B-57983, JULY 15, 1946, 26 COMP. GEN. 47

B-57983, JULY 15, 1946, 26 COMP. GEN. 47

LEAVES OF ABSENCE - MILITARY - COMMISSIONED OFFICERS OF ARMY OF UNITED STATES APPOINTED IN REGULAR ARMY COMMISSIONED OFFICERS OF THE ARMY OF THE UNITED STATES ON ACTIVE DUTY WHO ARE NOT ASSIGNED TO ANY PARTICULAR COMPONENT THEREOF AND WHO ARE APPOINTED IN THE REGULAR ARMY PURSUANT TO THE PROVISIONS OF THE ACT OF DECEMBER 28, 1945, WITHOUT A BREAK IN SERVICE CONTINUE TO SERVE ON DUTY AS "OFFICERS" OF THE ARMY WITHIN THE MEANING OF THE ARMY LEAVE ACTS (SECTION 1265, REVISED STATUTES, AND THE ACT OF JULY 29, 1876) AND, THEREFORE, MAY CARRY FORWARD THEIR ACCUMULATED LEAVE INTO THEIR REGULAR ARMY OFFICER STATUS. 25 COMP. GEN. 516, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, JULY 15, 1946:

REFERENCE IS MADE TO YOUR LETTER OF MAY 18, 1946, AS FOLLOWS:

UNDER THE PROVISIONS OF PUBLIC LAW 281, 79TH CONGRESS, APPROVED 28 DECEMBER 1945, IT IS CONTEMPLATED THAT MANY ARMY OF THE UNITED STATES OFFICERS WHO ARE PRESENTLY ON ACTIVE DUTY UNDER THEIR ARMY OF THE UNITED STATES COMMISSIONS WITHOUT COMPONENT WILL BE APPOINTED IN THE REGULAR ARMY, AND WILL BE CONTINUED ON ACTIVE DUTY WITHOUT A BREAK IN SERVICE. THE QUESTION HAS ARISEN AS TO THE EFFECT OF SUCH APPOINTMENT ON LEAVE WHICH HAS PREVIOUSLY BEEN ACCUMULATED BY SUCH OFFICERS WHILE SERVING UNDER THEIR ARMY OF THE UNITED STATES COMMISSIONS PRIOR TO APPOINTMENT IN THE REGULAR ARMY.

CURRENT ARMY REGULATIONS ( AR 605-115 DATED 9 NOVEMBER 1945) PROVIDE, IN SUBPARAGRAPHS 3A (2) AND (3) AS FOLLOWS:

"/2) LEAVE OF ABSENCE CREDITS ACCRUED TO, BUT NOT TAKEN ADVANTAGE OF, BY A RESERVE OFFICER WHO HAS BEEN ON ACTIVE DUTY AND WHOSE STATUS AS A RESERVE OFFICER ON ACTIVE DUTY HAS BEEN TERMINATED BY HIS APPOINTMENT AS A COMMISSIONED OFFICER IN THE REGULAR ARMY, SERVICES IN THE TWO CAPACITIES BEING CONTINUOUS, MAY BE CARRIED OVER AND TAKEN ADVANTAGE OF BY HIM AS AN OFFICER OF THE REGULAR ARMY. SEE DIG. OP. JAG, 1912-30, SEC. 1792.

"/3) AN EMERGENCY OFFICER WHO ACCEPTED A COMMISSION IN THE REGULAR ARMY, AND WHOSE SERVICE HAS BEEN CONTINUOUS, IS ENTITLED TO LEAVE CREDITS THAT ACCRUED TO HIM AS SUCH EMERGENCY OFFICER, IF SUCH LEAVE CREDITS WERE NOT AVAILED OF DURING HIS EMERGENCY SERVICE. JAG 210.771. 23 OCTOBER 1920.'

SO FAR AS KNOWN TO THE WAR DEPARTMENT THE VALIDITY OF THE INSTRUCTIONS CONTAINED IN THE ABOVE CITED REGULATIONS HAS NOT BEEN QUESTIONED BY THE GENERAL ACCOUNTING OFFICE IN THE AUDIT OF DISBURSING OFFICERS' ACCOUNTS OR BY YOUR OFFICE. ATTENTION IN THIS CONNECTION IS INVITED TO YOUR DECISION OF 11 JANUARY 1946, B-49350 (DISTINGUISHING 3 COMP. GEN. 313, AND B-44030, 10 OCTOBER 1944 (24 COMP. GEN. 291) (, WHICH, WHILE INVOLVING A WARRANT OFFICER, DOES NOT APPEAR TO BE AT VARIANCE IN PRINCIPLE WITH THE CITED REGULATIONS IN SO FAR AS THE QUESTION OF CONTINUITY OF SERVICE IS CONCERNED. HOWEVER, IN VIEW OF THE LARGE NUMBER OF OFFICERS WHO WILL BE COMMISSIONED IN THE REGULAR ARMY UNDER THE PROVISIONS OF PUBLIC LAW 281, SUPRA, IT IS DEEMED DESIRABLE TO PRESENT FOR YOUR DECISION THE PRECISE QUESTION, HEREINAFTER STATED, IN ORDER THAT THERE MAY BE NO MISUNDERSTANDING AS TO THE RIGHTS OF SUCH OFFICERS WHO ACCEPTING COMMISSIONS IN THE REGULAR ARMY IN THE MATTER OF LEAVE.

IT IS THEREFORE REQUESTED THAT A DECISION BE RENDERED AS TO WHETHER AN OFFICER OF THE ARMY WHO IS ON ACTIVE DUTY UNDER AN ARMY OF THE UNITED STATES COMMISSION AT THE TIME OF HIS APPOINTMENT IN THE REGULAR ARMY MAY CARRY FORWARD CREDIT FOR UNUSED LEAVE WHICH HAD ACCRUED TO HIM PRIOR TO THE DATE OF SUCH APPOINTMENT IN THE REGULAR ARMY, AND BE PAID WHILE ON SUCH LEAVE AS HE MAY BE AUTHORIZED TO TAKE AFTER BEING COMMISSIONED IN THE REGULAR ARMY.

SECTION 1265, REVISED STATUTES, 10 U.S.C. 841, PROVIDES THAT "OFFICERS" OF THE ARMY WHEN ABSENT WITH LEAVE SHALL RECEIVE FULL PAY DURING SUCH ABSENCE NOT EXCEEDING AN AGGREGATE OF 30 DAYS IN ONE YEAR, AND THE ACT OF JULY 29, 1876, 19 STAT. 102 (10 U.S.C. 842), PROVIDES AS FOLLOWS:

ALL OFFICERS ON DUTY SHALL BE ALLOWED IN THE DISCRETION OF THE SECRETARY OF WAR, SIXTY DAYS' LEAVE OF ABSENCE WITHOUT DEDUCTION OF PAY OR ALLOWANCE: PROVIDED, THAT THE SAME BE TAKEN ONCE IN TWO YEARS: AND PROVIDED FURTHER, THAT THE LEAVE OF ABSENCE MAY BE EXTENDED TO THREE MONTHS, IF TAKEN ONCE ONLY IN THREE YEARS, OR FOUR MONTHS IF TAKEN ONLY ONCE IN FOUR YEARS.

IN THE DECISION OF JANUARY 11, 1946, B-49350, 25 COMP. GEN. 516, IN CONSIDERING THE QUESTION OF WHETHER A WARRANT OFFICER OF THE REGULAR ARMY WHO WAS TEMPORARILY COMMISSIONED IN THE ARMY OF THE UNITED STATES PURSUANT TO THE ACT OF SEPTEMBER 22, 1941, AS AMENDED, 57 STAT. 380, WITH NO BREAK IN SERVICE, IS ENTITLED TO CARRY FORWARD HIS ACCUMULATED LEAVE INTO HIS COMMISSIONED OFFICER STATUS IN THE ARMY OF THE UNITED STATES, IT WAS STATED:

THE ARMY LEAVE LAWS SPECIFICALLY PERMIT "ALL OFFICERS ON DUTY" TO ACCUMULATE LEAVE FROM YEAR TO YEAR, IN THE DISCRETION OF THE SECRETARY OF WAR, WITHIN THE LIMITATIONS THEREIN SPECIFIED, AND NO DISTINCTION IS MADE BETWEEN WARRANT OFFICERS AND COMMISSIONED OFFICERS NOR BETWEEN OFFICERS ASSIGNED TO A PARTICULAR COMPONENT OF THE ARMY OF THE UNITED STATES--- SUCH AS THE REGULAR ARMY--- AND THOSE NOT SO ASSIGNED. THE FACT THAT A COMMISSIONED OFFICER OF THE REGULAR ARMY MAY BE TEMPORARILY APPOINTED TO A HIGHER GRADE IN THE ARMY OF THE UNITED STATES UNDER THE ACT OF SEPTEMBER 22, 1941, AS AMENDED, SUPRA, DOES NOT EFFECT A FORFEITURE OF THE ACCUMULATED LEAVE WHICH WAS TO HIS CREDIT AT THE TIME OF SUCH TEMPORARY APPOINTMENT. THIS OFFICE PERCEIVES NO REASON FOR A DIFFERENT RULE IN THE CASE OF A WARRANT OFFICER--- EITHER OF THE REGULAR ARMY OR THE ARMY OF THE UNITED STATES -- WHO MAY BE TEMPORARILY APPOINTED TO A HIGHER WARRANT GRADE OR TO A COMMISSIONED GRADE IN THE ARMY OF THE UNITED STATES, SINCE IN SUCH CASES THERE IS NO SUCH ESSENTIAL CHANGE IN STATUS AS WAS INVOLVED IN THE TWO CITED DECISIONS, BUT THE INDIVIDUAL CONTINUES TO SERVE ON DUTY AS AN "OFFICER" OF THE ARMY WITHIN THE MEANING OF, AND SUBJECT TO, THE SAME STATUTORY LEAVE PROVISIONS AS THERETOFORE, WHETHER HE PREVIOUSLY SERVED AS A WARRANT OFFICER, A CHIEF WARRANT OFFICER OR A COMMISSIONED OFFICER, AND IRRESPECTIVE OF WHETHER THE APPOINTMENTS WERE IN THE REGULAR ARMY OR IN THE ARMY OF THE UNITED STATES.

THE RULE ENUNCIATED IN THAT DECISION WOULD APPEAR EQUALLY APPLICABLE TO COMMISSIONED OFFICERS OF THE ARMY OF THE UNITED STATES ON ACTIVE DUTY WHO ARE NOT ASSIGNED TO ANY PARTICULAR COMPONENT OF THE ARMY OF THE UNITED STATES AND ARE APPOINTED IN THE REGULAR ARMY WITHOUT BREAK IN SERVICE. ACCORDINGLY, THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE.