B-130588, FEB. 26, 1957

B-130588, FEB. 26, 1957

TO ABRAHAM WOLBARSHT, M.D.:

YOUR LETTER OF JANUARY 6, 1957, REQUESTS REVIEW OF OUR OFFICE SETTLEMENT OF DECEMBER 12, 1956, WHICH DISALLOWED YOUR CLAIM OF $378.03 REPRESENTING AMOUNTS COLLECTED FROM YOU BECAUSE OF OVERPAYMENT OF LUMP-SUM LEAVE. THE DISALLOWANCE WAS FOR THE REASON THAT AT THE BEGINNING OF THE LEAVE YEAR JANUARY 2, 1955, YOU HAD 107 DAYS ANNUAL LEAVE TO YOUR CREDIT WHICH BECAME THE MAXIMUM NUMBER OF DAYS FOR WHICH YOU COULD BE PAID UPON SEPARATION. YOU WERE PAID FOR 117 DAYS WHICH MADE IT NECESSARY TO REFUND THE AMOUNT RECEIVED FOR THE 10 DAYS EXCESS LEAVE PAYMENT. YOU NOW ASSERT THAT YOU ARE ENTITLED TO PAYMENT UNDER "SEC. 2.A (2)" OF PUBLIC LAW 102.

SECTION 2A OF PUBLIC LAW 102, APPROVED JULY 2, 1953, 67 STAT. 136 PROVIDES:

"/A) THE ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO WHICH ANY OFFICER EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951 AS A RESULT OF THE ENACTMENT OF THIS ACT IS ENTITLED IMMEDIATELY PRIOR TO THE DATE THIS ACT BECOMES APPLICABLE TO HIM SHALL BE LIQUIDATED BY A LUMP-SUM PAYMENT IN ACCORDANCE WITH THE ACT OF DECEMBER 21, 1944 (5 U.S.C. 61B 61E) OR THE ACT OF AUGUST 3, 1950 (5 U.S.C. 61F-61K), EXCEPT THAT PAYMENT UNDER EITHER SUCH ACT (1) SHALL BE BASED UPON THE RATE OF COMPENSATION WHICH HE WAS RECEIVING IMMEDIATELY PRIOR TO THE DATE ON WHICH THIS ACT BECAME APPLICABLE TO HIM, AND (2) SHALL BE MADE WITHOUT REGARD TO THE LIMITATIONS IMPOSED BY THE AMENDMENTS MADE BY SECTIONS 4 AND 5 OF THIS ACT WITH RESPECT TO THE AMOUNTS OF LEAVE COMPENSABLE UNDER SUCH ACT.'

THE FOREGOING ACT RELATES ONLY TO ANY OFFICER EXEMPT FROM THE ANNUAL AND SICK LEAVE ACT OF 1951, AS THE RESULT OF THE ENACTMENT OF THIS ACT, THAT IS, THE ACT OF JULY 2, 1953. DOCTORS, DENTISTS, AND NURSES IN THE DEPARTMENT OF MEDICINE AND SURGERY OF THE VETERANS ADMINISTRATION WERE NOT EXEMPTED FROM THE LEAVE ACT BY PUBLIC LAW 102 BUT RATHER, BY THE LEAVE ACT OF 1951, SECTION 202 (B) (G). ACCORDINGLY, SAID SECTION 2A OF PUBLIC LAW 102 AFFORD NO GROUNDS FOR ALLOWANCE OF YOUR CLAIM.

SECTION 4 (A) OF PUBLIC LAW 102, 67 STAT. 137 PROVIDES:

"SEC. 4. (A) THE SECOND AND THIRD SENTENCES OF THE FIRST SECTION OF THE ACT OF DECEMBER 21, 1944, ARE AMENDED TO READ AS FOLLOWS: "SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH OFFICER OR EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE, EXCEPT THAT AFTER AUGUST 31, 1953, NO SUCH LUMP-SUM PAYMENT SHALL EXCEED COMPENSATION FOR ANY PERIOD OF SUCH LEAVE IN EXCESS OF THIRTY DAYS OR THE NUMBER OF DAYS CARRIED OVER TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR IN WHICH ENTITLEMENT TO PAYMENT OCCURS, WHICHEVER IS THE GREATER. * * *" "

THE EXEMPTION OF DOCTORS, DENTISTS AND NURSES OF THE DEPARTMENT OF MEDICINE AND SURGERY OF THE VETERANS ADMINISTRATION FROM THE ANNUAL AND SICK LEAVE ACT OF 1951 DOES NOT EXEMPT THEM FROM THE PROVISIONS OF THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, AS AMENDED, AS IT IS NOT A PART OF THE 1951 LEAVE ACT.

AS YOU HAVE RECEIVED PAYMENT FOR 107 DAYS ANNUAL LEAVE, THE AMOUNT TO YOUR CREDIT AT THE BEGINNING OF THE LEAVE YEAR, NOTHING FURTHER IS DUE YOU. THE DISALLOWANCE OF YOUR CLAIM WAS ..END :