B-97583, JANUARY 10, 1951, 30 COMP. GEN. 280

B-97583, JANUARY 10, 1951, 30 COMP. GEN. 280

LEAVES OF ABSENCE - MILITARY - PAY EQUIVALENT PAYMENTS - DISCHARGE FOR ENLISTMENT PURPOSES IN VIEW OF THE EARLY DISCHARGE PROVISIONS OF THE ACT OF AUGUST 22, 1912, APPLYING TO MEMBERS OF THE NAVAL RESERVE THROUGH THE ASSIMILATING PROVISIONS IN SECTION 7 OF THE NAVAL RESERVE ACT OF 1938 AND OF THE ADMINISTRATIVE POLICY OF GRANTING MEMBERS OF THE REGULAR NAVY AND THE NAVAL RESERVE SIMILAR LEAVE BENEFITS, A NAVAL RESERVIST WHO WAS GIVEN AN EARLY DISCHARGE FOR THE CONVENIENCE OF THE GOVERNMENT AND IMMEDIATELY REENLISTED IN THE NAVAL RESERVE MAY RECEIVE, UNDER SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, A CASH PAYMENT FOR UNUSED LEAVE, NOTWITHSTANDING THE PROHIBITION IN THE 1946 ACT AGAINST A CASH SETTLEMENT FOR UNUSED LEAVE IN CASES WHERE MEMBERS ARE DISCHARGED FOR THE PURPOSE OF ENTERING INTO ENLISTMENTS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 10, 1951:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15, 1950, WITH ENCLOSURES REQUESTING DECISION WHETHER JOHN WARING JENSON, U.S. NAVAL RESERVE, IS ENTITLED TO BE COMPENSATED FOR UNUSED LEAVE TO HIS CREDIT UPON DISCHARGE FROM THE NAVAL RESERVE AND IMMEDIATE REENLISTMENT THEREIN UNDER THE CIRCUMSTANCES SET FORTH IN YOUR LETTER.

IT IS STATED THAT MR. JENSEN HAS SERVED ON ACTIVE DUTY IN THE U.S. NAVAL RESERVE SINCE JULY 25, 1946, AND THAT HIS FOUR-YEAR ENLISTMENT THEREIN WAS TO EXPIRE ON MAY 10, 1950, BUT SINCE HE WAS SCHEDULED FOR A TRAINING CRUISE BEGINNING MAY 5, 1950, IT WAS NECESSARY TO ACCOMPLISH HIS DISCHARGE AND REENLISTMENT PRIOR TO SAILING. CONSEQUENTLY, HE WAS DISCHARGED FROM THE NAVAL RESERVE ON MAY 3, 1950, FOR THE "CONVENIENCE OF THE GOVERNMENT" AND HE REENLISTED IN THE NAVAL RESERVE MAY 4, 1950. IN VIEW OF THE PROHIBITION IN SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, AGAINST CASH SETTLEMENT FOR UNUSED LEAVE IN CASES WHERE A MEMBER IS "DISCHARGED FOR THE PURPOSE OF * * * ENTERING INTO AN ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES," YOU INDICATE THAT DOUBT HAS ARISEN AS TO WHETHER CASH SETTLEMENT FOR UNUSED LEAVE IS AUTHORIZED TO BE MADE TO A MEMBER OF THE NAVAL RESERVE UNDER THE CIRCUMSTANCES HERE INVOLVED.

ORDINARILY AN ENLISTED MEMBER OF THE REGULAR NAVY WHO IS GRANTED A DISCHARGE PRIOR TO THE NORMAL DATE OF EXPIRATION OF HIS ENLISTMENT WITH THE UNDERSTANDING THAT HE WILL IMMEDIATELY REENLIST, AND WHO DOES SO REENLIST, IS CONSIDERED AS HAVING BEEN DISCHARGED FOR THE PURPOSE OF ENTERING INTO AN ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES. IN THAT CONNECTION, THE ACT OF AUGUST 22, 1912, 37 STAT. 331, 34 U.S.C. 195, PROVIDES THAT UNDER SUCH REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE, WITH THE APPROVAL OF THE PRESIDENT,"ANY ENLISTED MAN" MAY BE DISCHARGED AT ANY TIME WITHIN THREE MONTHS BEFORE THE EXPIRATION OF HIS TERM OF ENLISTMENT OR EXTENDED ENLISTMENT WITHOUT PREJUDICE TO ANY RIGHT, PRIVILEGE, OR BENEFIT THAT HE WOULD HAVE RECEIVED (EXCEPT PAY AND ALLOWANCES FOR THE UNEXPIRED PERIOD NOT SERVED) OR TO WHICH HE WOULD THEREAFTER BECOME ENTITLED HAD HE SERVED HIS FULL TERM OF ENLISTMENT OR EXTENDED ENLISTMENT. IT HAS BEEN RECOGNIZED IN THE AUDIT OF DISBURSING OFFICERS' ACCOUNTS THAT SINCE AN ENLISTED MEMBER OF THE REGULAR NAVY WHO RECEIVES AN EARLY DISCHARGE PURSUANT TO THE PROVISIONS OF THE SAID ACT OF AUGUST 22, 1912, IS ENTITLED TO THE SAME BENEFITS THAT "HE WOULD HAVE RECEIVED" (WITH CERTAIN EXCEPTIONS) "HAD HE SERVED HIS FULL TERM OF ENLISTMENT," SUCH AN ENLISTED MEMBER IS ENTITLED UNDER SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 61 STAT. 748, AND THE 1912 ACT, TO ELECT TO BE COMPENSATED FOR UNUSED ACCRUED LEAVE TO HIS CREDIT ON THE DATE OF THE EARLY DISCHARGE OR TO CARRY OVER SUCH UNUSED LEAVE TO HIS NEW ENLISTMENT. WHILE IT WILL BE NOTED THAT THE SAID PROVISIONS OF THE ACT OF AUGUST 22, 1912, ARE WRITTEN IN BROAD TERMS, BEING APPLICABLE, UNDER SUCH REGULATIONS AS THE SECRETARY MAY PRESCRIBE, WITH THE APPROVAL OF THE PRESIDENT, TO "AN ENLISTED MAN," THE UNITED STATES NAVAL RESERVE, AS SUCH, WAS NOT ESTABLISHED UNTIL MARCH 3, 1915 (SEE 38 STAT. 940), AND, CONSEQUENTLY, AT THE TIME OF ENACTMENT OF THE 1912 ACT, IT HAD NO APPLICATION TO MEMBERS OF THE NAVAL RESERVE. HOWEVER, SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, 1177, PROVIDES, INTER ALIA, THAT ENLISTED MEN OF THE NAVAL RESERVE WHEN EMPLOYED ON ACTIVE DUTY WITH PAY SHALL RECEIVE THE SAME "PAY AND ALLOWANCES" AS ENLISTED MEN OF THE REGULAR NAVY OF THE SAME GRADE OR RATING AND THE SAME LENGTH OF SERVICE. PRIOR TO ENACTMENT OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, OFFICERS OF THE NAVAL RESERVE WERE ENTITLED BY VIRTUE OF THE ASSIMILATION PROVISIONS IN THE VARIOUS NAVAL RESERVE ACTS TO LEAVE OF ABSENCE UNDER THE SAME CONDITIONS AND SUBJECT TO THE SAME STATUTORY RESTRICTIONS PROVISIONS IN THE VARIOUS NAVAL RESERVE ACTS TO LEAVE OF ABSENCE UNDER THE SAME CONDITIONS AND SUBJECT TO THE SAME STATUTORY RESTRICTIONS AS OFFICERS OF THE REGULAR NAVY. 25 COMP. DEC. 677; 25 COMP. GEN. 402. AND, ALTHOUGH THE ARMED FORCES LEAVE ACT OF 1946 IS APPLICABLE, INTER ALIA, TO "THE UNITED STATES NAVY" IT GENERALLY HAS BEEN CONSIDERED THAT ENLISTED PERSONNEL OF THE NAVAL RESERVE ARE ENTITLED TO THE BENEFITS OF THAT ACT ON SUBSTANTIALLY THE SAME BASIS AS ENLISTED MEMBERS OF THE REGULAR NAVY. ACCORDINGLY, IN VIEW OF THE ASSIMILATING PROVISIONS IN SECTION 7 OF NAVAL RESERVE ACT OF 1938, AND THE APPARENT POLICY OF GRANTING MEMBERS OF THE REGULAR NAVY AND THE NAVAL RESERVE SUBSTANTIALLY SIMILAR LEAVE BENEFITS, THIS OFFICE WLL NOT OBJECT TO PAYMENT FOR UNUSED LEAVE UNDER THE CIRCUMSTANCES HERE INVOLVED IN THIS AND SIMILAR CASES, IF OTHERWISE PROPER.