B-156687, JUN. 16, 1965

B-156687, JUN. 16, 1965

TO LIEUTENANT COLONEL KENNETH W. FRISTOE:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 21, 1965, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR PAY FOR 60 DAYS OF ACCUMULATED LEAVE AS OF AUGUST 31, 1946, WHICH CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION UNDER DATE OF APRIL 12, 1965.

YOUR CLAIM IS BASED ON SECTION 5 OF THE ARMED FORCES LEAVE ACT OF AUGUST 9, 1946, CH. 931, 60 STAT. 965, 37 U.S.C. 34 (1958 ED.), PARAGRAPH (B) OF WHICH IS AS FOLLOWS: (QUOTING FROM THE CODE)

"/B) IN ANY CASE IN WHICH A MEMBER OF THE ARMED FORCES ON ACTIVE DUTY ON SEPTEMBER 1, 1946 (OTHER THAN A MEMBER ON TERMINAL LEAVE ON SUCH DATE) HAS TO HIS CREDIT ON AUGUST 31, 1946, ACCUMULATED OR ACCRUED LEAVE AGGREGATING IN EXCESS OF SIXTY DAYS, SUCH LEAVE IN EXCESS OF SIXTY DAYS SHALL BE SETTLED AND COMPENSATED FOR ONLY IN THE MANNER PROVIDED IN SECTION 35 OF THIS TITLE AND IF APPLICATION IS MADE TO THE SECRETARY NOT LATER THAN JUNE 30, 1951.'

YOUR CLAIM WAS FORWARDED TO THE CLAIMS DIVISION OF OUR OFFICE IN MARCH 1965 BY THE DEPARTMENT OF THE ARMY AS A DOUBTFUL CLAIM, THE REASON FOR DOUBT BEING THAT THERE WAS NO WRITTEN PROOF OF YOUR HAVING MADE APPLICATION PRIOR TO JUNE 30, 1951. IN ORDER TO ESTABLISH THAT YOU DID MAKE APPLICATION WITHIN THE TIME LIMITATION YOU FURNISHED A STATEMENT SIGNED BY LIEUTENANT COLONEL ELIZABETH H. BRANCH THAT TO THE BEST OF HER KNOWLEDGE AND REMEMBRANCE YOU DID INQUIRE ABOUT PAYMENT FOR THE BALANCE OF ACCRUED LEAVE OVER 60 DAYS AND THAT SUCH INQUIRY WAS MADE SOMETIME BETWEEN SEPTEMBER 1946 AND MAY 1948, WHILE SHE WAS SERVING AS ASSISTANT ADJUTANT GENERAL OF THE ARMY ADVISORY GROUP, CHINA. THE ARMY REPORT, BEING BASED SOLELY ON THE QUESTION AS TO YOUR RIGHT TO FILE CLAIM AT THAT TIME, CONTAINED NO INFORMATION AS TO THE MERITS OF SUCH CLAIM.

IN THE ORIGINAL CLAIM FILED BY YOU WITH THE DEPARTMENT OF THE ARMY UNDER DATE OF APRIL 17, 1958, YOU STATED "I WAS DENIED PAYMENT OF THE SIXTY (60) DAYS ACCRUED LEAVE WHICH I HAD IN EXCESS OF SIXTY (60) DAYS ALLOWED FOLLOWING THE IMPLEMENTATION OF THE ACT.' YOU DID NOT STATE THE REASON YOU WERE DENIED PAYMENT. IN YOUR LETTER OF OCTOBER 15, 1964, YOU STATED THAT YOU USED 56 DAYS OF LEAVE BETWEEN MARCH 27, 1943, AND AUGUST 31, 1946, AND THE COPIES OF LEAVE ORDERS ENCLOSED WITH YOUR LETTER VERIFY THE FACT THAT YOU WERE GRANTED 56 DAYS OF LEAVE DURING THAT PERIOD.

LEAVE ACCRUED TO YOU DURING THE PERIOD INVOLVED AT THE RATE OF 30 DAYS A YEAR OR 2 1/2 DAYS A MONTH. 10 U.S.C. 841 (1940 ED.). FROM THE DATE YOU FIRST REPORTED FOR ACTIVE DUTY, MARCH 30, 1943, TO AUGUST 31, 1946, YOU ACCRUED A TOTAL OF 102 1/2 DAYS, WHICH IS COUNTED AS 103 DAYS. DEDUCTION OF THE 56 DAYS WHICH YOU USED DURING THAT PERIOD LEAVES A BALANCE OF 47 DAYS. SINCE THE 1946 LEAVE ACT DID NOT DISTURB A MEMBER'S LEAVE CREDITS IF SUCH CREDITS ACCRUED AND UNUSED ON AUGUST 31, 1946, AGGREGATED 60 DAYS OR LESS, IT IS ASSUMED THAT THE BALANCE OF 47 DAYS TO YOUR CREDIT ON AUGUST 31, 1946, WAS CARRIED FORWARD AND SUBSEQUENTLY USED BY YOU.

THE 1946 ACT DID NOT AUTHORIZE AN ADDITIONAL 60 DAYS OF LEAVE BUT CONTEMPLATED ONLY THE LEAVE ACCUMULATED TO A MEMBER'S CREDIT UNDER THE NORMAL ACCRUAL AT 30 DAYS A YEAR. THE CASH PAYMENT WAS AUTHORIZED ONLY IN CASES WHERE THE MEMBER HAD, PRIOR TO SEPTEMBER 1, 1946, ACCRUED AND UNUSED LEAVE TO HIS CREDIT IN EXCESS OF 60 DAYS. SINCE YOU HAD LESS THAN 60 DAYS OF ACCRUED UNUSED LEAVE ACCUMULATED TO YOUR CREDIT ON AUGUST 31, 1946, IT WILL BE SEEN THAT YOU HAD NO BALANCE OF LEAVE ..END :