B-123546, JUL. 8, 1955

B-123546, JUL. 8, 1955

TO MRS. THELMA B. ARNETT:

REFERENCE IS MADE TO LETTER OF MARCH 5, 1955, WRITTEN IN YOUR BEHALF BY MR. WILLIAM C. MOORE, REQUESTING FURTHER CONSIDERATION OF THE MATTER COVERED IN OUR LETTER OF NOVEMBER 17, 1954. YOU WERE ADVISED IN THAT LETTER THAT NO AUTHORITY EXISTS FOR PAYMENT TO YOU OF THE PROCEEDS OF TWO CHECKS DESCRIBED IN THE LETTER WHICH WERE DRAWN TO THE ORDER OF YOUR LATE HUSBAND, CAPTAIN CLIFFORD ARNETT, FOR UNUSED ACCRUED LEAVE AS A MEMBER OF THE NATIONAL GUARD.

MR. MOORE URGES FAVORABLE ACTION ON YOUR CLAIM FOR THE PROCEEDS OF THE CHECKS ON THE BASIS THAT YOUR HUSBAND PRESENTED THE CLAIM FOR THE ACCRUED LEAVE PAY AND THAT ALL ACTS REQUIRED TO BE PERFORMED BY HIM, IN CONNECTION WITH THE CLAIM WERE PERFORMED BY HIM PRIOR TO HIS DEATH.

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, 37 U.S.C. 33 (C), PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"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 ACT EXPRESSLY PROVIDES THAT SETTLEMENT AND COMPENSATION FOR UNUSED ACCRUED LEAVE 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 YOU ANY AMOUNT FOR HIS UNUSED LEAVE. THE DENIAL OF YOUR CLAIM RESULTS FROM THE PLAIN PROVISIONS OF THE LEAVE ACT, AS ENACTED BY THE CONGRESS. THE LAW DOES NOT GRANT US THE RIGHT TO MAKE AN EXCEPTION TO ITS PROVISIONS.

ACCORDINGLY, THE CLAIMS DIVISION'S ACTION IN DENYING YOUR CLAIM FOR THE PROCEEDS OF THE CHECKS IN QUESTION WAS CORRECT AND THERE IS NO FURTHER ACTION WE MAY TAKE IN THE MATTER.