10 USC 701 - Entitlement and accumulation

View all text of Chapter 40 [§ 701 - § 711]

§ 701. Entitlement and accumulation

(a) A member of an armed force is entitled to leave at the rate of 2½ calendar days for each month of active service, excluding periods of—

(1) absence from duty without leave;

(2) absence over leave;

(3) confinement as the result of a sentence of a court-martial; and

(4) leave required to be taken under section 876a of this title.

Full-time training, or other full-time duty for a period of more than 29 days, performed under section 316, 502, 503, 504, or 505 of title 32 by a member of the Army National Guard of the United States or the Air National Guard of the United States in his status as a member of the National Guard, and for which he is entitled to pay, is active service for the purposes of this section.

(b) Except as provided in subsections (e) and (f), a member may not accumulate more than 60 days’ leave. However, leave taken during a fiscal year may be charged to leave accumulated during that fiscal year without regard to this limitation.

(c) A member who retired after August 9, 1946, who is continued on, or is recalled to active duty, may have his leave which accumulated during his service before retirement carried over to his period of service after retirement.

(d) Leave taken before discharge is considered to be active service.

(e)

(1) The Secretary concerned, under uniform regulations to be prescribed by the Secretary of Defense, may authorize a member described in paragraph (2) to retain not more than 30 days of excess leave.

(2) A member described in this paragraph is a member who—

(A)

(i) serves on active duty for a continuous period of at least 120 days for which the member is entitled to special pay under section 310(a) of title 37; or

(ii) is assigned to a deployable ship or mobile unit or to other duty designated for the purposes of this section;

(B) except for this subsection, would lose any excess leave at the end of the fiscal year; and

(C) receives, from the first officer in a grade above O-6 in the chain of command of such member, written authorization to retain such excess leave.

(3) Excess leave retained by a member under this subsection shall be forfeited unless used before the end of the second fiscal year after the end of the fiscal year in which the service or assignment described in paragraph (2)(A) terminated.

(4) In this subsection, the term “excess leave” means leave accrued by a member in excess of the number of days of leave authorized to be accumulated under subsection (b).

(f) A member who is in a missing status, as defined in section 551(2) of title 37, accumulates leave without regard to the limitations in subsections (b) and (e). Notwithstanding the death of a member while in a missing status, he continues to earn leave through the date—

(1) the Secretary concerned receives evidence that the member is dead; or

(2) that his death is prescribed or determined under section 555 of title 37.

Leave accumulated while in missing status shall be accounted for separately. It may not be taken, but shall be paid for under section 501(h) of title 37. However, a member whose death is prescribed or determined under section 555 or 556 of title 37 may, in addition to leave accrued before entering a missing status, accrue not more than 150 days’ leave during the period he is in a missing status, unless his actual death occurs on a date when, had he lived, he would have accrued leave in excess of 150 days, in which event settlement will be made for the number of days accrued to the actual date of death. Leave so accrued in a missing status shall be accounted for separately and paid for under the provisions of section 501 of title 37.

(g) A member who has taken leave in excess of that authorized by this section and who is being discharged or released from active duty for the purpose of accepting an appointment or a warrant in an armed force, or of entering into an enlistment or an extension of an enlistment in an armed force, may elect to have excess leave of up to 30 days or the maximum number of days of leave that could be earned in the new term of service, whichever is less, carried over to that new term of service to count against leave that will accrue on the new term of service. A member shall be required, at the time of his discharge or release from active duty, to pay for excess leave not carried over under this subsection.

(h)

(1)

(A) Under regulations prescribed by the Secretary of Defense, a member of the armed forces described in paragraph (2) is allowed up to a total of 12 weeks of parental leave during the one-year period beginning after the following events:

(i) The birth or adoption of a child of the member and in order to care for such child.

(ii) The placement of a minor child with the member for adoption or long-term foster care.

(B)

(i) The Secretary concerned, under uniform regulations to be prescribed by the Secretary of Defense, may authorize leave described under subparagraph (A) to be taken after the one-year period described in such paragraph in the case of a member described in paragraph (2) who, except for this subparagraph, would lose unused parental leave at the end of the one-year period described in subparagraph (A) as a result of—(I) operational requirements;(II) professional military education obligations; or(III) other circumstances that the Secretary determines reasonable and appropriate.

(ii) The regulations prescribed under clause (i) shall require that any leave authorized to be taken after the one-year period described in subparagraph (A) shall be taken within a reasonable period of time, as determined by the Secretary of Defense, after cessation of the circumstances warranting the extended deadline.

(2) Paragraph (1) applies to the following members:

(A) A member on active duty.

(B) A member of a reserve component performing active Guard and Reserve duty.

(D) A member of the Space Force in a space force active status, not on sustained duty.

(3)

(A) A member who has given birth may receive medical convalescent leave in conjunction with such birth. Medical convalescent leave in excess of the leave under paragraph (1) may be authorized if such additional medical convalescent leave—

(i) is specifically recommended, in writing, by the medical provider of the member to address a diagnosed medical condition; and

(ii) is approved by the commander of the member.

(B) Convalescent leave may be authorized under subparagraph (A) only for a medical condition of a member and may not be authorized for a member in connection with a condition of a dependent or other family member of the member.

(4) Any leave taken by a member under this subsection, including leave under paragraphs (1) and (3), may be taken in more than one increment in connection with such birth or adoption in accordance with regulations prescribed by the Secretary concerned.

(5)

(A) Any leave authorized by this subsection that is not taken within one year of such birth or adoption shall be forfeited, subject to the exceptions in paragraph (1)(B)(ii).

(B) Any leave authorized by this subsection for a member of a reserve component, or of the Space Force, on active duty that is not taken by the time the member is separated from active duty shall be forfeited at that time.

(6) The period of active duty of a member of a reserve component, or of the Space Force, may not be extended in order to permit the member to take leave authorized by this subsection.

(7)

(A) Leave authorized by this subsection is in addition to any other leave provided under other provisions of this section.

(B) Medical convalescent leave under paragraph (3) is in addition to any other leave provided under other provisions of this subsection.

(i) A member of a reserve component, or of the Space Force, who accumulates leave during a period of active service may carry over any leave so accumulated to the member’s next period of active service, subject to the accumulation limits in subsections (b) and (e), without regard to separation or release from active service if the separation or release is under honorable conditions. The taking of leave carried over under this subsection shall be subject to the provisions of this section.

(j) A member of the armed forces who gives birth while on active duty may be deployed during the period of 12 months beginning on the date of such birth only with the approval of a health care provider employed at a military medical treatment facility and—

(1) at the election of such member; or

(2) in the interest of national security, as determined by the Secretary of Defense.

(k) A member of the armed forces who gives birth while on active duty may be required to meet body composition standards or pass a physical fitness test during the period of 12 months beginning on the date of such birth only with the approval of a health care provider employed at a military medical treatment facility and—

(1) at the election of such member; or

(2) in the interest of national security, as determined by the Secretary of Defense.

(l)

(1)

(A) Under regulations prescribed by the Secretary of Defense, a member of the armed forces described in subparagraph (B) is allowed up to two weeks of leave to be used in connection with the death of an immediate family member.

(B) Subparagraph (A) applies to the following members:

(i) A member on active duty.

(ii) A member of a reserve component performing active Guard and Reserve duty.

(iii) A member of a reserve component subject to an active duty recall or mobilization order in excess of 12 months.

(2) Under the regulations prescribed for purposes of this subsection, a member taking leave under paragraph (1) shall not have his or her leave account reduced as a result of taking such leave if such member’s accrued leave is fewer than 30 days. Members with 30 or more days of accrued leave shall be charged for bereavement leave until such point that the member’s accrued leave is less than 30 days. Any remaining bereavement leave taken by such member in accordance with paragraph (1) after such point shall not be chargeable to the member.

(3) In this section, the term “immediate family member”, with respect to a member of the armed forces, means—

(A) the member’s spouse; or

(B) a child of the member.

(m)

(1) Except as provided by subsection (h)(3), and under regulations prescribed by the Secretary of Defense, a member of the armed forces diagnosed with a medical condition is allowed convalescent leave if—

(A) the medical or behavioral health provider of the member—

(i) determines that the member is not yet fit for duty as a result of that condition; and

(ii) recommends such leave for the member to provide for the convalescence of the member from that condition; and

(B) the commanding officer of the member or the commander of the military medical treatment facility authorizes such leave for the member.

(2) A member may take not more than 30 days of convalescent leave under paragraph (1) with respect to a condition described in that paragraph unless—

(A) such leave in excess of 30 days is authorized by—

(i) the Secretary concerned; or

(ii) an individual at the level designated by the Secretary concerned, but not below the grade of O–5 or the civilian equivalent; or

(B) the member is authorized to receive convalescent leave under subsection (h)(3) in conjunction with the birth of a child.

(3)

(A) Convalescent leave may be authorized under paragraph (1) only for a medical condition of a member and may not be authorized for a member in connection with a condition of a dependent or other family member of the member.

(B) In authorizing convalescent leave for a member under paragraph (1) with respect to a condition described in that paragraph, the commanding officer of the member or the commander of the military medical treatment facility, as the case may be, shall—

(i) limit the duration of such leave to the minimum necessary in relation to the diagnosis, prognosis, and probable final disposition of the condition of the member; and

(ii) authorize leave tailored to the specific medical needs of the member rather than (except for convalescent leave provided for under subsection (h)(3)) authorizing leave based on a predetermined formula.

(4) A member taking convalescent leave under paragraph (1) shall not have the member’s leave account reduced as a result of taking such leave.

(5) In this subsection, the term “military medical treatment facility” means a facility described in subsection (b), (c), or (d) of section 1073d of this title.

(Added Pub. L. 87–649, § 3(1), Sept. 7, 1962, 76 Stat. 492; amended Pub. L. 89–151, § 3, Aug. 28, 1965, 79 Stat. 586; Pub. L. 90–245, § 1, Jan. 2, 1968, 81 Stat. 782; Pub. L. 92–596, § 1, Oct. 27, 1972, 86 Stat. 1317; Pub. L. 96–579, § 10, Dec. 23, 1980, 94 Stat. 3368; Pub. L. 97–81, § 2(a), Nov. 20, 1981, 95 Stat. 1085; Pub. L. 98–94, title X, § 1031(a), Sept. 24, 1983, 97 Stat. 671; Pub. L. 98–525, title XIV, § 1405(18), Oct. 19, 1984, 98 Stat. 2622; Pub. L. 99–661, div. A, title V, § 506(a), Nov. 14, 1986, 100 Stat. 3864; Pub. L. 102–190, div. A, title VI, § 638, Dec. 5, 1991,