A-87579, JULY 16, 1937, 17 COMP. GEN. 48

A-87579: Jul 16, 1937

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ARE AUTHORIZED TO BE GRANTED IN KIND ONLY. WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION ON ACCOUNT OF ANNUAL LEAVE ALLEGED TO HAVE ACCRUED. WHICH WAS NOT GRANTED. THE DISALLOWANCE BEING FOR THE REASON THAT THERE IS NO LAW AUTHORIZING PAYMENT FOR LEAVE ACCRUED BUT NOT TAKEN PRIOR TO SUCH SEPARATION. IS THE FACT THAT THIS PAY IS BEING WITHHELD ME BECAUSE OF THE MISTAKE IN INSTRUCTIONS GIVEN ME BY AN EMPLOYEE OF THE GOVERNMENT IN THE DISTRICT HEADQUARTERS AT FORT SNELLING. THAT THIS MISTAKE COULD HAVE BEEN CHECKED BEFORE FINAL DECISION ON MY RESIGNATION WAS MADE. THAT I SHOULD HAVE RECEIVED THAT PAY. BEFORE MY RESIGNATION WAS ACCEPTED. IT APPEARS THAT YOUR RESIGNATION WAS ACCEPTED IN ACCORDANCE WITH YOUR REQUEST AND THAT YOUR SERVICES WERE TERMINATED ON AUGUST 16.

A-87579, JULY 16, 1937, 17 COMP. GEN. 48

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - AFTER SEPARATION FROM SERVICE LEAVES OF ABSENCE UNDER ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, ARE AUTHORIZED TO BE GRANTED IN KIND ONLY, AND PAYMENT MAY NOT BE MADE AFTER SEPARATION FROM SERVICE FOR LEAVE NOT TAKEN, NOTWITHSTANDING THE FAILURE TO RECEIVE SAME RESULTED FROM MISUNDERSTANDING, MISTAKE, OR NEGLIGENCE IN ADMINISTRATION OF THE LEAVE LAW.

ACTING COMPTROLLER GENERAL ELLIOTT TO EDWIN J. DAHL, JULY 16, 1937:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 25, 1937, TO THIS OFFICE, ALSO LETTER OF THE SAME DATE ADDRESSED TO THE PRESIDENT, REQUESTING REVIEW OF SETTLEMENT NO. 0633396, DATED MARCH 30, 1937, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION ON ACCOUNT OF ANNUAL LEAVE ALLEGED TO HAVE ACCRUED, BUT WHICH WAS NOT GRANTED, PRIOR TO YOUR SEPARATION FROM THE SERVICE BY RESIGNATION AUGUST 16, 1936, AS EDUCATIONAL ADVISOR, CIVILIAN CONSERVATION CORPS, THE DISALLOWANCE BEING FOR THE REASON THAT THERE IS NO LAW AUTHORIZING PAYMENT FOR LEAVE ACCRUED BUT NOT TAKEN PRIOR TO SUCH SEPARATION.

IN YOUR REQUEST FOR REVIEW YOU STATE:

IN ASKING FOR THIS RECONSIDERATION, I REALIZE THAT, IN LIGHT OF THE LAW AND ARMY REGULATION, THE DECISION SEEMS ALL RIGHT, BUT I KNEW THAT BEFORE I ACTUALLY MADE MY REQUEST FOR PAY DUE ME. THE THING THAT I TRIED TO EMPHASIZE IN MY ORIGINAL REQUEST, AND WHICH I AM EMPHASIZING AGAIN, IS THE FACT THAT THIS PAY IS BEING WITHHELD ME BECAUSE OF THE MISTAKE IN INSTRUCTIONS GIVEN ME BY AN EMPLOYEE OF THE GOVERNMENT IN THE DISTRICT HEADQUARTERS AT FORT SNELLING, MINNESOTA; AND THAT THIS MISTAKE COULD HAVE BEEN CHECKED BEFORE FINAL DECISION ON MY RESIGNATION WAS MADE, AND PROPER INSTRUCTIONS GIVEN FOR ME TO FOLLOW; AND THAT I SHOULD HAVE RECEIVED THAT PAY, THEREFORE, BEFORE MY RESIGNATION WAS ACCEPTED.

AS STATED IN THE SETTLEMENT OF MARCH 30, 1937, THE RECORDS SHOW THAT UNDER DATE OF AUGUST 17, 1936, APPARENTLY WHILE ON LEAVE OF ABSENCE, YOU SUBMITTED YOUR RESIGNATION AS EDUCATIONAL ADVISOR, REQUESTING THAT IT BE MADE EFFECTIVE AUGUST 16, 1936, BY REASON OF YOUR ACCEPTANCE OF EMPLOYMENT IN THE CIVILIAN FIELD. IT APPEARS THAT YOUR RESIGNATION WAS ACCEPTED IN ACCORDANCE WITH YOUR REQUEST AND THAT YOUR SERVICES WERE TERMINATED ON AUGUST 16, 1936. NO MISTAKE ON THE PART OF THE ADMINISTRATIVE OFFICE WAS INVOLVED WHEN YOUR RESIGNATION WAS ACCEPTED ON THE DATE REQUESTED BY YOU.

IN THE ABSENCE OF STATUTORY TERMS OTHERWISE PROVIDING, LEAVE OF ABSENCE UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1161, EFFECTIVE JANUARY 1, 1936, CONTROLLING IN YOUR CASE, IS AUTHORIZED TO BE GRANTED IN KIND ONLY. HENCE, IT HAS BEEN THE SETTLED RULE THAT IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING THERE IS NO AUTHORITY TO PAY EMPLOYEES AFTER SEPARATION FROM THE SERVICE FOR LEAVE NOT TAKEN. 5 COMP. GEN. 753; 7 ID. 83; 8 ID. 471; 12 ID. 602; 13 ID. 179; 14 ID. 443; 16 ID. 28.

THE ACT OF MARCH 14, 1936, SUPRA, MAKES A GRANT OF LEAVE IN KIND ONLY; THAT IS, THE RIGHT TO BE ABSENT FROM DUTY FOR THE PRESCRIBED PERIOD WITHOUT LOSS OF PAY WHILE RETAINING A STATUS AS ONE OF THE "CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES" INCLUDED WITHIN THE PURVIEW OF THE LAW. THERE IS NO PROVISION OF THE LAW, EXPRESSED OR IMPLIED, AUTHORIZING A PAYMENT IN LIEU OF LEAVE NOT GRANTED TO A FORMER OFFICER OR EMPLOYEE WHO NO LONGER HAS A STATUS UPON WHICH THE STATUTE MAY OPERATE, IRRESPECTIVE OF THE REASON WHY THE LEAVE WAS NOT GRANTED. THE GRANTING OF LEAVE IS ENTIRELY AN ADMINISTRATIVE MATTER. ACCORDINGLY, NOTWITHSTANDING THE CIRCUMSTANCES UNDER WHICH YOU FAILED TO RECEIVE THE LEAVE ALLEGED TO HAVE ACCRUED TO YOU, IT IS SUFFICIENT TO SAY THAT MISUNDERSTANDINGS, MISTAKES, OR NEGLIGENCE IN THE ADMINISTRATION OF THE LAW, MAY NOT FORM THE BASIS OF A CLAIM AGAINST APPROPRIATED MONEYS FOR COMPENSATION NOT OTHERWISE AUTHORIZED.

FOR THE REASONS STATED THE SETTLEMENT OF MARCH 30, 1937, HAVING PROPERLY DISALLOWED YOUR CLAIM, IS, UPON REVIEW, SUSTAINED.