B-139991, JUL. 17, 1959

B-139991, JUL. 17, 1959

TO MR. JOSEPH F. CARROLL:

IN YOUR RECENT UNDATED LETTER, POSTMARKED JUNE 1, 1959, YOU REQUEST REVIEW OF OUR CLAIMS DIVISION SETTLEMENT DATED MAY 26, 1959, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE PAYMENT FOR MILITARY LEAVE.

THE RECORD SHOWS THAT YOU WERE PLACED ON MILITARY FURLOUGH (WHICH FOR THIS PURPOSE HAS THE SAME EFFECT AS SEPARATION FOR MILITARY SERVICE) FROM YOUR CIVILIAN POSITION ON NOVEMBER 15, 1948, AND THAT YOU SERVED ON ACTIVE MILITARY DUTY FROM THAT DATE UNTIL JUNE 12, 1953. YOU WERE CONTINUED IN A MILITARY FURLOUGH STATUS FROM YOUR CIVILIAN POSITION UNTIL JULY 13, 1953, ON WHICH DATE YOU WERE REEMPLOYED BY THE INTERNAL REVENUE SERVICE. OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM BECAUSE YOUR ACTIVE MILITARY DUTY EXTENDED BEYOND FOUR YEARS AND THERE WAS NO SHOWING THAT YOU WERE UNABLE TO OBTAIN RELEASE ORDERS SOONER. IN YOUR REQUEST FOR REVIEW, YOU ASK "WHAT TYPE OF CERTIFICATION AND FROM WHOM IN THE NAVY DEPARTMENT WILL MEET THE REQUIREMENTS TO SHOW THAT I COULD NOT BE RELEASED AT ANY EARLIER DATE.'

AS POINTED OUT IN THE SETTLEMENT, A STATUS AS "AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA" AT THE TIME OF ENTITLEMENT IN A NECESSARY REQUISITE TO AN INDIVIDUAL'S RIGHT TO RECEIVE PAY FOR MILITARY LEAVE. WHEN THE EMPLOYEE WAS ALREADY ON ACTIVE MILITARY DUTY ON JANUARY 1, 1953, THE EFFECTIVE DATE OF THE ARMED FORCES RESERVE ACT OF 1952, HIS INITIAL "TIME OF ENTITLEMENT" TO MILITARY LEAVE UNDER THE TERMS OF THAT ACT MUST BE CONSIDERED TO HAVE BEGUN ON THAT DATE. HOWEVER, AN EMPLOYEE-RESERVIST SEPARATED FOR MILITARY SERVICE OR ON MILITARY FURLOUGH CANNOT BE CONSIDERED TO ALSO HAVE A CIVILIAN OFFICER OR EMPLOYEE STATUS WHILE SERVING ON ACTIVE DUTY EXCEPT BY VIRTUE OF THE PROVISIONS OF 50 U.S.C. 459 (G) (2) AND 459 (C). THESE SECTIONS TOGETHER REQUIRE THAT STATUS TO BE IMPUTED RETROACTIVELY TO THE EMPLOYEE BUT ONLY IF HE IS ENTITLED UNDER THOSE SECTIONS TO RESTORATION TO HIS CIVILIAN POSITION AND IS RESTORED, HAVING SERVED NO LONGER THAN FOUR YEARS ON ACTIVE DUTY OR WAS RELEASED "AS SOON AFTER THE EXPIRATION OF SUCH FOUR YEARS AS HE IS ABLE TO OBTAIN ORDERS RELIEVING HIM FROM ACTIVE DUTY.'

THUS, WITHOUT A SHOWING THAT YOU WERE UNABLE TO OBTAIN RELEASE ORDERS FROM THE NAVY BEFORE OR AT THE EXPIRATION OF FOUR YEARS SERVICE AND THAT YOUR ACTUAL RELEASE DATE OF JUNE 12, 1953, WAS IN FACT THE EARLIEST DATE FOR WHICH YOU WERE ABLE TO OBTAIN RELEASE ORDERS, YOU WERE NOT ENTITLED AS A MATTER OF RIGHT TO RESTORATION TO YOUR FORMER POSITION, NOTWITHSTANDING THE FACT THAT THE TREASURY DEPARTMENT CHOSE TO TREAT YOUR REEMPLOYMENT AS A "RESTORATION.' NOT HAVING A "RIGHT" TO RESTORATION, YOU HAD NO RIGHT TO HAVE THE STATUS OF CIVILIAN OFFICER OR EMPLOYEE RETROACTIVELY IMPUTED TO YOU FOR THE PERIOD YOU WERE IN MILITARY SERVICE. THEREFORE, SINCE THERE IS NO SUCH RIGHT IN YOUR CASE TO WHICH ENTITLEMENT TO MILITARY LEAVE AFTER JANUARY 1, 1953, COULD ATTACH, THE SETTLEMENT DISALLOWING YOUR CLAIM MUST BE AND IS HEREBY SUSTAINED.

CONCERNING YOUR QUESTION AS TO WHAT TYPE OF CERTIFICATION WOULD MEET THE REQUIREMENTS OF THE STATUTE, WE CANNOT PRESCRIBE SPECIFICALLY ON THAT POINT. IT WOULD APPEAR, HOWEVER, THAT NORMALLY A BASIC REQUIREMENT WOULD BE A SHOWING THAT THE INDIVIDUAL HAD ACTUALLY REQUESTED TO BE RELEASED BEFORE OR AT THE EXPIRATION OF FOUR YEARS SERVICE AND THAT HIS REQUEST WAS OFFICIALLY DENIED BY THE PROPER COMMANDER HAVING FINAL AUTHORITY TO DO SO. EVIDENCE OF THOSE ACTIONS, IF TAKEN, SHOULD CONSTITUTE A PART OF YOUR OFFICIAL RECORD ON FILE IN THE DEPARTMENT OF THE NAVY.