B-43630, AUGUST 5, 1944, 24 COMP. GEN. 74

B-43630: Aug 5, 1944

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1944: REFERENCE IS MADE TO YOUR LETTER OF JULY 5. DONALDSON WAS EMPLOYED AS SENIOR INVESTIGATOR. THAT YOUR CLAIM FOR COMPENSATION COVERING SAID ANNUAL LEAVE WAS DISALLOWED BY SETTLEMENT OF THIS OFFICE DATED JUNE 20. IS HEREBY AMENDED BY ADDING THE FOLLOWING PROVISO: "* * * PROVIDED FURTHER. " WAS TO PROVIDE RELIEF FOR EMPLOYEES WHO HAD NOT BEEN AFFORDED AN OPPORTUNITY TO TAKE THEIR ANNUAL LEAVE DUE TO THE NATIONAL EMERGENCY AND DID NOT PURPORT TO AUTHORIZE PAYMENT TO HEIRS OF A DECEASED EMPLOYEE FOR LEAVE ACCRUED AT TIME OF DEATH. THERE IS NO PROVISION (EXPRESSED OR IMPLIED) IN THE ACT. THE RIGHT TO RECEIVE COMPENSATION COVERING THEIR ANNUAL LEAVE IS A BENEFIT PERSONAL TO THE INVOLVED EMPLOYEE AND DOES NOT INURE TO ANYONE ELSE.

B-43630, AUGUST 5, 1944, 24 COMP. GEN. 74

ANNUAL LEAVE - COMPENSATION EQUIVALENT PAYMENTS TO HEIRS OF DECEASED EMPLOYEE THE HEIRS OF A DECEASED EMPLOYEE MAY NOT BE PAID THE COMPENSATION EQUIVALENT OF THE ANNUAL LEAVE WHICH HAD ACCRUED TO HIM UNDER THE ANNUAL LEAVE STATUTE OF MARCH 14, 1936, AS AMENDED, BUT WHICH HE HAD NOT BEEN PERMITTED TO TAKE PRIOR TO HIS DEATH.

ACTING COMPTROLLER GENERAL YATES TO KATHRYN I. DONALDSON, AUGUST 5, 1944:

REFERENCE IS MADE TO YOUR LETTER OF JULY 5, 1944, RELATIVE TO YOUR CLAIM FOR AN AMOUNT BELIEVED TO BE DUE AS COMPENSATION FOR UNUSED ANNUAL LEAVE ACCUMULATED BY YOUR LATE HUSBAND THOMAS A. DONALDSON AS AN EMPLOYEE OF THE WAR DEPARTMENT.

THE RECORD SHOWS THAT THOMAS A. DONALDSON WAS EMPLOYED AS SENIOR INVESTIGATOR, WAR DEPARTMENT, ARMY AIR FORCES, MATERIAL CENTER, CLEVELAND, OHIO; THAT HE DIED ON DECEMBER 30, 1943; THAT HE HAD 64 DAYS, 0 HOURS, AND 30 MINUTES ACCRUED ANNUAL LEAVE TO HIS CREDIT ON THAT DATE; AND THAT YOUR CLAIM FOR COMPENSATION COVERING SAID ANNUAL LEAVE WAS DISALLOWED BY SETTLEMENT OF THIS OFFICE DATED JUNE 20, 1944, NO. 10835554, FOR THE REASONS STATED THEREIN.

THE ACT OF DECEMBER 17, 1942, 56 STAT. 1052, PUBLIC LAW 806, PROVIDES:

THAT THE FIRST SENTENCE IN SECTION 1 OF THE ACT OF MARCH 14, 1936 (49 STAT. 1161), IS HEREBY AMENDED BY ADDING THE FOLLOWING PROVISO: "* * * PROVIDED FURTHER, THAT DURING THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT OF THE UNITED STATES ON SEPTEMBER 8, 1939, THE LEAVE UNUSED BY THE EMPLOYEES OF THE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND AGENCIES, NOT IN OTHER FORM COMMUTED OR COMPENSATED, SHALL BE ACCUMULATED FOR SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING NINETY DAYS; AND PROVIDED FURTHER, THAT WHEN THE UNUSED LEAVE ACCUMULATED EQUALS OR EXCEEDS SIXTY DAYS IN THE AGGREGATE, NOT MORE THAN FIFTEEN DAYS OF UNUSED LEAVE MAY BE FURTHER ACCUMULATED IN ANY ONE CALENDAR YEAR.'

THE PURPOSE AND INTENT OF THE ACT OF DECEMBER 17, 1942, SUPRA, AMENDING THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, BY INCREASING FROM 60 DAYS TO 90 DAYS THE AMOUNT OF UNUSED ANNUAL LEAVE DECLARED BY THE PRESIDENT OF THE UNITED STATES ON SEPTEMBER 8, 1939," WAS TO PROVIDE RELIEF FOR EMPLOYEES WHO HAD NOT BEEN AFFORDED AN OPPORTUNITY TO TAKE THEIR ANNUAL LEAVE DUE TO THE NATIONAL EMERGENCY AND DID NOT PURPORT TO AUTHORIZE PAYMENT TO HEIRS OF A DECEASED EMPLOYEE FOR LEAVE ACCRUED AT TIME OF DEATH. WHILE THIS OFFICE RECOGNIZES THE FACT THAT SECTION I OF THE ACT OF MARCH 14, 1936, 49 STAT. 1161, AS AMENDED BY THE ACT OF DECEMBER 17, 1942, SUPRA, UNLIKE CERTAIN PRIOR LEAVE ACTS, CONFERS A RIGHT --- AS DISTINGUISHED FROM A PRIVILEGE TO BE GRANTED OR DENIED AT THE DISCRETION OF THE HEAD OF THE OFFICE--- TO BE ABSENT FROM DUTY FOR A PRESCRIBED PERIOD WITHOUT LOSS OF PAY, THERE IS NO PROVISION (EXPRESSED OR IMPLIED) IN THE ACT, AS AMENDED, AUTHORIZING PAYMENT IN LIEU OF LEAVE NOT GRANTED TO A FORMER OFFICER OR EMPLOYEE AFTER SEPARATION FROM THE SERVICE BY DEATH.

WHILE IT MAY BE THAT ADMINISTRATIVE OFFICIALS, DUE TO EXIGENCIES OF THE SERVICE, REFUSED TO PERMIT YOUR LATE HUSBAND TO TAKE LEAVE WHICH HAD ACCRUED TO HIM, SUCH ACTION CONFERS NO RIGHT UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1161, AS AMENDED BY THE ACT OF DECEMBER 17, 1942, 56 STAT. 1052, PUBLIC LAW 806, UPON THE HEIRS OF DECEASED EMPLOYEE TO PAYMENT FOR LEAVE ACCRUED AT TIME OF DEATH. THE RIGHT TO RECEIVE COMPENSATION COVERING THEIR ANNUAL LEAVE IS A BENEFIT PERSONAL TO THE INVOLVED EMPLOYEE AND DOES NOT INURE TO ANYONE ELSE.

ACCORDINGLY, THAT PART OF SETTLEMENT DATED JUNE 20, 1944, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION, COVERING UNUSED ANNUAL LEAVE DUE YOUR LATE HUSBAND, MUST BE, AND IS, SUSTAINED.