B-36782, SEPTEMBER 15, 1943, 23 COMP. GEN. 193

B-36782, SEPTEMBER 15, 1943, 23 COMP. GEN. 193

PAY - NAVAL OFFICERS - DURING PERIOD OF LEAVE OF ABSENCE SUBSEQUENT TO RELEASE FROM ACTIVE DUTY WHERE A RETIRED NAVAL OFFICER ON ACTIVE DUTY, AFTER A LONG PERIOD OF HOSPITALIZATION AND WHILE STILL IN THE HOSPITAL, RECEIVED ORDERS DETACHING HIM FROM DUTY AT HIS REGULAR STATION AND DIRECTING HIM TO PROCEED TO HIS HOME UPON DISCHARGE FROM THE HOSPITAL AND THEREAFTER TO CONSIDER HIMSELF RELIEVED "FROM ALL ACTIVE DUTY" AS OF A SPECIFIED FUTURE DATE, THE PERIOD ELAPSING BETWEEN THE DATE OF DISCHARGE FROM THE HOSPITAL AND RETURN HOME TO THE DATE SPECIFIED IN THE ORDERS RELIEVING HIM FROM ALL ACTIVE DUTY MAY BE CONSIDERED TANTAMOUNT TO A PERIOD OF LEAVE OF ABSENCE, SO AS TO CONTINUE THE ACTIVE DUTY PAY AND ALLOWANCES AUTHORIZED UNDER SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 FOR SUCH PERIOD AS WOULD BE COVERED BY HIS ACCRUED LEAVE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 15, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 31, 1943, IN WHICH YOU REQUEST DECISION AS TO THE RIGHT OF LIEUTENANT C. H. FOSTER, USN, RETIRED, TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD JULY 1 TO 15, 1943.

IT APPEARS THAT PURSUANT TO ORDERS DATED OCTOBER 8, 1939, LIEUTENANT FOSTER REPORTED FOR ACTIVE DUTY ON OCTOBER 9, 1939, AT THE NAVY YARD, WASHINGTON, D.C., AND THAT HE REMAINED ON ACTIVE DUTY AT THAT PLACE UNTIL FEBRUARY 10, 1942, WHEN HE WAS ADMITTED TO THE NAVAL HOSPITAL, BETHESDA, MARYLAND, FOR TREATMENT. ORDERS DATED APRIL 9, 1943, FROM THE CHIEF OF NAVAL PERSONNEL, ADDRESSED TO THE OFFICER AT THE NAVAL HOSPITAL, ARE AS FOLLOWS:

SUBJECT: RELIEVED ALL ACTIVE DUTY; TO HOME.

1. YOU ARE HEREBY DETACHED FROM DUTY AT THE NAVY YARD, WASHINGTON, D.C., AND FROM SUCH OTHER DUTY AS MAY HAVE BEEN ASSIGNED YOU.

2. UPON BEING DISCHARGED FROM TREATMENT AT THE NAVAL HOSPITAL, NATIONAL NAVAL MEDICAL CENTER, BETHESDA, MD., YOU WILL PROCEED TO YOUR HOME. JULY 15, 1943, YOU WILL CONSIDER YOURSELF RELIEVED FROM ALL ACTIVE DUTY IN THE U.S. NAVY. YOU WILL COMPLETE ALL TRAVEL WITHIN ONE YEAR AFTER BEING DISCHARGED FROM TREATMENT BUT NOT LATER THAN ONE YEAR FROM DATE OF DETACHMENT.

3. IMMEDIATELY UPON BEING DISCHARGED FROM TREATMENT AT THE NAVAL HOSPITAL, YOU WILL REPORT YOUR MAIL ADDRESS TO THE BUREAU OF NAVAL PERSONNEL. SEE ARTICLE 135, NAVY REGULATIONS, 1920.

4. YOUR ATTENTION IS FURTHER INVITED TO THE PROVISIONS OF ARTICLE 134, NAVY REGULATIONS, WHICH REQUIRE THAT EVERY OFFICER, WHETHER ACTIVE OR RETIRED, NOT ON DUTY, SHALL REPORT TO THE BUREAU OF NAVAL PERSONNEL, HIS ADDRESS ON JANUARY 1 OF EACH YEAR, THE REPORT TO BE MAILED SO AS TO REACH THE BUREAU BY DECEMBER 20 PRECEDING. IT IS REPORTED THAT THE OFFICER WAS DISCHARGED FROM TREATMENT ON MAY 20, 1943, AND THAT HE PRESUMABLY REACHED HIS HOME THE SAME DAY, HIS HOME BEING IN WASHINGTON, D.C.

THE ACT OF JULY 1, 1918, 40 STAT. 704, 717, PROVIDES:

THAT HEREAFTER, DURING THE EXISTENCE OF WAR OR OF A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT TO EXIST, ANY COMMISSIONED OR WARRANT OFFICER OF THE NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES ON THE RETIRED LIST MAY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE ORDERED TO ACTIVE DUTY AT SEA OR ON SHORE * * *.

THE PAY AND ALLOWANCES AUTHORIZED FOR RETIRED OFFICERS ON ACTIVE DUTY ARE PRESCRIBED IN SECTION 15 OF THE ACT OF JUNE 16, 1942, 56 STAT. 367, AS FOLLOWS:

* * * RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE AND RETIRED WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF THOSE SERVICES, SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH THEY SERVE ON SUCH ACTIVE DUTY AND, WHEN ON ACTIVE DUTY STATUS, SHALL HAVE THE SAME PAY AND ALLOWANCE RIGHTS WHILE ON LEAVE OF ABSENCE OR SICK AS OFFICERS ON THE ACTIVE LIST, AND, IF DEATH OCCURS WHEN ON ACTIVE DUTY STATUS, WHILE ON LEAVE OF ABSENCE OR SICK, THEIR DEPENDENTS SHALL NOT THEREBY BE DEPRIVED OF THE BENEFITS PROVIDED IN THE ACT APPROVED DECEMBER 17, 1919, AS AMENDED, AND IN THE ACT OF JUNE 4, 1920.

THE PAY AND ALLOWANCES AUTHORIZED BY THE ABOVE-QUOTED PORTION OF SECTION 15 OF THE ACT OF JUNE 16, 1942, ARE AUTHORIZED FOR RETIRED OFFICERS "WHEN ON ACTIVE DUTY" OR "WHEN ON ACTIVE DUTY ATUS.' THE ACT OF JULY 1, 1918, AUTHORIZING THE SECRETARY OF THE NAVY, IN HIS DISCRETION, TO ORDER RETIRED OFFICERS TO ACTIVE DUTY, CONTEMPLATES, OF COURSE, THE ASSIGNMENT AND PERFORMANCE OF ACTIVE DUTY, AND A STATUS ENTITLING A RETIRED OFFICER TO ACTIVE DUTY PAY AND ALLOWANCES HAS NOT BEEN VIEWED AS ARISING OR AS CONTINUING INDEFINITELY, WITHOUT REGARD TO THOSE FACTORS, WHERE THE FACTS OR THE ORDERS SHOW THAT NO ACTIVE DUTY OR FURTHER ACTIVE DUTY ACTUALLY WAS CONTEMPLATED. SEE GIBSON V. UNITED STATES, 47 C.1CLS. 554; 5 COMP. DEC. 207. CF. 26 COMP. DEC. 245; 21 COMP. GEN. 781; B-25296, JUNE 19, 1942.

IN THE PRESENT CASE THE OFFICER REPORTED FOR ACTIVE DUTY AND APPARENTLY RENDERED SERVICE UNTIL HE WAS ADMITTED TO THE NAVAL HOSPITAL. HOWEVER, THE ORDERS OF APRIL 9, 1943, DETACHED HIM FROM DUTY AT THE NAVY YARD AND FROM SUCH OTHER DUTY AS MAY HAVE BEEN ASSIGNED AND DIRECTED HIM TO PROCEED TO HIS HOME UPON DISCHARGE FROM TREATMENT. HE COMPLIED WITH THIS ORDER ON MAY 20, 1943. IT HAS BEEN HELD THAT AN OFFICER DIRECTED TO PROCEED TO HIS HOME AND THERE AWAIT ORDERS IS ENTITLED TO PAY AND ALLOWANCES FOR SUCH PERIOD. UNITED STATES V. WILLIAMSON, 23 WALL. 411; UNITED STATES V. PHISTERER, 94 U.S. 219; UNITED STATES V. LIPPITT, 100 U.S. 663; 1 COMP. GEN. 736; B-33933, MAY 21, 1943. THOSE CASES TOOK INTO CONSIDERATION THE OBLIGATIONS OF AN OFFICER DIRECTED TO PROCEED TO A PARTICULAR POINT AND AWAIT ORDERS. AS WAS STATED IN THE WILLIAMSON CASE:

* * * IT IS HIS DUTY TO GO TO THAT PLACE AND TO REMAIN AT THAT PLACE. CANNOT GO ELSEWHERE; HE CANNOT RETURN UNTIL ORDERED. HE IS AS MUCH UNDER ORDERS, AND CAN NO MORE QUESTION THE DUTY OF OBEDIENCE THAN IF ORDERED TO AN AMBUSH TO LIE IN WAIT FOR THE ENEMY, TO MARCH TO THE FRONT BY A PARTICULAR DIRECTION, OR TO THE REAR BY A SPECIFIED TIME.

IN THE PRESENT CASE, THE OFFICER WAS NOT DIRECTED TO AWAIT ORDERS. WAS DETACHED FROM ALL DUTY AND DIRECTED TO PROCEED TO HIS HOME AND, IN VIEW OF THE LONG PERIOD OF HOSPITALIZATION AND THE FACT THAT HE WAS NOT TO BE CONTINUED ON ACTIVE DUTY, APPARENTLY HE WAS NOT PHYSICALLY QUALIFIED FOR FURTHER ACTIVE DUTY AND, UNDER THE ORDERS, NO FURTHER DUTY WAS ASSIGNED OR CONTEMPLATED. HOWEVER, THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS INVITES ATTENTION TO THE FACT THAT THE PERIOD ELAPSING BETWEEN THE DATE OF ISSUANCE OF THE ORDERS OF APRIL 9, 1943, AND THE DATE OF RELEASE FROM ACTIVE DUTY STATED THEREIN, JULY 15, 1943, WAS NOT IN EXCESS OF THE STATUTORY LEAVE WHICH ACCRUED DURING THE PERIOD OF ACTIVITY DUTY. WHILE THERE IS NO INDICATION THAT LEAVE FORMALLY WAS REQUESTED OR GRANTED, AS SUCH, FOR ANY PART OF THAT PERIOD, THE EFFECT OF THE ORDERS WAS TO PERMIT THE OFFICER TO BE FREE FROM ORDERED DUTY AND TO GO WHERE HE CHOSE AFTER DISCHARGE FROM THE HOSPITAL AND RETURN HOME, A STATUS TANTAMOUNT TO LEAVE OF ABSENCE, AND IN VIEW OF THE PROVISION IN SECTION 15 OF THE ACT OF JUNE 16, 1942, SUPRA, THAT RETIRED OFFICERS, WHEN ON ACTIVE DUTY STATUS, SHALL HAVE THE SAME PAY AND ALLOWANCE RIGHTS WHILE ON LEAVE OF ABSENCE OR SICK AS OFFICERS ON THE ACTIVE LIST, THERE WOULD APPEAR NO SUBSTANTIAL REASON TO QUESTION THE ADMINISTRATIVE AUTHORITY TO CONTINUE THE OFFICER'S ACTIVE DUTY STATUS FOR SUCH PERIOD AS WOULD BE COVERED BY ACCRUED LEAVE.

ACCORDINGLY, YOU ARE ADVISED THAT PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES TO THE OFFICER FOR THE PERIOD JULY 1 TO 15, 1943, IS AUTHORIZED, IF OTHERWISE CORRECT, IT BEING UNDERSTOOD THAT THE PERIOD FROM MAY 20, 1943, WHEN HE WAS DISCHARGED FROM THE HOSPITAL AND RETURNED HOME, TO JULY 15, 1943, THE DATE STATED IN HIS ORDERS AS THE DATE OF RELIEF "FROM ALL ACTIVE DUTY IN THE U.S. NAVY," WILL BE CHARGED AS LEAVE IN THE OFFICER'S RECORDS. CF. DECISION OF FEBRUARY 10, 1941, B-14558.