B-146550, OCT. 27, 1961

B-146550, OCT. 27, 1961

TO MR. PASCUAL C. TEMBRINA:

REFERENCE IS MADE TO YOUR LETTER OF JULY 19, 1961, REQUESTING RECONSIDERATION OF SETTLEMENT DATED FEBRUARY 26, 1951, WHICH DISALLOWED YOUR CLAIM FOR MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS FOR THE PERIOD FEBRUARY 4 TO FEBRUARY 25, 1945, INCIDENT TO SERVICE AS A PHILIPPINE SCOUT, UNITED STATES ARMY, AND FOR THE PERIOD FEBRUARY 26 TO JUNE 30, 1945, WHILE SERVING AS A MEMBER OF THE ARMY OF THE UNITED STATES. YOUR CLAIM FOR QUARTERS ALLOWANCE FOR THE PERIOD FEBRUARY 4 TO FEBRUARY 25, 1945, WAS DISALLOWED BY THE SETTLEMENT OF FEBRUARY 26, 1951, SUBSTANTIALLY FOR THE REASON THAT APPLICABLE ARMY REGULATIONS AUTHORIZE PAYMENT TO ENLISTED MEN OF THE PHILIPPINE SCOUTS OF MONETARY ALLOWANCE IN LIEU OF QUARTERS ON A REIMBURSEMENT BASIS ONLY AND THAT IN THE ABSENCE OF PROPER RECEIPTS SHOWING THE COST OF LODGING FOR YOUR DEPENDENTS DURING THE PERIOD INVOLVED, SUCH CLAIM COULD NOT BE GIVEN FAVORABLE CONSIDERATION. YOUR CLAIM FOR THE PERIOD FEBRUARY 26 TO JUNE 30, 1945, WAS DISALLOWED FOR THE REASON THAT RECORDS SHOW YOU DID NOT HAVE IN EFFECT AN ALLOTMENT OF PAY IN AN AMOUNT NOT LESS THAN THE AMOUNT OF THE MONETARY ALLOWANCE FOR THE SUPPORT OF YOUR DEPENDENTS ON WHOSE ACCOUNT THE ALLOTMENT IS CLAIMED.

IN YOUR PRESENT LETTER YOU SAY YOU ARE ENTITLED TO QUARTERS ALLOWANCE INCIDENT TO YOUR STATUS AS A PHILIPPINE SCOUT AS AUTHORIZED BY THE DEPARTMENT OF THE ARMY. ALSO, YOU SAY YOU INITIATED YOUR APPLICATION FOR FAMILY ALLOWANCE UNDER THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, BUT THAT IT WAS NOT APPROVED UNTIL JULY 23, 1945. IT APPEARS TO BE YOUR VIEW THAT YOU SHOULD NOT BE PENALIZED BECAUSE OF THE DELAY RESULTING FROM EXIGENCIES OF WAR.

THE RECORD SHOWS THAT YOU REPORTED TO MILITARY CONTROL IN THE PHILIPPINES ON FEBRUARY 4, 1945. YOU WERE DISCHARGED AS TECHNICAL SERGEANT FROM THE PHILIPPINE SCOUTS ON FEBRUARY 25, 1945, AND ENLISTED AS TECHNICAL SERGEANT IN THE ARMY OF THE UNITED STATES ON FEBRUARY 26, 1945. BY SETTLEMENT DATED FEBRUARY 8, 1952, YOU WERE ALLOWED THE SUM OF $527.50, REPRESENTING MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR THE PERIOD MARCH 17, 1942, TO FEBRUARY 3, 1945. THAT SETTLEMENT WAS EFFECTED UNDER THE MISSING PERSONS ACT, 56 STAT. 143, AS AMENDED, 50 U.S.C. APP. 1001, ET EQ., WHICH CONFERS UPON THE SECRETARY OF THE ARMY OR HIS DESIGNEES, AUTHORITY TO MAKE DETERMINATIONS RESPECTING PERSONS WHO ARE ABSENT IN A STATUS OF MISSING, MISSING IN ACTION, INTERNED IN A FOREIGN COUNTRY, CAPTURED BY A HOSTILE FORCE, BELEAGUERED OR BESIEGED. SECTION 9 OF THE ACT, 50 U.S.C. APP. 1009, PROVIDES THAT DETERMINATIONS RESPECTING THE STATUS OF SUCH A MEMBER AND HIS RIGHT TO PAY AND ALLOWANCES, INCLUDING CREDITS AND CHARGES IN HIS ACCOUNT, SHALL BE CONCLUSIVE. HOWEVER, THE AUTHORITY OF THE SECRETARY OF THE ARMY OR HIS DESIGNEES UNDER THE MISSING PERSONS ACT, SUPRA, EXTENDS ONLY TO THE PERIOD DURING WHICH YOU WERE IN A STATUS COVERED BY THE ACT. IT WAS FOR THIS REASON THAT YOUR CLAIM FOR QUARTERS ALLOWANCE FOR THE PERIOD FEBRUARY 4 TO JUNE 30, 1945--- AFTER YOUR RETURN TO MILITARY CONTROL--- WAS FORWARDED HERE FOR SETTLEMENT.

WHILE WE ARE REQUIRED--- IN OTHERWISE PROPER CASES--- TO ACCEPT THE DETERMINATIONS OF THE DEPARTMENT INSOFAR AS THEY RELATE TO THE PERIOD WHILE YOU WERE IN A BELEAGUERED OR PRISONER OF WAR STATUS, SUCH DETERMINATIONS ARE NOT CONTROLLING UPON US FOR PERIODS SUBSEQUENT TO YOUR RETURN TO MILITARY CONTROL. CONSEQUENTLY, YOUR CLAIM FOR MONETARY ALLOWANCE FOR DEPENDENTS COVERING THE PERIOD FEBRUARY 4 TO 25, 1945, MUST BE SETTLED UNDER THE LAWS AND REGULATIONS RELATING TO PAY AND ALLOWANCES OF PHILIPPINE SCOUTS, GENERALLY.

PARAGRAPH 23B, ARMY REGULATIONS 35-4520, DATED FEBRUARY 24, 1943, APPLICABLE IN YOUR CASE PROVIDES THAT AN ENLISTED MAN OF THE FIRST THREE GRADES IN THE PHILIPPINE SCOUTS WHO IS NOT ENTITLED TO MONETARY ALLOWANCE FOR QUARTERS IN A NONTRAVEL STATUS AND WHO HAS A DEPENDENT, AS DEFINED IN PARAGRAPH 23A OF SUCH REGULATIONS, WILL BE PAID, FOR ANY PERIOD DURING WHICH PUBLIC QUARTERS ARE NOT PROVIDED AND AVAILABLE FOR HIS DEPENDENT, ACTUAL EXPENSES FOR LODGING NOT TO EXCEED 50 CENTS PER DAY.

PAYMENT OF MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS OF ENLISTED MEMBERS OF THE FIRST, SECOND AND THIRD GRADES WAS FIRST AUTHORIZED BY THE ACT OF OCTOBER 17, 1940, 54 STAT. 1205, AND EXECUTIVE ORDER NO. 8688, DATED FEBRUARY 19, 1941. SEE, ALSO, SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, AS AMENDED, AND THE REGULATIONS ISSUED THEREUNDER. UNDER SUCH PROVISIONS AND PERTINENT ARMY REGULATIONS, THREE CONDITIONS HAD TO COINCIDE BEFORE THE ENLISTED MAN LEGALLY COULD RECEIVE THE MONETARY ALLOWANCE FOR QUARTERS FOR HIS DEPENDENTS: (1) DEPENDENCY HAD TO BE ESTABLISHED; (2) THE ENLISTED MAN COULD NOT BE IN RECEIPT OF THE NONTRAVEL MONEY ALLOWANCE FOR QUARTERS FOR HIMSELF (UNLESS ORDERS OF COMPETENT AUTHORITY PREVENTED HIS DEPENDENT FROM LIVING WITH HIM); AND (3) HIS DEPENDENTS COULD NOT BE PROVIDED WITH PUBLIC QUARTERS AND PUBLIC QUARTERS COULD NOT BE AVAILABLE TO THEM. THE ABOVE-QUOTED REGULATIONS GOVERNING THE PAYMENT OF THE SAID MONETARY ALLOWANCE IN YOUR CASE IMPOSE SUBSTANTIALLY IDENTICAL REQUIREMENTS. IN SUCH CONNECTION THE RECORD DOES NOT SHOW THAT PUBLIC QUARTERS WERE NOT AVAILABLE TO YOUR DEPENDENTS.

IT IS UNDERSTOOD THAT, IN PROPER CASES, THE MONETARY ALLOWANCE FOR QUARTERS FOR DEPENDENTS IN THE CASE OF PHILIPPINE SCOUTS USUALLY WAS PAID ON THE REGULAR PAY VOUCHER OF THE ENLISTED MAN. THE OFFICER HAVING CUSTODY OF THE ENLISTED MAN'S SERVICE RECORD WAS REQUIRED, SUBJECT TO A PROPER DETERMINATION OF DEPENDENCY, TO DETERMINE THAT THE DEPENDENTS WERE NOT OCCUPYING PUBLIC QUARTERS AND TO CERTIFY THE RIGHT OF THE ENLISTED MAN TO RECEIVE THE SAID MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS AND ALSO, TO CERTIFY THAT THE ENLISTED MAN WAS NOT, FOR THE PERIOD INVOLVED, RECEIVING OR ENTITLED TO RECEIVE THE NONTRAVEL MONETARY ALLOWANCE IN LIEU OF QUARTERS IN HIS OWN RIGHT. SUCH CERTIFICATION CONSTITUTED THE BASIS ON WHICH THE DISBURSING OFFICER WOULD MAKE PAYMENT OF THE MONETARY ALLOWANCE. UNDER SUCH PROCEDURE, ENLISTED MAN OF THE PHILIPPINE SCOUTS SUBMITTED TO THEIR COMMANDING OFFICERS EVIDENCE OF THE AMOUNT ACTUALLY EXPENDED FOR LODGING OF THEIR DEPENDENTS, WHICH AMOUNT, NOT TO EXCEED THE MAXIMUM AUTHORIZED--- IN YOUR CASE 50 CENTS PER DAY--- WAS ENTERED ON THE PAYROLL BEARING THE CERTIFICATION OF THE ENLISTED MAN AND THE OFFICER HAVING CUSTODY OF THE MAN'S SERVICE RECORD. THIS OFFICE, IN THE SETTLEMENT OF CLAIMS BY PHILIPPINE SCOUTS FOR THE SAID MONETARY ALLOWANCE, APPARENTLY NOT CLAIMED CONTEMPORANEOUSLY, MUST REQUIRE AT LEAST AN EQUAL SHOWING AS A BASIS FOR FAVORABLE CONSIDERATION OF SUCH CLAIMS. IN SUCH CIRCUMSTANCES THE INFORMATION YOU SUBMITTED TOGETHER WITH SUPPORTING AFFIDAVITS FROM OTHER MEMBERS MERELY ATTESTING THAT YOUR DEPENDENTS DID NOT OCCUPY GOVERNMENT QUARTERS, EXECUTED SEVERAL YEARS AFTER THE FACTS AVERRED TO, ALONE AND UNSUPPORTED BY OTHER PERTINENT EVIDENCE MAY NOT BE ACCEPTED AS ESTABLISHING THE VALIDITY OF YOUR CLAIM. THEREFORE, THE DISALLOWANCE OF THAT PORTION OF YOUR CLAIM FOR MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR THE PERIOD FEBRUARY 4 TO 25, 1945, WAS CORRECT AND IS SUSTAINED.

CONCERNING YOUR CLAIM FOR QUARTERS ALLOWANCE FOR THE PERIOD FEBRUARY 26 TO JUNE 30, 1945, SECTION 108 (B) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, 57 STAT. 579, AS HERE PERTINENT, READS AS FOLLOWS:

"/B) EXCEPT AS OTHERWISE HEREIN PROVIDED, MONETARY ALLOWANCES IN LIEU OF QUARTERS FOR DEPENDENTS AS AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942 SHALL NOT BE PAYABLE FOR THE PERIOD DURING WHICH FAMILY ALLOWANCES TO DEPENDENTS OF ENLISTED MEN OF THE FIRST, SECOND, OR THIRD GRADES ARE AUTHORIZED BY THIS TITLE. AN ENLISTED MAN WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS RECEIVING, OR, BEING ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS, HAS APPLIED THEREFOR, MAY, AT HIS OPTION, RECEIVE OR CONTINUE TO RECEIVE SUCH MONETARY ALLOWANCE OR ELECT NOT TO RECEIVE SUCH MONETARY ALLOWANCE AND TO HAVE HIS DEPENDENTS BECOME ENTITLED TO RECEIVE FAMILY ALLOWANCES: PROVIDED, THAT PAYMENT OF SUCH MONETARY ALLOWANCE SHALL BE MADE ONLY FOR SUCH PERIODS, FROM THE EFFECTIVE DATE OF THIS ACT, AS THE ENLISTED MAN HAS IN EFFECT AN ALLOTMENT OF PAY, IN AN AMOUNT NOT LESS THAN THE AMOUNT OF SUCH MONETARY ALLOWANCE, FOR THE SUPPORT OF THE DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED. * * *"

THE ABOVE-QUOTED STATUTE SPECIFICALLY DENIES THE RIGHT TO PAYMENT OF MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS FOR ANY PERIOD WHEN THE ENLISTED MAN DOES NOT HAVE IN EFFECT AN ALLOTMENT OF PAY, IN AN AMOUNT NOT LESS THAN THE AMOUNT OF SUCH MONETARY ALLOWANCE, FOR THE SUPPORT OF THE DEPENDENT ON WHICH ACCOUNT THE ALLOWANCE IS CLAIMED. SINCE YOUR PAY RECORDS FAIL TO SHOW THAT DURING THE PERIOD FROM FEBRUARY 26 TO JUNE 30, 1945, YOU HAD IN EFFECT AN ALLOTMENT FOR THE SUPPORT OF YOUR DEPENDENTS, THERE IS NO LEGAL BASIS FOR THE PAYMENT TO YOU OF THE MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS DURING THAT PERIOD. THE FACT THAT YOU MAY HAVE ATTEMPTED TO REGISTER AN ALLOTMENT IN FAVOR OF YOUR DEPENDENTS DURING SAID PERIOD DOES NOT AFFORD ANY PROPER BASIS FORTHIS OFFICE TO AUTHORIZE PAYMENT OF THE ALLOWANCE CONTRARY TO THE EXPRESS PROVISIONS OF THE LAW. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR SUCH ALLOWANCE DURING THE PERIOD FEBRUARY 26 TO JUNE 30, 1945, LIKEWISE WAS CORRECT AND THE SETTLEMENT OF FEBRUARY 26, 1951, IS SUSTAINED.

CONCERNING YOUR ALLEGATION THAT YOU BELIEVE YOUR FAMILY SHOULD HAVE BEEN ENTITLED TO FAMILY ALLOWANCE FROM FEBRUARY 26 TO JUNE 30, 1945, UNDER THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, AS AMENDED, SECTION 107 (B) OF THE ACT, AS AMENDED BY SECTION 7 OF THE ACT OF OCTOBER 26, 1943, 57 STAT. 578-579, PROVIDED THAT THE MONTHLY FAMILY ALLOWANCE PROVIDED FOR BY THIS TITLE SHALL BE PAID FOR THE PERIOD BEGINNING WITH THE FIRST DAY OF THE MONTH IN WHICH APPLICATION THEREFOR IS FILED, OR THE FIRST DAY OF THE MONTH IN WHICH THE DEPENDENT OR DEPENDENTS FIRST BECOME ENTITLED THERETO, WHICHEVER IS LATER. CONCERNING YOUR STATEMENT IN YOUR CURRENT LETTER THAT YOU INITIATED YOUR APPLICATION FOR FAMILY ALLOWANCE WITHIN 15 DAYS AFTER YOUR REENLISTMENT IN THE ARMY OF THE UNITED STATES ON FEBRUARY 26, 1945, IN YOUR LETTER OF AUGUST 22, 1950, ADDRESSED TO OUR OFFICE, YOU SAID THAT YOUR APPLICATION FOR FAMILY ALLOWANCE WAS NOT SUBMITTED UNTIL JULY 1945. APPARENTLY THIS LATTER DATE IS CONTROLLING IN THE OFFICIAL RECORDS BECAUSE THE DEPARTMENT OF THE ARMY COLLECTED BACK THE SUM OF $490 WHICH WAS PAID TO YOU FOR FAMILY ALLOWANCE FOR THE PERIOD FROM FEBRUARY 26 TO JUNE 30, 1945. THEREFORE, IN THE ABSENCE OF EVIDENCE THAT YOU FILED APPLICATION FOR FAMILY ALLOWANCE WITHIN 15 DAYS AFTER YOUR ENTRY ON ACTIVE DUTY AS A MEMBER OF THE ARMY OF THE UNITED STATES, THERE IS NO LEGAL BASIS TO ALLOW YOUR CLAIM FOR FAMILY ALLOWANCE.

CONCERNING YOUR ALLEGATION IN YOUR PRESENT LETTER THAT YOU DID NOT RECEIVE A CHECK FOR THE SUM OF $527.50, REPRESENTING MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR THE PERIOD MARCH 17, 1942, TO FEBRUARY 3, 1945, WHICH YOU WERE ALLOWED BY CERTIFICATE OF SETTLEMENT NO. 2007282, DATED FEBRUARY 8, 1952, MENTIONED ABOVE, WE HAVE BEEN INFORMALLY ADVISED BY THE TREASURY DEPARTMENT THAT CHECK NO. 14,825,851, DATED FEBRUARY 25, 1952, WHICH WAS ISSUED TO YOU PURSUANT TO THAT SETTLEMENT DOES NOT APPEAR ON THE OUTSTANDING LIABILITY LIST OF THE TREASURY DEPARTMENT FOR FEBRUARY 1952. THEREFORE IT APPEARS THAT THE CHECK HAS BEEN NEGOTIATED AND PAID BY THE TREASURER OF THE UNITED STATES AND DESTROYED PURSUANT TO LAW. IN THIS CONNECTION IN A LETTER OF MARCH 28, 1952, ADDRESSED TO THE CHIEF OF FINANCE, ARMY FINANCE CENTER, ST. LOUIS, MISSOURI, MAKING INQUIRY CONCERNING YOUR RIGHT TO MONETARY ALLOWANCE IN LIEU OF QUARTERS AND FAMILY ALLOWANCE, YOU SAID THAT:

"3. I WAS PAID MAQ FOR THE PERIOD 17 MAR 42 THROUGH 3 FEB 45, UNDER THE MISSING PERSON (PERSONS) ACT OF 1942, 56 STAT. 143, AS AMENDED, ON CLAIM NO. 3021851, BY GENERAL ACCOUNTING OFFICE, WASHINGTON 25, D.C., DTD 8 FEB 52.'

IN THESE CIRCUMSTANCES WE HOPE YOU WILL UNDERSTAND THAT THERE IS NO FURTHER ACTION WE MAY TAKE IN THE MATTER.