B-98293, JUNE 8, 1951, 30 COMP. GEN. 498

B-98293, JUNE 8, 1951, 30 COMP. GEN. 498

LEAVES OF ABSENCE - MILITARY - PAY EQUIVALENT PAYMENTS - LIMITATIONS UNDER ARMED FORCES LEAVE ACT OF 1946 UNDER SECTION 5 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES ON ACTIVE DUTY ON SEPTEMBER 1, 1946, THE NUMBER OF CALENDAR DAYS OF LEAVE SETTLED AND COMPENSATED FOR UNDER SECTION 6, PLUS THE NUMBER OF CALENDAR DAYS' LEAVE STANDING TO THE MEMBER'S CREDIT ON THAT DATE, MAY NOT EXCEED 120 CALENDAR DAYS, BUT THE NUMBER OF CALENDAR DAYS' TERMINAL LEAVE GRANTED AND TAKEN PRIOR TO THAT DATE NEED NOT BE INCLUDED IN THE 120-DAY LIMITATION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, JUNE 8, 1951:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 19, 1950, CONCERNING EXCEPTIONS TAKEN ON VOUCHERS 10701 AND 15794, IN THE NOVEMBER 1946 AND JANUARY 1947 ACCOUNTS OF MAJOR F. BIGLEY, FD, UNITED STATES ARMY, AND SIMILAR NOTICES OF EXCEPTION TAKEN IN THE ACCOUNTS OF OTHER DISBURSING OFFICERS FOR PAYMENTS OF ACCRUED LEAVE UNDER THE ARMED FORCES LEAVE ACT OF 1946 TO CERTAIN INDIVIDUALS ON ACTIVE DUTY ON SEPTEMBER 1, 1946. THE CASE OF LIEUTENANT GLENN R. HAMER, SERIAL NUMBER O-1555827 (VOUCHER 10701), PRESUMABLY IS REPRESENTATIVE OF THE CASES REFERRED TO IN YOUR LETTER.

IN THE HAMER CASE IT APPEARS THAT THE INDIVIDUAL SERVED AS AN ENLISTED MAN FROM AUGUST 18, 1939, THROUGH MAY 14, 1943; THAT HE WAS APPOINTED A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES MAY 15, 1943, AND SERVED UNDER SUCH APPOINTMENT UNTIL JANUARY 27, 1946, WHEN HE REVERTED TO AN ENLISTED STATUS; THAT HE AGAIN SERVED AS AN ENLISTED MAN FROM JANUARY 28, 1946, TO AUGUST 19, 1946, WHEN HE WAS APPOINTED A COMMISSIONED OFFICER IN THE ARMY, AND ON SEPTEMBER 1, 1946, HE WAS SERVING ON ACTIVE DUTY AS A FIRST LIEUTENANT. THE OFFICER STATED IN THE " OFFICER'S APPLICATION FOR SETTLEMENT" ATTACHED TO VOUCHER 10701 THAT HE TOOK 40 DAYS' FURLOUGH DURING HIS FIRST ENLISTMENT; HE CERTIFIED THAT HE WAS GRANTED 79 DAYS' TERMINAL LEAVE AS AN OFFICER FROM OCTOBER 21, 1945, THROUGH JANUARY 9, 1946, AND THAT HE HAD ONE DAY'S LEAVE TO HIS CREDIT ON SEPTEMBER 1, 1946. THE VOUCHER SHOWS THAT HE WAS COMPENSATED FOR 88 DAYS' UNUSED LEAVE EARNED AS AN ENLISTED MAN, MAKING A TOTAL OF 167 DAYS' LEAVE FOR WHICH HE WAS COMPENSATED OR GRANTED TERMINAL LEAVE. IT IS STATED IN YOUR LETTER THAT SECTION 5 (C) (1) OF THE ARMED FORCES LEAVE ACT OF 1946 CONTAINS NO REQUIREMENT FOR CONSIDERATION OF TERMINAL LEAVE GRANTED AND COMPLETED PRIOR TO SEPTEMBER 1, 1946, IN THE CASE OF A PERSON ON ACTIVE DUTY ON THAT DATE, AND, THEREFORE, THE APPLICATION FORM FOR USE BY OFFICERS ON ACTIVE DUTY ON SEPTEMBER 1, 1946, LIKEWISE CONTAINED NO REQUEST FOR SUCH INFORMATION. HENCE, IT APPEARS TO BE THE VIEW OF THE DEPARTMENT OF THE ARMY THAT UNDER SUCH CIRCUMSTANCES AN OFFICER ENTERING A TERMINAL LEAVE STATUS PRIOR TO SEPTEMBER 1, 1946, AND LATER REENTERING ON ACTIVE DUTY PRIOR TO SEPTEMBER 1, 1946, SHOULD TO ALL INTENTS AND PURPOSES BE CONSIDERED AS BEING IN AN ORDINARY LEAVE STATUS.

SECTION 5 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 965, PROVIDES AS FOLLOWS:

(C) IN NO EVENT SHALL THE NUMBER OF CALENDAR DAYS OF LEAVE SETTLED AND COMPENSATED FOR UNDER SECTION 6 OF THIS ACT EXCEED ONE HUNDRED AND TWENTY CALENDAR DAYS; AND IN NO EVENT SHALL THE NUMBER OF CALENDAR DAYS OF LEAVE SO SETTLED AND COMPENSATED FOR, PLUS---

(1) IN THE CASE OF A MEMBER ON ACTIVE DUTY ON SEPTEMBER 1, 1946 (OTHER THAN A MEMBER ON TERMINAL LEAVE ON SUCH DATE), THE NUMBER OF CALENDAR DAYS OF LEAVE ACCUMULATED OR STANDING TO SUCH MEMBER'S CREDIT ON SUCH DATE; OR

(2) IN THE CASE OF A MEMBER OR FORMER MEMBER PLACED ON TERMINAL LEAVE PRIOR TO SEPTEMBER 1, 1946, THE NUMBER OF CALENDAR DAYS OF SUCH TERMINAL LEAVE EXCEED ONE HUNDRED AND TWENTY CALENDAR DAYS.

IT WILL BE NOTED THAT SUBSECTIONS (C) (1) AND (C) (2) OF THE SAID SECTION 5 ARE CONNECTED BY THE CONJUNCTION "OR," WHICH IN STATUTORY CONSTRUCTION SHOULD BE GIVEN ITS NORMAL DISJUNCTIVE MEANING UNLESS SUCH A CONSTRUCTION RENDERS THE PROVISION IN QUESTION REPUGNANT TO OTHER PROVISIONS OF THE STATUTE. GAY UNION CORPORATION V. WALLACE, 112 F. 192, 196; IN RE RICE, 165 F.2D 617, 619. GIVING THE "OR" ITS NORMAL DISJUNCTIVE MEANING, THE SAID SECTION 5 (C) CLEARLY PROVIDES, IN THE CASE OF A MEMBER ON ACTIVE DUTY ON SEPTEMBER 1, 1946, THAT THE NUMBER OF CALENDAR DAYS OF LEAVE SETTLED AND COMPENSATED FOR UNDER SECTION 6, 60 STAT. 965, PLUS THE NUMBER OF CALENDAR DAYS' LEAVE STANDING TO THE MEMBER'S CREDIT ON THAT DATE, MAY NOT EXCEED 120 CALENDAR DAYS. AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE SAID SECTION 5 (C) SHOWS THAT IT WAS PROPOSED BY THE DEPARTMENT OF THE NAVY AND OFFERED JULY 23, 1946, BY SENATOR JOHNSON OF COLORADO AS AN AMENDMENT TO SECTION 5 OF H.R. 4051, WHICH EVENTUALLY BECAME THE ARMED FORCES LEAVE ACT OF 1946. WHILE THE WORDING OF THE AMENDMENT AS ORIGINALLY PROPOSED WAS SOMEWHAT CHANGED PRIOR TO ITS ULTIMATE ENACTMENT, IT IS NOT ENTIRELY CLEAR FROM THE AMENDMENT AS ORIGINALLY PROPOSED, OR FROM THE EXPLANATION THEREOF CONTAINED IN A MEMORANDUM OF THE UNDER SECRETARY OF THE NAVY TO SENATOR JOHNSON, WHETHER THE 120-CALENDAR DAY LIMITATION, WAS INTENDED TO INCLUDE, IN THE CASE OF MEMBERS ON ACTIVE DUTY ON SEPTEMBER 1, 1946, THE NUMBER OF CALENDAR DAYS' TERMINAL LEAVE GRANTED AND TAKEN PRIOR TO SEPTEMBER 1, 1946. SEE CONGRESSIONAL RECORD, VOLUME 92, PART 8, PAGES 9713, 9714. HOWEVER, CONSIDERING THAT IT WAS INTENDED THAT THE WORD "OR" BE GIVEN ITS NORMAL DISJUNCTION MEANING, THIS OFFICE IN NOT INCLINED TO DISAGREE WITH THE VIEW THAT THE SAID SECTION 5 (C) (2) WAS INTENDED TO APPLY ONLY TO THOSE MEMBERS ON ACTIVE DUTY ON SEPTEMBER 1, 1946, WHO WERE PARENTHETICALLY EXCLUDED IN 5 (C) (1), THAT IS, THOSE WHO WERE ON TERMINAL LEAVE ON THAT DATE, PARTICULARLY SINCE IT APPEARS THAT SETTLEMENTS FOR UNUSED LEAVE HAVE BEEN MADE ON SUCH BASIS BY THE DEPARTMENT OF THE ARMY AND FEW, IF ANY, SUCH CLAIMS ARE PENDING AT THIS TIME. ACCORDINGLY, OTHERWISE PROPER PAYMENTS FOR UNUSED LEAVE MADE ON THE BASIS OF THE ADMINISTRATIVE INTERPRETATION OF THE SAID SECTION WILL BE PASSED TO CREDIT IN THE AUDIT OF DISBURSING OFFICERS' ACCOUNTS.