B-162806, MAR. 22, 1968

B-162806, MAR. 22, 1968

TO MR. EDWARD C. MITCHELL:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 2, 1968, 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, AND FEBRUARY 21, 1968, B-162806, TO YOU.

YOUR LETTER DOES NOT CONTAIN ANY PERTINENT INFORMATION THAT WAS NOT CONSIDERED IN OUR DECISIONS OF JANUARY 4, 1968, AND FEBRUARY 21, 1968. FURTHER REVIEW OF YOUR CLAIM DOES NOT REVEAL THAT THERE IS ANY BASIS FOR CHANGING THE CONCLUSIONS REACHED IN THOSE DECISIONS AND THEY ARE AFFIRMED.

REGARDING THE REDUCTION OF YOUR ACCRUED LEAVE BY 16 DAYS IN FEBRUARY 1953, PARAGRAPH 8, SECTION II OF ARMY REGULATIONS 600-115 DATED AUGUST 25, 1947, IN EFFECT DURING THE PERIOD OF YOUR CLAIM, PROVIDED THAT IN COMPUTING LEAVES OF ABSENCE THE DAY OF DEPARTURE ON ORDINARY LEAVE, WHATEVER THE HOUR, IS A DAY OF ABSENCE (DATE OF DEPARTURE IS FIRST DAY OF LEAVE) AND THAT THE DAY OF RETURN FROM LEAVE IS A DAY OF DUTY. PARAGRAPH 14, SECTION II OF SPECIAL REGULATIONS 600-115-1 DATED SEPTEMBER 24, 1953, WHICH SUPERSEDED ARMY REGULATIONS 600-115 DATED AUGUST 25, 1947, CONTAINED THE SAME PROVISION THAT THE DATE OF DEPARTURE IS THE FIRST DAY OF LEAVE.

SPECIAL ORDERS 37 DATED FEBRUARY 13, 1953, ISSUED BY HEADQUARTERS, U.S. ARMY HOSPITAL, CAMP ATTERBURY, INDIANA, WHERE YOU HAD APPEARED BEFORE THE PHYSICAL EVALUATION BOARD, DIRECTED YOU, PURSUANT TO YOUR ELECTION, TO PROCEED TO YOUR HOME OF RECORD ON FEBRUARY 13, 1953, TO AWAIT DISPOSITION BY THE SECRETARY OF THE ARMY. THUS, BY COUNTING FEBRUARY 13, 1953, YOUR DATE OF DEPARTURE, AS A DAY OF LEAVE AS WELL AS THE REMAINING DAYS IN FEBRUARY, YOU APPEAR TO HAVE BEEN PROPERLY CHARGED FOR 16 DAYS OF LEAVE IN THAT MONTH ON THAT BASIS.

THE LEAVE CHARGES AND CREDITS IN A MEMBER'S ACCOUNT IS A MATTER FOR ADMINISTRATIVE DETERMINATION, AT LEAST IN THE FIRST INSTANCE, AND IN A LETTER DATED AUGUST 21, 1953, THE DEPARTMENT OF THE ARMY INFORMED YOU THAT YOU WERE IN A LEAVE STATUS FOR 16 DAYS IN FEBRUARY AND 19 DAYS IN MARCH 1953. IT FURTHER INFORMED YOU THAT YOUR ACCOUNT WOULD BE ADJUSTED ON THAT BASIS, LEAVING A BALANCE OWED THE GOVERNMENT OF $54.28. THUS, WHILE OUR RECORDS DO NOT SHOW THAT SUCH ACTION WAS ERRONEOUS, IF IT SHOULD BE DETERMINED THAT YOU WERE ERRONEOUSLY CHARGED LEAVE FOR TRAVEL TIME FROM CAMP ATTERBURY TO LAKEWOOD, OHIO, THE AMOUNT DUE WOULD BE FOR APPLICATION TO THE ABOVE INDEBTEDNESS WHICH, AS FAR AS OUR RECORDS SHOW, IS STILL OUTSTANDING.

CONCERNING YOUR REQUEST FOR A SUGGESTION AS TO ANOTHER OFFICE YOU MAY CONTACT RELATIVE TO YOUR CLAIM, SECTIONS 71 AND 74 OF TITLE 31, UNITED STATES CODE, PROVIDE THAT ALL CLAIMS AND DEMANDS AGAINST THE UNITED STATES SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE AND THAT SUCH SETTLEMENT SHALL BE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. THE COURT OF CLAIMS OF THE UNITED STATES AND THE UNITED STATES DISTRICT COURTS HAVE JURISDICTION TO CONSIDER AND DETERMINE SUITS FOR PAY AND ALLOWANCES BELIEVED TO BE DUE INCIDENT TO THE SERVICE OF MEMBERS OF THE UNIFORMED SERVICES IF FILED WITHIN 6 YEARS AFTER THEY FIRST ACCRUED. 28 U.S.C. 1346 (A) (2), 1491, 2401 AND 2501. HOWEVER, YOU APPARENTLY HAVE NOT FILED A PETITION IN COURT AND PRESUMABLY WOULD NOW BE BARRED FROM FILING ONE THERE.