B-162806, SEP. 24, 1968

B-162806, SEP. 24, 1968

TO MR. EDWARD C. MITCHELL:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 3, 1968, AND ENCLOSURES, RELATIVE TO YOUR CLAIM FOR PAYMENT FOR ACCRUED LEAVE DEDUCTED FROM YOUR LEAVE BALANCE FOR THE PERIOD IN 1953 THAT YOU WERE AWAITING ORDERS AT YOUR HOME PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS. YOUR CLAIM WAS THE SUBJECT OF OUR DECISIONS OF JANUARY 4, 1968, FEBRUARY 21, 1968, AND MARCH 22, 1968, B-162806, TO YOU.

THE ENCLOSURES TO YOUR LETTER ARE COPIES OF A STATEMENT DATED FEBRUARY 13, 1953, SIGNED BY YOU EXPRESSING YOUR DESIRE TO BE ORDERED TO YOUR HOME ON A PERMANENT CHANGE OF STATION TO AWAIT FURTHER ORDERS AND DISPOSITION BY THE SECRETARY OF THE ARMY, AND A SIMILAR STATEMENT TAKEN FROM APPENDIX K OF ARMY REGULATION 635-40.

YOU POINT OUT THAT THE STATEMENT SIGNED BY YOU DOES NOT CONTAIN PARAGRAPH 3, AS DOES THE STATEMENT TAKEN FROM ARMY REGULATION 635-40, TO THE EFFECT THAT THE SIGNER ACKNOWLEDGES THAT LEAVE WILL BE CHARGED TO HIM TO THE EXTENT LEAVE IS AVAILABLE WHILE HE IS ON PERMANENT CHANGE OF STATION. ALSO, YOU CONTEND THAT ANY IGNORANCE ON THE PART OF THE SEPARATION OFFICER WHO TOLD YOU THAT THE "AWAITING ORDERS" STATUS TIME AT HOME WOULD NOT BE CHARGED AGAINST YOUR ACCRUED LEAVE SHOULD NOT CONTRIBUTE TO A PENALIZING ACTION AGAINST YOU.

IN SUCH CIRCUMSTANCES, YOU URGE THAT IT IS UNJUST TO DENY YOU PAYMENT FOR YOUR ACCRUED LEAVE AND REQUEST THAT PAYMENT BE MADE.

AS EXPLAINED IN THE PRIOR DECISIONS ON YOUR CLAIM, THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, HAS BEEN APPLIED AS REQUIRING THAT LEAVE BE CHARGED TO THE EXTENT OF THE NUMBER OF DAYS AVAILABLE IN THE CASE OF ABSENCES FROM DUTY TO AWAIT ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS. ALSO, IT WAS POINTED OUT IN THE DECISIONS THAT THE LAW AUTHORIZED ADMINISTRATIVE DETERMINATIONS AS TO THE LEAVE TO BE CHARGED, INCLUDING TRAVEL TIME WHICH YOU CLAIM, FOR MEMBERS AWAITING ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS, AND PROVIDED THAT SUCH DETERMINATIONS "SHALL BE FINAL AND CONCLUSIVE AND SHALL NOT BE SUBJECT TO REVIEW BY ANY COURT OR BY ANY OFFICER OF THE UNITED STATES.' WE MUST APPLY THE GOVERNING LAW AND REGULATIONS IN THE SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES AND THE FACT THAT YOU WERE NOT INFORMED THAT YOUR ABSENCE WOULD BE CHARGED TO LEAVE TO THE EXTENT AVAILABLE WHILE MEMBERS IN YOUR CIRCUMSTANCES ARE NOW SO ADVISED, AFFORDS NO LEGAL BASIS TO ALLOW YOU AN AMOUNT NOT OTHERWISE AUTHORIZED BY THE LAW AND REGULATIONS.

ACCORDINGLY, WE TRUST YOU WILL UNDERSTAND THAT WE MAY NOT AUTHORIZE ANY PAYMENT ON YOUR CLAIM.

RELATIVE TO THE HYPOTHETICAL CASE YOU PRESENT AS TO THE CHARGING OF LEAVE TO TWO INDIVIDUALS WITH DIFFERENT AMOUNTS OF LEAVE IN SITUATIONS SIMILAR TO YOUR CASE, OUR JURISDICTION IS SUCH THAT WE MAY NOT RENDER A DECISION ON THE MATTER AT YOUR REQUEST. IT SEEMS APPARENT, HOWEVER, THAT IN THOSE CASES, THE DIFFERING LEAVE CHARGES WOULD BE PROPER UNDER THE LAW AND REGULATIONS.