B-43671, OCT. 28, 1957

B-43671: Oct 28, 1957

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THIS SETTLEMENT WAS SUSTAINED BY OUR DECISION OF AUGUST 10. YOUR REQUEST IS BASED UPON ENCLOSURES TO YOUR LETTER WHICH SHOW YOU REQUESTED ANNUAL LEAVE ON JUNE 24. NO ACTION APPEARS EVER TO HAVE BEEN ADMINISTRATIVELY TAKEN ON YOUR REQUEST FOR ANNUAL LEAVE PRESUMABLY BECAUSE IT WAS NOT REACHED FOR CONSIDERATION BY THE APPROPRIATE ADMINISTRATIVE OFFICIAL UNTIL AFTER THE DATE YOUR RESIGNATION BECAME EFFECTIVE. YOU WERE ADVISED AS FOLLOWS: "THE GRANTING OF LEAVE TO CIVILIAN EMPLOYEES OF THE GOVERNMENT IS GOVERNED BY THE ACT OF MARCH 14. ANY RIGHT WHICH YOU MAY HAVE TO SUCH LEAVE MUST BE DETERMINED IN THE LIGHT OF THE PROVISIONS OF THAT ACT. AS YOU WERE INFORMED IN THE SETTLEMENT OF MAY 22. THAT IS.

B-43671, OCT. 28, 1957

TO MR. PHILIP J. COYLE:

YOUR LETTER OF SEPTEMBER 13, 1957, REQUESTS REVIEW OF OUR OFFICE SETTLEMENT DATED MAY 22, 1944, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT FOR ACCRUED ANNUAL LEAVE ALLEGED TO BE DUE YOU ON JULY 1, 1941, THE EFFECTIVE DATE OF YOUR RESIGNATION AS AN EMPLOYEE OF THE NATIONAL YOUTH ADMINISTRATION, FEDERAL SECURITY AGENCY, ITHACA, NEW YORK. THIS SETTLEMENT WAS SUSTAINED BY OUR DECISION OF AUGUST 10, 1944, B 43671.

YOUR REQUEST IS BASED UPON ENCLOSURES TO YOUR LETTER WHICH SHOW YOU REQUESTED ANNUAL LEAVE ON JUNE 24, 1941, FOR THE PERIOD FROM CLOSE OF BUSINESS ON JUNE 30 TO JULY 30, 1941. THE RECORD SHOWS THAT ON THE NEXT DAY, JUNE 25, 1941, YOU RESIGNED FROM YOUR POSITION EFFECTIVE JUNE 30, 1941. NO ACTION APPEARS EVER TO HAVE BEEN ADMINISTRATIVELY TAKEN ON YOUR REQUEST FOR ANNUAL LEAVE PRESUMABLY BECAUSE IT WAS NOT REACHED FOR CONSIDERATION BY THE APPROPRIATE ADMINISTRATIVE OFFICIAL UNTIL AFTER THE DATE YOUR RESIGNATION BECAME EFFECTIVE.

IN OUR DECISION OF AUGUST 10, 1944, B-43671, YOU WERE ADVISED AS FOLLOWS:

"THE GRANTING OF LEAVE TO CIVILIAN EMPLOYEES OF THE GOVERNMENT IS GOVERNED BY THE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND, THEREFORE, ANY RIGHT WHICH YOU MAY HAVE TO SUCH LEAVE MUST BE DETERMINED IN THE LIGHT OF THE PROVISIONS OF THAT ACT. AS YOU WERE INFORMED IN THE SETTLEMENT OF MAY 22, 1944, THE ACT MAKES A GRANT OF LEAVE IN KIND ONLY, THAT IS, THE RIGHT TO BE ABSENT FROM DUTY WITHOUT LOSS OF SALARY WHILE RETAINING THE STATUS OF A CIVILIAN OFFICER AND EMPLOYEE OF THE UNITED STATES. AT THE TIME INVOLVED THE ACT WAS CONSTRUED AS NOT PROVIDING FOR PAYING AN EMPLOYEE AN AMOUNT ALLEGED TO BE DUE AS COMPENSATION FOR ANNUAL LEAVE TO WHICH HE WAS ENTITLED BUT DID NOT RECEIVE. 16 COMP. GEN. 899. CONSEQUENTLY NO LEGAL BASIS EXISTED TO COMPENSATE YOU FOR THE LEAVE REMAINING UNUSED AT THE TIME OF YOUR SEPARATION FROM THE SERVICE JUNE 30, 1941.'

IN SUPPORT OF THIS VIEW WE CITED THE COURT OF CLAIMS CASE OF WILLIAM T. BUTLER V. UNITED STATES, NO. 45173, MAY 1, 1944.

AS WE EXPLAINED TO YOU IN OUR SETTLEMENT AND IN OUR DECISION AS QUOTED ABOVE, THE ONLY MANNER IN WHICH YOU COULD HAVE BEEN PAID FOR YOUR ANNUAL LEAVE WAS TO BE EXCUSED FROM DUTY WITHOUT LOSS OF SALARY WHILE YOU REMAINED ON THE ROLLS OF YOUR AGENCY AS A CIVILIAN OFFICER OR EMPLOYEE. ONCE YOU WERE SEPARATED FROM THE SERVICE, THERE WAS NO LEGAL AUTHORITY UNDER WHICH YOU COULD BE RESTORED TO THE ROLLS OF YOUR AGENCY FOR THE PURPOSE OF GRANTING YOU ANNUAL LEAVE. ALSO, THERE WAS NO STATUTORY AUTHORITY IN EFFECT DURING THE PERIOD UNDER WHICH YOU COULD BE PAID A LUMP SUM FOR ACCRUED ANNUAL LEAVE AT THE TIME OF YOUR RESIGNATION AND SEPARATION FROM THE SERVICE. COMPARE THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, 5 U.S.C. 61D, WHICH BECAME EFFECTIVE AS TO LATER PERIODS. COMP. GEN. 511. THE PRESENT INFORMATION WHICH YOU HAVE FURNISHED WOULD NOT HAVE WARRANTED ANY CHANGE IN THE LEGAL CONCLUSIONS IN YOUR CASE.

FURTHER, YOUR ORIGINAL CLAIM IN THIS MATTER AS SET OUT ABOVE WAS DISALLOWED MAY 22, 1944, AND THE DISALLOWANCE WAS SUSTAINED AUGUST 10, 1944. SUCH ACTION COMPLETELY DISPOSED OF THE CLAIM AND THEREAFTER THERE WAS NO CLAIM BEFORE OUR OFFICE ON WHICH ACTION PROPERLY COULD BE TAKEN. YOUR LETTER OF SEPTEMBER 13, 1957, MUST BE CONSIDERED AS A NEW CLAIM. COMP. GEN. 107. AND, NOT HAVING BEEN RECEIVED WITHIN TEN YEARS OF ITS ACCRUAL IN 1941, IT IS BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A. ACCORDINGLY, THERE IS NO PROPER BASIS ON WHICH YOUR CLAIM MAY BE ALLOWED.