A-89147, OCTOBER 11, 1937, 17 COMP. GEN. 324

A-89147: Oct 11, 1937

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NOTWITHSTANDING THE CHARGES OF UNAUTHORIZED ABSENCE AND INSUBORDINATION WERE SUBSEQUENTLY WITHDRAWN. THE PROVISIONS OF AN ADMINISTRATIVE REGULATION THAT "THE DATE OF DISCHARGE OF AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE OTHER THAN FOR CAUSE DUE TO HIS OWN MISCONDUCT SHALL BE FIXED TO PERMIT THE ALLOWANCE OF ALL ACCUMULATED LEAVE AND CURRENT ACCRUED LEAVE.'. THE FACTS OF RECORD WERE STATED IN OFFICE LETTER OF JULY 1. AS FOLLOWS: THE RECORDS SHOW THAT YOU WERE DISCHARGED ON AUGUST 31. APPEARS THAT THE CHARGES OF INSUBORDINATION AND UNAUTHORIZED ABSENCE WERE LATER WITHDRAWN. WHICH RECOMMENDATIONS WERE APPROVED BY THE COMMANDING GENERAL. YOU CONTEND THAT BECAUSE THE CHARGES OF UNAUTHORIZED ABSENCE AND INSUBORDINATION WERE WITHDRAWN AND YOUR DISMISSAL LEFT BASED SOLELY ON THE GROUND OF INEFFICIENCY.

A-89147, OCTOBER 11, 1937, 17 COMP. GEN. 324

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - AFTER SEPARATION FROM SERVICE AN EMPLOYEE DISCHARGED ON ACCOUNT OF INSUBORDINATION, UNAUTHORIZED ABSENCE, AND INEFFICIENCY MAY NOT BE PAID FOR ANNUAL LEAVE NOT GRANTED PRIOR TO SEPARATION FROM THE SERVICE, NOTWITHSTANDING THE CHARGES OF UNAUTHORIZED ABSENCE AND INSUBORDINATION WERE SUBSEQUENTLY WITHDRAWN, AND THE PROVISIONS OF AN ADMINISTRATIVE REGULATION THAT "THE DATE OF DISCHARGE OF AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE OTHER THAN FOR CAUSE DUE TO HIS OWN MISCONDUCT SHALL BE FIXED TO PERMIT THE ALLOWANCE OF ALL ACCUMULATED LEAVE AND CURRENT ACCRUED LEAVE.'

ACTING COMPTROLLER GENERAL ELLIOTT TO F. X. MALONEY, OCTOBER 11, 1937:

YOUR LETTER OF JULY 8, 1937, HAS BEEN RECEIVED REQUESTING REVIEW OF THE ACTION THIS OFFICE DATED JULY 1, 1937, DISALLOWING YOUR CLAIM FOR AN AMOUNT ALLEGED TO BE DUE FOR ACCRUED LEAVE NOT TAKEN PRIOR TO YOUR SEPARATION FROM THE SERVICE ON AUGUST 31, 1936, AS A CLERK, DISTRICT NO. 2, CIVILIAN CONSERVATION CORPS, PITTSBURG, PA.

THE FACTS OF RECORD WERE STATED IN OFFICE LETTER OF JULY 1, 1937, DISALLOWING YOUR CLAIM, AS FOLLOWS:

THE RECORDS SHOW THAT YOU WERE DISCHARGED ON AUGUST 31, 1936, AS CLERK, DISTRICT NO. 2, CIVILIAN CONSERVATION CORPS, PITTSBURGH, PENNSYLVANIA, ON ACCOUNT OF INSUBORDINATION, UNAUTHORIZED ABSENCE, AND INEFFICIENCY. APPEARS THAT THE CHARGES OF INSUBORDINATION AND UNAUTHORIZED ABSENCE WERE LATER WITHDRAWN, DUE TO THE RECOMMENDATIONS OF LIEUT.-COL. L. A. CRAIG, INSPECTOR GENERAL'S DEPARTMENT, WHICH RECOMMENDATIONS WERE APPROVED BY THE COMMANDING GENERAL, THIRD CORPS AREA, BALTIMORE, MARYLAND.

YOU CONTEND THAT BECAUSE THE CHARGES OF UNAUTHORIZED ABSENCE AND INSUBORDINATION WERE WITHDRAWN AND YOUR DISMISSAL LEFT BASED SOLELY ON THE GROUND OF INEFFICIENCY, YOU ARE ENTITLED TO BE REIMBURSED FOR YOUR LEAVE WHICH WAS REFUSED YOU ON THE BASIS THAT YOUR DISMISSAL WAS FOR MISCONDUCT UNDER THE PROVISIONS OF WAR DEPARTMENT CIRCULAR NO. 45, DATED JULY 15, 1936, CONTAINING THE FOLLOWING PROVISION:

THE DATE OF A DISCHARGE OF AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE OTHER THAN FOR CAUSE DUE TO HIS OWN MISCONDUCT SHALL BE FIXED TO PERMIT THE ALLOWANCE OF ALL ACCUMULATED LEAVE AND CURRENT ACCRUED LEAVE.

IN DECISION OF MARCH 30, 1937, 16 COMP. GEN. 899, 900, IT WAS HELD AS FOLLOWS:

THE ACT OF MARCH 14, 1936, 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. HENCE, AFTER AN EMPLOYEE BECOMES LEGALLY AND EFFECTIVELY SEPARATED FROM THE SERVICE, THERE IS NO AUTHORITY TO RESTORE HIM TO THE STATUS OF AN EMPLOYEE SOLELY FOR THE PURPOSE OF GRANTING LEAVE WHICH HAD ACCRUED BUT WAS NOT TAKEN PRIOR TO SUCH SEPARATION.

THIS OFFICE HAS RECOGNIZED THE FACT THAT THE STATUTE, UNLIKE CERTAIN PRIOR LEAVE ACTS, MAKES IT THE PLAIN DUTY OF ADMINISTRATIVE OFFICERS TO GRANT THE LEAVE, BUT THERE MUST BE RECOGNIZED, ALSO, THE FACT THAT NO REMEDY HAS BEEN PROVIDED TO OFFICERS AND EMPLOYEES WHO DO NOT RECEIVE THE LEAVE PRIOR TO THEIR SEPARATION FROM THE SERVICE BECAUSE OF ADMINISTRATIVE FAILURE OR REFUSAL TO COMPLY WITH THE STATUTE. THE GRANTING OF LEAVE IS ENTIRELY AN ADMINISTRATIVE RESPONSIBILITY, AND MISUNDERSTANDINGS OR NEGLIGENCE IN THE ADMINISTRATION OF THE LAW MAY NOT FORM THE BASIS OF A CLAIM AGAINST APPROPRIATED MONEYS FOR ADDITIONAL COMPENSATION.

THE FACT THAT AFTER YOUR DISMISSAL THE WAR DEPARTMENT WITHDREW TWO OF THE CHARGES AGAINST YOU INVOLVING MISCONDUCT, AND THAT IT WAS CONCLUDED ADMINISTRATIVELY AS A RESULT OF THE HEARING HELD IN YOUR CASE THAT YOU SHOULD HAVE BEEN GRANTED THE LEAVE WITH PAY UNDER THE TERMS OF THE QUOTED ADMINISTRATIVE REGULATION, DOES NOT TAKE YOUR CASE OUT OF THE GENERAL RULE. THE FACT REMAINS THAT YOU WERE FINALLY SEPARATED FROM THE SERVICE AUGUST 31, 1936, TERMINATING A STATUS WHICH WOULD ENTITLE YOU TO RECEIVE LEAVE OF ABSENCE WITH PAY IN KIND, AND THERE IS NOW NO LEGAL BASIS ON WHICH YOU MAY BE REIMBURSED FOR THE LEAVE YOU FAIL TO RECEIVE. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM MUST BE, AND IS, SUSTAINED.