B-149763, JAN. 8, 1963

B-149763, JAN. 8, 1963

TO MR. ROBERT S. V. DEMBOWSKI:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4, 1962, REQUESTING FURTHER CONSIDERATION OF OUR DECISION OF NOVEMBER 26, 1962, TO YOU WHICH SUSTAINED THE DISALLOWANCE DATED AUGUST 1, 1962, OF YOUR CLAIM FOR PAY AND ALLOWANCES AS A PRIVATE IN THE ARMY FOR THE PERIOD DECEMBER 3, 1959, TO OCTOBER 19, 1960. WE INFORMED YOU ALSO THAT THIS OFFICE DOES NOT HAVE JURISDICTION TO CONSIDER YOUR CLAIM FOR DAMAGES ON ACCOUNT OF "UNJUST ACTIONS" ON THE PART OF ARMY PERSONNEL WHICH YOU CLAIM CAUSED YOUR DETENTION IN THE VALLEY FORGE ARMY HOSPITAL AND LATER ADVERSELY AFFECTED YOUR REEMPLOYMENT OPPORTUNITIES AFTER SEPARATION FROM THE SERVICE.

IN YOUR LETTER YOU AGAIN CONTEND THAT YOU ARE ENTITLED TO THE PAY AND ALLOWANCES FOR THE PERIOD INVOLVED INASMUCH AS YOU WERE NOT GIVEN AN HONORABLE DISCHARGE CERTIFICATE UNTIL OCTOBER 19, 1960. ALSO, YOU HAVE FURNISHED DETAILED EXPLANATIONS OF ALLEGED ABUSES BY ARMY AND OTHER MILITARY PERSONNEL DURING THE PERIOD IMMEDIATELY BEFORE AND AFTER YOUR DETENTION IN THE VALLEY FORGE ARMY HOSPITAL AND HAVE INDICATED THAT THE ARMY FURNISHED A DEROGATORY REPORT TO THE MEDICAL EXAMINERS OF YOUR FORMER EMPLOYER, THE MILWAUKEE SCHOOL SYSTEM, WHICH RESULTED IN THEIR REJECTION OF YOUR REEMPLOYMENT APPLICATION SUBMITTED TO THEM AFTER YOUR RELEASE FROM THE ARMY. IN VIEW OF SUCH ASSERTED "UNJUST ACTIONS" YOU AGAIN MAINTAIN THAT YOU ARE ENTITLED TO DAMAGES FROM THE GOVERNMENT.

THE JURISDICTION OF THIS OFFICE UNDER THE LAW (SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 31 U.S.C. 71) WITH RESPECT TO THE CONSIDERATION OF YOUR CLAIM IS LIMITED TO THAT PORTION PERTAINING TO THE PAY AND ALLOWANCES CLAIMED, THAT IS, THE DETERMINATION OF YOUR ENTITLEMENT THERETO UNDER APPLICABLE LAW AND REGULATIONS. THE ARMY HAD AUTHORITY TO RELEASE YOU FROM ARMY SERVICE ON DECEMBER 2, 1959, AND THE RECORD INDICATES THAT YOU WERE SO RELEASED AND PROPERLY PAID ALL PAY AND ALLOWANCES DUE YOU THROUGH THAT DATE. THE DEPARTMENT OF THE ARMY THEREAFTER DETERMINED THAT YOUR RELEASE SHOULD HAVE BEEN UNDER HONORABLE CONDITIONS AND MAILED YOU AN HONORABLE DISCHARGE CERTIFICATE ON OCTOBER 19, 1960. THAT DISCHARGE CERTIFICATE SHOWS THAT YOUR DISCHARGE WAS EFFECTIVE DECEMBER 2, 1959. THERE IS NO SHOWING THAT YOU RENDERED ANY MILITARY SERVICE AFTER THAT DATE OR THAT YOU HAD AN ACTIVE MILITARY STATUS AT ANY TIME FOLLOWING YOUR RELEASE. HENCE, AS STATED IN OUR DECISION OF NOVEMBER 26, 1962, THERE IS NO AUTHORITY OF LAW TO SUPPORT PAYMENT TO YOU OF PAY AND ALLOWANCES FOR ANY PART OF THE PERIOD AFTER DECEMBER 2, 1959.

NO JURISDICTION HAS BEEN CONFERRED BY LAW ON THIS OFFICE TO CONSIDER THAT PORTION OF YOUR CLAIM FOR DAMAGES FOR THE ALLEGED ABUSIVE TREATMENT AND DETENTION AND FOR MONETARY LOSSES SUFFERED BY YOU AFTER YOUR RELEASE FROM THE SERVICE AS THE RESULT OF THE ALLEGED "UNJUST ACTIONS" OF MILITARY PERSONNEL. AS STATED IN OUR DECISION OF NOVEMBER 26, 1962, THE JURISDICTION TO CONSIDER SUCH CLAIM IS VESTED EITHER IN THE FEDERAL AGENCY CONCERNED (THE DEPARTMENT OF THE ARMY) OR THE UNITED STATES DISTRICT COURTS, DEPENDING UPON WHETHER THE SUM CLAIMED IS UNDER OR OVER $2,500 (28 U.S.C. 1346 (B) AND 2671-2680).

IT ALSO MAY BE WELL TO POINT OUT THAT THERE IS A PROVISION IN THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. 2680 (H), WHICH SPECIFICALLY EXCEPTS FROM THE APPLICATION OF THAT ACT ANY CLAIM ARISING OUT OF ASSAULT, BATTERY, FALSE IMPRISONMENT, FALSE ARREST, MALICIOUS PROSECUTION, ABUSE OF PROCESS, LIBEL, SLANDER, MISREPRESENTATION, DECEIT, OR INTERFERENCE WITH CONTRACT RIGHTS.