B-159816, SEP. 12, 1966

B-159816: Sep 12, 1966

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FURTHER CONCERNING THE ANNUAL LEAVE WHICH YOU BELIEVE WAS DUE YOUR HUSBAND. YOU WERE ADVISED BY OUR CLAIMS DIVISION ON MAY 3. THAT THAT ACT APPLIES ONLY TO EMPLOYEES WHO WERE STILL IN THE SERVICE OF THE UNITED STATES ON DECEMBER 21. WHO AFTER THAT DATE WERE SEPARATED OR DIED IN SERVICE. BACANI WAS EMPLOYED BY THE UNITED STATES NAVY. WAS ON APRIL 9. BACANI WAS OFFICIALLY INDUCTED INTO THE SERVICE OF THE GUERILLA FORCES OF THE PHILIPPINES ON JULY 30. WHERE HE WAS ASSIGNED TO "L" COMPANY. AS RIFLEMAN AND THAT HE WAS KILLED IN ACTION DURING A GUERILLA MISSION ON OR ABOUT OCTOBER 28. THE DEPARTMENT OF THE NAVY FOUND THAT ARREARS OF PAY IN THE AMOUNT OF $405.60 WAS DUE MR. WAS ALLOWED IN CLAIMS DIVISION SETTLEMENT OF MAY 28.

B-159816, SEP. 12, 1966

TO MRS. CONSORCIA R. VDA. DE BACANI:

WE REFER TO YOUR LETTER OF JULY 12, 1966, FURTHER CONCERNING THE ANNUAL LEAVE WHICH YOU BELIEVE WAS DUE YOUR HUSBAND, ANTONIO BACANI, AS A FORMER EMPLOYEE OF THE UNITED STATES NAVY IN THE PHILIPPINES, WHO DIED PRIOR TO THE ENACTMENT OF THE LUMP SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944, PUB.L. 525, 58 STAT. 845. YOU WERE ADVISED BY OUR CLAIMS DIVISION ON MAY 3, 1966, THAT THAT ACT APPLIES ONLY TO EMPLOYEES WHO WERE STILL IN THE SERVICE OF THE UNITED STATES ON DECEMBER 21, 1944, AND WHO AFTER THAT DATE WERE SEPARATED OR DIED IN SERVICE.

THE RECORD INCLUDES CERTAIN AFFIDAVITS BY YOU AND OTHERS IN JULY 1945 WHICH INDICATE THAT MR. BACANI WAS EMPLOYED BY THE UNITED STATES NAVY, MARIVELES SECTION BASE FROM MAY 1941 UP TO THE SURRENDER OF THE BATAAN PENINSULA WHICH, OUR RECORDS SHOW, WAS ON APRIL 9, 1942. THEREAFTER, THE RECORD SHOWS, MR. BACANI WAS OFFICIALLY INDUCTED INTO THE SERVICE OF THE GUERILLA FORCES OF THE PHILIPPINES ON JULY 30, 1943, AT MAETE, BALANGA, BATAAN, WHERE HE WAS ASSIGNED TO "L" COMPANY, 3RD BATTALION, 4TH REGIMENT, BMD, AS RIFLEMAN AND THAT HE WAS KILLED IN ACTION DURING A GUERILLA MISSION ON OR ABOUT OCTOBER 28, 1944.

ON DECEMBER 29, 1950, THE DEPARTMENT OF THE NAVY FOUND THAT ARREARS OF PAY IN THE AMOUNT OF $405.60 WAS DUE MR. BACANI. THAT AMOUNT COVERED THE PERIOD FROM APRIL 30, 1942, TO MARCH 28, 1944, AND WAS ALLOWED IN CLAIMS DIVISION SETTLEMENT OF MAY 28, 1953, UNDER THE MISSING PERSONS ACT OF 1942. ALSO ON DECEMBER 29, 1950, THE DEPARTMENT OF THE NAVY DETERMINED THAT NO LEAVE PAYMENT WAS DUE MR. BACANI OR HIS ESTATE ON MARCH 28, 1944, OR ON THE DATE OF HIS DEATH. WHILE THE ARREARS OF PAY WAS ISSUED IN FAVOR OF THE JUDGE ADVOCATE GENERAL OF THE ARMED FORCES OF THE PHILIPPINES AS ADMINISTRATOR OF YOUR HUSBAND'S ESTATE UNDER THE LAW OF THE PHILIPPINES, THE DETERMINATION BY THE DEPARTMENT OF THE NAVY UNDER THE MISSING PERSONS ACT IS FINAL AND CONCLUSIVE.

AS YOU SAY EMPLOYEES OF THE UNITED STATES HAVE BEEN ENTITLED SINCE 1936 TO ACCRUE ANNUAL AND SICK LEAVE. HOWEVER, WE POINT OUT THAT DURING MR. BACANI'S EMPLOYMENT BY THE UNITED STATES EACH OF THE FEDERAL AGENCIES OVERSEAS HAD DISCRETIONARY AUTHORITY UNDER THE LEAVE LAWS AND REGULATIONS TO GRANT VOCATION OR ANNUAL LEAVE TO NATIVE FILIPINO EMPLOYEES. AT THAT TIME, PRIOR TO THE ACT OF DECEMBER 21, 1944, IF ANY LEAVE HAD ACCRUED BUT WAS NOT GRANTED BEFORE SEPARATION OF THE EMPLOYEE AND THE LATER DIED, AS IN THIS CASE, NO PAYMENT FOR SUCH LEAVE WOULD BE DUE HIS ESTATE OR HEIRS.

THEREFORE, BASED UPON THE PRESENT RECORD, THE SETTLEMENT OF MAY 28, 1953, IS SUSTAINED.