B-145552, APR. 19, 1961

B-145552: Apr 19, 1961

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THAT YOU WERE ADVISED BY THE AUTHORITY ON JULY 13. THAT THE LEAVE WAS TRANSFERABLE TO YOUR NEW POSITION. WERE EMPLOYED AS A SUBSTITUTE CLERK AND SUBSTITUTE POSTAL CARRIER IN THE POST OFFICE DEPARTMENT AT THE POST OFFICE. SINCE THE LEAVE RECORDS FOR THAT PERIOD ARE NOT NOW AVAILABLE BECAUSE OF THEIR HAVING BEEN DESTROYED IN ACCORDANCE WITH REGULATIONS RELATING TO RECORDS DISPOSITION AT THAT TIME. THERE IS NO EVIDENCE OF THE AMOUNT OF LEAVE USED PRIOR TO YOUR RESIGNATION FROM THE ORDNANCE WORKS OR THE UNUSED PORTION OF LEAVE TO YOUR CREDIT UPON YOUR RESIGNATION. SINCE YOUR POSITION WITH THE POSTAL SERVICE AT THE POST OFFICE DEPARTMENTWAS UNDER A DIFFERENT LEAVE SYSTEM THERE WAS NO AUTHORITY TO TRANSFER OR RECREDIT THE UNUSED LEAVE TO YOUR ACCOUNT WITH THAT DEPARTMENT.

B-145552, APR. 19, 1961

TO MR. EURIE H. SMITH, JR.:

YOUR LETTER OF APRIL 3, 1961, CONCERNS OUR OFFICE SETTLEMENT OF MARCH 28, 1961, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT FOR 38 DAYS, 4 1/2 HOURS OF ACCRUED ANNUAL AND COMPENSATORY LEAVE WHILE EMPLOYED BY THE TENNESSEE VALLEY AUTHORITY.

THE RECORD SHOWS THAT YOU TRANSFERRED TO THE WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY), KENTUCKY ORDNANCE WORKS, PADUCAH, KENTUCKY, ON JUNE 29, 1942, AND THAT YOU WERE ADVISED BY THE AUTHORITY ON JULY 13, 1942, THAT THE LEAVE WAS TRANSFERABLE TO YOUR NEW POSITION. YOU RESIGNED FROM THE KENTUCKY ORDNANCE WORKS ON OCTOBER 31, 1942, AND WERE EMPLOYED AS A SUBSTITUTE CLERK AND SUBSTITUTE POSTAL CARRIER IN THE POST OFFICE DEPARTMENT AT THE POST OFFICE, PADUCAH, KENTUCKY. SINCE THE LEAVE RECORDS FOR THAT PERIOD ARE NOT NOW AVAILABLE BECAUSE OF THEIR HAVING BEEN DESTROYED IN ACCORDANCE WITH REGULATIONS RELATING TO RECORDS DISPOSITION AT THAT TIME, THERE IS NO EVIDENCE OF THE AMOUNT OF LEAVE USED PRIOR TO YOUR RESIGNATION FROM THE ORDNANCE WORKS OR THE UNUSED PORTION OF LEAVE TO YOUR CREDIT UPON YOUR RESIGNATION. HOWEVER, SINCE YOUR POSITION WITH THE POSTAL SERVICE AT THE POST OFFICE DEPARTMENTWAS UNDER A DIFFERENT LEAVE SYSTEM THERE WAS NO AUTHORITY TO TRANSFER OR RECREDIT THE UNUSED LEAVE TO YOUR ACCOUNT WITH THAT DEPARTMENT.

ALTHOUGH UPON YOUR TRANSFER TO THE POST OFFICE DEPARTMENT YOU REQUESTED THE KENTUCKY ORDNANCE WORKS TO PAY YOU THE AMOUNT OF THE UNUSED LEAVE TO YOUR CREDIT, THERE WAS THEN NO PROVISION OF LAW UNDER WHICH LEAVE NOT TRANSFERABLE COULD BE PAID UNTIL THE ENACTMENT OF THE LUMP-SUM LEAVE ACT OF 1944, 5 U.S.C. 61B. HOWEVER, SINCE THAT ACT IS NOT RETROACTIVELY EFFECTIVE, IT MAY NOT BE APPLIED IN YOUR CASE TO AUTHORIZE PAYMENT FOR THE UNUSED LEAVE TO YOUR CREDIT UPON YOUR TRANSFER IN 1942 TO THE POSTAL SERVICE. FURTHER, UNDER THE STATUTES PROHIBITING DUAL COMPENSATION AND DUAL EMPLOYMENT IT WOULD HAVE BEEN UNLAWFUL FOR THE DEPARTMENT OF THE ARMY TO HAVE GRANTED YOU LEAVE IN KIND WITH PAY CONCURRENTLY WITH YOUR EMPLOYMENT WITH THE POST OFFICE DEPARTMENT. THE ONLY WAY IN WHICH THE LEAVE LAWFULLY COULD HAVE INURED TO YOUR BENEFIT WOULD HAVE BEEN ITS USE IN KIND PRIOR TO THE EFFECTIVE DATE OF YOUR RESIGNATION FROM THE DEPARTMENT OF THE ARMY AND BEFORE YOUR EMPLOYMENT WITH THE POST OFFICE DEPARTMENT. THERE IS NO PROVISION OF LAW UNDER WHICH WE NOW CAN AUTHORIZE PAYMENT.

THEREFORE, THE DISALLOWANCE OF YOUR CLAIM FOR PAYMENT OF ACCRUED ANNUAL LEAVE WAS PROPER, AND, UPON REVIEW, THE SETTLEMENT IS SUSTAINED.