B-103187, DEC 5, 1951

B-103187, DEC 5, 1951

PRECIS-UNAVAILABLE

MR. LAWRENCE A. CROSS, JR.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 14, 1951, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED MARCH 26, 1951, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF FAMILY ALLOWANCE DEDUCTIONS AT $22 PER MONTH FOR THE PERIOD JULY 1, 1946, TO MARCH 31, 1949, ASSERTED TO HAVE BEEN MADE FROM AMOUNTS OTHERWISE DUE YOU INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN IN THE UNITED STATES AIR FORCE.

IN THE SAID SETTLEMENT YOU WERE ADVISED THAT THE OFFICIAL RECORDS SHOW THAT FAMILY ALLOWANCE PAYMENTS WERE MADE TO YOUR DEPENDENTS AT THE RATE OF $100 PER MONTH FROM SEPTEMBER 1946, TO JUNE 1948, AND FROM APRIL 1949 TO AUGUST 1949, AND THAT YOU WERE ABSENT WITHOUT LEAVE FROM APRIL 1, 1948, TO APRIL 7, 1949. YOU WERE FURTHER ADVISED THAT SINCE NO PAY ACCRUED TO YOU FROM APRIL 1, 1948, TO APRIL 7, 1949, NO DEDUCTIONS FOR FAMILY ALLOWANCE WERE MADE FOR THE PERIOD FROM JULY 1, 1948, TO MARCH 31, 1949.

YOU STATE THAT AFTER YOUR RETURN TO MILITARY CONTROL YOU EARNED THE FULL PAY AND ALLOWANCES (1) OF A MASTER SERGEANT FOR FIVE MONTHS AND (2) OF A PRIVATE FROM THE TIME OF YOUR COURT-MARTIAL TO THE DATE OF YOUR DISCHARGE AND THAT DURING SUCH TIME YOU RECEIVED NO PAY EXCEPT YOUR FINAL PAY. YOU INDICATE THAT IT IS YOUR BELIEF THAT WHEN YOU RECEIVED YOUR FINAL PAY, FAMILY ALLOWANCE DEDUCTIONS AT THE RATE OF $22 PER MONTH WERE MADE THEREFROM FOR THE TWELVE-MONTH PERIOD FROM APRIL 1, 1948, THROUGH MARCH 31, 1949, WHILE YOU WERE ABSENT WITHOUT LEAVE, AND FOR THE FIVE-MONTH PERIOD THEREAFTER, DESIGNATED BY YOU AS THE FIVE MONTHS OF INCARCERATION. YOU STATE THAT DURING SUCH PERIOD YOUR WIFE RECEIVED FAMILY ALLOWANCE CHECKS FOR ONLY EIGHT MONTHS-- FOR APRIL, MAY AND JUNE 1948, AND FOR THE PERIOD FROM APRIL 1, 1949, THROUGH AUGUST 1949. CONSEQUENTLY, YOU BELIEVE THAT THERE IS DUE YOU $198, AS REFUND OF FAMILY ALLOWANCE DEDUCTIONS FOR THE NINE-MONTH PERIOD FROM JULY 1, 1948, TO MARCH 31, 1949, WHEN YOUR WIFE DID NOT RECEIVE THE FAMILY ALLOWANCE.

THE OFFICIAL RECORDS SHOW THAT YOU ENLISTED IN THE REGULAR ARMY ON NOVEMBER 9, 1945, TO SERVE THREE YEARS AND THAT YOU WERE DISCHARGED ON AUGUST 17, 1949, A PRIVATE, UNITED STATES AIR FORCE. YOU WERE ABSENT WITHOUT OFFICIAL LEAVE FROM FEBRUARY 11 TO 14, 1948, AND ALSO FROM APRIL 1, 1948, TO APRIL 7, 1949, AND IN CONFINEMENT FROM APRIL 8, 1949 TO AUGUST 12, 1949 ALL DATES INCLUSIVE. YOU WERE TRIED AND FOUND GUILTY BEFORE A GENERAL COURT MARTIAL FOR VIOLATION OF THE 61ST ARTICLE OF WAR IN THAT YOU DID, ON OR ABOUT APRIL 1, 1948, ABSENT YOURSELF WITHOUT OFFICIAL LEAVE AND DID REMAIN ABSENT WITHOUT LEAVE UNTIL YOU SURRENDERED YOURSELF, ON OR ABOUT APRIL 7, 1949. YOU WERE SENTENCED TO BE DISCHARGED FROM THE SERVICE WITH A BAD CONDUCT DISCHARGE, TO BE CONFINED AT HARD LABOR FOR A PERIOD OF THREE MONTHS, AND TO FORFEIT $50 OF YOUR PAY PER MONTH FOR A LIKE PERIOD, SENTENCE ADJUDGED JULY 1, 1949. THE SENTENCE WAS APPROVED AUGUST 10, 1949, BUT THE UNEXECUTED PORTION OF SO SUCH THEREOF AS PERTAINED TO CONFINEMENT AT HARD LABOR WAS REMITTED.

IT APPEARS FROM THE RECORDS THAT THE FAMILY ALLOWANCE WAS PAID TO YOUR DEPENDENTS FOR APRIL, MAY, AND JUNE 1948, AND FOR THE PERIOD FROM APRIL 1949 THROUGH AUGUST 1949. YOU WERE PAID FOR MARCH 1948 ON VOUCHER NO. 24499, APRIL 1948 ACCOUNTS OF L. CARROLL. NO RECORD HAS BEEN FOUND SHOWING THAT YOU WERE PAID FOR ANY PART OF THE PERIOD FROM APRIL 1, 1948, TO JUNE 30, 1949. IT APPEARS FROM YOUR MILITARY PAY RECORD FOR THE PERIOD FROM JULY 1 TO AUGUST 17, 1949, THAT FOR THE PERIOD FROM JULY 1 TO AUGUST 10, 1949, YOU WERE CREDITED WITH THE PAY OF A MASTER SERGEANT WITH OVER NINE YEARS OF SERVICE ($189.75 PER MONTH), $253, AND FROM AUGUST 11 TO 17 WITH THE PAY OF A PRIVATE WITH OVER NINE YEARS OF SERVICE ($86.25 PER MONTH), $20.13, OR A TOTAL OF $273.13. THE CHARGES AGAINST YOUR ACCOUNT FOR THE PERIOD FROM JULY 1 TO AUGUST 17, 1949, TOTALED $98.20, COMPRISING THE FOLLOWING ITEMS: (1) FAMILY ALLOWANCE DEDUCTIONS FOR TWO MONTHS AT $22 PER MONTH, $44; (2) COURT-MARTIAL FORFEITURE, $50; (3) GOVERNMENT LAUNDRY SERVICE, $4; AND (4) SOLDIERS' HOME DEDUCTIONS, $0.20. YOU WERE PAID $174.93 (THE DIFFERENCE BETWEEN $273.13 AND $98.20). OF THIS AMOUNT YOU WERE PAID THE SUM OF $100 IN CASH ON AUGUST 17, 1949, AS EVIDENCED BY VOUCHER NO. 882, AUGUST 1949 ACCOUNTS OF J. M. COOK, JR. YOU WERE PAID THE SUM OF $74.93 BY CHECK NO. 5549, DATED AUGUST 17, 1949, DRAWN TO YOUR ORDER BY J. M. COOK, JR.

THE 107TH ARTICLE OF WAR, 41 STAT. 809, IS AS FOLLOWS:

"SOLDIER TO MAKE GOOD TIME LOST.-- EVERY SOLDIER WHO IN AN EXISTING OR SUBSEQUENT ENLISTMENT DESERTS THE SERVICE OF THE UNITED STATES OR WITHOUT PROPER AUTHORITY ABSENTS HIMSELF FROM HIS ORGANIZATION, STATION, OR DUTY FOR MORE THAN ONE DAY, OR WHO IS CONFINED FOR MORE THAN ONE DAY UNDER SENTENCE, OR WHILE AWAITING TRIAL AND DISPOSITION OF HIS CASE, IF THE TRIAL RESULTS IN CONVICTION, OR THROUGH THE INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUOR, OR THROUGH DISEASE OR INJURY THE RESULT OF HIS OWN MISCONDUCT, RENDERS HIMSELF UNABLE FOR MORE THAN ONE DAY TO PERFORM DUTY, SHALL BE LIABLE TO SERVE, AFTER HIS RETURN TO A FULL-DUTY STATUS, FOR SUCH PERIOD AS SHALL, WITH THE TIME HE MAY HAVE SERVED PRIOR TO SUCH DESERTION, UNAUTHORIZED ABSENCE, CONFINEMENT, OR INABILITY TO PERFORM DUTY, AMOUNT TO THE FULL TERM OF THAT PART OF HIS ENLISTMENT PERIOD WHICH HE IS REQUIRED TO SERVE WITH HIS ORGANIZATION BEFORE BEING FURLOUGHED TO THE ARMY RESERVE."

PARAGRAPH 6C OF ARMY REGULATIONS NO. 35-1420, DATED DECEMBER 15, 1939, WHICH WERE IN EFFECT DURING THE PERIOD INVOLVED, PROVIDES AS FOLLOWS:

"IF AN ENLISTED MAN IN DESERTION, OR ABSENT WITHOUT LEAVE, SURRENDERS OR IS APPREHENDED AFTER THE EXPIRATION OF HIS ENLISTMENT PERIOD, HIS PAY AND ALLOWANCES WILL NOT AGAIN ACCRUE UNTIL HE SHALL HAVE BEEN RESTORED TO A DUTY STATUS."

YOUR DEFINITE PERIOD OF ACTUAL SERVICE REQUIRED BY YOUR ENLISTMENT CONTRACT WAS NOVEMBER 9, 1945, TO NOVEMBER 8, 1948. DURING THIS PERIOD YOU WERE ABSENT WITHOUT LEAVE FROM FEBRUARY 11 TO 14, 1948, AND FROM APRIL 1, 1948, TO NOVEMBER 8, 1948. YOU WERE ABSENT ON NOVEMBER 8, 1948, AND WERE NEVER RESTORED TO DUTY FOR THE PURPOSE OF MAKING GOOD TIME LOST DURING THE PERIOD COVERED BY YOUR CONTRACT OF ENLISTMENT. ALTHOUGH YOU SURRENDERED TO THE MILITARY AUTHORITIES ON APRIL 7, 1949, YOU WERE IN CONFINEMENT FROM THAT DATE TO AUGUST 12, 1949. THIS WAS NOT SERVICE UNDER YOUR CONTRACT OF ENLISTMENT, NOR WAS IT SERVICE MAKING GOOD TIME LOST UNDER YOUR CONTRACT OF ENLISTMENT, AND PAYMENT FOR SUCH PERIOD WAS NOT AUTHORIZED. NOR WERE YOU ENTITLED TO PAY FROM AUGUST 12, 1949, THE DATE OF YOUR RELEASE FROM CONFINEMENT, IT APPEARING THAT UPON SUCH RELEASE YOU WERE NOT RESTORED TO DUTY FOR PAY PURPOSES OR FOR THE PURPOSE OF MAKING GOOD TIME LOST UNDER ARTICLE OF WAR 107, BUT THAT YOU WERE MERELY HELD FOR A REASONABLE TIME FOR THE PURPOSE OF DISCHARGE FROM THE SERVICE.

YOU WERE CORRECTLY INFORMED IN THE SETTLEMENT OF MARCH 26, 1951, THAT NO PAY ACCRUED TO YOU FOR THE PERIOD FROM APRIL 1, 1948, TO APRIL 7, 1949, AND THAT NO DEDUCTIONS WERE MADE FOR THE FAMILY ALLOWANCE FOR THE PERIOD FROM JULY 1, 1948, TO MARCH 31, 1949. UPON REVIEW, IT IS FOUND THAT YOU WERE ERRONEOUSLY PAID THE SUM OF $174.93 FOR THE PERIOD FROM JULY 1 TO AUGUST 17, 1949.