B-95949, SEP 22, 1950

B-95949, SEP 22, 1950

PRECIS-UNAVAILABLE

MRS. EMILY W. GORMAN:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 27, AUGUST 2 AND AUGUST 22, 1950, CONCERNING YOUR CLAIM FOR COMPENSATION ON ACCOUNT OF UNUSED LEAVE ACCUMULATED BY YOUR LATE HUSBAND, THOMAS FRANCIS GORMAN, COMMANDER, UNITED STATES NAVAL RESERVE, WHICH CLAIM WAS DISALLOWED BY SETTLEMENT OF THE CLAIMS DIVISION OF THIS OFFICE DATED MAY 3, 1950.

IT APPEARS FROM YOUR APPLICATION THAT COMMANDER GORMAN DIED ON DECEMBER 11, 1949, AND IN YOUR LETTER OF AUGUST 22, 1950, YOU STATE THAT HE IS SURVIVED BY A DAUGHTER, AGE 24, AND A SON, AGE 17, AS WELL AS YOURSELF.

IN A LETTER DATED MAY 19, 1950, FROM THE ASSISTANT CHIEF OF NAVAL PERSONNEL, IT IS REPORTED THAT BY ORDERS OF FEBRUARY 4, 1946, COMMANDER GORMAN WAS ORDERED BEFORE A NAVAL RETIRING BOARD AND DIRECTED TO PROCEED HOME TO AWAIT THE ACTION OF SUCH BOARD; THAT THE WAITING PERIOD WAS NOT DESIGNATED AS A PERIOD OF LEAVE, AND THAT BY ORDERS OF SEPTEMBER 24, 1946, HE WAS RELEASED FROM ACTIVE DUTY IN THE UNITED STATES NAVAL RESERVE, EFFECTIVE SEPTEMBER 29, 1946. IT IS FURTHER REPORTED THAT ON AUGUST 31, 1946, HE HAD A TOTAL OF 120 DAYS' UNUSED LEAVE STANDING TO HIS CREDIT FOR OFFICER SERVICE; THAT THE CLAIM HE SUBMITTED FOR SETTLEMENT FOR SUCH UNUSED LEAVE WAS DENIED ADMINISTRATIVELY ON THE ERRONEOUS BASIS THAT HE WAS ON TERMINAL LEAVE ON AUGUST 31, 1946, BUT THAT HE SHOULD HAVE RECEIVED A CASH SETTLEMENT FOR 60 DAYS' LEAVE CREDIT OF 60 DAYS AS OF AUGUST 31, 1946.

SECTION 3(B) OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 964, PROVIDES THAT NO MEMBER OF THE ARMED FORCES (OTHER THAN A MEMBER OF TERMINAL LEAVE ON SEPTEMBER 1, 1946) SHALL BE PERMITTED TO ACCUMULATE OR HAVE TO HIS CREDIT, AT ANY TIME AFTER AUGUST 31, 1946, ACCUMULATED OR ACCRUED LEAVE AGGREGATED IN EXCESS OF 60 DAYS AND SECTION 5(B) OF THE ACT PROVIDES FOR COMPENSATING SUCH PERSONS ON ACTIVE DUTY ON SEPTEMBER 1, 1946, FOR THE LEAVE THEY OTHERWISE WOULD LOSE BECAUSE OF SUCH LIMITATION, THAT IS, FOR THE NUMBER OF DAYS' LEAVE IN EXCESS OF 60 DAYS WHICH THEY HAD TO THEIR CREDIT ON AUGUST 31, 1946. SECTION 4(C) OF THE SAID ACT, AS ADDED BY THE ACT OF AUGUST 4, 1947, 61 STAT. 748, PROVIDES THAT ANY MEMBER OF THE ARMED FORCES DISCHARGED AFTER AUGUST 31, 1946, HAVING UNUSED LEAVE TO HIS CREDIT AT THE TIME OF DISCHARGE OR RELEASE SHALL BE COMPENSATED FOR SUCH UNUSED LEAVE, BUT FURTHER PROVIDES THAT SETTLEMENT AND COMPENSATION IN ACCORDANCE WITH THE SAID SUBSECTION "SHALL BE MADE ONLY TO A LIVING MEMBER OR LIVING FORMER MEMBER OF THE ARMED FORCES."

WITH RESPECT TO SETTLEMENT IN THE CASE OF A DECEASED FORMER MEMBER OF THE ARMED FORCES, SECTION 6(B) OF THE 1946 ACT, AS AMENDED BY THE ACT OF JUNE 19, 1948, 62 STAT. 506, PROVIDES:

"(B) LEAVE BY THIS ACT PROVIDED TO BE SETTLED AND COMPENSATED FOR UNDER THIS SECTION SHALL, IN THE CASE OF ANY MEMBER OR FORMER MEMBER OF THE ARMED FORCES WHO DIES AFTER DISCHARGE, OR ON OR AFTER SEPTEMBER 1, 1946, IF NOT DISCHARGED PRIOR TO SUCH DATE, AND BEFORE SETTLEMENT AND COMPENSATION HAS BEEN EFFECTED, BE SETTLED AND COMPENSATED FOR, ON APPLICATION THEREFORE, WITH SUCH MEMBER'S OR FORMER MEMBER'S SURVIVORS, AS FOLLOWS:

"(1) TO SUCH MEMBER'S OR FORMER MEMBER'S SURVIVING SPOUSE AND CHILDREN, IN ANY, IN EQUAL SHARES;

"(II) IF SUCH MEMBER OR FORMER MEMBER LEAVES NO SURVIVING SPOUSE OR CHILD OR CHILDREN, THEN IN EQUAL SHARES TO SUCH MEMBER'S OR FORMER MEMBER'S SURVIVING PARENTS, IF ANY;

"(III) IF SUCH MEMBER OR FORMER MEMBER LEAVES A SURVIVING SPOUSE, CHILD, PARENT, BROTHER, OR SISTER, THEN IN EQUAL SHARES TO THE SURVIVING CHILD OR CHILDREN, IF ANY, OF SUCH MEMBER'S OR FORMER MEMBER'S DECEASED BROTHER AND SISTER.

"IF THERE IS NO SUCH SURVIVOR, NO SETTLEMENT AND COMPENSATION SHALL BE MADE UNDER THIS ACT. SETTLEMENT AND COMPENSATION UNDER THIS SUBSECTION WITH ANY SUCH SURVIVOR BETWEEN SEVENTEEN AND TWENTY-ONE YEARS OF AGE SHALL CONSTITUTE A COMPLETE DISCHARGE OF THE OBLIGATIONS OF THE UNITED STATES UNDER THIS ACT."

SINCE IT IS REPORTED THAT COMMANDER GORMAN HAS A TOTAL OF 120 DAYS' UNUSED LEAVE STANDING TO HIS CREDIT ON AUGUST 31, 1946, HE WAS ENTITLED TO BE COMPENSATED FOR 60 DAYS OF SUCH LEAVE AND TO HAVE CREDITED TO HIS ACCOUNT THE BALANCE OF 60 DAYS LEAVE. HE COULD HAVE BEEN GRANTED SUCH BALANCE OF LEAVE PRIOR TO RELEASE FROM ACTIVE DUTY OR, UNDER THE PROVISIONS OF SECTION 4(C) OF THE ARMED FORCES LEAVE ACT, AS AMENDED, SUPRA, HE COULD HAVE BEEN COMPENSATED FOR THE UNUSED LEAVE TO HIS CREDIT AT THE TIME OF RELEASE FROM ACTIVE DUTY. HOWEVER, SINCE THE SAID SECTION 4(C) SPECIFICALLY PROVIDES THAT SETTLEMENT UNDER THAT SUBSECTION SHALL BE MADE ONLY TO A LIVING MEMBER OR FORMER LIVING MEMBER OF THE ARMED FORCES, THERE IS NO AUTHORITY TO ALLOW ANY AMOUNT TO THE SURVIVORS OF A DECEASED FORMER MEMBER ON ACCOUNT OF UNUSED LEAVE TO HIS CREDIT AT DATE OF DISCHARGE, IF DISCHARGED OR RELEASED FROM ACTIVE DUTY AFTER AUGUST 31, 1946.

WITH RESPECT TO THE LEAVE IN EXCESS OF 60 DAYS STANDING TO THE OFFICER'S CREDIT ON AUGUST 31, 1946, AS STATED ABOVE, SECTION 5(B) PROVIDES THAT SUCH LEAVE SHALL BE COMPENSATED FOR IN THE MANNER PROVIDED FOR IN SECTION 6 OF THE ACT. SECTION 6(B), QUOTED ABOVE, PROVIDES FOR PAYMENT TO DESIGNATED SURVIVORS IN THE ORDER OF PRECEDENCE STATED IN CASES WHERE MEMBERS OR FORMER MEMBERS DIE AFTER BECOMING ELIGIBLE FOR PAYMENT BUT BEFORE PAYMENT ACTUALLY IS MADE. SINCE THE SURVIVING SPOUSE AND CHILDREN ARE GIVEN PREFERENCE OVER ALL OTHERS AND ARE ENTITLED TO SHARE EQUALLY IN THE AMOUNT DUE, AND SINCE IT APPEARS THAT THE LATE OFFICER IS SURVIVED BY TWO CHILDREN AS WELL AS YOURSELF, A SETTLEMENT WILL ISSUE IN YOUR FAVOR FOR ONE-THIRD OF THE AMOUNT DUE THE DECEDENT FOR 60 DAYS OF LEAVE. THE BALANCE DUE WILL BE WITHHELD FOR PAYMENT IN EQUAL SHARES TO THE TWO SURVIVING CHILDREN UPON RECEIPT OF CLAIMS THEREFOR FROM THEM. SUCH CLAIMS MAY BE PRESENTED IN THE FORM OF LETTERS OVER THEIR SIGNATURES AND SHOULD BE ADDRESSED TO THE CHIEF, CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, WASHINGTON 25, D.C. ..END :