B-125569, OCT. 26, 1955

B-125569: Oct 26, 1955

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YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT DURING THE PERIOD YOUR HUSBAND WORKED FOR THE DEPARTMENT OF THE ARMY THERE WAS NO REGULATION AUTHORIZING ANNUAL OR SICK LEAVE TO ALIEN OR NATIVE EMPLOYEES OF THAT DEPARTMENT IN THE PHILIPPINE ISLANDS. IT APPEARS TO BE YOUR CONTENTION THAT YOUR HUSBAND WAS NOT AN ALIEN AND WOULD BE ENTITLED TO TERMINAL LEAVE. WAS NOT REGARDED AS APPLICABLE TO NATIVE EMPLOYEES OUTSIDE THE TERRITORIAL LIMITS OF THE UNITED STATES. WHILE YOUR HUSBAND MAY NOT HAVE BEEN AN ALIEN. HE WAS A NATIVE FILIPINO AND THUS NOT WITHIN THE PURVIEW OF THE ACT. WHEREIN IT WAS EXPRESSLY STATED THAT ALIEN AND NATIVE EMPLOYEES OUTSIDE THE UNITED STATES WERE EXCLUDED FROM THE ACT UNLESS THE DEPARTMENTS AND AGENCIES ISSUED REGULATIONS PERMITTING THE GRANTING OF LEAVE TO SUCH EMPLOYEES.

B-125569, OCT. 26, 1955

TO MRS. EMILIANA S. LIMIN VILLANUEVA:

YOUR LETTER OF JULY 20, 1955, REQUESTS REVIEW OF OUR SETTLEMENT OF JUNE 6, 1955, WHICH DISALLOWED YOUR CLAIM FOR TERMINAL LEAVE PAYMENT ALLEGEDLY DUE TORIBIO M. VILLANUEVA, DECEASED, FORMER EMPLOYEE OF THE DEPARTMENT OF THE ARMY, QUARTERMASTER CORPS, ATS, CORREGIDOR, PHILIPPINE ISLANDS.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT DURING THE PERIOD YOUR HUSBAND WORKED FOR THE DEPARTMENT OF THE ARMY THERE WAS NO REGULATION AUTHORIZING ANNUAL OR SICK LEAVE TO ALIEN OR NATIVE EMPLOYEES OF THAT DEPARTMENT IN THE PHILIPPINE ISLANDS. IT APPEARS TO BE YOUR CONTENTION THAT YOUR HUSBAND WAS NOT AN ALIEN AND WOULD BE ENTITLED TO TERMINAL LEAVE.

PRIOR TO JANUARY 13, 1944, THE DATE OF EXECUTIVE ORDER NO. 9414, THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, WAS NOT REGARDED AS APPLICABLE TO NATIVE EMPLOYEES OUTSIDE THE TERRITORIAL LIMITS OF THE UNITED STATES. SEE LUNA V. UNITED STATES, 124 C.CLS. 52. WHILE YOUR HUSBAND MAY NOT HAVE BEEN AN ALIEN, HE WAS A NATIVE FILIPINO AND THUS NOT WITHIN THE PURVIEW OF THE ACT.

UNDER DATE OF JANUARY 13, 1944, THE PRESIDENT OF THE UNITED STATES, UNDER AUTHORITY VESTED IN HIM BY THE FOREGOING ACT, ISSUED EXECUTIVE ORDER NO. 9414, WHEREIN IT WAS EXPRESSLY STATED THAT ALIEN AND NATIVE EMPLOYEES OUTSIDE THE UNITED STATES WERE EXCLUDED FROM THE ACT UNLESS THE DEPARTMENTS AND AGENCIES ISSUED REGULATIONS PERMITTING THE GRANTING OF LEAVE TO SUCH EMPLOYEES. HOWEVER, IT DOES NOT APPEAR THAT ANY ORDER WAS ISSUED BY THE DEPARTMENT OF THE ARMY TO AUTHORIZE THE GRANTING AND ACCUMULATION OF ANNUAL LEAVE DURING THE PERIOD HERE IN QUESTION. EVEN IF SUCH AN ORDER HAD BEEN ISSUED THERE IS CONSIDERABLE DOUBT WHETHER IT WOULD HAVE BEEN APPLICABLE TO YOUR HUSBAND SINCE THE RECORDS FURNISHED OUR OFFICE BY THE DEPARTMENT OF THE ARMY INDICATE THAT HE MAY NOT HAVE BEEN CONSIDERED AS AN EMPLOYEE OF THAT DEPARTMENT SUBSEQUENT TO OCTOBER 15, 1942.

WHILE IT MAY HAVE BEEN THAT CERTAIN NATIVE EMPLOYEES OF THE PHILIPPINES WERE GRANTED SOME LEAVE WITH PAY, IT IS OUR VIEW THAT SUCH LEAVE WAS ONLY THAT WHICH MAY HAVE BEEN ALLOWED BY INDIVIDUAL ARMY COMMANDS FOR USE EACH YEAR AND THAT THERE WAS NO AUTHORITY FOR PAYMENT OF ANY LEAVE NOT USED BY AN EMPLOYEE UPON HIS DEATH OR SEPARATION FROM THE SERVICE.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM APPEARS PROPER AND SUCH ACTION MUST BE AND IS SUSTAINED.