A-90168, DECEMBER 10, 1937, 17 COMP. GEN. 481

A-90168: Dec 10, 1937

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1936 - AFTER SEPARATION FROM SERVICE - SUBSEQUENT DETERMINATION AS TO LEAVE CREDIT PAYMENT FOR ANNUAL LEAVE NOT TAKEN PRIOR TO SEPARATION FROM SERVICE IS UNAUTHORIZED. THE EMPLOYEE'S RESIGNATION COULD HAVE BEEN MADE EFFECTIVE AT A LATER DATE BECAUSE OF THE RESULTING AVAILABILITY OF SUFFICIENT LEAVE TO COVER THE ADDITIONAL PERIOD. YOU WERE ABSENT FOR SOME TIME BECAUSE OF FLOOD CONDITIONS IN THE JEFFERSONVILLE AREA. FEBRUARY 3 WAS CHARGED TO ACCRUED ANNUAL LEAVE AND YOU WERE CONSIDERED IN A NONPAY STATUS FOR FOUR-SEVENTHS OF A DAY ON FEBRUARY 3. IT WAS WITHIN ADMINISTRATIVE DISCRETION TO EXCUSE SUCH ABSENCES OF EMPLOYEES OTHERWISE IN A PAY STATUS. IT WOULD NOT HAVE BEEN NECESSARY IN YOUR CASE TO DEDUCT 6 4/7 DAYS' PAY FOR UNEARNED EAVE.

A-90168, DECEMBER 10, 1937, 17 COMP. GEN. 481

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - AFTER SEPARATION FROM SERVICE - SUBSEQUENT DETERMINATION AS TO LEAVE CREDIT PAYMENT FOR ANNUAL LEAVE NOT TAKEN PRIOR TO SEPARATION FROM SERVICE IS UNAUTHORIZED, NOTWITHSTANDING HAD IT BEEN KNOWN PRIOR TO SUCH SEPARATION THAT ABSENCES ON ACCOUNT OF FLOOD CONDITIONS WOULD NOT BE CHARGED TO ANNUAL LEAVE, THE EMPLOYEE'S RESIGNATION COULD HAVE BEEN MADE EFFECTIVE AT A LATER DATE BECAUSE OF THE RESULTING AVAILABILITY OF SUFFICIENT LEAVE TO COVER THE ADDITIONAL PERIOD.

ACTING COMPTROLLER GENERAL ELLIOTT TO IDA A. BEETH, DECEMBER 10, 1937:

YOUR LETTERS OF SEPTEMBER 7, OCTOBER 29, AND NOVEMBER 29, 1937, REQUEST REVIEW OF SETTLEMENT NO. 0459605, DATED AUGUST 27, 1937, WHICH DISALLOWED THE AMOUNT OF $7 OF YOUR CLAIM FOR $30 AS BALANCE OF SALARY FOR SERVICES RENDERED AS A CLERK-TYPIST, SUPPLY DIVISION, QUARTERMASTER CORPS, WAR DEPARTMENT, AT JEFFERSONVILLE, IND., DURING THE PERIOD FROM FEBRUARY 1 TO FEBRUARY 15, 1937.

THE RECORDS SHOW THAT YOU RESIGNED AT THE CLOSE OF BUSINESS ON FEBRUARY 13, 1937; THAT PRIOR THERETO, DURING THE MONTHS OF JANUARY AND FEBRUARY 1937, YOU WERE ABSENT FOR SOME TIME BECAUSE OF FLOOD CONDITIONS IN THE JEFFERSONVILLE AREA; THAT IN MAKING PAYMENT ON VOUCHER 147 OF THE FEBRUARY 1937 ACCOUNT OF MAJ. ORVILLE JACKSON, FOR SERVICES RENDERED DURING THE PERIOD FEBRUARY 1 TO FEBRUARY 13, 1937, YOUR ABSENCE UP TO 11:20 A.M. FEBRUARY 3 WAS CHARGED TO ACCRUED ANNUAL LEAVE AND YOU WERE CONSIDERED IN A NONPAY STATUS FOR FOUR-SEVENTHS OF A DAY ON FEBRUARY 3, AND FOR 6 DAYS FROM FEBRUARY 4 TO 9, INCLUSIVE, BECAUSE YOUR ANNUAL LEAVE HAD BEEN EXHAUSTED; THAT SUBSEQUENTLY ON APRIL 1, 1937, THIS OFFICE ADVISED THE SECRETARY OF WAR THAT IN CASES OF ABSENCE OF EMPLOYEES DUE TO FLOODS, AS IN YOUR CASE, IT WAS WITHIN ADMINISTRATIVE DISCRETION TO EXCUSE SUCH ABSENCES OF EMPLOYEES OTHERWISE IN A PAY STATUS, WITHOUT ANY CHARGE TO ANNUAL LEAVE; THAT THE WAR DEPARTMENT IN REPORTING ON YOUR CLAIM FOR SALARY FOR SERVICES RENDERED DURING FEBRUARY 1937 STATED THAT HAD IT BEEN KNOWN THAT ABSENCES BECAUSE OF FLOODS NEED NOT BE CHARGED TO ANNUAL LEAVE, IT WOULD NOT HAVE BEEN NECESSARY IN YOUR CASE TO DEDUCT 6 4/7 DAYS' PAY FOR UNEARNED EAVE; AND THAT ADJUSTMENT OF YOUR SALARY WAS MADE IN THE AFORESAID SETTLEMENT BY THE ALLOWANCE OF $23 FOR THE TIME YOU HAD BEEN CONSIDERED IN A NONPAY STATUS.

IN YOUR LETTER OF SEPTEMBER 7, 1937, YOU STATE:

I HAVE JUST RECEIVED A CHECK FOR $23.00 FROM THE WAR DEPARTMENT AT WASHINGTON, D.C., TO COVER AN AMOUNT ERRONEOUSLY DEDUCTED FROM MY SALARY FOR THE PERIOD FROM FEBRUARY 1 TO 13TH, INCLUSIVE, 1937, WHILE EMPLOYED AT THE JEFFERSONVILLE QUARTERMASTER DEPOT. THIS AMOUNT DOES COVER THE PERIOD FROM FEBRUARY 1 TO 13TH, BUT I SHOULD HAVE RECEIVED AN AMOUNT COVERING THE TIME FROM FEBRUARY 1 TO 15TH, INCLUSIVE. THE AMOUNT WHICH WAS ACTUALLY DEDUCTED FROM MY SALARY DUE TO A FORCED VACATION ON ACCOUNT OF FLOOD CONDITIONS IN THAT TERRITORY WAS $30.00 AND I THEREFORE MAINTAIN THAT I SHOULD BE REIMBURSED FOR THE FULL AMOUNT WHICH WAS DEDUCTED FROM MY SALARY.

IT IS TRUE THAT I LAST REPORTED FOR DUTY AT THE JEFFERSONVILLE QUARTERMASTER DEPOT ON FEBRUARY 13, 1937, BUT MY FOUR OR FIVE DAYS OF ACCUMULATED LEAVE SHOULD HAVE BEEN ADDED TO THAT DATE, WHICH WOULD MORE THAN COVER THE TIME BETWEEN THE DATE I LEFT THE JEFFERSONVILLE OFFICE AND BEGAN WORK AT THE TREASURY DEPARTMENT IN WASHINGTON THE 16TH DAY OF FEBRUARY 1937.

THEIR REASON FOR CHECKING ME OUT ON THE 13TH, THE DAY I ACTUALLY LEFT JEFFERSONVILLE WAS BECAUSE THEY HAD GIVEN ME CREDIT FOR ALL THE LEAVE THAT WAS DUE ME IN AN ENDEAVOR TO COVER AS MUCH OF THE TIME LOST IN THE FLOOD PERIOD AS IT WOULD COVER. AFTER IT WAS DECIDED THAT THE FORCED VACATION WOULD NOT BE CHARGED AGAINST THE EMPLOYEES, AND THAT THEY WOULD NOT LOSE THEIR ANNUAL LEAVE TO COVER IT, THEN MY ACCUMULATED LEAVE SHOULD NOT HAVE BEEN USED TO COVER ANY PORTION OF MY FORCED LEAVE, AND I THEREFORE CLAIM THAT I HAD FOUR OR FIVE DAYS OF ACCUMULATED LEAVE TO COVER THE PERIOD BETWEEN THE 13TH AND 15TH OF FEBRUARY 1937. EVEN THEN I WOULD HAVE TO LOSE TWO OR THREE DAYS ANNUAL LEAVE AFTER BEING PAID THE FULL AMOUNT OF MY CLAIM FOR $30.00.

THEIR RECORDS AT JEFFERSONVILLE SHOULD BE CHANGED TO READ THE 15TH OF FEBRUARY INSTEAD OF THE 13TH, AS THE DATE OF MY LEAVING THEIR EMPLOY.

I AM THEREFORE RETURNING THE CHECK FOR $23.00 WITH A REQUEST THAT YOU REVIEW MY CLAIM AT THE EARLIEST POSSIBLE DATE.

YOUR CLAIM IS, IN EFFECT, FOR SALARY FOR FEBRUARY 14 AND 15, 1937, SUBSEQUENT TO THE EFFECTIVE DATE OF YOUR RESIGNATION AND IS BASED ON THE FACT THAT HAD IT BEEN KNOWN AT THE TIME THAT ABSENCES BECAUSE OF THE FLOOD WOULD NOT BE CHARGED TO ANNUAL LEAVE YOUR RESIGNATION COULD HAVE BEEN MADE EFFECTIVE AS OF THE CLOSE OF BUSINESS FEBRUARY 15, 1937, SINCE YOU HAD SUFFICIENT ANNUAL LEAVE TO HAVE COVERED THE INTERVENING 2 DAYS. APPEARS THAT YOUR RESIGNATION WAS ACCEPTED AS TENDERED TO BE EFFECTIVE FEBRUARY 13, 1937, AND THAT YOUR SERVICES WERE TERMINATED ON FEBRUARY 13, 1937.

IN 17 COMP. GEN. 48 IN A SOMEWHAT SIMILAR CASE INVOLVING A CLAIM FOR PAYMENT OF SALARY FOR LEAVE NOT TAKEN, SUBSEQUENT TO THE EFFECTIVE DATE OF THE EMPLOYEE'S RESIGNATION, IT WAS SAID:

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.

IN VIEW OF THE FACTS AND LAW APPLICABLE THERETO, IT MUST BE HELD THAT THERE IS NO LEGAL AUTHORITY FOR PAYMENT OF SALARY FOR THE LEAVE NOT TAKEN BY YOU, OR FOR ANY PERIOD SUBSEQUENT TO THE EFFECTIVE DATE OF YOUR RESIGNATION. THE SETTLEMENT OF AUGUST 27, 1937, DISALLOWING YOUR CLAIM FOR SALARY FOR FEBRUARY 14 AND 15, 1937, MUST BE, AND IS, SUSTAINED.