A-26085, FEBRUARY 28, 1929, 8 COMP. GEN. 471

A-26085: Feb 28, 1929

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WHEREIN WAS DISALLOWED HIS CLAIM FOR PAY FOR 120 DAYS' ANNUAL LEAVE ALLEGED TO HAVE ACCRUED IN HIS FAVOR PRIOR TO HIS SEPARATION FROM THE SERVICE OF THE MARINE CORPS. WAS EMPLOYED AS FOREMAN CARPENTER IN CHARGE OF CONSTRUCTION WORK AT HEADQUARTERS. IT IS REQUESTED THAT I BE GRANTED ONE HUNDRED AND TWENTY DAYS' LEAVE OF ABSENCE (ACCUMULATIVE) WITH PAY TO TAKE EFFECT 1 APRIL. I HAVE BEEN EMPLOYED IN THE UNITED STATES MARINE CORPS SINCE MAY 11TH. 1917 AND HAVE HAD UP TO DATE SEVENTY-FIVE DAYS' LEAVE OF ABSENCE WITH PAY. 3. IT IS REGRETTED THAT I AM FORCED TO SEVER MY CONNECTIONS WITH YOUR DEPARTMENT THROUGH HAVING TO SEEK A BETTER LIVING AND I TAKE THIS OPPORTUNITY TO THANK ALL OFFICERS AND MARINE CORPS PERSONNEL AT THESE BARRACKS FOR ALL THEY HAVE DONE TO MAKE MY DUTIES PLEASANT.

A-26085, FEBRUARY 28, 1929, 8 COMP. GEN. 471

LEAVES OF ABSENCE - ACCRUED - NAVAL STATION EMPLOYEES IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, ANNUAL LEAVE EARNED BY A CIVILIAN EMPLOYEE OF THE NAVY DEPARTMENT ON DUTY AT A STATION OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, UNDER THE PROVISION OF THE ACT OF AUGUST 29, 1916, 39 STAT. 557, MAY NOT BE GRANTED SUBSEQUENT TO SEPARATION FROM THE SERVICE, NOR MAY SUCH EMPLOYEE BE PAID FOR LEAVE ACCRUED BUT NOT GRANTED PRIOR TO SEPARATION FROM THE SERVICE.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 28, 1929:

WILLIE LEWIS, REQUESTED JANUARY 26, 1929, REVIEW OF SETTLEMENT NO. 0225394, DATED DECEMBER 14, 1928, WHEREIN WAS DISALLOWED HIS CLAIM FOR PAY FOR 120 DAYS' ANNUAL LEAVE ALLEGED TO HAVE ACCRUED IN HIS FAVOR PRIOR TO HIS SEPARATION FROM THE SERVICE OF THE MARINE CORPS, UNITED STATES NAVAL STATION, ST. THOMAS, VIRGIN ISLANDS, MARCH 31, 1928.

IT APPEARS THAT THE CLAIMANT, AN AMERICAN CITIZEN, WAS EMPLOYED AS FOREMAN CARPENTER IN CHARGE OF CONSTRUCTION WORK AT HEADQUARTERS, UNITED STATES MARINE CORPS, ST. THOMAS, VIRGIN ISLANDS, FROM MAY 11, 1917, TO MARCH 31, 1928, WHEN HE RESIGNED TO SEEK BETTER EMPLOYMENT OUTSIDE THE GOVERNMENT SERVICE.

ON MAY 21, 1928, HE ADVISED HIS OFFICE THAT UNDER DATE OF MARCH 15, 1928, HE HAD ADDRESSED A LATTER TO THE COMMANDING OFFICER, UNITED STATES MARINE BATTALION, ST. THOMAS, VIRGIN ISLANDS, THROUGH OFFICIAL CHANNELS, AS FOLLOWS:

1. IT IS REQUESTED THAT I BE GRANTED ONE HUNDRED AND TWENTY DAYS' LEAVE OF ABSENCE (ACCUMULATIVE) WITH PAY TO TAKE EFFECT 1 APRIL, 1928, AND THAT AT THE EXPIRATION OF SUCH LEAVE MY RESIGNATION BE ACCEPTED.

2. I HAVE BEEN EMPLOYED IN THE UNITED STATES MARINE CORPS SINCE MAY 11TH, 1917 AND HAVE HAD UP TO DATE SEVENTY-FIVE DAYS' LEAVE OF ABSENCE WITH PAY.

3. IT IS REGRETTED THAT I AM FORCED TO SEVER MY CONNECTIONS WITH YOUR DEPARTMENT THROUGH HAVING TO SEEK A BETTER LIVING AND I TAKE THIS OPPORTUNITY TO THANK ALL OFFICERS AND MARINE CORPS PERSONNEL AT THESE BARRACKS FOR ALL THEY HAVE DONE TO MAKE MY DUTIES PLEASANT.

HE CONCLUDED HIS LETTER TO THIS OFFICE WITH THE STATEMENT THAT THE LEAVE HAD BEEN REFUSED--- ,EVEN THE 30 DAYS' ANNUAL LEAVE," AND REQUESTED THAT THE MATTER BE TAKEN UP WITH THE OFFICIALS AT THE POST SO THAT HE MAY BE FAIRLY DEALT WITH AFTER SUCH LONG AND FAITHFUL SERVICE.

THIS OFFICE REFERRED THE CLAIMANT'S LETTER TO THE HEADQUARTERS, UNITED STATES MARINE CORPS, ON JUNE 14, 1928, FOR ADMINISTRATIVE EXAMINATION AND REPORT.

ON JUNE 26, 1928, THE POST QUARTERMASTER, MARINE BARRACKS, ST. THOMAS, VIRGIN ISLANDS, REPORTED AS FOLLOWS:

3. MR. LEWIS' LETTER OF 15 MARCH, 1928 (EXHIBIT A), WAS NOT REFERRED TO THIS OFFICE AND CONSEQUENTLY THIS IS THE FIRST TIME THIS CASE HAS BEEN BEFORE THIS OFFICE FOR CONSIDERATION.

4. DURING LEWIS' SERVICES AT THIS POST HE WAS A PER DIEM EMPLOYEE AND NOT UNDER THE CLASSIFIED CIVIL SERVICE. IF SUCH EMPLOYEES ARE, AS STATED BY MR. LEWIS, ENTITLED TO CUMULATIVE LEAVE, IT IS BELIEVED THAT HIS CLAIM (HE HAVING HAD ONLY 75 DAYS' LEAVE FROM MAY 11, 1917, TO MARCH 31, 1928) IS A JUST ONE.

5. MR. LEWIS HAS NOT BEEN PAID BY THIS OFFICE SUBSEQUENT TO MARCH 31, 1928, AND HAS NOT AND WILL NOT BE PAID ANY PORTION OF THE AMOUNT CLAIMED DUE HIM ON ACCOUNT OF CUMULATIVE LEAVE.

UNDER DATE OF OCTOBER 25, 1928, THE SECRETARY OF THE NAVY REPORTED WITH REFERENCE TO THE MATTER AS FOLLOWS:

2. IT APPEARS FROM THE ATTACHED CORRESPONDENCE THAT LEWIS HAS BEEN GRANTED THE FOLLOWING LEAVE OF ABSENCE WITH PAY DURING THE PERIOD MAY 11, 1917, TO MARCH 31, 1928:

TABLE

DAYS MAY 26, 1925, TO JUNE 11, 1925, INCLUSIVE- - - - - - - - - - - - 14 DEC. 3, 1926, TO JAN. 2, 1927, INCLUSIVE - - - - - - - - - - - - 24 JULY 1, 1927, TO JULY 31, 1927, INCLUSIVE- - - - - - - - - - - - 22 6/7

60 6/7

4. DURING THE LAST FOUR SERVICE YEARS OF HIS EMPLOYMENT FROM MAY 11, 1924, TO MARCH 31, 1928, HE ACCRUED 117 DAYS' LEAVE OF ABSENCE, OF WHICH HE WAS GRANTED 60 (7 DAYS. HE HAD, THEREFORE, ACCRUED AND DUE HIM AT THE TIME OF HIS SEPARATION FROM THE SERVICE 56 (7 DAYS' LEAVE WITH PAY, WHICH WAS NOT GRANTED HIM.

5. THE ABOVE-MENTIONED LEAVE CAN NOT NOW BE GRANTED BY THE DEPARTMENT, AS LEWIS HAS BEEN SEPARATED FROM THE SERVICE. HOWEVER, IT IS RECOMMENDED THAT HE BE PAID BY THE GENERAL ACCOUNTING OFFICE FOR THE 56 (7 DAYS' LEAVE AT THE RATE OF $4.00 PER DIEM, THE PAY HE WAS RECEIVING AS A SHIPWRIGHT AT THE TIME OF HIS SEPARATION.

THE LEAVE LAW APPLICABLE IN THIS CASE IS THE PROVISION IN THE ACT OF AUGUST 29, 1916, 39 STAT. 557, RELATIVE TO CIVILIAN EMPLOYEES OF THE NAVY DEPARTMENT ON DUTY AT STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. WHILE SAID LAW PROVIDES FOR CUMULATIVE LEAVE UNDER CERTAIN CIRCUMSTANCES, IT CONTAINS NO PROVISION FOR PAY FOR LEAVE NOT GRANTED AND TAKEN PRIOR TO DATE OF SEPARATION FROM THE SERVICE.

IN ORDER TO BE ENTITLED TO PAY FOR ACCRUED LEAVE AN EMPLOYEE MUST BE GRANTED SUCH LEAVE PRIOR TO HIS SEPARATION FROM THE SERVICE.

IT IS CLEAR THAT THE CLAIMANT IN THIS CASE WAS NOT GRANTED THE LEAVE FOR WHICH HE CLAIMS PAY PRIOR TO HIS SEPARATION FROM THE SERVICE. IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR LEAVE MAY NOT BE GRANTED SUBSEQUENT TO SEPARATION FROM THE SERVICE, NOR MAY AN EMPLOYEE BE PAID FOR LEAVE ACCRUED BUT NOT GRANTED PRIOR TO SEPARATION FROM THE SERVICE. SEE DECISIONS OF AUGUST 17, 1925, REVIEW 5017; FEBRUARY 26, 1926, A-12799. HARRISON V. UNITED STATES, 26 CT.CLS. 260. ..END :