B-125653, DEC. 16, 1955

B-125653, DEC. 16, 1955

TO COLONEL EDWARD H. VON SEETH, USAR (RET.):

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 19, 1955, CONCERNING YOUR CLAIM FOR PAY AND ALLOWANCES FOR 43 DAYS' ACCRUED UNUSED LEAVE WHICH YOU SAY REMAINED TO YOUR CREDIT ON OCTOBER 25, 1937, THE DATE OF YOUR RELIEF FROM ACTIVE DUTY AS A COMMISSIONED OFFICER, UNITED STATES ARMY RESERVE, WITH THE CIVILIAN CONSERVATION CORPS.

YOUR CLAIM, AS CONTAINED IN YOUR LETTER OF MAY 4, 1955, WAS RETURNED TO YOU BY OUR CLAIMS DIVISION IN ACCORDANCE WITH THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH PROVIDES THAT CLAIMS AGAINST THE UNITED STATES SHALL BE BARRED UNLESS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE CLAIM FIRST ACCRUED. SUBSEQUENTLY, IN REPLY TO YOUR LETTER DATED AUGUST 16, 1955, OUR CLAIMS DIVISION BY LETTER DATED SEPTEMBER 2, 1955, ADVISED YOU THAT IF YOUR CLAIM WERE NOT BARRED IT COULD NOT BE APPROVED SINCE THERE WAS NO LAW AUTHORIZING PAYMENT OF COMPENSATION FOR THE ABSENCE FROM DUTY OR LEAVE THAT MIGHT HAVE BEEN GRANTED DURING THE PERIOD OF YOUR ACTIVE SERVICE WITH THE CIVILIAN CONSERVATION CORPS. IT IS INDICATED IN THE LETTER OF SEPTEMBER 19, 1955, THAT YOU ARE OF THE OPINION THAT YOU ARE ENTITLED TO PAYMENT FOR THE 43 DAYS' ACCRUED UNUSED LEAVE AS A MATTER OF RIGHT.

PRIOR TO THE ENACTMENT OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, THE BASIC LAW PRESCRIBING LEAVE FOR COMMISSIONED OFFICERS WAS SECTION 1265, REVISED STATUTES, 10 U.S.C. 841, WHICH PROVIDED THAT OFFICERS OF THE ARMY WHEN ABSENT WITH LEAVE, WERE TO RECEIVE FULL PAY DURING SUCH ABSENCE, NOT EXCEEDING IN THE AGGREGATE 30 DAYS IN ONE YEAR. THAT SECTION WAS AMENDED BY THE ACT OF JULY 29, 1876, 19 STAT. 102, TO PROVIDE THAT ALL OFFICERS ON DUTY SHALL BE ALLOWED, "IN THE DISCRETION OF THE SECRETARY OF WAR," 60 DAYS' LEAVE OF ABSENCE IF SUCH LEAVE IS TAKEN ONCE IN TWO YEARS. THUS, AT THE TIME OF THE TERMINATION OF YOUR ACTIVE DUTY ON OCTOBER 25, 1937, WITH THE CIVILIAN CONSERVATION CORPS THE GRANTING OF THE LEAVE TO YOUR CREDIT WAS DISCRETIONARY WITH THE SECRETARY OF WAR. IN OTHER WORDS, THE GRANTING OF LEAVE WHICH YOU HAD ACCUMULATED COULD NOT HAVE BEEN REQUIRED AS A MATTER OF RIGHT. DENBY V. BARRY, 263 U.S. 29. UNTIL THE ENACTMENT OF THE ARMED FORCES LEAVE ACT OF 1946, THERE WAS NO STATUTORY PROVISION FOR THE PAYMENT OF COMPENSATION IN LIEU OF LEAVE ACCRUED AND UNUSED AT THE TIME OF TERMINATION OF ACTIVE SERVICE, EXCEPT THE ACT OF NOVEMBER 21, 1945, 59 STAT. 584, THE PROVISIONS OF WHICH ARE NOT APPLICABLE IN YOUR CASE. WHILE THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, AUTHORIZES PAYMENT FOR ACCUMULATED LEAVE TO BE MADE TO ENLISTED MEMBERS OF THE ARMED FORCES DISCHARGED OR RELEASED FROM ACTIVE DUTY PRIOR TO SEPTEMBER 1, 1946, THE ACT CONTAINS NO SIMILAR PROVISIONS AUTHORIZING COMMISSIONED OFFICERS DISCHARGED OR RELEASED FROM ACTIVE DUTY PRIOR TO THAT DATE TO BE PAID FOR LEAVE WHICH HAD ACCRUED BUT HAD NOT BEEN TAKEN PRIOR TO SUCH RELEASE FROM ACTIVE DUTY.

ACCORDINGLY, WHILE THE RECORD SHOWS THAT YOUR CLAIM IS BARRED BY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, THERE WOULD BE NO LEGAL BASIS FOR THE ALLOWANCE OF ANY AMOUNT FOR YOUR UNUSED LEAVE EVEN IF THE CLAIM HAD BEEN TIMELY PRESENTED.