B-125431, MAY 25, 1956

B-125431, MAY 25, 1956

TO LIEUTENANT COLONEL M. L. JOHNSON, DISBURSING OFFICER, THROUGH THE HONORABLE HUGH M. MILTON II, ASSISTANT SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 25, 1955, REQUESTING DECISION WHETHER PAY AND ALLOWANCES MAY BE PAID IN THE CASE OF SERGEANT SCOTT L. RUSH, RA 15 277 362, FOR THE PERIOD HE WAS CARRIED IN A CASUALTY STATUS UNDER THE PROVISIONS OF THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C. APP. 1001-1015.

SERGEANT RUSH WAS REPORTED MISSING-IN-ACTION EFFECTIVE NOVEMBER 25, 1950, AND HIS STATUS WAS LATER CHANGED FROM MISSING-IN-ACTION TO CAPTURED. OTHER PERTINENT FACTS ARE STATED IN YOUR LETTER 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.'

BY LETTER OF JANUARY 24, 1956, TO THE SECRETARY OF THE ARMY RESPECTING THIS CASE, WE CALLED ATTENTION, AMONG OTHER THINGS, TO THE FACT THAT:

"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. * * *"

WHILE THE REPLY OF APRIL 20, 1956, FROM ASSISTANT SECRETARY OF THE ARMY MILTON, RELATED THAT SERGEANT RUSH WAS DETERMINED TO BE IN A MISSING-IN- ACTION STATUS EFFECTIVE NOVEMBER 26, 1950, AND THAT ON JANUARY 24, 1952, HIS STATUS WAS REDETERMINED, BASED UPON NEW INFORMATION, FROM MISSING-IN- ACTION TO CAPTURED, NO REFERENCE WAS MADE TO ANY DETERMINATION OR REDETERMINATION AS TO HIS ENTITLEMENT TO PAY FOR THE PERIOD INVOLVED, OR AS TO THE CREDITS AND CHARGES IN HIS ACCOUNT.

SECTION 9 OF THE MISSING PERSONS ACT OF MARCH 7, 1942, AS AMENDED, 50 U.S.C. 1009, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"* * * DETERMINATIONS ARE AUTHORIZED TO BE MADE BY THE HEAD OF THE DEPARTMENT CONCERNED, OR BY SUCH SUBORDINATE AS HE MAY DESIGNATE, OF ENTITLEMENT OF ANY PERSON, UNDER PROVISIONS OF THIS ACT (SECTION 1001- - 1012 AND 1013--- 1016 OF THIS APPENDIX), TO PAY AND ALLOWANCES, INCLUDING CREDITS AND CHARGES IN HIS ACCOUNT, AND ALL SUCH DETERMINATIONS SHALL BE CONCLUSIVE: * * * WHEN CIRCUMSTANCES WARRANT RECONSIDERATION OF ANY DETERMINATION AUTHORIZED TO BE MADE BY THIS ACT (SAID SECTIONS) THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH SUBORDINATE AS HE MAY DESIGNATE, MAY CHANGE OR MODIFY A PREVIOUS DETERMINATION. * * *"

CONSISTENTLY, IN THE CONSIDERATION OF CLAIMS OR VOUCHERS PRESENTED TO THIS OFFICE FOR SETTLEMENT OR DECISION WHICH INVOLVE PAY AND ALLOWANCES OF PERSONS, OR IN BEHALF OF PERSONS OR ESTATES, UNDER SECTION 2 OF THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C. 1002, OUR ACTION HAS NECESSARILY BEEN BASED ON DETERMINATIONS OR REDETERMINATIONS BY THE HEAD OF THE DEPARTMENT CONCERNED, OR HIS DESIGNEE, OF STATUS, ENTITLEMENT, AND THE PAY AND ALLOWANCES DUE IN THE ACCOUNT, INCLUDING ALL CREDITS AND CHARGES. INASMUCH AS SUCH ADMINISTRATIVE DETERMINATIONS AND REDETERMINATIONS ARE, UNDER THE LAW, MADE CONCLUSIVE, WE WOULD NOT BE WARRANTED IN AUTHORIZING PAYMENT ON A VOUCHER OR CLAIM EXCEPT IT BE SUPPORTED IN THE MANNER STIPULATED BY THE TERMS OF THE STATUTE. ACCORDINGLY, SINCE THERE HAS NOT BEEN FURNISHED A STATEMENT OF THE ACCOUNT OF SCOTT L. RUSH FROM THE DATE HE WENT MISSING, BASED UPON A DETERMINATION OR REDETERMINATION OF ENTITLEMENT BY THE PROPER OFFICIAL, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER, WHICH WILL BE RETAINED IN THIS OFFICE.