B-56446, APRIL 11, 1946, 25 COMP. GEN. 712

B-56446, APRIL 11, 1946, 25 COMP. GEN. 712

PAY - ADDITIONAL - FOREIGN SHORE DUTY - OFFICERS ON TERMINAL LEAVE OUTSIDE CONTINENTAL LIMITS OF U.S. THE PERCENTUM INCREASE IN BASE PAY AUTHORIZED BY SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942 FOR DUTY "IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA" IS PAYABLE TO AN OFFICER WHO ENTERS UPON A TERMINAL LEAVE STATUS WHILE REMAINING OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, APRIL 11, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 8, 1946, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISIONS OF 23 JUNE 1943 AND 26 JUNE 1944 (22 COMP. GEN. 1123 AND 23 ID. 978), IN CONSEQUENCE OF WHICH THE DEPARTMENT PUBLISHED THE FOLLOWING INSTRUCTIONS GOVERNING FOREIGN SERVICE PAY INCREASE IN ARMY REGULATIONS 35-1490, DATED 19 DECEMBER 1945, THE PERTINENT PARAGRAPHS OF WHICH ARE QUOTED AS FOLLOWS:

"3. AUTHORIZED LEAVE OF ABSENCE OUTSIDE UNITED STATES.--- MILITARY PERSONNEL ON FOREIGN DUTY ARE ENTITLED TO THE FOREIGN SERVICE INCREASE WHILE UNDER THE FOLLOWING CONDITIONS, IF NOT DETACHED FROM FOREIGN SERVICE AND PROVIDED THEY REMAIN OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED TATES:

A. OFFICERS, WHILE ON LEAVE OF ABSENCE, PROVIDING SUCH ABSENCE IS NOT IN EXCESS OF THE STATUTORY LEAVE LIMIT.

B. ENLISTED PERSONNEL ON FURLOUGH.

C. MILITARY PERSONNEL WHILE SICK IN HOSPITAL NOT THE RESULT OF THEIR OWN MISCONDUCT.

RETURN TO THE UNITED STATES DURING SUCH ABSENCE FORFEITS THE RIGHT TO THE FOREIGN INCREASE. SEE 22 COMP. GEN. 1123.

"5. SUSPENSION FROM DUTY.--- THE PERIOD DURING WHICH A MEMBER OF THE MILITARY ESTABLISHMENT OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES IS REMOVED FROM DUTY, WHETHER UNDER ARREST OR IN CONFINEMENT WHILE AWAITING ACTION OF A COURT MARTIAL REASON OF AN OFFENSE IN CONNECTION WITH WHICH HE SUBSEQUENTLY IS CONVICTED, OR WHILE SERVING SENTENCE IMPOSED BY A COURT MARTIAL, DOES NOT CONSTITUTE A PERIOD OF SERVICE "WHILE ON * * * DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA," WITHIN THE MEANING OF SECTION 2 OF THE ACT OF 16 JUNE 1942 (PAR. A), SO AS TO ENTITLE SUCH PERSON TO THE INCREASE IN PAY AUTHORIZED BY SAID SECTION FOR SUCH PERIODS OF SERVICE. BUT IN CASES IN WHICH CHARGES ARE DISMISSED WITHOUT TRIAL OR TRIAL RESULTS IN ACQUITTAL, TIME SPENT UNDER ARREST OR IN CONFINEMENT MAY BE COUNTED IN COMPUTING THE FOREIGN SERVICE PAY INCREASE. SEE 23 COMP. GEN. 978. ALSO SEE BUL. JAG, JANUARY 1945, P. 6 AND SPJGJ1945) 1883. 31 JANUARY 1945.'

IN VIEW OF THE PRINCIPLES UNDERLYING THE DECISIONS REFERRED TO ABOVE, AND ALSO IN VIEW OF THE PRINCIPLES CONTAINED IN YOUR DECISION OF 21 MARCH 1924 (3 COMP. GEN. 671), THERE NOW ARISES THE QUESTION AS TO WHETHER OR NOT THE FOREIGN SERVICE PAY INCREASE AUTHORIZED BY SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942 (56 STAT. 360) IS PROPERLY PAYABLE TO AN OFFICER WHO ENTERS UPON A TERMINAL LEAVE STATUS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA, FOR ANY PERIOD DURING WHICH HE IS ON SUCH TERMINAL LEAVE.

SINCE THERE IS AN EVER INCREASING NUMBER OF OFFICERS BEING SEPARATED IN FOREIGN AREAS WHO ARE GRANTED TERMINAL LEAVE PRIOR TO SEPARATION FROM THE SERVICE, YOUR EARLY DECISION IN THE PREMISES IS RESPECTFULLY REQUESTED.

SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, PROVIDES:

THE BASE PAY OF ANY ENLISTED MAN, WARRANT OFFICER, OR NURSE (FEMALE) IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES SHALL BE INCREASED BY 20 PERCENTUM AND THE BASE PAY OF ANY COMMISSIONED OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE INCREASED BY 10 PERCENTUM FOR ANY PERIOD OF SERVICE WHILE ON SEA DUTY AS SUCH DUTY MAY BE DEFINED BY THE HEAD OF THE DEPARTMENT CONCERNED, OR DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA, WHICH INCREASES IN PAY SHALL BE IN ADDITION TO PAY AND ALLOWANCES OTHERWISE AUTHORIZED; PROVIDED, THAT THE PERCENTUM INCREASES HEREIN AUTHORIZED SHALL BE INCLUDED IN COMPUTING INCREASES IN PAY FOR CIVILIAN AND SUBMARINE DUTY; PROVIDED FURTHER, THAT THIS SECTION SHALL BE EFFECTIVE FROM DECEMBER 7, 1941, AND SHALL CEASE TO BE IN EFFECT TWELVE MONTHS AFTER THE TERMINATION OF THE PRESENT WAR IS PROCLAIMED BY THE PRESIDENT.

IN THE DECISIONS REFERRED TO IN YOUR LETTER, THE UNDERLYING PRINCIPLES ARE STATED AS FOLLOWS:

THE INTENT OF THE PRESENT LAW IS TO AUTHORIZE ADDITIONAL PAY FOR THOSE MEMBERS OF THE ARMED FORCES WHO ARE SUBJECTED TO THE CONDITIONS INCIDENT TO DUTY BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. WHILE IN THE UNITED STATES THEY ARE NOT ON SUCH DUTY. ACCORDINGLY, IN ANSWER TO YOUR FIRST QUESTION, YOU ARE ADVISED THAT OFFICERS, NURSES, WARRANT OFFICERS AND ENLISTED MEN OF THE ARMY ARE ENTITLED TO ADDITIONAL PAY FOR FOREIGN SERVICE WHILE ABSENT ON LEAVE OR FURLOUGH OR SICK IN HOSPITAL "IF NOT DETACHED FROM FOREIGN SERVICE AND UNDER ORDERS TO RETURN THERETO," IF DURING SUCH ABSENCE THEY REMAIN OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES; BUT IF DURING SUCH ABSENCE THEY RETURN TO THE UNITED STATES, THE RIGHT TO ADDITIONAL PAY FOR DUTY OUTSIDE THE UNITED STATES CEASES. (22 COMP. GEN. 1123, 1125.)

THE INCREASE IN PAY FOR FOREIGN SERVICE AUTHORIZED BY THE ABOVE QUOTED PROVISION OF THE ACT OF JUNE 16, 1942, IS "FOR ANY PERIOD OF SERVICE WHILE ON * * * DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.' THE SAID INCREASE DOES NOT ATTACH SOLELY TO THE OFFICE OF AN OFFICER OF THE NAVY BUT IS AUTHORIZED ONLY FOR DUTY PERFORMED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. TO DETERMINE AN OFFICER'S RIGHTS UNDER THE STATUTE IT IS NECESSARY TO CONSIDER NOT ONLY WHETHER DURING THE PERIOD INVOLVED HE WAS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES BUT, ALSO, WHETHER HE WAS ON DUTY. SEE FARENHOLT V. UNITED STATES, 42 C.1CLS. 114.

WHERE A SUSPENSION FROM DUTY RESULTS BY REASON OF AN OFFENSE IN CONNECTION WITH WHICH AN OFFICER SUBSEQUENTLY IS CONVICTED, THE PERIOD DURING WHICH HE IS REMOVED FROM DUTY DOES NOT CONSTITUTE A PERIOD OF SERVICE "WHILE ON * * * DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA" WITHIN THE MEANING OF SECTION 2 OF THE ACT OF JUNE 16, 1942. YOUR QUESTION IS ANSWERED ACCORDINGLY. CF. 25 COMP. DEC. 514. (23 COMP. GEN. 978, 979.)

HOWEVER, THE SPECIFIC QUESTION PRESENTED FOR DECISION IN 22 COMP. GEN. 1123 WAS WITH RESPECT TO MILITARY PERSONNEL ABSENT ON LEAVE OR FURLOUGH OR SICK IN HOSPITAL "IF NOT DETACHED FROM FOREIGN SERVICE AND UNDER ORDERS TO RETURN THERETO.' IT WAS NOT NECESSARY AT THAT TIME TO CONSIDER THE EFFECT OF A DETACHMENT FROM FOREIGN SERVICE DUTY.

IN APPLYING THE PRINCIPLES ENUNCIATED IN THE DECISION 23 COMP. GEN. 978 TO THE QUESTION THERE PRESENTED, IT WAS DETERMINED THAT THE PERIOD DURING WHICH AN OFFICER IS REMOVED FROM DUTY BY REASON OF AN OFFENSE IN CONNECTION WITH WHICH HE IS SUBSEQUENTLY CONVICTED DOES NOT CONSTITUTE A PERIOD OF SERVICE FOR ADDITIONAL PAY PURPOSES.

IN CONSTRUING A PROVISION IN THE ACTS OF JUNE 30, 1902, 32 STAT. 507, 512, AND MAY 13, 1908, 35 STAT. 127, 128, AUTHORIZING A 10 PERCENT INCREASE IN PAY FOR OFFICERS "SERVING BEYOND THE LIMITS" OF THE UNITED STATES, THE COURT OF CLAIMS ( IZARD V. UNITED STATES, 48 C.1CLS. 367, 370), WITH RESPECT TO A NAVAL OFFICER WHO WAS DETACHED FROM FOREIGN SERVICE WITH PERMISSION TO DELAY TWO MONTHS EN ROUTE TO THE UNITED STATES, SUCH DELAY TO COUNT AS LEAVE, STATED, IN PERTINENT PART, AS FOLLOWS:

* * * HENCE THE QUESTION FOR DECISION IN THIS CASE SEEMS TO BE, WHAT WAS THE STATUS IN THE SERVICE OF THE CLAIMANT AT THE TIME THE ABOVE ORDER WAS ISSUED SO FAR AS RELATED TO HIS PAY; WAS HE TECHNICALLY AND WITHIN THE LAW STILL ON DUTY BEYOND THE SEAS? IT WILL NOT BE CONTENDED THAT WHILE STILL ON ACTIVE DUTY IN THE PHILIPPINE ISLANDS THE CLAIMANT MIGHT HAVE TAKEN AND BEEN ALLOWED THE LEAVES OF ABSENCE TO WHICH HE WAS ENTITLED UNDER THE ACT OF JULY 29, 1876, ABOVE QUOTED, WITHOUT ANY REDUCTION IN HIS PAY AS FOR DUTY BEYOND THE SEAS. IT SEEMS, HOWEVER, HE PREFERRED TO ALLOW SUCH TIME FOR LEAVE OF ABSENCE TO ACCUMULATE TILL AN ORDER SHOULD COME FOR HIS DETACHMENT FROM SUCH SERVICE.

IT WAS DECIDED BY THIS COURT IN THE GEARING CASE (SUPRA) THAT NAVAL OFFICERS WHILE ON SHORE DUTY BEYOND THE LIMITS OF THE UNITED STATES WERE STILL ENTITLED TO THE BENEFIT OF THE ACT OF MARCH 2, 1901, 31 STAT. 903), GIVING OFFICERS OF THE ARMY AN INCREASE OF PAY OF TEN PERCENTUM WHILE ON SIMILAR DUTY, AND WHICH PROVIDES THAT "THE TIME OF SUCH SERVICE SHALL BE COUNTED FROM THE DATE OF DEPARTURE FROM SAID STATES TO THE DATE OF RETURN THERETO.'

IN LEGAL EFFECT IT MAY BE SAID TO HAVE BEEN DECIDED IN THAT CASE THAT THE DUTY STATUS OF THE CLAIMANT REMAINED THE SAME FOR ALL PURPOSES UNTIL HIS RETURN HOME, I.E., THAT HIS DETACHMENT FROM SERVICE BEYOND THE SEAS DID NOT TAKE EFFECT UNTIL HIS RETURN. IF HIS STATUS CONTINUED UNTIL HIS RETURN IF HE HAD RETURNED WITH ALL CONVENIENT SPEED, WHY SHOULD IT NOT SO CONTINUE DURING THE DELAY TAKEN IN RETURN, IF SUCH DELAY WAS ALLOWED HIM AS LEAVE OF ABSENCE AND HE WAS ENTITLED TO IT UNDER THE LAW? WE THINK IT DID. IN OTHER WORDS, WE THINK HIS STATUS AS TO PAY REMAINED AS OF SERVICE BEYOND THE SEAS UNTIL HE REACHED HOME, IF IN THE MEANTIME HE OBEYED ORDERS AND WAS WITHIN HIS RIGHT.

IT WOULD SEEM, INDEED, UNJUST SO TO CONSTRUE THE LAW AS TO DEPRIVE A NAVAL OFFICER OF THE RIGHT TO ALLOW HIS TIME FOR LEAVE OF ABSENCE TO ACCUMULATE WHILE ON SERVICE BEYOND THE SEAS TO ENABLE HIM TO EMPLOY IT FOR THE VERY LAUDABLE PURPOSE OF VISITING FOREIGN COUNTRIES ON HIS RETURN, AND STILL RETAIN HIS PAY STATUS DURING SUCH TIME.

UNDER A SIMILAR STATUTORY PROVISION IT WAS CONCLUDED (22 COMP. DEC. 326) THAT A MEMBER OF THE NAVY NURSE CORPS SERVING AT THE NAVAL HOSPITAL GUAM, WHO, UPON TERMINATION OF HER LEAVE, WAS DISCHARGED AT GUAM, WAS ENTITLED TO FOREIGN SERVICE PAY DURING THE PERIOD OF HER TERMINAL LEAVE. ALSO, SEE 20 COMP. DEC. 30; 21 ID. 609.

IT IS TO BE NOTED THAT ADDITIONAL PAY FOR FOREIGN SERVICE, UNLIKE ADDITIONAL PAY FOR FLYING OR SUBMARINE DUTY, ACCRUES PRIMARILY BECAUSE OF THE PLACE AT WHICH IT IS PERFORMED, AND NOT BECAUSE OF THE NATURE OF THE DUTY PERFORMED. CF. 3 COMP. GEN. 671. WHERE AN OFFICER OTHERWISE RELIEVED FROM FOREIGN ASSIGNMENT AND DUTY IS AUTHORIZED TO DELAY EN ROUTE TO HIS HOME UNTIL EXPIRATION OF THE LEAVE WHICH THE LAW ALLOWS HIM, CLEARLY, UNDER THE DECISION OF THE IZARD CASE, SUPRA, HE IS TO BE CONSIDERED AS CONTINUING TO SERVE IN A FOREIGN DUTY STATUS FOR FOREIGN SERVICE PAY PURPOSES WHILE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. IT FOLLOWS THAT THE FOREIGN SERVICE PAY INCREASE AUTHORIZE SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, IS PROPERLY PAYABLE TO AN OFFICER WHO ENTERS UPON A TERMINAL LEAVE STATUS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA FOR SO MUCH THEREOF AS IS TAKEN OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. YOUR QUESTION IS ANSWERED ACCORDINGLY.