B-164378, JUN. 13, 1968

B-164378, JUN. 13, 1968

TO MISS LLEWELLYN LIEBER:

YOUR LETTERS OF APRIL 17 AND MAY 8, 1967, REQUEST REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT OF APRIL 26, 1968, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION ON NOVEMBER 5 AND 22, 1965, AND FOR A QUARTERS ALLOWANCE INCIDENT TO YOUR EMPLOYMENT AS AN OVERSEAS TEACHER WITH THE DEPARTMENT OF THE NAVY AT YOKOSUKA, JAPAN.

THE FACTS GENERALLY WITH REGARD TO YOUR CLAIM ARE CONTAINED IN THE GENERAL ACCOUNTING OFFICE SETTLEMENT OF APRIL 26, 1968, AND NEED NOT BE REPEATED HERE.

YOUR ABSENCES FROM DUTY ON NOVEMBER 5 AND 22, 1965, WERE ADMINISTRATIVELY CHARGED AS ABSENCE WITHOUT LEAVE AND YOU WERE DENIED COMPENSATION FOR THOSE DAYS.

APPARENTLY, IT IS YOUR VIEW THAT YOU SHOULD HAVE BEEN GRANTED LEAVES OF ABSENCE OR HAVE BEEN EXCUSED FROM DUTY ON NOVEMBER 5 AND 22 UNDER THE PROVISIONS OF SECTION 933.8-3A (5) OF THE NAVY CIVILIAN PERSONNEL INSTRUCTIONS WHICH, IN PART, AUTHORIZES A GRANT OF LEAVE TO TEACHERS AS FOLLOWS:

"LEAVE EARNED BY ANY TEACHER UNDER THIS SECTION MAY BE GRANTED DURING THE SCHOOL YEAR:

"/5) FOR ANY OTHER PURPOSE NOT TO EXCEED THREE DAYS IN EACH SCHOOL YEAR * * *. THIS LEAVE, HOWEVER, IS NOT TO BE CONSIDERED IN THE SENSE OF -ANNUAL LEAVE-. THE USE OF SUCH LEAVE IS NOT A RIGHT BESTOWED UPON THE EMPLOYEE. IT IS TO BE GRANTED ONLY FOR SUCH PURPOSES AS PERMITTING TEACHERS TO TAKE CARE OF PRESSING PERSONAL BUSINESS * * *.'

THE GRANTING OF SUCH LEAVE IS BY THE TERMS OF THE REGULATION DISCRETIONARY. THE PHRASE "IT IS TO BE GRANTED ONLY" SPECIFICALLY RELATES TO THE RESTRICTION ON ITS USE IN ACCORDANCE WITH THE REGULATIONS, AND DOES NOT CONFER A MANDATORY RIGHT TO SUCH LEAVE UPON THE EMPLOYEE. THE REGULATION IS PRECISE IN THAT REGARD.

THE REPORT OF THE DEPARTMENT OF THE NAVY TO THE GENERAL ACCOUNTING OFFICE REGARDING YOUR CLAIM REFLECTS THAT AFTER AN EXCUSED ABSENCE ON NOVEMBER 2, 1965, YOUR SUPERVISOR INFORMED YOU THAT FURTHER LEAVE OF ABSENCE FOR THE PURPOSE DESIRED BY YOU COULD NOT BE GRANTED. YOUR SUBSEQUENT ABSENCES FROM DUTY ON NOVEMBER 5 AND 22, 1965, WAS THEREFORE CHARGED AS ABSENCES WITHOUT LEAVE OR UNEXCUSED ABSENCES FROM DUTY (THE TERMINOLOGY BEING IMMATERIAL) AND YOU WERE DENIED COMPENSATION FOR THOSE DAYS.

AS INDICATED ABOVE, UNDER THE ABOVE-QUOTED REGULATION THE GRANT OF LEAVE TO YOU ON THE DAYS IN QUESTION INVOLVED THE ELEMENT OF ADMINISTRATIVE DISCRETION AT THE LOCAL LEVEL AND IN YOUR CASE THE EXERCISE OF THAT DISCRETION IN REFUSING THE GRANT OF LEAVE HAS BEEN SUSTAINED AT THE DEPARTMENTAL LEVEL.

SINCE THE GRANTING OF LEAVE OR THE EXCUSING OF EMPLOYEES FROM DUTY IS AN ADMINISTRATIVE FUNCTION, THE GENERAL ACCOUNTING OFFICE ON THE RECORD AVAILABLE TO IT MAY NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE DEPARTMENT AND AUTHORIZE PAYMENT OF COMPENSATION FOR THE DAYS OF ABSENCE.

CONCERNING YOUR CLAIM FOR A QUARTERS ALLOWANCE THE DEPARTMENT OF THE NAVY ADVISES THAT DURING THE PERIOD OF YOUR ACTUAL ACTIVE SERVICE IN JAPAN YOU OCCUPIED GOVERNMENT OWNED QUARTERS. UNDER 5 U.S.C. 5923 AND THE APPLICABLE STANDARDIZED REGULATIONS A LIVING QUARTERS ALLOWANCE IS AUTHORIZED ONLY WHEN GOVERNMENT OWNED OR RENTED QUARTERS ARE NOT PROVIDED WITHOUT CHARGE FOR AN EMPLOYEE IN A FOREIGN AREA.

SINCE THERE IS NO STATUTORY OR REGULATORY AUTHORITY FOR PAYING A LIVING QUARTERS ALLOWANCE FOR QUARTERS OCCUPIED BY AN EMPLOYEE IN THE CONTINENTAL UNITED STATES THE GENERAL ACCOUNTING OFFICE IS WITHOUT AUTHORITY TO AUTHORIZE PAYMENT OF YOUR CLAIM WHILE OCCUPYING PRIVATE QUARTERS IN THE UNITED STATES DURING THE PERIOD YOUR APPEAL OF THE ERRONEOUS DISMISSAL ACTION WAS UNDER CONSIDERATION.

WITH REFERENCE TO THE OTHER MATTERS PRESENTED BY YOUR LETTER OUR OFFICE IS WITHOUT JURISDICTION TO REQUIRE THE CHANGE OF ADMINISTRATIVE RECORDS IN THE DEPARTMENTS OR AGENCIES OF THE EXECUTIVE BRANCH OF THE GOVERNMENT.

THEREFORE, UPON REVIEW, THE CONCLUSION REACHED IN OUR OFFICE SETTLEMENT OF APRIL 26, 1968, IS SUSTAINED.