B-125431, JAN. 24, 1956
Highlights
SERGEANT RUSH WAS REPORTED MISSING IN ACTION EFFECTIVE NOVEMBER 26. HIS STATUS WAS LATER CHANGED FROM MISSING IN ACTION TO CAPTURED. OTHER PERTINENT FACTS ARE STATED IN THE REQUEST FOR DECISION AS FOLLOWS: "SUBSEQUENT TO THE SUCCESSFUL PEACE NEGOTIATIONS IN KOREA AND THE EXCHANGE OF PRISONERS OF WAR BETWEEN OPPOSING FORCES (OPERATION BIG SWITCH. AUGUST 1953) NOTICE WAS RECEIVED THAT APPROXIMATELY TWENTY-ONE (21) ARMY MEMBERS. THESE NOTICES WERE IN THE FORM OF BATTLE CASUALTY REPORTS ISSUED BY THE ADJUTANT GENERAL IN EACH INDIVIDUAL CASE. BATTLE CASUALTY REPORT NO. 109367 DATED 29 JANUARY 1954 (INCLOSURE NO. 8) PERTAINING TO SERGEANT RUSH INDICATES THAT SERVICEMAN WAS DISHONORABLY DISCHARGED UNDER THE PROVISIONS OF PARAGRAPH 2.
B-125431, JAN. 24, 1956
TO HONORABLE SECRETARY OF THE ARMY:
BY LETTER DATED AUGUST 25, 1955, LIEUTENANT COLONEL M. L. JOHNSON, F.C., DISBURSING OFFICER, REQUESTED DECISION AS TO THE PROPRIETY OF PAYING A VOUCHER COVERING PAY AND ALLOWANCES ACCRUING TO FORMER SERGEANT SCOTT L. RUSH, RA 15 277 362, WHILE IN A MISSING AND PRISONER STATUS UNDER THE PROVISIONS OF THE MISSING PERSONS ACT DURING THE PERIOD NOVEMBER 26, 1950, THROUGH JANUARY 23, 1954.
SERGEANT RUSH WAS REPORTED MISSING IN ACTION EFFECTIVE NOVEMBER 26, 1950, AND HIS STATUS WAS LATER CHANGED FROM MISSING IN ACTION TO CAPTURED. OTHER PERTINENT FACTS ARE STATED IN THE REQUEST FOR DECISION AS FOLLOWS:
"SUBSEQUENT TO THE SUCCESSFUL PEACE NEGOTIATIONS IN KOREA AND THE EXCHANGE OF PRISONERS OF WAR BETWEEN OPPOSING FORCES (OPERATION BIG SWITCH, AUGUST 1953) NOTICE WAS RECEIVED THAT APPROXIMATELY TWENTY-ONE (21) ARMY MEMBERS, INCLUDING SERGEANT RUSH, REFUSED TO ELECT REPATRIATION AND REMAINED ABSENT IN THE CUSTODY OF THE NEUTRAL NATIONS REPATRIATION COMMISSION. THESE NOTICES WERE IN THE FORM OF BATTLE CASUALTY REPORTS ISSUED BY THE ADJUTANT GENERAL IN EACH INDIVIDUAL CASE. BATTLE CASUALTY REPORT NO. 109367 DATED 29 JANUARY 1954 (INCLOSURE NO. 8) PERTAINING TO SERGEANT RUSH INDICATES THAT SERVICEMAN WAS DISHONORABLY DISCHARGED UNDER THE PROVISIONS OF PARAGRAPH 2, AR 615-365, EFFECTIVE 0001 HOURS 23 JANUARY 1954.'
THE VOUCHER (NOT ITEMIZED) IS STATED AS FOLLOWS:
"PAY AND ALLOWANCES DUE ACCRUED SCOTT L. RUSH, RA 15 277 362, WHILE IN A CAPTURED STATUS UNDER PUBLIC LAW 490, 77TH CONGRESS, AS AMENDED, FROM 26 NOVEMBER 1950 TO 23 JANUARY 1954. $5696.92"
THERE HAS NOT BEEN PRESENTED TO THIS OFFICE A STATEMENT OF THE DETERMINATIONS OF STATUS MADE WITH RESPECT TO THE PERIOD ON AND AFTER RUSH REFUSED TO ELECT REPATRIATION, NOR HAS THERE BEEN FURNISHED A DETAILED STATEMENT FROM WHICH WE CAN DETERMINE WHETHER RUSH WAS IN A STATUS ENTITLING HIM TO PAY ON AND AFTER THE DATE OF HIS REFUSAL TO RETURN.
IN VIEW OF THE CONCLUSIVENESS OF THE ADMINISTRATIVE DETERMINATIONS OF STATUS OF MISSING AND CAPTURED PERSONS AND THEIR RIGHT TO PAY AND ALLOWANCES, INCLUDING DEBITS AND CREDITS IN THEIR ACCOUNTS, UNDER THE PROVISIONS OF THE MISSING PERSONS ACT (SEE MORENO V. UNITED STATES, 118 C.CLS. 30), IT IS REQUESTED THAT WE BE FURNISHED A COPY OF THE PERTINENT DETERMINATIONS OR REDETERMINATIONS MADE WITH RESPECT TO RUSH'S STATUS AND ENTITLEMENT TO PAY AND ALLOWANCES. YOUR REPORT SHOULD INCLUDE A DEFINITE STATEMENT AS TO WHETHER THIS FORMER ENLISTED MAN WAS EVER DECLARED A DESERTER, AND, IF NOT, WHETHER THE DEPARTMENT OF THE ARMY IS AWARE OF ANY STATUTE, OR STATUTORY REGULATION, WHICH WOULD HAVE THE LEGAL EFFECT OF FORFEITING ACCRUED PAY AND ALLOWANCES OTHERWISE DUE AT THE TIME OF THE ISSUANCE TO HIM OF A DISHONORABLE DISCHARGE FROM THE ARMY.
A DECISION ON THE QUESTION PRESENTED BY THE DISBURSING OFFICER WILL BE HELD IN ABEYANCE PENDING THE RECEIPT OF YOUR REPLY.