B-124748, AUG. 16, 1955

B-124748: Aug 16, 1955

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MCLEAN: REFERENCE IS MADE TO YOUR LETTER OF MAY 2. A REVIEW OF OUR FILES SHOWS THAT YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED APRIL 27. YOUR PRESENT LETTER WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THE SETTLEMENT. THAT YOU WERE CLASSIFIED AS A TEMPORARY EMPLOYEE BECAUSE YOU DID NOT WORK CONTINUOUSLY FOR A SIX-MONTH PERIOD. WHICH WAS THE LAW IN EFFECT AT THE TIME OF YOUR EMPLOYMENT. SINCE YOU WERE A TEMPORARY EMPLOYEE ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES. YOU WERE NOT ENTITLED TO ANNUAL LEAVE. YOU MAY BE ADVISED THAT EVEN IF YOU HAD BEEN ENTITLED TO EARN LEAVE DURING THE PERIOD IN QUESTION THERE WAS NO AUTHORITY IN EXISTENCE AT THAT TIME UNDER WHICH YOU COULD BE PAID FOR ANNUAL LEAVE UPON SEPARATION FROM THE SERVICE.

B-124748, AUG. 16, 1955

TO MR. JOHN D. MCLEAN:

REFERENCE IS MADE TO YOUR LETTER OF MAY 2, 1955, CONCERNING YOUR CLAIM FOR VACATION PAY AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY DURING 1942 AND 1943. A REVIEW OF OUR FILES SHOWS THAT YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED APRIL 27, 1949. THEREFORE, YOUR PRESENT LETTER WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THE SETTLEMENT.

THE RECORDS SHOW YOU PERFORMED SERVICES AS AN EMPLOYEE OF THE WAR DEPARTMENT, OFFICE OF DIVISION ENGINEER, CONSTRUCTION SECTION, FORT CLAYTON, CANAL ZONE, DURING THE PERIODS FEBRUARY 5 TO AUGUST 20, 1942, AND APRIL 27 TO OCTOBER 18, 1943, AS A LABORER AT HOURLY RATES; ALSO, THAT YOU WERE CLASSIFIED AS A TEMPORARY EMPLOYEE BECAUSE YOU DID NOT WORK CONTINUOUSLY FOR A SIX-MONTH PERIOD.

SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, WHICH WAS THE LAW IN EFFECT AT THE TIME OF YOUR EMPLOYMENT, DEFINED TEMPORARY EMPLOYEES AS THOSE APPOINTED FOR A DEFINITE PERIOD OF SIX MONTHS AND SPECIFICALLY EXCLUDED TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES FROM THE LEAVE BENEFITS PROVIDED THEREIN.

ACCORDINGLY, SINCE YOU WERE A TEMPORARY EMPLOYEE ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES, YOU WERE NOT ENTITLED TO ANNUAL LEAVE. MOREOVER, YOU MAY BE ADVISED THAT EVEN IF YOU HAD BEEN ENTITLED TO EARN LEAVE DURING THE PERIOD IN QUESTION THERE WAS NO AUTHORITY IN EXISTENCE AT THAT TIME UNDER WHICH YOU COULD BE PAID FOR ANNUAL LEAVE UPON SEPARATION FROM THE SERVICE. THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, AS AMENDED, AUTHORIZING PAYMENT IN A LUMP SUM FOR ANNUAL LEAVE TO AN EMPLOYEE UPON HIS SEPARATION FROM THE SERVICE WAS NOT RETROACTIVE BUT APPLICABLE ONLY TO SEPARATION OCCURRING ON AND AFTER THE DATE THEREOF, THAT IS DECEMBER 21, 1944. THE SETTLEMENT OF APRIL 27, 1949, WAS CORRECT IN DISALLOWING YOUR CLAIM FOR VACATION PAY AND IS SUSTAINED.