOUR PLACEMENT ON DETACHED SERVICE AT HOME WOULD RESULT IN YOUR BEING CHARGED LEAVE, THESE CIRCUMSTANCES AFFORD NO LEGAL BASIS FOR HOLDING THAT YOU WERE NOT IN A STATUS CHARGEABLE AS LEAVE WHILE AT HOME.

ACCORDINGLY, YOU ARE NOT ENTITLED TO ADDITIONAL CREDIT FOR UNUSED LEAVE AND THE DENIAL OF PAYMENT FOR SUCH LEAVE WAS PROPER AND IS SUSTAINED.