§ 29. Disposition of Effects of Missing Personnel; Absentees

§ 29.1. Generally.

Matters concerning the disposition of effects of deceased persons are · now classified under § 63, infra.

§ 33. Quarters and Housing

§ 33.5. Rental of; guests in assigned quarters.

A building used by the Navy was designated as a commissioned officers' mess. It was recommended that the building be redesignated so that the first floor would continue to be a commissioned officers' mess and the second and third floors be designated as rental quarters. The building was originally built by a private firm and operated as a club until the club and surrounding areas were included in a 99-year lease under a supplemental lease agreement. Questions were raised as to whether the building could legally be designated as rental housing and if it could whether the Bureau of Yards and Docks had legal authority to grant a waiver to that portion of the Bureau's Circular 51-32 of 3 May 1951, prohibiting assignment of accommodations under Navy jurisdiction to service personnel without dependents on a cash rental basis without forfeiture of allowances. Held: If the main purpose of the supplemental lease was to acquire the building and any other buildings involved to furnish living quarters for naval personnel, neither the subject building nor any other buildings so acquired may legally be occupied by naval personnel on a rental basis. The Navy has no statutory authority to lease buildings of any kind for occupancy by naval personnel on a rental basis, and without such statutory authority occupancy by naval personnel of leased buildings on a rental basis is prohibited. (Citing 25 Comp Gen 25 at pp 34-35.) However, assuming that the main purpose of the supplemental lease was to acquire additional lands and that the acquisition of the buildings, including the subject building, was incidental to the acquisition of the land, the subject building, or any portion thereof, may legally be designated as rental housing for naval personnel with dependents under the authority of the Act of 2 July 1945 (PL 120, 79th Cong, 59 Stat 316, 37 USC 111(a)). (Citing JAG:II:RT:L, 2 Oct 1945, CMO 10-1945, 420; JAG:II:RT:L, 5 Oct 1945, CMO 10, 1945, 419; JAG:II:RT:L, 9 Jan 1947; JAG:II:RT:L, 26 Aug 1947; JAG:II:RT:L, 24 Nov 1947, pars 22-29.) However, the Act of 2 July 1945 is not applicable to service personnel without dependents and therefore the Bureau of Yards and Docks may not legally grant a waiver to that portion of its Circular 51-32 of 3 May 1951 prohibiting assignment of accommodations under Navy jurisdiction to service personnel without dependents on a cash rental basis without forfeiture of allowances. (Citing CMO 12-1948, 339, 6 Dec 1948, but deciding this question on different grounds.) Op JAGN 1953/164. 3 July 1953.

§ 33.9. Household furnishings.

There is no legal objection to providing household furnishings to military personnel who occupy non-government-controlled quarters

in those areas of the world where it is more economical to provide such furnishings than it is to ship the privately owned household goods of such personnel. JAGA 1953/3548. 17 April 1953.

II. LEAVES, PASSES AND DELAYS

§ 37.1. Generally.

§ 37. In General

A hospitalized service member, who was found by a physical evaluation board unfit to perform any further duty, and is given orders directing him to proceed to his home or some other designated place to await further orders in connection with his disability retirement, would be a member on "authorized absence from duty awaiting further orders in connection with the disability retirement proceedings" in his case, within the scope of sec 4(d) of the Armed Forces Leave Act of 1946, as added by sec 1 of the Act, approved 4 August 1947, 61 Stat 748, 37 USC 33 (b), ML 1949, sec 1443c, which provides that such person shall receive the same pay and allowances they would receive if not so absent.

In view of the fact that a member's status under orders issued in such cases is to be considered as that of an authorized absence from duty to await orders pending action on disability retirement proceedings, the period spent at home or elsewhere is required to be charged against the member's leave balance to the extent possible (see MS Comp Gen B-108920, 31 Comp Gen 678, 24 June 1952).

Notwithstanding the fact that leave standing to the credit of an individual is required to be charged to the extent possible for the absence during which the individual is in a status of awaiting further orders, such an enlisted member would not be absent from duty with leave unless his orders specifically grant him leave (31 Comp Gen 678, supra). Hence, an enlisted member, unless granted leave, would not be entitled to a credit of leave rations during the period chargeable against leave.

Detachment from station under orders would have the effect of terminating the member's duty assignment at that station, and, accordingly, during the absence from duty awaiting further orders. in connection with the disability retirement proceedings, his right to a basic allowance for subsistence in the amount and under the conditions prescribed in sec 301 of the Career Compensation Act of 1949, 63 Stat 812, 37 USC 251, ML 1949, App C, would be governed by the circumstances at the location to which the member was directed to proceed and not by what his situation was or may have been at the station from which detached.

The right of a member, without dependents, to a basic allowance for quarters in the amounts and under the conditions required in Section 302 of the Career Compensation Act of 1949, supra, likewise would be governed by the circumstances at the location to which the member was directed to proceed.

Under the circumstances set forth in Committee Action No. 33 of the Military Pay and Allowance Committee, Department of Defense, and in view of the reasons therein given respecting the desire of

the services to accomplish a final detachment from duty station of members found unfit to perform the duties of their rank or grade, it would seem reasonably clear that orders of the type in question actually contemplate no further duty on the part of the individual member concerned either at the station from which detached or at his home or elsewhere. In that situation no compelling reason is perceived as to why orders should not be considered as initiating a permanent change of station within the meaning of that term as used in the Joint Travel Regulations for the Uniformed Services, such change to be consummated upon ultimate termination of active service by retirement, release from active duty or otherwise. Hence, a member detached from his duty station under orders issued as mentioned above, and who proceeds to the place designated, properly may be viewed as entitled to travel allowances for himself on the basis that the place to which he was directed to proceed became a station. Also, he may be considered entitled to transportation for his dependents, if any, and to transportation of household effects to the extent such allowances are otherwise authorized in the Joint Travel Regulations for the Uniformed Services.

However, since a permanent change of station may not be considered to have been consummated until ultimate retirement, release from active duty or other termination of his waiting period, transportation of dependents or household effects furnished prior thereto would be subject to adjustment so as not to exceed that authorized on the basis of retirement, release from active duty or other determination of the waiting period, determining what the ultimate new permanent station may be (Cf. 24 Comp Gen 895).

Since, the place designated in the orders in question and to which the member travels may be considered his station, he is entitled, upon ultimate termination of his service, to travel allowances for himself from that point to the appropriate place incident to his retirement, release from active duty, etc. However, since the designated intermediate point may not be considered a permanent station, he is not entitled to transportation for his dependents and household effects from that point, but the amount of such transportation is to be determined on the basis of the distance from his permanent station at the time he received the orders directing him to proceed in an awaiting-orders status to the point to which he is entitled incident to retirement, release from active duty, etc., less any amounts previously paid for transportation of dependents and household goods to the waiting point. MS Comp Gen B-111899, 32 Comp Gen 348, 4 February 1953.

§ 37.5. Excess leave without pay status.

A named airman was granted emergency leave which, with a previous debit of leave time, gave him 17 days more than the 45 days advance leave authorized by par 3e, AFR 35-22, 25 November 1952. Held: Since under par 3e, AFR 35-22, 25 November 1952, only 45 days of advance leave legally could be given in the emergency, leave given in excess thereof should be charged as "excess leave" as described in par 3c, AFR 35-22. Excess leave, as defined in par 3c, cannot be

charged against leave to be accrued in the future since to do so would in effect grant more advance leave than the regulation authorizes. Further, under par 3c, the subject airman is not entitled to pay and allowances for that period of leave taken in excess of 45 days. Since AFR 35-22 is a regulation made pursuant to a statute (The Armed Forces Leave Act of 1946, as amended) its terms cannot be waived, and any modification or suspension of its basic terms must be of general and prospective (not retroactive) application. Op JAGAF 1953/42. 27 October 1953.

§ 37.6. Detached service at home.

Two officers who were placed on detached service at home awaiting final action on their physical evaluation board proceedings had the time spent at home charged against their accrued leave in accordance with a decision of the Comptroller General to the effect that the time spent on detached service at home awaiting retirement must be charged against accrued leave (MS Comp Gen B-111899). These officers were placed on detached service at home subsequent to the date of the cited decision but prior to the date the Department of the Army notified the field of that decision. Held: The decision of the Comptroller General (MS Comp Gen B-111899), dated 4 February 1953, is applicable to all those members who were placed in a detached service status at home awaiting further orders pending final action on disability retirement proceedings without regard to the date they were placed in such status. Op JAGA 1953/4315. 28 May 1953.

§ 37.7. Terminal leave.

An officer who entered active duty 4 May 1945, who had ten days' leave prior to terminal leave, was granted thirty-eight days' terminal leave effective 24 December 1946, and was relieved from active duty 30 January 1947, may be considered as having earned leave credit while on terminal leave additional to that accrued by him at the time he entered on such leave. Thus, he is entitled to have his records corrected to show an additional five days' leave. (Citing Section 3 of The Armed Forces Leave Act of 1946 (61 Stat 963), as amended (ML 1949, sec 1443b, 37 USC 31a); SPJGA 1944/6985, 6 Jul 1944; JAGA 1946/8069, 8 Oct 1946; JAGA 1947/7547, 9 Oct 1947; JAGA 1946/7947, 10 Oct 1946; CSJAGA 1950/1707, 16 Mar 1950, citing Hironimus v. Durant, 168 F2d 288; JAGA 1951/6749, 16 Nov 1951.) JAGA 1953/4224. 25 May 1953.

§ 41. Compensation for Accrued or Unused Leave

§ 41.5. Discharge or relief from active duty for purpose of re-enlistment or accepting a commission.

Non-regular commissioned and warrant officers who are relieved from active duty, and then are enlisted or appointed as warrant officers in the Regular Army, all for the purpose of retirement under the Act of 2 March 1907 (34 Stat 1217, 10 USC 947) or the Act of 21 August 1941 (55 Stat 651), as amended, (10 USC 594), are entitled to lump-sum payment for accrued leave at the time of release from

active duty. (Citing MS Comp Gen B-105042, 19 June 1952; 31 Comp Gen 668; JAGA 1950/5632, 21 September 1950; JAGA 1950/6925, 21 September 1950; JAGA 1952/8591, 4 December 1952.) JAGA 1953/2236. 10 March 1953.

§ 41.37. National Guard officers attending service schools.

A National Guard officer claimed a lump sum payment under the provisions of the Armed Forces Leave Act of 1946, as amended, 61 Stat 748, 37 USC 31a-39, for unused leave to his credit stated to have accrued during the period 1 October 1949 to 30 April 1950, while he was in attendance, in his status as a member of the Massachusetts National Guard, at the School of Organization, National Guard Bureau, Washington, D. C. The officer was in attendance at said school pursuant to competent National Guard duty orders during the period 1 October 1949 to 30 April 1950 inclusive. However, he was not compensated by the Department of the Army for the unused portion of the leave that accrued to him during such period for the reason that members of the National Guard attending service schools or schools of organizations have been considered by the Department of the Army as not being on active federal duty and hence as not entitled to leave benefits prescribed in the Armed Forces Leave Act of 1946. Also doubt arose as to whether the officer was entitled to leave benefits prescribed in said Act by reason of sec 714(b) of the Armed Forces Reserve Act of 1952, 66 Stat 504. Held: Under the provisions of sec 201(e) of the Career Compensation Act of 1949, 63 Stat 807, 37 USC 232 (e) and sec 99 of the National Defense Act of 3 June 1916, 39 Stat 207, as amended 32 USC 65, an officer of the National Guard of the United States who, in his status as a member of the National Guard of a state, territory, or the district of Columbia, performs duty prescribed in sec 99 of the National Defense Act, as amended, which entitles him to receive basic pay, is required to be deemed as on active duty in the service of the United States. Therefore the subject officer is to be deemed as having been on active duty in the service of the United States during the period 1 October 1949 to 30 April 1950, inclusive, and under the provisions of sec 3(a) of the Armed Forces Leave Act of 1946, 37 USC 31(a) he is entitled, as a member of the Armed Forces (see 37 USC 32, 10 USC 1b, and paragraphs 1 and 12 National Guard Regulations No. 1, 16 May 1941) to leave at the rate of 2 calendar days for each month of such active service. The provisions contained in sec 714(b) of the Armed Forces Reserve Act of 1952, 66 Stat 504, would seem to indicate that the benefits of the Armed Forces Leave Act of 1946. as amended, were not viewed as having accrued to personnel of the category described in such section prior to 9 July 1952, the date of enactment of the 1952 Act. However, the 1952 Act may not be given the effect of disturbing vested rights, and in that connection it is clear that under the express provisions of law, discussed above, the benefits of the Armed Forces Leave Act of 1946 currently accrued to the officer involved during the period beginning 1 October 1949. Comp Gen B-116595, 33 Comp Gen 259. 10 December 1953.