B-127106, JAN. 13, 1966

B-127106, JAN. 13, 1966

TO MR. JONATHAN THURSZ:

YOUR LETTER OF NOVEMBER 12, 1965, REQUESTS OUR REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT OF OCTOBER 19, 1965, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT ON ACCOUNT OF ANNUAL LEAVE WHICH YOU BELIEVED SHOULD HAVE BEEN TO YOUR CREDIT AT THE TIME OF YOUR SEPARATION FROM THE SERVICE BY RETIREMENT. ALSO, YOU URGE THAT YOU SHOULD BE COMPENSATED FOR A PERIOD OF LEAVE WITHOUT PAY FROM APRIL 24 TO MAY 27, 1953, WHICH YOU WERE REQUIRED TO TAKE INCIDENT TO YOUR SUSPENSION AND SEPARATION AT THAT TIME UNDER THE ACT OF AUGUST 26, 1950, 64 STAT. 476, 5 U.S.C. 22-1.

THE RECONSIDERATION OF YOUR CLAIM REQUIRED THAT WE OBTAIN ADDITIONAL INFORMATION FROM THE DEPARTMENT OF STATE WHICH NOW HAS BEEN RECEIVED.

WHILE, AS POINTED OUT IN GENERAL ACCOUNTING OFFICE SETTLEMENT OF OCTOBER 19, 1965, YOUR LEAVE RECORDS ARE NOT COMPLETE, THE DEPARTMENT OF STATE INFORMS US CONCERNING YOUR ANNUAL LEAVE ACCRUALS AND USE SINCE 1957, AS FOLLOWS:

"1. IN 1957, HE USED 216 HOURS WHEN HIS ACCRUAL FOR THE YEAR WAS 160 HOURS. THE EXCESS OF 56 HOURS USED REDUCED THE CEILING TO 424 HOURS.

"2. IN 1963, HE USED 288 HOURS WHEN HIS ACCRUAL FOR THE YEAR WAS 208 HOURS. THE EXCESS OF 80 HOURS USED FURTHER REDUCED THE CEILING TO 344 HOURS.'

IT WILL BE APPARENT FROM THE FOREGOING THAT IN RECONSTRUCTING YOUR ANNUAL LEAVE ACCOUNT YOU HAVE BEEN ALLOWED CREDIT AS OF JANUARY 10, 1956, FOR THE 480 HOURS OF ANNUAL LEAVE WHICH YOU HAD TO YOUR CREDIT BEFORE YOUR SUSPENSION. AT THE TIME OF YOUR RETIREMENT YOU WERE PAID A LUMP SUM FOR 240 HOURS LEAVE, LEAVING AN AMOUNT DUE YOU FOR THE BALANCE OF 104 HOURS. WE ARE INSTRUCTING OUR CLAIMS DIVISION TODAY TO ISSUE A SETTLEMENT IN YOUR FAVOR COVERING THE AMOUNT DUE FOR THAT 104 HOURS.

REGARDING THE PERIOD OF LEAVE WITHOUT PAY TO WHICH YOUR LETTER REFERS, THE ACT OF AUGUST 26, 1950, AMONG OTHER THINGS, PROVIDES:

"* * * THAT ANY PERSON WHOSE EMPLOYMENT IS SO SUSPENDED OR TERMINATED UNDER AUTHORITY OF THIS ACT MAY, IN THE DISCRETION OF THE AGENCY HEAD CONCERNED, BE REINSTATED OR RESTORED TO DUTY, AND IF SO REINSTATED OR RESTORED SHOULD BE ALLOWED COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUCH SUSPENSION OR TERMINATION IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH SUSPENSION OR TERMINATION, AT THE RATE HE WAS RECEIVING ON THE DATE OF SUSPENSION OR TERMINATION, AS APPROPRIATE, AND THE INTERIM NET EARNINGS OF SUCH PERSON * * *"

THE DEPARTMENT INFORMS US THAT IN THE EXERCISE OF ITS DISCRETION, UNDER THE ABOVE-QUOTED LANGUAGE, IT WAS ADMINISTRATIVELY DETERMINED NOT TO ALLOW BACK PAY FOR THAT PERIOD OF YOUR SUSPENSION COVERED BY A GRANT OF LEAVE WITHOUT PAY. THAT ADMINISTRATIVE DETERMINATION IS CONCLUSIVE UPON US AND, THEREFORE, WE ARE WITHOUT AUTHORITY TO ALLOW COMPENSATION FOR THAT PERIOD.