B-177186, SEP 27, 1973

B-177186, SEP 27, 1973

AFFIRMATION OF DENIAL OF CLAIM, UPON REVIEW, FOR ADDITIONAL PAYMENT FOR ACCRUED LEAVE UPON RELEASE FROM ACTIVE DUTY. FAILURE TO TIMELY RECORD ON MEMBER'S LEAVE RECORD OF 24 DAYS ANNUAL LEAVE PAYMENT GREATER THAN THE ACTUAL BALANCE LEGALLY DUE LEAVE AT TIME OF RELEASE FROM ACTIVE DUTY.

TO MR. MICHAEL L. WALKER:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 5, 1973, ADDRESSED TO OUR TRANSPORTATION AND CLAIMS DIVISION, AGAIN REQUESTING THAT WE RECONSIDER OUR DECISION DATED NOVEMBER 27, 1972, B-177186, WHICH SUSTAINED THE EARLIER DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL PAYMENT FOR ACCRUED LEAVE UPON YOUR RELEASE FROM ACTIVE DUTY AND OUR LETTER OF JUNE 6, 1973.

IN REQUESTING RECONSIDERATION OF YOUR CLAIM, YOU ENCLOSED A COPY OF FIRST ENDORSEMENT TO BUPERS ORDER 159477 OF OCTOBER 28, 1971, WHICH RELEASED YOU FROM ACTIVE DUTY, DIRECTING OUR ATTENTION TO ITEM 2 OF THIS ENDORSEMENT WHICH PROVIDES:

"2. AS VERIFIED BY YOUR LEAVE RECORD, NAVPERS 601-8 YOUR EARNED LEAVE CREDIT COMPUTED THROUGH THE EFFECTIVE DATE OF SEPARATION IS SIXTY (60) DAYS."

YOU AGAIN STATE YOUR BELIEF THAT BASED ON THE ABOVE STATEMENT YOU WERE ENTITLED TO RECEIVE COMPENSATION FOR SIXTY DAYS' LEAVE RATHER THAN THE 36 DAYS WHICH YOU RECEIVED UPON YOUR RELEASE FROM ACTIVE DUTY.

AS STATED IN OUR LETTER TO YOU DATED JUNE 6, 1973, SECTION 701 OF TITLE 10, U.S. CODE, PROVIDES THAT A MEMBER OF THE ARMED FORCES IS ENTITLED TO LEAVE AT THE RATE OF 2 1/2 CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE. UNDER THE PROVISIONS OF 37 U.S.C. 501(F), PAYMENT MAY NOT BE MADE FOR LEAVE IN EXCESS OF 60 DAYS UPON DISCHARGE OR RETIREMENT.

UNDER THE ABOVE-MENTIONED PROVISIONS OF LAW AND CONSISTENT WITH THE LIMITATIONS AS TO THE MAXIMUM AMOUNT OF LEAVE WHICH A MEMBER MAY LAWFULLY ACCRUE, A MEMBER WHO HAS EARNED LEAVE MAY EITHER TAKE THAT LEAVE OR BE COMPENSATED FOR THAT LEAVE AT THE TIME OF SEPARATION. IN THIS REGARD, A REVIEW OF YOUR OFFICIAL LEAVE RECORD DURING YOUR PERIOD OF ACTIVE SERVICE SHOWS THE FOLLOWING ACCRUAL AND USE OF LEAVE:

ANNUAL DAYS OF CUMULATIVE

ACCRUED LEAVE LEAVE TAKEN BALANCE

8-1-67 TO 6-30-68 27 1/2 26 1 1/2 DAYS

7-1-68 TO 6-30-69 30 11 20 1/2 DAYS

7-1-69 TO 6-30-70 30 3 47 1/2 DAYS

7-1-70 TO 6-30-71 30 38 39 1/2 DAYS

7-1-71 TO 1-23-72 17 21 35 1/2 OR 36 DAYS

IT IS UNFORTUNATE THAT 24 DAYS OF LEAVE TAKEN BY YOU DURING THE PERIOD OCTOBER 6 TO OCTOBER 29, 1970, WHICH LEAVE YOU DO NOT DENY TAKING, WAS NOT TIMELY RECORDED ON YOUR LEAVE RECORD. THE FAILURE TO TIMELY RECORD PRESUMABLY CAUSED THE INSERTION OF AN INACCURATE STATEMENT IN THE ENDORSEMENT ON BUPERS ORDER 159477. HOWEVER, SINCE THE TAKING OF LEAVE IS A MATTER OF FACT, AFTER SUCH LEAVE HAS BEEN TAKEN, YOU ARE ENTITLED TO BE COMPENSATED ONLY FOR THE ACTUAL AMOUNT OF LEAVE LEGALLY DUE AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY, WHICH AS SHOWN ABOVE, WAS 36 DAYS. IN THIS RESPECT, WE CONCUR WITH THE ACTION TAKEN BY THE DEPARTMENT OF THE NAVY IN LETTER TO YOU DATED MARCH 8, 1972, DENYING YOUR CLAIM FOR THE REASONS INDICATED.

SINCE YOU RECEIVED A LUMP-SUM PAYMENT ON YOUR RELEASE FROM ACTIVE DUTY FOR ALL THE LEAVE WHICH YOU HAD NOT TAKEN, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.

THE PRIOR ACTIONS TAKEN ON YOUR CLAIM ARE AFFIRMED.