B-86914, APRIL 24, 1950, 29 COMP. GEN. 421

B-86914, APRIL 24, 1950, 29 COMP. GEN. 421

LEAVES OF ABSENCE - NATIONAL GUARD CARETAKERS - PAYMENT FOR LEAVE NOT TAKEN PRIOR TO DEATH THE REGULATIONS PROMULGATED BY THE SECRETARY OF THE ARMY UNDER SECTION 90 OF THE NATIONAL DEFENSE ACT, AS AMENDED, FIXING THE COMPENSATION OF CARETAKERS OF THE NATIONAL GUARD DO NOT PROVIDE ANY COMPENSABLE RIGHTS FOR LEAVE NOT TAKEN PRIOR TO SEPARATION FROM THE SERVICE, SO THAT NO GREATER RIGHT TO PAYMENT FOR SUCH LEAVE LEGALLY ACCRUES TO THE ESTATE OF A DECEASED CARETAKER AND, THEREFORE, PAYMENT MAY NOT BE MADE TO THE ADMINISTRATOR OF THE ESTATE FOR LEAVE NOT TAKEN BY THE CARETAKER PRIOR TO HIS DEATH.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. E. E. FEIND, DEPARTMENT OF THE ARMY, APRIL 24, 1950:

BY FIFTH ENDORSEMENT DATED JUNE 9, 1949, THE CHIEF OF FINANCE REFERRED TO THIS OFFICE YOUR LETTER OF MAY 2, 1949, REQUESTING AN ADVANCE DECISION ON THE CLAIM OF WILLIAM J. PORTER, ADMINISTRATOR OF THE ESTATE OF ALFRED W. PORTER, DECEASED, LATE SERGEANT, GRADE III, SERVICE BATTERY, 110TH FIELD ARTILLERY BATTALION, MARYLAND NATIONAL GUARD, FOR ARMORY DRILL PAY DUE THE DECEDENT AT THE DATE OF HIS DEATH, JANUARY 30, 1949, SUPPORTED BY SUPPLEMENTAL ARMORY DRILL PAY ROLL OF THE SAID ORGANIZATION FOR THE PERIOD FROM JANUARY 1, 1949, TO MARCH 31, 1949. STANDARD FORM NO. 1055, SUBMITTED WITH YOUR LETTER, CONSTITUTES THE CLAIM OF THE ADMINISTRATOR FOR THE PROCEEDS OF CHECK NO. 514,697, DATED JANUARY 31, 1949, FOR $87.61, IN FAVOR OF THE DECEDENT, DRAWN BY CHAS. B. MILLIKEN, SYMBOL NO. 210,964, REPRESENTING CIVILIAN PAY AS " MECHANIC GENERAL, UNIT MATERIEL CARETAKER" FOR THE PERIOD FROM JANUARY 16 TO 31, 1949, AND ALSO A CLAIM FOR " ACCRUED ANNUAL LEAVE AS UNIT CARETAKER, 14 DAYS AND 6 HOURS.'

BY THIRD ENDORSEMENT DATED MAY 24, 1949, THE CHIEF OF FINANCE REFERRED TO THE CLAIMS DIVISION OF THIS OFFICE "FOR NECESSARY ACTION" THE PAY ROLL ( STANDARD FORM NO. 1128--- PAY ROLL FOR PERSONAL SERVICES) AND SUPPORTING PAPERS COVERING THE CLAIM OF THE ADMINISTRATOR FOR THE DECEDENT'S CIVILIAN PAY EARNED DURING THE PERIOD FROM JANUARY 16 TO 31, 1949, $87.61, AND FOR LUMP-SUM PAYMENT FOR UNUSED ACCRUED ANNUAL LEAVE FOR A TOTAL OF 14 DAYS AND 6 HOURS, OR 118 HOURS, $85.97, TOTAL $173.58. IT APPEARS THAT THE ITEM OF $87.61 IS THE SAME AS THE AMOUNT OF CHECK NO. 514,697. IN THAT CONNECTION, THE RECORDS OF THIS OFFICE SHOW THAT CHECK NO. 514,697 HAS BEEN CANCELED AND THAT APPROPRIATE STEPS HAVE BEEN TAKEN TO RESTORE THE PROCEEDS THEREOF TO THE CREDIT OF THE APPROPRIATION FROM WHICH DRAWN.

AN ENTRY UNDER "LOSSES" ON THE ORIGINAL ARMORY DRILL PAY ROLL OF THE ORGANIZATION FOR THE PERIOD INVOLVED (VOUCHER NO. 19446 OF YOUR APRIL 1949 ACCOUNT) SHOWS THAT THE DECEDENT ATTENDED FOUR AUTHORIZED DRILLS DURING THAT PERIOD. HOWEVER, HE WAS NOT PAID FOR SUCH DRILLS ON THE SAID PAY ROLL.

IT APPEARS FROM VOUCHER NO. 54913 OF THE JANUARY 1949 ACCOUNT OF LIEUTENANT COLONEL CHAS. B. MILLIKEN, F.D. ( STANDARD FORM NO. 1128--- PAY ROLL FOR PERSONAL SERVICES), THAT, DURING THE PERIOD FROM JANUARY 16 TO 31, 1949, THE SUM OF $10.30, REPRESENTING FEDERAL TAX ON THE SALARY OF ALFRED W. PORTER, MECHANIC GENERAL, UNIT MATERIEL CARETAKER, FOR 15 DAYS AT $195.82 PER MONTH, WAS WITHHELD FROM THE GROSS SUM OF $97.91 EARNED DURING THAT PERIOD, AND THAT CHECK NO. 514,697 WAS CORRECTLY DRAWN IN THE SUM OF $87.61 AS THE NET AMOUNT DUE THE DECEDENT.

STANDARD FORM NO. 1055, SUBMITTED WITH YOUR LETTER, SHOWS THAT THE CLAIMANT, WILLIAM J. PORTER, THE FATHER OF THE DECEDENT, WAS LEGALLY APPOINTED AS ADMINISTRATOR OF THE DECEDENT'S ESTATE, WHICH IS SUPPORTED BY A CERTIFIED COPY OF LETTERS OF ADMINISTRATION EVIDENCING HIS APPOINTMENT ON FEBRUARY 5, 1949, BY THE CHIEF JUSTICE OF THE ORPHANS' COURT OF BALTIMORE COUNTY, STATE OF MARYLAND.

SECTION 90 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 32 U.S.C. 42, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

FUNDS ALLOTTED BY THE SECRETARY OF WAR FOR THE SUPPORT OF THE NATIONAL GUARD SHALL BE AVAILABLE FOR * * * THE COMPENSATION OF COMPETENT HELP FOR THE CARE OF MATERIAL, ANIMALS, ARMAMENT, AND EQUIPMENT OF ORGANIZATIONS OF ALL KINDS, UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE.

APPARENTLY, THE CLAIM FOR UNUSED ACCRUED ANNUAL LEAVE IS BASED UPON THE PROVISIONS OF PARAGRAPH 12D (7), NGR 75-16, AS CHANGED BY CHANGES NO. 1, APRIL 16, 1948, WHICH PROVIDES:

(7) CASH SETTLEMENT OF ACCRUED LEAVE IS NOT AUTHORIZED WITH THE EXCEPTION OF CLAIMS FOR ACCRUED LEAVE DUE A DECEASED EMPLOYEE.

IN 27 COMP. DEC. 344, IT WAS HELD THAT CARETAKERS, ETC., OF THE NATIONAL GUARD ARE NOT CIVIL EMPLOYEES OF THE WAR DEPARTMENT WITHIN THE MEANING OF THE LAWS, RULES, AND REGULATIONS RELATING TO HOURS OF LABOR, LEAVES OF ABSENCE, AND HOLIDAYS OF EMPLOYEES IN THE EXECUTIVE DEPARTMENTS, BUT THAT, UNDER SECTION 90 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 32 U.S.C. 42, THE "DETAIL AND COMPENSATION" OF SUCH EMPLOYEES ARE TO BE "UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR (NOW SECRETARY OF THE ARMY) MAY PRESCRIBE," AND THAT, THEREFORE, IT IS COMPETENT FOR THE SAID SECRETARY, IN FIXING THE RATE OF COMPENSATION TO BE PAID THEM, TO PRESCRIBE SUCH REASONABLE REGULATIONS AS HE MAY DEEM PROPER RELATIVE TO THEIR PAY FOR HOLIDAYS, VACATIONS, AND SICK LEAVE. SEE, ALSO, DECISION OF JULY 5, 1929, A-27362.

THE PROVISIONS OF PARAGRAPH 12, NGR 75-16, AUTHORIZE CARETAKERS TO TAKE ANNUAL LEAVE OF ABSENCE IN THE AMOUNTS THEREIN PRESCRIBED AND TO BE PAID THEREFOR, BUT NO PROVISION WAS INCLUDED IN THE REGULATIONS FOR A CASH SETTLEMENT FOR LEAVE NOT TAKEN. CLEARLY, THEREFORE, THE STATUTORY REGULATIONS FIXING CARETAKERS' COMPENSATION CONTEMPLATE THE AUTHORIZATION OF A LEAVE OF ABSENCE ONLY FROM DUTY FOR PURPOSES OF REST AND RELAXATION, A BENEFIT "IN KIND" WHICH NECESSARILY LAPSES UPON SEPARATION, BY DEATH OR OTHERWISE. INASMUCH AS A SEPARATED EMPLOYEE HAS NO COMPENSABLE RIGHT FOR LEAVE NOT TAKEN, NO GREATER RIGHT LEGALLY COULD ACCRUE TO THE ESTATE OF SUCH AN EMPLOYEE. SEE, GENERALLY, SECTION 8, 26 C.J.S. 1008; ALSO, 24 COMP. GEN. 282, AND 26 ID. 613.

ACCORDINGLY, IT MUST BE CONCLUDED THAT THERE IS NO AUTHORITY FOR PAYMENT TO THE DECEDENT'S ESTATE FOR UNUSED ACCUMULATED ANNUAL LEAVE--- AN ITEM WHICH DID NOT ACCRUE TO THE EMPLOYEE.

THEREFORE, YOU ARE ADVISED THAT PAYMENT MAY BE MADE TO WILLIAM J. PORTER, AS ADMINISTRATOR OF THE ESTATE OF ALFRED W. PORTER, DECEASED, OF THE AMOUNT DUE ON THE SUPPLEMENTAL ARMORY DRILL PAY ROLL, AND SO MUCH OF THE AMOUNT INCLUDED IN THE PAY ROLL AS REPRESENTS CARETAKER'S COMPENSATION EARNED PRIOR TO THE TIME OF DECEDENT'S DEATH, IF OTHERWISE CORRECT. HOWEVER, PAYMENT IS NOT AUTHORIZED TO BE MADE OF THE AMOUNT SHOWN ON THE SAID PAY ROLL WHICH REPRESENTS LUMP-SUM PAYMENT FOR UNUSED ACCRUED ANNUAL LEAVE. THE SAID PAY ROLL FOR PERSONAL SERVICES AND THE SUPPLEMENTARY ARMORY DRILL PAY ROLL ARE ENCLOSED HEREWITH.

ANY PRIOR DECISIONS WHICH MAY HAVE INDICATED A DIFFERENT VIEW WITH RESPECT TO PAYMENT FOR LEAVE NOT TAKEN BY NATIONAL GUARD EMPLOYEES PRIOR TO DEATH WILL NOT BE FOLLOWED HEREAFTER.