B-119423, AUGUST 23, 1954, 34 COMP. GEN. 93

B-119423: Aug 23, 1954

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ETC. - CORRECTION - ENTITLEMENT TO ACTIVE DUTY PAY AND TRAVEL ALLOWANCE A FORMER ARMY ENLISTED MAN WHOSE MILITARY RECORDS WERE CORRECTED PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946. IS NOT ENTITLED TO SUCH FORFEITED PAY AND ALLOWANCES. MEMBER IS ENTITLED TO THE TRAVEL ALLOWANCE WHICH IS INCIDENT TO HONORABLE DISCHARGE. 1954: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 24. IT IS STATED IN YOUR LETTER THAT PURSUANT TO A SPECIAL COURT-MARTIAL SENTENCE OF MARCH 2. MILLER WAS GIVEN A DISHONORABLE DISCHARGE AND ALL PAY AND ALLOWANCES ACCRUING TO HIS ACCOUNT AFTER FEBRUARY 1. WERE FORFEITED. FROM WHICH AMOUNT VARIOUS ITEMS TOTALING $244.17 WERE DEDUCTED FOR DEPOSIT TO MISCELLANEOUS RECEIPT AND $173.12 WAS DEDUCTED AS WITHHOLDING TAX.

B-119423, AUGUST 23, 1954, 34 COMP. GEN. 93

RECORDS - MILITARY, NAVAL, ETC. - CORRECTION - ENTITLEMENT TO ACTIVE DUTY PAY AND TRAVEL ALLOWANCE A FORMER ARMY ENLISTED MAN WHOSE MILITARY RECORDS WERE CORRECTED PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, TO SHOW MEDICAL DISCHARGE IN LIEU OF DISHONORABLE DISCHARGE WITH DIRECTION TO PAY FORFEITED PAY AND ALLOWANCES, BUT NOT CORRECTED TO DELETE OR MODIFY THE PAY FORFEITURE PROVISIONS OF COURT-MARTIAL SENTENCES, IS NOT ENTITLED TO SUCH FORFEITED PAY AND ALLOWANCES; HOWEVER, MEMBER IS ENTITLED TO THE TRAVEL ALLOWANCE WHICH IS INCIDENT TO HONORABLE DISCHARGE.

ACTING COMPTROLLER GENERAL WEITZEL TO CAPTAIN C. L. CARDWELL, DEPARTMENT OF THE ARMY, AUGUST 23, 1954:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 24, 1954, WITH ENCLOSURES, FORWARDED HERE BY FIRST ENDORSEMENT OF MARCH 22, 1954, FROM OFFICE CHIEF OF FINANCE, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER, TRANSMITTED THEREWITH, IN FAVOR OF BERNARD B. MILLER COVERING PAY AND ALLOWANCES AND TRAVEL PAY BELIEVED TO BE DUE AS A RESULT OF A CORRECTION OF HIS MILITARY RECORDS BY THE DEPARTMENT OF THE ARMY IN ACCORDANCE WITH SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, APPROVED AUGUST 2, 1946, AS AMENDED BY PUBLIC LAW 220, 82D CONGRESS, APPROVED OCTOBER 25, 1951, 65 STAT. 655.

IT IS STATED IN YOUR LETTER THAT PURSUANT TO A SPECIAL COURT-MARTIAL SENTENCE OF MARCH 2, 1944, AND A GENERAL COURT-MARTIAL SENTENCE OF MAY 11, 1944, BERNARD B. MILLER WAS GIVEN A DISHONORABLE DISCHARGE AND ALL PAY AND ALLOWANCES ACCRUING TO HIS ACCOUNT AFTER FEBRUARY 1, 1944, WERE FORFEITED.

THE VOUCHER COVERS BASE PAY FROM FEBRUARY 1, 1944, TO SEPTEMBER 8, 1945, THE DATE OF SEPARATION, IN THE AMOUNT OF $865.60 AND MILEAGE FROM CAMP HOOD, TEXAS, TO BROOKLYN, NEW YORK, IN THE AMOUNT OF $92.35, AGGREGATING $957.95, FROM WHICH AMOUNT VARIOUS ITEMS TOTALING $244.17 WERE DEDUCTED FOR DEPOSIT TO MISCELLANEOUS RECEIPT AND $173.12 WAS DEDUCTED AS WITHHOLDING TAX, LEAVING A NET BALANCE CLAIMED OF $540.66.

UNDER DATE OF MAY 21, 1948, THE SECRETARY OF THE ARMY ISSUED A MEMORANDUM FOR THE ADJUTANT GENERAL, WHICH IS AS FOLLOWS:

HAVING RECEIVED AND APPROVED THE RECOMMENDATION OF THE ARMY BOARD ON CORRECTION OF MILITARY RECORDS IN THE CASE OF FORMER PRIVATE BERNARD B. MILLER, 12 121 247, AND UNDER THE AUTHORITY VESTED IN ME BY SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946 ( PUBLIC LAW 601, 79TH CONGRESS), IT IS DIRECTED:

1. THAT ALL OF THE MILITARY RECORDS OF FORMER PRIVATE BERNARD B. MILLER, 12 121 247, BE CORRECTED TO SHOW HIM MEDICALLY SEPARATED FROM THE MILITARY SERVICE SEPTEMBER 8, 1945, IN LIEU OF THE DISHONORABLE DISCHARGE NOW HELD BY HIM.

2. THAT THE DEPARTMENT OF THE ARMY ISSUE TO BERNARD B. MILLER, 12 121 247, A MEDICAL DISCHARGE CERTIFICATE, WDAGO FORM 55, DATED SEPTEMBER 8, 1945, IN LIEU OF THE DISHONORABLE DISCHARGE NOW HELD BY HIM. ON SEPTEMBER 5, 1952, AN ADDITIONAL MEMORANDUM WAS ADDRESSED TO THE ADJUTANT GENERAL BY THE SUCCEEDING SECRETARY OF THE ARMY AS FOLLOWS:

HAVING RECEIVED AND CONSIDERED THE RECOMMENDATIONS OF THE ARMY BOARD ON CORRECTION OF MILITARY RECORDS IN THE CASE OF BERNARD B. MILLER, 12 121 247, AND UNDER THE AUTHORITY VESTED IN ME BY SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, ( PUBLIC LAW 220, 82D CONGRESS), IT IS DIRECTED:

THAT THE DEPARTMENT OF THE ARMY PAY TO BERNARD B. MILLER, 12 121 247, OR OTHER PROPER PARTY OR PARTIES, ALL MONEY FOUND TO BE DUE AS A RESULT OF THE CORRECTION OF MILITARY RECORD DIRECTED BY THE SECRETARY OF THE ARMY UNDER DATE OF 21 MAY 1948, INCLUDING, BUT NOT LIMITED TO, PAY AND ALLOWANCES FROM 1 FEBRUARY TO 11 MAY 1944 FORFEITED BY THE SPECIAL COURT- MARTIAL SENTENCE OF 2 MARCH 1944 AND THE GENERAL COURT MARTIAL SENTENCE OF 11 MAY 1944. SECTION 207 OF THE ACT OF AUGUST 2, 1946, AS AMENDED BY PUBLIC LAW 220, IS IN PART AS FOLLOWS:

(A) THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE AND THE SECRETARY OF THE TREASURY (WITH RESPECT TO THE COAST GUARD), RESPECTIVELY, UNDER PROCEDURES SET UP BY THEM, AND ACTING THROUGH BOARDS OF CIVILIAN OFFICERS OR EMPLOYEES OF THEIR RESPECTIVE DEPARTMENTS, ARE AUTHORIZED TO CORRECT ANY MILITARY OR NAVAL RECORD WHERE IN THEIR JUDGMENT SUCH ACTION IS NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE, AND CORRECTIONS SO MADE SHALL BE FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE GOVERNMENT EXCEPT WHEN PROCURED BY MEANS OF FRAUD: * * *

(B) THE DEPARTMENT CONCERNED IS AUTHORIZED TO PAY, OUT OF APPLICABLE CURRENT APPROPRIATIONS, CLAIMS OF ANY PERSONS, THEIR HEIRS AT LAW OR LEGAL REPRESENTATIVES AS HEREINAFTER PROVIDED, OF AMOUNTS PAID AS FINES, FORFEITURES, OR FOR LOSSES OF PAY (INCLUDING RETIRED OR RETIREMENT PAY), ALLOWANCES, COMPENSATION, EMOLUMENTS, OR OTHER MONETARY BENEFITS, AS THE CASE MAY BE, WHICH ARE FOUND TO BE DUE ON ACCOUNT OF MILITARY OR NAVAL SERVICE AS A RESULT OF THE ACTION HERETOFORE TAKEN PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, OR HEREAFTER TAKEN PURSUANT TO SUBSECTION (A) OF THIS SECTION: * * * IN DECISION DATED NOVEMBER 19, 1952, B 96905, 32 COMP. GEN. 242, IT WAS STATED THAT WHILE SUBSECTION (B) OF SAID SECTION 207, 65 STAT. 655, AUTHORIZES THE DEPARTMENT CONCERNED TO PAY CLAIMS FOR AMOUNTS DUE ON ACCOUNT OF MILITARY OR NAVAL SERVICE AS A RESULT OF CORRECTION OF RECORDS MADE PURSUANT TO THE PRECEDING SUBSECTION 207 (A), 65 STAT. 655, THE SAID SUBSECTION 207 (A) DOES NOT AUTHORIZE A CORRECTION OF RECORDS TO SHOW THE AMOUNT DUE OR THAT ANY AMOUNT IS DUE OR THAT THE CLAIMANT WILL BE ENTITLED TO ANY MONETARY BENEFITS. THE AMOUNT TO BE PAID UNDER SUBSECTION 207 (B) PURSUANT TO A CORRECTION OF RECORDS UNDER SUBSECTION 207 (A) DEPENDS UPON A PROPER APPLICATION OF THE PAY STATUTES TO THE FACTS IN THE CASE AND THE CLAIMANT'S STATUS AS FIXED BY HIS CORRECTED RECORDS. SUBSECTION 207 (A) PROVIDES THAT CORRECTIONS MADE THEREUNDER SHALL BE FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE GOVERNMENT EXCEPT WHEN PROCURED BY FRAUD BUT SUBSECTION 207 (B), AUTHORIZING PAYMENTS BASED ON SUCH CORRECTIONS, DOES NOT MAKE DEPARTMENTAL DETERMINATIONS FINAL AND CONCLUSIVE AS TO THE AMOUNT PAYABLE UNDER THE CORRECTED RECORD. SEE, ALSO, DECISION OF JULY 7, 1954, 34 COMP. GEN. 7.

THE CORRECTION OF THE MILITARY RECORD OF PRIVATE MILLER DIRECTED BY THE SECRETARY OF THE ARMY IN MEMORANDUM OF MAY 21, 1948, CONSISTS OF NOTHING MORE THAN A CHANGE TO SHOW PRIVATE MILLER AS HAVING BEEN MEDICALLY SEPARATED FROM THE MILITARY SERVICE SEPTEMBER 8, 1945, IN LIEU OF THE DISHONORABLE DISCHARGE WHICH PREVIOUSLY HAD ISSUED. HOWEVER, HIS MILITARY RECORDS WERE NOT CORRECTED SO AS TO DELETE OR MODIFY THAT PORTION OF THE COURT-MARTIAL SENTENCES IN QUESTION IMPOSING FORFEITURE OF PAY AND ALLOWANCES. INSOFAR AS THE FORFEITURE OF PAY AND ALLOWANCES IS CONCERNED IT DOES NOT APPEAR THAT THE CORRECTION OF HIS RECORDS CHANGED PRIVATE MILLER'S RIGHTS IN ANY WAY. HOWEVER, THE $92.35 ITEM, REPRESENTING TRAVEL PAY (TRAVEL ALLOWANCE), DOES NOT APPEAR TO CONSTITUTE ANY PART OF THE STATUTORY PAY AND ALLOWANCES IN THE NATURE OF COMPENSATION PAYABLE TO THE CLAIMANT INCIDENT TO HIS ACTIVE MILITARY SERVICE, BUT RATHER IS A COMMUTATION OF TRANSPORTATION IN KIND THE RIGHT TO WHICH ACCRUES ONLY UPON DISCHARGE FROM THE MILITARY SERVICE. SEE 3 COMP. GEN. 207; 3 COMP. GEN. 534, 536. COMPARE SHERBURNE V. UNITED STATES, 16 C.1CLS. 491, 497.

SECTION 126 OF THE ACT OF JUNE 3, 1916, AS AMENDED BY THE ACT OF DECEMBER 14, 1942, 56 STAT. 1049, 10 U.S.C. 752, 1940 ED., SUPP. V--- THE TRAVEL ALLOWANCE LAW IN EFFECT ON THE DATE OF CLAIMANT'S DISCHARGE (SEPTEMBER 8, 1945/--- AUTHORIZED PAYMENT OF A TRAVEL ALLOWANCE OF FIVE CENTS PER MILE FOR THE DISTANCE FROM PLACE OF DISCHARGE TO PLACE OF ACCEPTANCE FOR ENLISTMENT, ENROLLMENT, OR MUSTER INTO THE SERVICE UPON DISCHARGE "EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE.' HENCE, THE PAYMENT OF TRAVEL ALLOWANCE UPON THE DISHONORABLE DISCHARGE OF THE CLAIMANT WAS PRECLUDED NOT BY THE FORFEITURE PROVISIONS OF THE COURT MARTIAL SENTENCE, BUT BY REASON OF THE RESTRICTION IN THE TRAVEL ALLOWANCE LAW, AND SINCE THE MILITARY RECORDS OF THE CLAIMANT NOW HAVE BEEN CORRECTED TO SHOW A MEDICAL SEPARATION IN LIEU OF THE DISHONORABLE DISCHARGE, IT WOULD APPEAR THAT HE IS ENTITLED TO THE $92.35 TRAVEL ALLOWANCE ITEM, IF OTHERWISE CORRECT. SEE DECISION OF TODAY TO YOU IN THE CASE OF WILLIE D. WILLS, 34 COMP. GEN. 95.

ACCORDINGLY, THE VOUCHER PRESENTED IS RETURNED HEREWITH AND PAYMENT OF TRAVEL ALLOWANCE IS AUTHORIZED. PAYMENT OF THE OTHER CREDIT ITEM (BASE PAY) ON THE VOUCHER IS NOT AUTHORIZED. A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE VOUCHER UPON WHICH PAYMENT IS MADE.