B-157550, NOV. 5, 1965

B-157550: Nov 5, 1965

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BURWELL: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 12. BY OUR CLAIMS DIVISION DISALLOWING YOUR CLAIM STATED THAT WHEN YOU WERE DISCHARGED FROM THE ARMY ON JUNE 19. YOU WERE PAID FOR 56 DAYS OF ACCRUED LEAVE BUT THAT YOU WERE ENTITLED TO BE PAID FOR ONLY 16 DAYS OF ACCRUED LEAVE. ON ORDINARY LEAVE AND THAT LATER WHILE YOU WERE AT YOUR HOME OF RECORD. YOU CONTEND THAT YOU WERE IN NO POSITION TO QUESTION THE ACTION OF THE FOURTH U.S. THEREFORE IT APPEARS THAT YOU ARE REQUESTING RECONSIDERATION OF THAT PART OF THE SETTLEMENT DATED AUGUST 10. WHICH DISALLOWED YOUR CLAIM FOR ADJUSTMENT OF LEAVE DURING THE PERIOD YOU WERE GRANTED ADMINISTRATIVE LEAVE. WHICHEVER WAS EARLIER. SINCE YOU WERE IN A LEAVE STATUS AT THE TIME DA FORM 31 WAS ISSUED.

B-157550, NOV. 5, 1965

TO MR. CHARLES R. BURWELL:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 12, 1965, CONCERNING YOUR CLAIM FOR ADJUSTMENT AND PAYMENT OF ACCRUED LEAVE INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY.

THE SETTLEMENT OF AUGUST 10, 1965, BY OUR CLAIMS DIVISION DISALLOWING YOUR CLAIM STATED THAT WHEN YOU WERE DISCHARGED FROM THE ARMY ON JUNE 19, 1964 (YOU REENLISTED JUNE 20, 1964), YOU WERE PAID FOR 56 DAYS OF ACCRUED LEAVE BUT THAT YOU WERE ENTITLED TO BE PAID FOR ONLY 16 DAYS OF ACCRUED LEAVE.

IN YOUR LETTER OF AUGUST 12, 1965, YOU SAY THAT THE FOURTH U.S. ARMY, FORT SAM HOUSTON, TEXAS, DIRECTED YOU BY ORDERS OF JULY 30, 1958, AS AMENDED AUGUST 28, 1958, TO REPORT TO FORT HAMILTON, NEW YORK, WITH YOUR DEPENDENTS NOT LATER THAN SEPTEMBER 29, 1958, FOR TRANSPORTATION TO YOUR OVERSEAS STATION. YOU ALSO SAY IN YOUR LETTER OF AUGUST 12, 1965, THAT YOU DEPARTED FROM YOUR DUTY STATION AT JONESBORO, ARKANSAS, ON SEPTEMBER 8, 1958, ON ORDINARY LEAVE AND THAT LATER WHILE YOU WERE AT YOUR HOME OF RECORD, FOLLOWING INSTRUCTIONS RECEIVED FROM FORT SAM HOUSTON, AND AWAITING PORT CALL FROM FORT HAMILTON, YOU RECEIVED DA FORM 31 ON SEPTEMBER 29, 1958, FROM FORT SAM HOUSTON PUTTING YOU ON "ADMINISTRATIVE ABSENCE" DUE TO LACK OF SHIPPING SPACE. YOU CONTEND THAT YOU WERE IN NO POSITION TO QUESTION THE ACTION OF THE FOURTH U.S. ARMY HEADQUARTERS TAKEN FOR THE CONVENIENCE OF THE GOVERNMENT AND THAT AS SOON AS YOU RECEIVED A FIRM PORT CALL YOU REPORTED AS INSTRUCTED. THEREFORE IT APPEARS THAT YOU ARE REQUESTING RECONSIDERATION OF THAT PART OF THE SETTLEMENT DATED AUGUST 10, 1965, WHICH DISALLOWED YOUR CLAIM FOR ADJUSTMENT OF LEAVE DURING THE PERIOD YOU WERE GRANTED ADMINISTRATIVE LEAVE.

THE RECORD BEFORE US DOES NOT CONTAIN A COPY OF YOUR ORDERS OF JULY 30, 1958, AS AMENDED. THE RECORDS SHOW THAT DA FORM 31 DATED SEPTEMBER 29, 1958, AUTHORIZED "ADMINISTRATIVE LEAVE" FOR YOU FROM THAT DATE TO OCTOBER 28, 1958, OR TO DATE OF PORT CALL, WHICHEVER WAS EARLIER. SINCE YOU WERE IN A LEAVE STATUS AT THE TIME DA FORM 31 WAS ISSUED, AND SINCE YOU WERE CHARGED LEAVE DURING THE PERIOD SEPTEMBER 8, 1958, TO OCTOBER 7, 1958, YOUR CLAIM FOR ADJUSTMENT OF LEAVE ON ACCOUNT OF ADMINISTRATIVE ABSENCE IS FOR THE PERIOD SEPTEMBER 29, 1958, TO OCTOBER 7, 1958. IN THIS CONNECTION, THE ADMINISTRATIVE OFFICE TAKES THE VIEW, AS SHOWN BY THE RECORD, THAT THE ABSENCE IN YOUR CASE WAS NOT ADMINISTRATIVE LEAVE AS CONTEMPLATED BY ARMY REGULATIONS 630 20, AND, THEREFORE, YOU WERE IN A LEAVE STATUS DURING THE PERIOD IN QUESTION.

SECTION 33 (E) OF TITLE 37, U.S.C. (1958 ED.), PROVIDED AT THE TIME INVOLVED, THAT DETERMINATION OF THE NUMBER OF CALENDAR DAYS OF LEAVE TO WHICH A MEMBER OR FORMER MEMBER WAS ENTITLED, INCLUDING THE NUMBER OF CALENDAR DAYS OF ABSENCE FROM DUTY OR VACATION TO BE COUNTED OR CHARGED AGAINST SUCH LEAVE, WOULD BE MADE IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE RESPECTIVE SECRETARY, AND ALL DECISIONS BY THE SECRETARY UNDER THIS SECTION WERE FINAL AND CONCLUSIVE AND WERE NOT SUBJECT TO REVIEW BY ANY COURT OR BY ANY OFFICER OF THE UNITED STATES. (SECTION 704 OF TITLE 10, U.S.C. NOW PROVIDES FOR THE USE OF LEAVE BY MEMBERS OF THE ARMED FORCES.) IN VIEW THEREOF, AND SINCE THE ARMY CHARGED YOU LEAVE FOR THE PERIOD SEPTEMBER 29, 1958, TO OCTOBER 7, 1958, WE MUST ACCEPT THE ADMINISTRATIVE DETERMINATION THAT YOU WERE IN A LEAVE STATUS DURING THAT PERIOD.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR ADJUSTMENT OF LEAVE DURING THAT PERIOD BY SETTLEMENT DATED AUGUST 10, 1965, WAS CORRECT AND IS SUSTAINED.