B-117200, OCT 13, 1953

B-117200: Oct 13, 1953

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VIRGINIA FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 22. URGING THAT THE ENCLOSURES SUBMITTED WITH YOUR LETTER WILL ESTABLISH THAT A CLAIM WAS PRESENTED FOR TERMINAL LEAVE PAY PRIOR TO YOUR HUSBAND'S DEATH AND THAT THE DELAY IN PRESENTING A FORMAL CLAIM WAS NOT DUE TO COLONEL JOHNSON'S NEGLIGENCE. IT FURTHER APPEARS THAT HE WAS PAID RETIRED PAY TO INCLUDE MARCH 31. THERE WAS CERTIFIED TO BE DUE YOU THE SUM OF $435.71. BY THE SAME SETTLEMENT YOUR CLAIM FOR PAY FOR ACCRUED LEAVE WAS DISALLOWED. THE LATTER CLAIM WAS FORWARDED TO THIS OFFICE BY LETTER DATED JUNE 18. IN WHICH IT WAS REPORTED THAT A DETERMINATION HAD BEEN MADE TO THE EFFECT THAT ON AUGUST 31. THERE CLEARLY IS NO AUTHORITY TO ALLOW ANY AMOUNT ON ACCOUNT OF HIS UNUSED LEAVE.

B-117200, OCT 13, 1953

PRECIS-UNAVAILABLE

MRS. CORTLANDT S. JOHNSON: 205 WEST MONROE AVENUE, ALEXANDRIA, VIRGINIA

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 22, 1953, WITH ENCLOSURES, REQUESTING REVIEW OF THAT PART OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED SEPTEMBER 10, 1953, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT FOR UNUSED ACCRUED LEAVE TO THE CREDIT OF YOUR LATE HUSBAND, COLONEL CORTLANDT S. JOHNSON, UNITED STATES AIR FORCE, AT THE DATE OF HIS RETIREMENT ON AUGUST 31, 1952. ALSO, THERE HAS BEEN RECEIVED A LETTER DATED OCTOBER 5, 1953, WRITTEN ON YOUR BEHALF BY THE HONORABLE CARL VINSON, CONCERNING YOUR CLAIM.

YOU REQUEST FAVORABLE ACTION ON YOUR CLAIM, URGING THAT THE ENCLOSURES SUBMITTED WITH YOUR LETTER WILL ESTABLISH THAT A CLAIM WAS PRESENTED FOR TERMINAL LEAVE PAY PRIOR TO YOUR HUSBAND'S DEATH AND THAT THE DELAY IN PRESENTING A FORMAL CLAIM WAS NOT DUE TO COLONEL JOHNSON'S NEGLIGENCE, BUT RATHER THE RESULT OF ADMINISTRATIVE DELAY IN PROCESSING SUCH CLAIM.

IT APPEARS FROM THE RECORDS BEFORE THIS OFFICE THAT COLONEL JOHNSON RETIRED EFFECTIVE AUGUST 31, 1952, BY REASON OF PHYSICAL DISABILITY, AND THAT HE DIED ON APRIL 24, 1953. IT FURTHER APPEARS THAT HE WAS PAID RETIRED PAY TO INCLUDE MARCH 31, 1953. BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED SEPTEMBER 10, 1953, SUPRA, THERE WAS CERTIFIED TO BE DUE YOU THE SUM OF $435.71, AS WIDOW OF CORTLANDT S. JOHNSON, REPRESENTING RETIRED PAY DUE THE DECEDENT AT THE DATE OF HIS DEATH AS COLONEL, USAF, RETIRED, AND BY THE SAME SETTLEMENT YOUR CLAIM FOR PAY FOR ACCRUED LEAVE WAS DISALLOWED. THE LATTER CLAIM WAS FORWARDED TO THIS OFFICE BY LETTER DATED JUNE 18, 1953, FROM THE MILITARY PAY DIVISION, AIR FORCE FINANCE CENTER, DENVER, COLORADO, IN WHICH IT WAS REPORTED THAT A DETERMINATION HAD BEEN MADE TO THE EFFECT THAT ON AUGUST 31, 1952, COLONEL JOHNSON HAD 60 DAYS ACCRUED LEAVE TO HIS CREDIT FOR PAY AND ALLOWANCES PURPOSES.

SECTION 4(C) OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 964, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, PROVIDES, EXCEPT UNDER CERTAIN CIRCUMSTANCES NOT HERE MATERIAL, THAT:

"ANY MEMBER OF THE ARMED FORCES DISCHARGED AFTER AUGUST 31, 1946, HAVING UNUSED ACCRUED LEAVE STANDING TO HIS CREDIT AT TIME OF DISCHARGE SHALL BE COMPENSATED FOR SUCH UNUSED LEAVE IN CASH ***. SETTLEMENT AND COMPENSATION IN ACCORDANCE WITH THIS SUBSECTION SHALL BE MADE ONLY TO A LIVING MEMBER OR LIVING FORMER MEMBER OF THE ARMED FORCES."

SINCE THE ABOVE-QUOTED ACT EXPRESSLY PROVIDES THAT "SETTLEMENT AND COMPENSATION IN ACCORDANCE WITH THIS SUBSECTION SHALL BE MADE ONLY TO A LIVING MEMBER OR LIVING FORMER MEMBER OF THE ARMED FORCES," AND SINCE YOUR HUSBAND'S DEATH OCCURRED PRIOR TO SETTLEMENT, THERE CLEARLY IS NO AUTHORITY TO ALLOW ANY AMOUNT ON ACCOUNT OF HIS UNUSED LEAVE. I TRUST YOU WILL UNDERSTAND THAT THE DENIAL OF YOUR CLAIM RESULTED FROM THE PLAIN PROVISIONS OF THE LEAVE ACT, AS ENACTED BY THE CONGRESS. THE LAW DOES NOT GRANT THIS OFFICE THE RIGHT TO MAKE AN EXCEPTION TO ITS PROVISIONS. ACCORDINGLY, THE CLAIMS DIVISION'S ACTION WITH RESPECT TO YOUR CLAIM FOR COMPENSATION ON ACCOUNT OF ACCUMULATED LEAVE WAS CORRECT AND MUST BE SUSTAINED.