B-143214, AUG. 12, 1960

B-143214, AUG. 12, 1960

TO WILLIAM E. SCHMIDT:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 1, 1960, REQUESTING REVIEW OF SETTLEMENT DATED MAY 26, 1960, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE IN PAY AS PRIVATE FIRST CLASS (E-3) AND PRIVATE (E 2) FOR THE PERIOD JUNE 6 TO NOVEMBER 3, 1958, AS A MEMBER OF THE UNITED STATES ARMY.

SUMMARY COURT-MARTIAL ORDER NO. 132, HEADQUARTERS, PUSAN AREA COMMAND, STATES THAT YOU WERE FOUND GUILTY OF ABSENTING YOURSELF FROM YOUR PLACE OF DUTY AT WHICH YOU WERE REQUIRED TO BE ON OR ABOUT MAY 1, 1957, AND SENTENCED ON AUGUST 23, 1957, TO FORFEIT $40 A MONTH FOR ONE MONTH AND TO PERFORM HARD LABOR FOR 30 DAYS WITHOUT CONFINEMENT. THE SENTENCE WAS APPROVED AUGUST 24, 1957, AND HELD TO BE CORRECT IN LAW AND FACT. ALTHOUGH PARAGRAPH 126E OF THE MANUAL FOR COURTS MARTIAL, UNITED STATES, 1951, AS AMENDED, PROVIDES THAT, UNLESS OTHERWISE PRESCRIBED BY DEPARTMENTAL REGULATIONS, IN THE CASE OF AN ENLISTED PERSON OF OTHER THAN THE LOWEST PAY GRADE, AN APPROVED COURT MARTIAL SENTENCE WHICH INCLUDES HARD LABOR WITHOUT CONFINEMENT SHALL REDUCE SUCH PERSON TO THE LOWEST PAY GRADE (E-1), YOU CONTINUED TO BE PAID AS PRIVATE FIRST CLASS (E-3) AFTER YOUR SENTENCE. WHEN IT WAS DISCOVERED THAT YOU HAD BEEN ERRONEOUSLY PAID, THE COMMANDING OFFICER OF HEADQUARTERS, 2D AW BATTALION (SP) 44TH ARTILLERY, FORTH LEWIS, WASHINGTON, WHERE YOU WERE THEN SERVING, ON JUNE 5, 1958, RECOMMENDED THAT YOU BE RETAINED IN THE GRADE OF PRIVATE FIRST CLASS SINCE IT WAS FELT THAT A REDUCTION AT THAT TIME WOULD CONSTITUTE AN INJUSTICE IN THAT YOU WOULD HAVE BEEN PROMOTED TO PRIVATE (E-2) UPON COMPLETION OF YOUR SENTENCE AND NORMALLY WOULD HAVE BEEN PROMOTED TO PRIVATE FIRST CLASS WITHIN A PERIOD OF SIX MONTHS AFTER YOUR COURT-MARTIAL SENTENCE. YOUR RETENTION IN THE GRADE OF PRIVATE FIRST CLASS WAS DENIED. HOWEVER, AFTER FURTHER CONSIDERATION, THERE WAS ISSUED SPECIAL ORDERS NO. 276, FORT LEWIS, WASHINGTON, DATED OCTOBER 23, 1958, PARAGRAPH 18 OF WHICH STATES THAT YOUR SERVICE WAS DETERMINED TO HAVE BEEN IN A DE FACTO STATUS AS PRIVATE FIRST CLASS DURING THE PERIOD SEPTEMBER 23, 1957, TO JUNE 5, 1958. ON THAT BASIS YOU WERE PERMITTED TO RETAIN THE PAY OF THAT GRADE WHICH YOU HAD RECEIVED UP TO AND INCLUDING JUNE 5, 1958. BY MILITARY PAY ORDER NO. 430, DATED NOVEMBER 6, 1958, THE DISBURSING OFFICER WAS AUTHORIZED TO ADJUST YOUR PAY ACCOUNT ON THE BASIS THAT THERE WAS DUE THE UNITED STATES THE DIFFERENCE BETWEEN THE PAY OF A PRIVATE (E-2) AND A PRIVATE FIRST CLASS (E-3) FOR THE PERIOD JUNE 6 TO NOVEMBER 3, 1958, INCLUSIVE. THE PAY ORDER SHOWED THAT YOU WERE REDUCED TO PRIVATE (E-1) ON AUGUST 24, 1957, BY SUMMARY COURT-MARTIAL ORDER NO. 132; THAT YOU WERE APPOINTED PRIVATE (E-2) ON SEPTEMBER 24, 1957, AND THAT YOU WERE ADVANCED TO PRIVATE FIRST CLASS ON NOVEMBER 4, 1958.

ON THE PAY RECORD CLOSED DECEMBER 31, 1958, A DEDUCTION OF $40 WAS MADE TO ADJUST YOUR PAY FROM E-3 TO E-2 FOR THE PERIOD JUNE 6 TO 30, 1958, AND ADJUSTMENT OF THE PAY CREDITS WAS MADE AT THE E-2 RATE FOR THE PERIOD JULY 1 TO NOVEMBER 3, 1958, WHEN AN INCREASE TO PRIVATE FIRST CLASS (E-3) WAS NOTED AS OF NOVEMBER 4, 1958. AS A RESULT OF THIS SECTION WHEN THE PAY RECORD WAS CLOSED ON DECEMBER 31, 1958, IT WAS FOUND THAT YOUR WITHDRAWALS OF PAY AND OTHER CHARGED EXCEEDED THE CREDITS IN THE AMOUNT OF $185.78, FOR WHICH A DEBT LIQUIDATION SCHEDULE WAS SET UP PROVIDING FOR DEDUCTIONS OF $20 A MONTH BEGINNING WITH JANUARY 1959. SUCH DEDUCTIONS FROM YOUR PAY WERE MADE THROUGH SEPTEMBER 1959 AND A DEDUCTION OF $5.78 WAS MADE ON YOUR FINAL PAY ACCOUNT ON DISCHARGE TO LIQUIDATE THE OVERPAYMENT OF $185.78.

IN YOUR REQUEST FOR REVIEW YOU CONTEND YOU HAD NO KNOWLEDGE OF YOUR REDUCTION IN GRADE; THAT IN APRIL 1958 THE PERSONNEL OFFICER ADVISED THAT YOU SHOULD HAVE BEEN REDUCED, AND THAT IN ADDITION TO $185.78 COLLECTED AS SHOWN ABOVE YOU WERE CHARGED WITH TWO $50 ITEMS IN NOVEMBER AND DECEMBER 1958, MAKING A TOTAL OF $285.78 WHICH YOU CLAIM IS DUE YOU.

PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL, UNITED STATES,1951, AS AMENDED, PROVIDES, IN PART, AS FOLLOWS:

"UNLESS OTHERWISE PRESCRIBED IN REGULATIONS PROMULGATED BY THE SECRETARY OF THE DEPARTMENT CONCERNED, IN THE CASE OF AN ENLISTED PERSON OF OTHER THAN THE LOWEST PAY GRADE, A COURT-MARTIAL SENTENCE WHICH, AS APPROVED BY THE CONVENING AUTHORITY, INCLUDES: (1) DISHONORABLE OR BAD-CONDUCT DISCHARGE, WHETHER OR NOT SUSPENDED, (2) CONFINEMENT, OR (3) HARD LABOR WITHOUT CONFINEMENT, IMMEDIATELY, UPON BEING SO APPROVED, SHALL REDUCE SUCH ENLISTED PERSON TO THE LOWEST ENLISTED PAY GRADE; PROVIDED, THAT THE RATE OF PAY OF THE PERSON SO REDUCED SHALL BE COMMENSURATE WITH HIS CUMULATIVE SERVICE; AND PROVIDED FURTHER, THAT ANY PERSON SO REDUCED SHALL HAVE ALL RIGHTS, PRIVILEGES, AND PROPERTY AFFECTED BY SUCH REDUCTION RESTORED IF THE SENTENCE IS SUBSEQUENTLY SET ASIDE OR DISAPPROVED, OR IF THE SENTENCE AS FINALLY APPROVED DOES NOT CONTAIN ANY OF THE ELEMENTS LISTED ABOVE.'

IN THE CASE OF AN ENLISTED PERSON SERVING IN OTHER THAN THE LOWEST PAY GRADE WHO RECEIVES AN APPROVED COURT-MARTIAL SENTENCE WHICH INCLUDES (1) DISHONORABLE OR BAD-CONDUCT DISCHARGE, (2) CONFINEMENT, OR (3) HARD LABOR WITHOUT CONFINEMENT, THE ABOVE PROVISIONS EFFECT A REDUCTION OF SUCH PERSON TO THE LOWEST PAY GRADE. HOWEVER, WHEN YOUR SENTENCE WAS APPROVED SUCH A REDUCTION WAS NOT ENTERED IN YOUR RECORD AND APPARENTLY YOU WERE NOT NOTIFIED AT THAT TIME OF A REDUCTION TO THE LOWEST ENLISTED GRADE BUT CONTINUED TO PERFORM THE DUTIES AND RECEIVE THE PAY OF A PRIVATE FIRST CLASS. IN VIEW THEREOF IT WAS ADMINISTRATIVELY DETERMINED THAT YOUR SERVICE THROUGH JUNE 5, 1958, WAS IN THE DE FACTO STATUS OF A PRIVATE FIRST CLASS AND THAT YOU WERE A PRIVATE (E-2) FROM JUNE 6 TO NOVEMBER 4, 1958, WHEN YOU WERE AGAIN APPOINTED A PRIVATE FIRST CLASS.

THE CORRECTNESS OF THE ADMINISTRATIVE DETERMINATION RESPECTING YOUR STATUS FROM THE EFFECTIVE DATE OF YOUR COURT-MARTIAL SENTENCE UNTIL NOVEMBER 4, 1958, IS NOT FREE FROM DOUBT. IT APPEARS, HOWEVER, TO HAVE BEEN PROPERLY CONCLUDED THAT YOU WERE NOT ENTITLED TO THE PAY OF GRADE K-3 DURING THE PERIOD JUNE 6 TO NOVEMBER 3, 1958, SINCE YOU SAY YOU WERE NOTIFIED PRIOR TO THAT PERIOD THAT YOU SHOULD HAVE BEEN REDUCED TO THE LOWEST ENLISTED GRADE, AND IT WAS DETERMINED THAT YOU HELD ONLY GRADE E- 2. ACCORDINGLY, YOUR CLAIM FOR THE DIFFERENCE IN PAY OF GRADE E-3 (PRIVATE FIRST CLASS) FOR SUCH PERIOD PROPERLY WAS DISALLOWED.

IN VIEW OF YOUR CONTENTION THAT THE SUM OF $285.78 HAD BEEN ERRONEOUSLY COLLECTED FROM YOUR PAY, A COMPLETE EXAMINATION OF YOUR PAY RECORDS HAS BEEN MADE FROM JANUARY 1, 1956, TO DATE OF DISCHARGE, NOVEMBER 5, 1959, AND NO DEDUCTIONS OF $50 EACH AS CONTENDED BY YOU WERE FOUND TO HAVE BEEN MADE. WE NOTE A DEDUCTION OF $90 ON PAYROLL CLOSED JUNE 30, 1957, PURSUANT TO SUMMARY COURT-MARTIAL ORDER NO. 3 WHICH APPARENTLY PROVIDED FOR A FORFEITURE OF $30 A MONTH FOR THREE MONTHS. ON PAY RECORD CLOSED DECEMBER 31, 1957, $40 WAS DEDUCTED TO COVER THE FORFEITURE IMPOSED BY SUMMARY COURT-MARTIAL NO. 132. DIFFERENCE IN PAY BETWEEN E-3 AND E-2 FOR THE PERIOD JUNE 6 TO 30, 1958, IN THE AMOUNT OF $40 WAS DEDUCTED ON THE PAY RECORD CLOSED DECEMBER 31, 1958. THE $185.78 ITEM, SET UP FOR LIQUIDATION BY INSTALLMENT DEDUCTIONS, WAS DUE IN MOST PART TO ADJUSTMENT IN PAY FROM E-3 TO E-2 FOR THE PERIOD JULY 1 TO NOVEMBER 4, 1958, IN ACCORDANCE WITH MILITARY PAY ORDER NO. 430 AND WAS PROPERLY DUE THE UNITED STATES. IN VIEW OF THE FOREGOING, THERE IS NO BASIS FOR YOUR CLAIM AND OUR SETTLEMENT DATED MAY 26, 1950, MUST BE SUSTAINED.